Anderson v State of New South Wales & Anor

The Causes of Action

1. Proceedings were not commenced until 15 July 2021, that is to say over 10 years after the events in question.
2. The statements of claim plead the following causes of action: 1. False imprisonment; 2. Assault; 3. Battery.
3. The assault alleged is the strip search, in respect of which it was pleaded that the actions of the police put the plaintiffs in fear of immediate physical contact with the police, if they did not comply with police directions.
4. The battery was constituted by the pat down search of the plaintiffs by the police at the University of New South Wales. There was a suggestion of a second pat down search at the police station, but it was accepted by the plaintiffs that a second pat down search could not be established on the evidence, and the issue was not pressed.
5. Each plaintiff seeks general damages, together with aggravated and exemplary damages.

No plea of justification

1. Initially the defendant State pleaded the lawfulness of the imprisonment pursuant to the provisions of s 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"), however by an amended defence filed in court on the first day of the hearing, that defence was withdrawn.
2. The State did not admit that the pat down search or the strip-search had taken place, but at the end of the day did not put to either plaintiff that the events did not in fact occur.
3. I find that they did occur in terms described by the plaintiffs, which I have set out above.
4. The State relied upon its defence that the proceedings were statute barred pursuant to the provisions of the Limitation Act 1969 (NSW). It was common ground that the State bears the onus of proving such defence.

The Plaintiffs' Primary Case in Relation to the Limitation Act Defence

1. The plaintiffs' primary case is that the strip searches constituted child abuse for the purposes of s 6A Limitation Act. The other causes of action pleaded were said to constitute "connected abuse" pursuant to s 6A(2)(c) of the Limitation Act.
2. If this can be established then these proceedings can be brought at any time (s 6A(1)).
3. The plaintiffs say that the transitory anxiety and stress which they suffered in the strip search, and the apprehension of physical contact, constitutes personal injury for the purposes of both s 3B of the Civil Liability Act 2002 (NSW), and s 11 of the Limitation Act. In this regard they relied upon State of New South Wales v Ibbett (2005) 65 NSWLR 168 at [11] per Spielman CJ, at [124]-[125] per Ipp JA, and at [218] per Basten JA.
4. I did not understood the State to put this contention in dispute, which I accept.
5. Section 6A(1) and (2) are in the following terms: "6A No limitation period for child abuse actions (1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act. (2) In this section, "child abuse" means any of the following perpetrated against a person when the person is under 18 years of age - (a) sexual abuse, (b) serious physical abuse, (c) any other abuse ("connected abuse") perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse)."
6. The Limitation Act does not define either of the concepts of "sexual abuse" or "serious physical abuse".
7. The parties were in agreement that there was no case law to guide me in relation to the meaning to be ascribed to the term of "sexual abuse" where it appears in s 6A(2)(a) of the Limitation Act.
8. In those circumstances, and relying on s 34(2) of the Interpretation Act 1987 (NSW), the plaintiffs submitted that in construing that expression, I should have regard to the Second Reading Speech, and to the Report of the Royal Commission into Institutional Responses to Child Sexual Abuse ("the Royal Commission").
9. The plaintiffs submitted that as the Second Reading Speech in the Legislative Assembly of 16 February 2016 makes clear, the Bill was introduced in light of the recommendations made in Chapter 14 of the report by the Royal Commission. The Second Reading Speech refers to the definition of "sexual abuse" adopted by the Royal Commission. The Royal Commission considered child sexual abuse to be: "Any act which exposes a child to, or involves a child in, sexual processes beyond his or her understanding or contrary to accepted community standards. Sexually abusive behaviours can include the fondling of genitals, masturbation, oral sex, vaginal or anal penetration by a penis, finger or any other object, fondling of breasts, voyeurism, exhibitionism, and exposing the child to or involving the child in pornography. It includes child grooming, which refers to actions deliberately undertaken with the aim of befriending and establishing an emotional connection with a child, to lower the child's inhibitions in preparation for sexual activity with the child."
10. The Royal Commission also acknowledged that there was no standard definition of child sexual abuse within Australia, and that definitions were based on community and legal standards, which change over time: Final Report: Volume 2, Nature and Cause, page 30, part 2.1.
11. The Royal Commission said that child sexual abuse may involve a wide range of behaviours, and can take many different forms: Final Report: Volume 2, Nature and Cause, part 2.1.1. It then went on to outline various forms of child sexual abuse commonly reported to it in private sessions. One form of child sexual abuse reported to the Commission concerned the violation of a child's privacy.
12. The Royal Commission said in respect of this form of child sexual abuse (s 2.1.1): "Violation of privacy includes forcing a child to undress or watching a child in a private space, such as a bedroom or bathroom. It is also described as voyeurism or 'peeping'. In private sessions, 23.9% of all survivors who told us about the form of sexual abuse described experiencing this form of abuse. Violation of privacy can also be part of grooming, used to break down the child's inhibitions, normalise sexualised behaviour, and assert dominance over the child. Grooming is discussed in more detail in s 2.2."
13. The plaintiffs asserted that each of them was forced to undress in front of two male police officers, exposing their genitalia.
14. They went on to submit that absent lawful justification for forcing the plaintiffs to undress, the actions of the relevant police officers fit within the definition of "sexual abuse", being a violation of privacy in the sense of forcing a child to undress, as described by the Royal Commission.
15. Further, they asserted that absent lawful justification for doing so, the demand by the officers that each plaintiff hold and move his genitalia to allow for an inspection was an act involving the plaintiffs in a sexual process contrary to accepted community standards.
16. The plaintiffs drew my attention to the fact that the Second Reading Speech states that the Bill requires courts to determine whether or not abuse has occurred having regard to the circumstances of each individual case, and the ordinary meaning of the term "sexual abuse" or "serious physical abuse". It was submitted that the Second Reading Speech states that the term "child abuse" should be interpreted in a beneficial manner, that is, for the benefit of those people who claim to have suffered personal injury as a result of child abuse.
17. I do not accept the plaintiffs' contention that the strip search constituted any form of child sexual abuse.
18. No doubt watching a child undress, or forcing him or her to do so, in certain circumstances may amount to a violation of the child's privacy, involving sexual abuse. However in my view not every case in which such behaviour occurred would necessarily do so. In my view a sexual connotation must be present before behaviour of this nature could constitute child sexual abuse. I believe that this is in fact clear from the extract from the Royal Commission report referring to "Violation of Privacy" to which the plaintiffs refer. What I believe the Royal Commission was considering in that paragraph was conduct which could be "described as voyeurism or peeping". These well-known forms of behaviour have clear sexual connotation.
19. Here the strip searches, although clearly regrettable, had no such sexual connotation, and the plaintiffs did not suggest that they did. Thus, to my mind the strip-search did not constitute "child abuse" for the purposes of s 6A of the Limitation Act.

