Citation: Makri v State of New South Wales [2015] NSWDC 131
Court: District Court of New South Wales
Date: 19 June 2015
Judge(s): Gibson DCJ
Background
Late at night in June 2013, two police constables observed a van behaving suspiciously outside a Bondi address. After stopping the vehicle, police discovered a motorcycle in the back that the registered owner confirmed had been taken without permission. Both the plaintiff and the driver were arrested, handcuffed, and taken to Waverley Police Station.
The plaintiff's claim was confined to the approximately ten minutes during which he was handcuffed. He alleged that the application of handcuffs behind his back caused him physical discomfort in his upper arms, shoulders and wrists, as well as emotional distress, humiliation, and loss of dignity. He did not challenge the lawfulness of the arrest itself.
The State of New South Wales, as the defendant representing the arresting officers, denied that the handcuffing constituted an unreasonable or excessive use of force.
Legal Issues
- Whether applying handcuffs to the plaintiff during his arrest constituted an unreasonable use of force, and therefore the tort of assault and battery.
- If liability was established, what compensatory damages were appropriate, including whether aggravated and exemplary damages were available.
- Whether the defendant should be permitted to withdraw an admission that the plaintiff had been handcuffed from behind rather than in front.
- Whether, if the plaintiff had succeeded, costs would follow in the District Court or whether the proceedings should have been commenced in the Local Court.
Decision
Gibson DCJ dismissed the plaintiff's claim, finding that the handcuffing was not an unreasonable use of force in the circumstances. The plaintiff had been found in possession of a motorcycle confirmed as stolen, was known to police, was unlicensed, and was on a bond. Applying handcuffs to a person lawfully arrested in those circumstances did not exceed what was reasonably necessary.
On the question of aggravated and exemplary damages, the court found no basis to award either. The plaintiff's submission that Constable Bailey had tailored his evidence was rejected. The court was satisfied that the conduct of the officers did not warrant damages intended either to compensate for contumelious behaviour or to punish and express judicial detestation.
The defendant's application to withdraw an admission that the plaintiff had been handcuffed from behind was refused. The admission had been made inadvertently and the defendant only informed the plaintiff a week before the hearing, without adequate explanation for the delay. The court found the lateness of the application, the inadequate explanation, and the resulting prejudice to the plaintiff all pointed against granting leave.
On costs, the court noted that even if the plaintiff had succeeded, it would not have awarded costs in his favour. The District Court found the claim was suitable for the Local Court, given the modest and speculative nature of the damages claimed, the straightforward factual matrix, and the Local Court's regular familiarity with police evidence and credit assessments.
Orders Made
- Judgment for the defendant.
- Plaintiff to pay the defendant's costs.
- Liberty to apply in relation to costs.
- Exhibits retained for 28 days.
Key Takeaways
- Handcuffing a person during a lawful arrest does not automatically constitute assault and battery; the question turns on whether the degree of force applied was reasonable in the circumstances of the particular arrest.
- Aggravated compensatory damages require conduct by the defendant that is contumelious or deserving of condemnation beyond ordinary negligence or misjudgement; a rejected credit challenge against a police witness does not meet that threshold.
- Under rule 12.6 of the UCPR, an application to withdraw an admission will be refused where the explanation for the delay is unsatisfactory and the other party would suffer real prejudice, particularly if the only remedy for that prejudice would be an adjournment.
- The District Court applied rule 42.35 of the UCPR and confirmed that proceedings resulting in damages below $40,000 must be shown to have been warranted in the District Court rather than the Local Court; complexity of police evidence and credit findings alone does not justify elevation to the higher court.
- In assessing exemplary damages, the court confirmed that such an award requires conduct meriting punishment or reflecting detestation, consistent with the High Court's analysis in Lamb v Cotogno (1987) 164 CLR 1; the threshold was not met on the facts here.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 66
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230 and 237
- Police Act 1990 (NSW), ss 6 to 8
- Uniform Civil Procedure Rules 2005 (NSW), rr 12.6 and 42.35
Cases
- Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
- Lamb v Cotogno (1987) 164 CLR 1
- Maile v Rafiq [2005] NSWCA 410
- Silver v Dome Resources NL [2005] NSWSC 265
- Adams v Kennedy (2000) 49 NSWLR 78
- Chen v New South Wales [2014] NSWCA 41
- Clavel v Savage [2013] NSWCA 775
- Jones v Dunkel (1959) 101 CLR 298
- Cassell & Co Ltd v Broome [1972] 2 WLR 645
- Additional cases as cited in the judgment