Citation: Thomlinson v State of New South Wales [2016] NSWDC 369
Court: District Court of New South Wales
Date: 16 December 2016
Judge: Hatzistergos DCJ
Background
In the early hours of 3 December 2011, the plaintiff attended a licensed venue called the Shore Club at Manly. At around 12:12am, he was forcibly ejected by police officers and subsequently arrested. He was transported away from the venue, and the incident gave rise to both criminal proceedings against him in the Local Court and the present civil action.
The plaintiff sued the State of New South Wales, which admitted vicarious liability under the Law Reform (Vicarious Liability) Act 1983 (NSW) for the conduct of five named police officers: Leading Senior Constable Church, Constable O'Donnell, Senior Constable Renshaw, Constable Grime, and Constable Doring. None of those officers were called to give evidence at trial.
The plaintiff alleged that the officers assaulted and battered him on multiple occasions during the incident, unlawfully arrested him without reasonable grounds, falsely imprisoned him following that arrest, and maliciously prosecuted him in relation to the criminal charges that followed.
Legal Issues
- Whether security's approach to the plaintiff gave grounds for his removal, and whether his implied licence to remain on the premises was validly revoked
- Whether the requirements of s 77(5) of the Liquor Act 2007 (NSW) were satisfied before the plaintiff could be excluded from the premises (including whether he was intoxicated, violent, quarrelsome or disorderly)
- Whether a breach of the peace justified removing the plaintiff from the venue
- Whether the officers had reasonable grounds to suspect an offence had been committed, so as to justify arrest under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Whether the plaintiff's arrest was lawful, and whether his subsequent detention constituted false imprisonment
- Whether the elements of malicious prosecution were established, including absence of reasonable and probable cause and the presence of malice
- The appropriate measure of compensatory, aggravated and exemplary damages, including the operation of the Civil Liability Act 2002 (NSW)
Decision
Trespass and assault claims: Hatzistergos DCJ found that the plaintiff had been subjected to multiple acts of assault and battery by police officers. The court examined the circumstances in four discrete episodes (described as the first, second, third and fourth assaults) and found that the use of force was not justified in the relevant circumstances. The officers could not rely on lawful authority to excuse the physical contact.
Revocation of implied licence and removal from premises: The court analysed whether the plaintiff's implied licence to remain at the Shore Club had been validly revoked and whether the conditions in s 77(5) of the Liquor Act 2007 (NSW) were satisfied. The provision permits removal of a person from licensed premises where they are intoxicated, violent, quarrelsome or disorderly. The court was not satisfied that the plaintiff met those criteria, and the purported removal under that provision was therefore not lawfully justified. The breach of the peace argument was similarly rejected on the facts.
Unlawful arrest and false imprisonment: The court found that the arresting officer lacked reasonable grounds to suspect that the plaintiff had committed an offence. The arrest under s 99 of LEPRA was therefore unlawful, and the plaintiff's subsequent detention constituted false imprisonment.
Malicious prosecution: The court assessed whether the prosecution of the plaintiff in the Local Court was brought without reasonable and probable cause and was actuated by malice. After considering all relevant facts and applying the principles from cases including A v New South Wales (2007) 230 CLR 500, the court made findings adverse to the State on these elements, and the malicious prosecution claim succeeded.
Damages: The court assessed compensatory damages by reference to the physical and psychological harm suffered. The operation of the Civil Liability Act 2002 (NSW), including its exclusions under s 3B for intentional torts, was considered in determining the applicable framework. The court awarded a total verdict of $147,796.
Orders Made
- Verdict and judgment for the plaintiff in the sum of $147,796 (rounded down)
- The parties were to be heard on interest and costs
Key Takeaways
- Police officers relying on s 99 of LEPRA to make a warrantless arrest must hold objectively reasonable grounds to suspect that an offence has been committed; an absence of such grounds renders the arrest unlawful and any resulting detention a false imprisonment.
- Under s 77(5) of the Liquor Act 2007 (NSW), the power to exclude a person from licensed premises is conditioned on that person being intoxicated, violent, quarrelsome or disorderly; the threshold must actually be met, and cannot be assumed from the circumstances of police presence alone.
- Where none of the defendant's key witnesses are called at trial, the court may draw adverse inferences against the party that failed to call them, particularly when those witnesses are directly involved in the central events in dispute.
- A claim for malicious prosecution requires proof that the prosecutor acted without reasonable and probable cause and was actuated by malice; the District Court found both elements satisfied against the State on the facts of this case.
- The Civil Liability Act 2002 (NSW) does not apply to all heads of damage where the conduct in question constitutes an intentional act done with intent to cause injury; s 3B operates to exclude such claims from the Act's general limitations.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2002 (NSW), ss 3B, 5, 11, 26A, 27, 51, 52, 53, 54
- Crimes Act 1900 (NSW), s 58
- Evidence Act 1995 (NSW), ss 136, 140
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 5(1), 23(1), 24, 99(2), 99(3), 201, Sch 1
- Law Reform (Vicarious Liability) Act 1983 (NSW), s 9B(2)
- Liquor Act 2007 (NSW), ss 5(1), 5(3), 77(4), 77(5)
- Police Act 1990 (NSW), s 6(3)
Cases:
- A v New South Wales (2007) 230 CLR 500; [2007] HCA 10
- Brierley v Ellis [2014] NSWCA 230
- Cowell v Rosehill Racecourse Company Limited (1937) 56 CLR 605
- Coyle v State of New South Wales [2006] NSWCA 95
- Fernando v Commonwealth and Anor (2014) 315 ALR 547; [2014] FCAFC 181
- Fontin v Katapodis (1962) 108 CLR 177; [1962] HCA 63
- Glinski v McIver [1962] AC 726
- HD v State of New South Wales [2016] NSWCA 85
- Manly Council v Byrne and Anor [2002] NSWCA 123
- Mason v Demasi & Anor [2009] NSWCA 227
- New South Wales v Delly (2007) Aust Torts Reports 81-920; [2007] NSWCA 303
- New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57
- Payne v Parker (1976) 1 NSWLR 191
- Poidevin v Semaan [2013] NSWCA 334