The Plaintiff's Alternate Position on the Limitation Act

1. The plaintiffs' alternative position in respect of the State's limitation defence is that their respective causes of action were in respect of personal injury, and for the purposes of s 50A of the Limitation Act. They say that their causes were discoverable no sooner than about March 2021, being the time when they were first in contact with their current solicitors. They contend that as a consequence the actions have been commenced within the three year limitation period specified in s 50C(1)(a).
2. The plaintiffs went on to submit that as each proceeding was commenced in this Court within the three year period, the defendant bears the onus of establishing that the causes of action pleaded were "discoverable" prior to 15 July 2018: State of New South Wales v Gillett [2012] NSWCA 83 at [26].

Section 50F

1. Section 50F(1) of the Limitation Act provides that if a person has a cause of action for which a limitation period has commenced to run, and the person is "under a disability", the running of the limitation period is suspended for the duration of the disability.
2. It is clear that a minor is a person who is relevantly "under a disability". However, a minor is not considered to be "under a disability" while the minor has a "capable parent or guardian": s 50F(2)(a). The Act defines "capable parent or guardian" of a minor as meaning a person who is a parent or guardian of the minor, and who is not themselves under a disability (see s 50F(4)).
3. Jade had two "guardians", his grandmother Gail and mother Melissa. His grandmother was given parental responsibility in respect of residence, education and training, religious upbringing and medical treatment pursuant to s 79(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Melissa and Jade's father (now deceased) were given parental responsibility in respect of all matters in s 79(2), except residence.
4. The capable parent for Blade was his grandmother Josephine Perri. The evidence disclosed that Blade also had the benefit of the guardianship of his aunt Elise Perri.
5. I shall refer to the capable parent or guardian of each of the plaintiffs generically as "the Capable Person".

