Citation: Wayne Quirk v The State of New South Wales [2011] NSWSC 341
Court: Supreme Court of New South Wales
Date: 3 June 2011
Judge: Grove AJ
Background
The plaintiff was a man subject to an apprehended violence order (AVO) obtained by his former partner, who was the mother of his two children. The AVO permitted contact by SMS for children-related issues. On 31 January 2006, the plaintiff's former partner was at a police station with a constable when an incoming call from the plaintiff was placed on speaker. The constable intervened in the call and asked the plaintiff to attend the station.
On 1 March 2006, police attended the plaintiff's business at Kingswood. Officers physically removed him from his vehicle and handcuffed him. He was conveyed to Penrith Police Station, where he was held for approximately seven hours before being released on bail. Police charged him with four offences: contravening the AVO, resisting a police officer, failing to undergo a breath test, and refusing to produce a driving licence. A gold necklace he had been wearing was not returned when his property was handed back.
A separate incident on 7 March 2006 involved the plaintiff riding a motorcycle through Sydney's CBD in a manner that prompted police pursuit. He ultimately abandoned the motorcycle in the grounds of Government House and was located near the Conservatorium of Music, where officers arrested him after some physical contact. His treating psychiatrist arrived at the scene but was not permitted to intervene. The plaintiff was charged with further offences and bailed from The Rocks Police Station.
Legal Issues
- Whether the arrests and physical removal of the plaintiff on 1 March 2006 and 7 March 2006 constituted assault
- Whether the plaintiff's detention on 1 March 2006 constituted false imprisonment
- Whether the prosecution arising from the 1 March 2006 events constituted malicious prosecution
- Whether the issue of court attendance notices amounted to abuse of legal process
- Whether the State was liable for the failure to return the plaintiff's gold necklace (in detinue or conversion)
Decision
Grove AJ found against the plaintiff on the assault claims arising from both the Kingswood and botanical gardens arrests. The court accepted that the degree of force used was not unlawful in the circumstances and that the officers were acting within their lawful authority in effecting the arrests.
The false imprisonment claim in respect of the approximately seven-hour detention at Penrith Police Station also failed. The court was not satisfied that the detention was without lawful justification.
However, the malicious prosecution and abuse of process claims in relation to the four court attendance notices succeeded. The court found that the investigating constable had "thrown the book" at the plaintiff, instituting all available charges without proper foundation. Grove AJ concluded that the prosecution was brought maliciously and that the process of the court had been abused. The court described the malicious use of legal process as striking at "a critical element in the conduct of an ordered society" and awarded $75,000 in exemplary (punitive) damages for the abuse of process tort, reflecting the need to mark the seriousness of the conduct.
The court also made a finding in favour of the plaintiff regarding the gold necklace. Total damages were assessed at $175,000, though the precise breakdown across the individual heads of damage is not fully set out in the portion of the judgment available.
Orders Made
- Judgment entered for the plaintiff in the sum of $175,000
- Liberty to apply for costs orders reserved
Key Takeaways
- The Supreme Court found that instituting the maximum number of available charges without proper basis can constitute both malicious prosecution and abuse of legal process, warranting significant exemplary damages.
- A substantial exemplary damages award of $75,000 was made specifically to mark the seriousness of abusing court process, reflecting the court's view that community confidence in the administration of justice demands such a response.
- Malicious prosecution and abuse of process are distinct torts: the plaintiff pleaded the latter as "further and in the alternative," and the court treated abuse of process as a separately actionable wrong.
- Claims of assault and false imprisonment against police officers require the plaintiff to establish that force used or detention imposed was beyond what was lawfully authorised; here, those claims failed on the facts even though the abuse of process claims succeeded.
- Under the relevant statutory framework, claims in tort against individual police officers are brought against the State of New South Wales as the nominal defendant.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW)
Cases:
- Commonwealth Life Assurance Society v Smith (1938) 59 CLR 527
- Covington-Thomas v Commonwealth of Australia [2007] NSWSC 779
- Davis v Gell (1924) 35 CLR 275
- Hathaway v State of New South Wales [2009] NSWSC 116
- State of New South Wales v Hathaway [2010] NSWCA 184
- State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003