Hynard and Lerch, ‘The Tort of Collateral Abuse of Process’

The tort of collateral abuse of process has an enigmatic place in Australian tort law. Although Australian courts regularly debate and question the elements of this tort, as most recently demonstrated by the decision of the New South Wales Court of Appeal in Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734, its exact formulation has been perpetually in dispute. Courts are given little assistance when they turn to Australian scholarship, as the tort has been the subject of limited academic scrutiny. In pursuit of greater clarity, this article offers a scholarly exploration of the contested tort of collateral abuse of process. The authors propose that it is only by accepting that the tort exists to compensate the wronged individual, punish and deter the tortfeasor, and maintain the integrity of the judicial process, that its precise elements can be properly assessed and coherently formulated.

Emerson Hynard and Aiden Lerch, The Tort of Collateral Abuse of Process 44 University of New South Wales Law Journal (2) 714 (June 2021).

First posted 2021-06-29 11:00:10

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