Section 50D

1. Section 50D(1) provides that a cause of action is "discoverable" by a person on the first date that the person knows, or ought to know, of each of the following facts: 1. The fact that the injury or death concerned has occurred, 2. The fact that the injury or death was caused by the fault of the defendant, 3. In the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action ("the s 50D(1)(c) Fact").
2. Section 50D(2) provides that a person "ought to know" of a fact, at a particular time, if the fact would have been ascertained by the person, had the person taken all reasonable steps before that time to ascertain the fact. In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person: s 50D(3).
3. Section 50F(3) provides that in determining when a cause of action is discoverable by a person who is a minor, facts that are known or ought to be known by a capable parent or guardian of a minor, are taken to be facts that are known or ought to be known by the minor.
4. It is therefore necessary to examine the knowledge of each Capable Person from 7 April 2011 up to the date when each plaintiff turned 18.
5. It is also necessary to examine what steps were taken by each Capable Person to ascertain the facts mentioned in s 50D(1).
6. I turn then to each of the Facts which are required to be discoverable for the purposes of section 50D(1) of the Limitation Act.

Section 50D(1)(a) - The Fact that the Injury or Death Concerned Has Occurred

1. The plaintiffs submitted that the anxiety and stress to which they were subjected, were not readily apparent to the relevant Capable Person. It was submitted that the injuries were "not traditional physical or psychological injuries which are readily apparent".
2. I do not accept that this is the case. To my mind the transitory changes in mood and state of mind with which the plaintiffs' cases are concerned, being temporary states of anxiety and stress, are virtually inherent and indeed inevitable in the events in question. In my view any boys subjected to such an experience would feel such emotions, and those caring for them, such as the Capable Persons, would readily understand that this would be the case.
3. Indeed the evidence that both boys were reticent to discuss what had occurred to my mind only serves to reinforce this fact.
4. I find the s 50D(1)(a) Fact established.

Section 50D(1)(b) - The Injury or Death Was Caused By the Fault of the Defendant

1. The plaintiffs submitted that this fact could not be discovered, as the Capable Person would not have known either actively, or constructively, of the defences to the various torts, which the defendant might raise. These defences included such defences as justification under s 99 of LEPRA, or in respect of the strip-search the requirements of ss 31 to 33 of LEPRA. On the plaintiffs' case, they would also include justificatory defences to the assault and battery claims.
2. I do not accept this submission. I believe that it overstates the fact which must be established. In my view what is required in cases of intentional tort, such as the present, is that the Capable Person is aware of the fact that the injury, in this case stress, was caused in fact by the defendant. In my view the Capable Person need not foresee what justificatory defences upon which the defendant may rely.
3. Rather, what is required was explained by Basten JA in Baker-Morrison v State of New South Wales [2009] NSWCA 35 at [39] where his Honour stated: "As explained in Drayton, there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. It is the key factors necessary to establish legal liability which must be known." (my emphasis)
4. The correctness of this observation was confirmed by a Court of Appeal consisting of five judges in State of New South Wales v Gillett.
5. In the present proceedings, in my view, in each case, the Capable Person of each of the plaintiffs were aware of the "key factors necessary to establish legal liability".

Section 50(1)(c) - The Fact That the Injury Was Sufficiently Serious to Justify the Bringing of An Action on the Cause of Action.

