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District Court 29 April 2016

Benecke v Wall

[2016] NSWDC 118

Assault & violence
CIVIL PRACTICE AND PROCEDURE DEFENDANT CROSS FIGHT OCCURRED 19 NOVEMBER 2011 PROCEEDINGS COMMENCED 18 NOVEMBER 2014 RELIEF CLAIMED DISCRETIONARY

Citation: Benecke v Wall [2016] NSWDC 118
Court: District Court of New South Wales
Date: 29 April 2016
Judge: Neilson DCJ

Background

The proceedings arose from a physical altercation at a TAB venue in Minto, New South Wales on 19 November 2011. The plaintiff brought personal injury proceedings against the defendant for injuries including damage to his left forearm and hand, bruising, abrasions, and shock. Proceedings were commenced on 18 November 2014, nearly three years after the incident.

The defendant filed a defence and later amendments raising self-defence and statutory defences under the Civil Liability Act 2002. The defendant also brought a cross-claim against the plaintiff, alleging he was himself assaulted and battered during the same altercation.

By notice of motion filed 30 March 2016, the plaintiff sought leave to amend the statement of claim in two respects: to add claims for aggravated and exemplary damages, and to add a new cause of action in false imprisonment. The defendant did not oppose the damages claims but contested the proposed false imprisonment amendments.

  • Whether the plaintiff should be granted leave to add a cause of action in false imprisonment arising from the defendant allegedly restraining or blocking the plaintiff during the altercation
  • Whether the false imprisonment claim was sufficiently arguable and would advance the plaintiff's position to justify the amendment at this stage of the proceedings
  • Whether leave should be granted to add claims for aggravated and exemplary damages

Decision

On the false imprisonment issue, Neilson DCJ reviewed CCTV footage from multiple cameras within and outside the TAB. The entire altercation outside the TAB lasted no more than approximately 21 to 30 seconds, and any restraint of the plaintiff would have lasted only a matter of seconds. The court acknowledged, drawing on the Court of Appeal's decision in McDonald v Coles Myer, that even a very brief deprivation of liberty can constitute the tort of false imprisonment. The cause of action was therefore technically arguable.

Despite its arguability, the court refused leave to add the false imprisonment claim. Three considerations drove that conclusion. First, any damages recoverable would be minuscule, given the fleeting nature of any restraint. Second, the application was made late, the matter had already been listed for hearing, and adding the cause of action would increase hearing time without meaningfully increasing the plaintiff's damages. Third, the plaintiff had been dilatory in complying with the rules and court orders, yet was seeking an indulgence from the court. In those circumstances, the court exercised its discretion against granting leave.

The court did grant leave to amend the statement of claim to include claims for aggravated and exemplary damages. The defendant's counsel conceded those heads of damages could not properly be opposed, as they were matters for the plaintiff to establish at trial.

The plaintiff was also ordered to supply, within 42 days, any outstanding material referred to in two letters from the defendant's solicitors, noting the plaintiff had not complied with obligations under UCPR rule 15.12.

Orders Made

  • Leave refused to amend the statement of claim by adding the proposed false imprisonment paragraphs (paragraphs 16 to 19 of the proposed amended statement of claim)
  • Leave granted to amend the relief claimed to include aggravated and exemplary damages
  • The plaintiff ordered to supply to the defendant, within 42 days, any outstanding material referred to in the defendant's solicitor's letters of 16 February 2016 and 29 February 2016
  • Costs of the notice of motion ordered to be the defendant's costs in the cause

Key Takeaways

  • Even a deprivation of liberty lasting only seconds can, in principle, constitute the tort of false imprisonment under NSW law, as confirmed by the Court of Appeal in McDonald v Coles Myer and acknowledged here.
  • A technically arguable cause of action will not automatically attract leave to amend. The District Court applied a discretionary analysis weighing the weakness of the claim, the likely quantum of damages, the lateness of the application, and the plaintiff's prior non-compliance with court rules.
  • Where the anticipated damages from a proposed new cause of action are minuscule and the amendment would add to hearing time, those factors weigh heavily against the exercise of discretion in favour of amendment.
  • Under the overriding purpose provisions of the Civil Procedure Act 2005 (NSW), both parties and their legal representatives are required to assist the court in achieving the just, quick, and cheap resolution of proceedings. The plaintiff's failure to comply with rules was directly relevant to the court's refusal of the indulgence sought.
  • Claims for aggravated and exemplary damages in trespass proceedings are not, of themselves, a basis for objection by a defendant; they are matters going to quantum for the trial judge to assess.

Legislation and Cases Referenced

Legislation:
- Civil Liability Act 2002 (NSW)
- Civil Procedure Act 2005 (NSW), s 56
- Uniform Civil Procedure Rules 2005 (NSW), r 15.12

Cases:
- McDonald v Coles Myer Limited (trading as K Mart Chatswood) (1995) Aust Torts Reports 81-361 (NSW Court of Appeal)
- Meering v Graham White Aviation Co (1920) 122 LT 44 (referenced in Bullen & Leake discussion of false imprisonment)