Citation: Raad v State of New South Wales [2017] NSWDC 63
Court: District Court of New South Wales
Date: 23 March 2017
Judge: Dicker SC DCJ
Background
The plaintiff attended the Albion Hotel in Parramatta with his wife in the early hours of 10 June 2012. After an altercation with a security guard outside the hotel, the plaintiff asked nearby security to call police so he could report the assault against him. When officers arrived, instead of taking his complaint, they issued him with an infringement notice for failing to leave licensed premises.
As the plaintiff and his wife walked away from the hotel entrance, police followed them. An exchange took place between the plaintiff and one of the officers, after which police grabbed the plaintiff, handcuffed him, and placed him in a caged police vehicle. He was conveyed to Parramatta Police Station and held until approximately 4.53am, when he was released to his wife.
The plaintiff subsequently contested the infringement notice. The Local Court dismissed the charge on 23 January 2013. He then brought civil proceedings against the State of New South Wales, claiming damages for false imprisonment, malicious prosecution, assault, and battery arising from the conduct of the police officers involved.
Legal Issues
- Whether the arrest and detention of the plaintiff were lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) and the Liquor Act 2007 (NSW)
- Whether the police officers committed the torts of false imprisonment, assault, battery, and malicious prosecution
- Whether the Civil Liability Act 2002 (NSW) applied to limit the plaintiff's claims, including whether the battery alleged was an intentional act within s 3B(1)(a)
- Whether the plaintiff's alleged intoxication constituted contributory negligence under the Civil Liability Act 2002 (NSW)
- Whether aggravated or exemplary damages were warranted
Decision
The District Court found in favour of the plaintiff on the tort of false imprisonment, awarding $20,000 in damages plus interest. The court accepted that the arrest lacked lawful justification on the facts established, and that the plaintiff had been unlawfully detained as a result.
On the question of exemplary damages for false imprisonment, the court declined to make an award. It found that the officers involved held a reasonable belief that the plaintiff was committing a further offence and would remain near the licensed premises if not detained. The court expressly found there was no high-handed, outrageous, or contumelious conduct, and no intention to arrest the plaintiff simply because he had irritated the officers.
On malicious prosecution, the court's primary finding did not support this claim. However, the court considered what damages would be appropriate on an alternative hypothesis, namely if the plaintiff's version of events were entirely preferred. On that alternative basis, an award of $25,000 for malicious prosecution was identified as appropriate, with a further $10,000 in exemplary damages also considered warranted given that on that version, Constable Blades would have recorded false details and continued a charge known to be unjustified for a dominant malicious purpose.
The court did not accept the defendant's contributory negligence argument under the Civil Liability Act 2002 (NSW). The State admitted vicarious liability for the relevant officers' conduct should the torts be proved.
Orders Made
- Judgment for the plaintiff
- Liberty to the parties to bring in short minutes of order reflecting the agreed judgment sum including interest
- The defendant to pay the plaintiff's costs of the proceedings as agreed or assessed
- Liberty to the parties to apply to vary the costs order
- Exhibits may be returned after 28 days
Key Takeaways
- The District Court confirmed that an arrest lacking lawful basis under LEPRA will ground a claim for false imprisonment against the State, which is vicariously liable for the conduct of its police officers.
- Exemplary damages for false imprisonment will not be awarded where the evidence establishes that officers held a reasonable belief an offence was being committed, even if the arrest ultimately proves unlawful; the conduct must rise to the level of being high-handed, outrageous, and contumelious.
- Where a charge is dismissed by the Local Court after a contested hearing, that outcome is a relevant foundation for a civil malicious prosecution claim, though success on that tort requires additional elements beyond the mere dismissal.
- A defendant's plea of contributory negligence based on the plaintiff's alleged intoxication did not succeed in this case; the court found the Civil Liability Act defence unavailable on the facts as established.
- The court's alternative damages analysis illustrates that fabrication of police records and continuation of a charge known to be unjustified could, on appropriate findings of fact, support both a malicious prosecution claim and an award of exemplary damages.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), including ss 3B(1)(a), 47-50
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99(3)(b), 230, 231
- Law Reform (Vicarious Liability) Act 1983 (NSW)
- Liquor Act 2007 (NSW), s 77
- Evidence Act 1995 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW)
Cases
- A v New South Wales (2007) 230 CLR 500
- Croucher v Cachia [2016] NSWCA 132
- Ruddock v Taylor (2005) 222 CLR 612
- State of New South Wales v Robinson [2016] NSWCA 334
- State of New South Wales v McMaster [2015] NSWCA 228
- State of New South Wales v Abed [2014] NSWCA 419
- Dowse v State of New South Wales [2012] NSWCA 337
- State of New South Wales v Koumdjiev [2005] NSWCA 247
- Fox v Percy (2003) 214 CLR 118
- Cassell & Co Ltd v Broome [1972] AC 1027
- Jones v Dunkel (1959) 101 CLR 298
- Browne v Dunn (1893) 6 R 67