1. In Gillett Campbell JA explained the requirements of s 50D(1)(c) in the following fashion: "In Baker-Morrison Basten JA regarded satisfaction of s 50D(1)(c) as dependent upon "the exercise of both legal and medical expertise" ([41]) and that "the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made" ([44]). For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s 50D(1)(c) is satisfied. And, because it is involved in there being "fault", actionability is likewise one of the "key factors necessary to establish liability" that must be known before s 50D(1)(b) is satisfied." (at [131])
2. In Baker-Morrison Basten JA dealt with s 50D(1)(c) on the basis that it usually involved the Capable Person in obtaining both medical and legal advice. In so doing his Honour pointed to the statutory regimes which contain floors or caps in relation to the recovery of personal injuries damages (at [42]). In that regard, his Honour also referred to the fact that proceedings brought by a person under a legal incapacity may not be commenced except by a tutor; nor may the tutor commence proceedings except by a solicitor (UCPR, r 7.14) (at [44]). That solicitor in turn had to verify his or her view that the proceedings had reasonable prospects of success (at [43]).
3. His Honour expressed the view that the Capable Person must "have available to him or her relevant legal and medical information to allow and inform professional judgment to be made" (at [44]).
4. In the present case there was no occasion for the Capable Persons to obtain medical advice. This was so as the nature of the plaintiffs' injuries relied upon, did not on any view of it involve a psychological or psychiatric disorder. In my opinion, what is crucial in this case is the obtaining of legal advice.
5. It is important to note that for the purposes of satisfying s 50D(1)(c) what was crucial was not what the relevant plaintiff or Capable Person knew in fact, but rather what they ought to have known of the s 50D(1)(c) Fact. This issue involves an examination as to whether the s 50D(1)(c) Fact "would have been ascertained by the person, had the person taken all reasonable steps… to ascertain the fact" (s 50D(2)).
6. In Baker-Morrison Basten JA said that: "In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking "all reasonable steps"." (at [58])
7. In the present case no Capable Person instructed a solicitor prior to March 2021. This was so notwithstanding the fact that subsequent to the events in question, each of the plaintiffs was charged with various criminal offences. In respect of these criminal matters, in every case, the relevant Capable Person retained solicitors on the plaintiffs' behalf. Thus there could be no question as to the fact that the Capable Person(s) in respect of each plaintiff knew of the desirability of retaining solicitors to advise in relation to legal matters. There could also be no question other than that the Capable Persons were also capable of retaining solicitors, and obtaining such advice.

Elise and Josephine Perri

1. As to Elise Perri, when she was told by her nephew what had occurred she immediately knew that what occurred "didn't seem right". She discussed it with her husband because she "took it to be a serious matter". She contemplated making a complaint about the police behaviour (T 50.26 - 50.50).
2. Her decision not to take the matter further was quite deliberate. It was made as a result of a perception on her part that to do so might have come back to make things worse for her nephew in his subsequent dealings with police (T 51.1 - 51.12).
3. Ms Perri also said that she did not take legal advice at the time because she considered what happened to Jade to be "a police matter", not "a legal issue" (T 51.31 - 51.35).
4. In my opinion if she was in any doubt about the distinction between "police matters" and "legal issues", she had every opportunity to retain a solicitor to clarify the situation. This in my view was a necessary step in order to satisfy the s 50D(1)(c) Fact. I take this view as it was only through a thorough examination of the available facts by a solicitor that the s 50D(1)(c) Fact could be established.
5. As to Josephine Perri, she was not informed of the events in question until years after the event. This seems to have been as a result of a decision to not tell her of the events involving her grandson, for fear of upsetting her. She said her grandson did not wish to talk to her about the events.
6. In these circumstances I do not consider Mrs Perri to be Blade's relevant Capable Person.

Gail and Melissa Anderson

1. As for Gail Anderson, Jade's grandmother, as I have indicated earlier, as soon as she knew what had occurred at Maroubra Police Station, she immediately took up the matter with the officer at the desk. Melissa Anderson was affronted by what had occurred. She was aware that her son's rights as an aboriginal youth in custody had been seriously breached (T 90.40; T 93.22 - 93.35).
2. Both women were "horrified" when they found out what had occurred (T 93.10 - 93.20).
3. When Gail Anderson confronted the desk sergeant as to what had occurred, she received a reply from the desk sergeant to the effect that police were justified in acting in the manner in which they did. She did not accept this as being correct (T 57.27).
4. She believed that there was an issue involved, and that the issue was a legal issue (T 60.45 - 60.50; T 61.5).
5. Further the evidence is that Ms Melissa Anderson called the Aboriginal Legal Service who told her that they did not handle civil cases against the police (T 58.1 - 58.4). This was relayed by Melissa Anderson to her mother Gail (T 58.4). Thus the distinction between criminal and civil matters was brought to their attention, and in my view, in so doing, the need to obtain legal advice concerning a possible civil action against the police was made evident.
6. Gail Anderson also called an unidentified legal centre and enquired as to the legality of the strip search. She was apparently told a strip search could be justified if the police suspected that her grandson was carrying something dangerous. Beyond informing her daughter Melissa of this communication, Ms Gail Anderson did not take the matter further. This was so notwithstanding that despite what she had been told, she still considered what had occurred to be wrong (T 57.38).
7. Mr Canceri of Counsel, who appeared for the plaintiffs, submitted that this advice was wrong, drawing my attention to the fact that this allegedly incorrect advice was then transmitted from Gail Anderson to her daughter Melissa. He contended that this telephone inquiry of a legal centre amounted to the fact that Jade's mother and grandmother had obtained legal advice, and that the advice was simply wrong.
8. I do not accept that this is the case. Jade's Capable Persons were aware of the fact that conceptually there was a possibility of a civil legal action against the police. In my view a telephone call to the undisclosed legal centre, which apparently related solely to the strip search may have, at best, muddied the waters as to a claim against police, but it did no more than that.
9. In my view taking reasonable steps to ascertain the s 50D(1)(c) Fact required more than just a phone call to a legal service, where a no doubt unspecific enquiry produced an unspecific reply.

