Citation: Tabbaa v State of New South Wales; Tabbaa v State of New South Wales [2025] NSWDC 495
Court: District Court of New South Wales
Date: 28 November 2025
Judge: Weber SC DCJ
Background
Two self-represented plaintiffs, a father and son referred to throughout proceedings as Mr Tabbaa Senior and Mr Tabbaa Junior, brought separate but related civil claims against the State of New South Wales arising from police arrests in June and July 2018. The arrests followed a report of a brawl at a Rockdale address, where a complainant told police he had been assaulted by both men. Both plaintiffs were arrested on 25 June 2018 and subsequently released after the complainant withdrew his willingness to provide a statement.
The complainant later provided a formal statement on 29 June 2018. Mr Tabbaa Senior was then arrested again on 7 July 2018 and charged with intimidation under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Mr Tabbaa Junior was arrested on 19 July 2018, after several unsuccessful attempts to locate him, and charged with being armed with intent to commit an indictable offence and assault occasioning actual bodily harm under the Crimes Act 1900 (NSW).
Mr Tabbaa Senior pleaded wrongful arrest, false imprisonment, trespass to land, and malicious prosecution. Mr Tabbaa Junior pleaded false imprisonment, assault and battery, trespass to goods, and malicious prosecution. Both plaintiffs appeared in person throughout the hearing.
Legal Issues
- Whether the plaintiffs' cases were closed when they declined to give any evidence in chief
- Whether the malicious prosecution and trespass claims (Mr Tabbaa Senior) and the malicious prosecution claim (Mr Tabbaa Junior) should be struck out under r 29.10 of the Uniform Civil Procedure Rules 2005 (NSW) in the absence of any supporting evidence
- Whether the arrests on 25 June 2018 were lawful under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)
- Whether the subsequent arrests of Mr Tabbaa Senior on 7 July 2018 and Mr Tabbaa Junior on 19 July 2018 were lawful
- Whether the consequential claims of false imprisonment, assault and battery, and trespass to goods were established
Decision
Striking out of claims. At the outset of the hearing, both plaintiffs declined to enter the witness box or adduce any evidence in chief, despite the court's warnings about the consequences of that choice. The court found their cases were thereby closed. The defendant moved to strike out the malicious prosecution claims of both plaintiffs and the trespass to land claim of Mr Tabbaa Senior under r 29.10 of the UCPR. The plaintiffs were offered the opportunity to apply to reopen their cases but declined to do so. Because the plaintiffs bore the onus of proof on those causes of action and had led no evidence, the claims necessarily failed and were struck out.
Lawfulness of the 25 June 2018 arrests. The court examined whether the arresting officers held a reasonable suspicion that an offence had been committed (satisfying s 99(1)(a) of LEPRA) and whether arrest was reasonably necessary for one of the prescribed reasons (s 99(1)(b)). The court found that the officers' knowledge of the complainant's account of assault, obtained at the scene, provided the requisite reasonable grounds for suspicion. The necessity requirement was also satisfied on the evidence before the court.
Lawfulness of the 7 July 2018 arrest (Mr Tabbaa Senior). The court applied the same two-limbed LEPRA analysis to the second arrest of Mr Tabbaa Senior, following the complainant's formal statement. The court was satisfied that Constable Smith held reasonable grounds for suspicion and that the arrest was reasonably necessary in the circumstances.
Lawfulness of the 19 July 2018 arrest (Mr Tabbaa Junior). Sergeant Spencer arrested Mr Tabbaa Junior in the early hours of 19 July 2018 after multiple failed attempts to locate him over several weeks. The court accepted Sergeant Spencer's unchallenged evidence that he held reasonable grounds to suspect Mr Tabbaa Junior had committed the charged offences, based on the event report and the presence of a baseball bat in the vehicle. The court found the arrest was also reasonably necessary, given the seriousness of the offences, the need to protect the victim and witnesses through bail conditions, and the reasonable inference that Mr Tabbaa Junior had been evading arrest. Because the arrest was lawful, the consequential claims of false imprisonment, assault and battery, and trespass to goods arising from that arrest also failed. Judgment was entered for the defendant in both sets of proceedings.
Orders Made
- Judgment and verdict for the defendant against the plaintiff in each set of proceedings.
- Costs reserved (the court indicated it would hear the parties on costs).
Key Takeaways
- Where plaintiffs elect to adduce no evidence in chief, their cases are closed, and claims on which they bear the onus of proof will fail for want of evidence. The District Court here struck out malicious prosecution and trespass claims on that basis and refused to permit reopening when the plaintiffs declined to make such an application.
- Under s 99 of LEPRA, a lawful warrantless arrest requires both a reasonable suspicion that an offence has been committed (s 99(1)(a)) and satisfaction that arrest is reasonably necessary for one of the prescribed statutory reasons (s 99(1)(b)). Both limbs must be established independently.
- A complainant's account of assault given to police at the scene can be sufficient to ground the reasonable suspicion required by s 99(1)(a), even where the complainant later vacillates about providing a formal statement.
- Where a plaintiff's false imprisonment, assault and battery, and trespass to goods claims are pleaded as consequential on the unlawfulness of an arrest, establishing the lawfulness of the arrest is sufficient to defeat all those derivative claims.
- Unchallenged evidence from an arresting officer regarding the reasons for arrest carries significant weight. Sergeant Spencer's account of his reasoning under s 99(1)(b) was accepted in full because it was not directly challenged in cross-examination.
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 4, 99, 105, 115, 201, 202
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13, 19
- Crimes Act 1900 (NSW), ss 59, 114
- Uniform Civil Procedure Rules 2005 (NSW), r 29.10
Cases
- AD v State of New South Wales [2023] NSWCA 115
- Christie v Leachinsky [1947] AC 573
- Dowse v State of New South Wales [2012] NSWCA 337
- Hyder v Commonwealth of Australia [2012] NSWCA 336
- Johnstone v State of New South Wales [2010] NSWCA 70
- Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
- New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46
- State of New South Wales v Abed [2014] NSWCA 419
- State of New South Wales v Dennis [2025] NSWCA 118
- State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40
- State of New South Wales v Randall [2017] NSWCA 88