Conclusion on s 50(1)(c)

1. In my opinion, what was required in the case of both plaintiffs was the retention of solicitors, and the taking of advice from them, following the provision of detailed instructions as to the relevant facts. In my view in failing to take such steps the Capable Persons had failed to take "all reasonable steps… to ascertain the fact" (s 50D(2)).
2. It should be recalled in this regard that Basten JA in Baker-Morrison considered that the instructing of solicitors would usually be "sufficient" to constitute the taking of "all reasonable steps" (at [59]). In my view, in the circumstances of this case, the failure of the Capable Persons to instruct solicitors was insufficient to constitute the taking of all reasonable steps.
3. In my view had the Capable Persons of the plaintiffs undertaken the course of retaining and instructing solicitors, the s 50D(1)(c) Fact would have been ascertained.
4. It follows therefore that in my view the defendant has established that the cause of action was discoverable prior to 15 July 2018 and that as a consequence the proceedings are not maintainable, being statute barred.

Damages

1. Notwithstanding the conclusion which I have reached in relation to proceedings being not maintainable, I shall nonetheless proceed to deal with damages (Nevin v B & R Enclosures [2004] NSWCA 339 at [74] to [75]). In the circumstances however I will only do so briefly.
2. As I have indicated earlier, each of the plaintiffs sought general damages, together with aggravated and exemplary damages.
3. In respect of the fear, anxiety, stress and embarrassment of the pat down searches and the strip searches, the sum of $40,000 was sought in respect of each plaintiff by way of general damages.
4. In respect of the false imprisonment, the sum of $40,000 was also sought in relation to both plaintiffs.
5. As to aggravated damages the plaintiffs submitted that the manner of the wrongdoing justified such damages (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129 - 30). The plaintiffs also pointed to the fact that the defendant has never apologised. The sum of $10,000 was sought in respect of both plaintiffs by way of aggravated damages.
6. As to exemplary damages the plaintiffs correctly submitted that such damages are awarded for conscious wrongdoing in contumelious disregard for another's rights (Gray v Motor Accident Commission (1998) 196 CLR 1 at [7]). Each plaintiff sought the sum of $50,000 by way of exemplary damages primarily in consideration of the considerable contraventions of LEPRA, involved especially in the strip search, which they contended required the court's denunciation.

Consideration

1. The tort of false imprisonment is a tort of strict liability focusing on "the vindication of liberty and reparation to the victim" rather than any wrongdoing on behalf the defendant: State of New South Wales v Smith [2017] NSWCA 194 at [153]. Damages for the tort compensate not only for loss of liberty, but also for the loss of dignity and reputation (Goldie v Commonwealth (No 2) [2004] FCA 156 at [14]). Thus, damages are assessed by reference to the duration of the deprivation of liberty, and for the hurt or injury to feelings such as by "injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment" (at [14]): State of New South Wales v Smith at [154].
2. The courts have stressed that "[a]n interference with personal liberty even for a short period is not a trivial wrong" (Watson v Marshall (1971) 124 CLR 621 at 632).
3. In the present case the period of the imprisonment was 3 hours and 6 minutes.
4. I should also observe that while the events concerned should not have taken place, the police have by and large treated the plaintiffs in a respectful manner, and have dealt with them professionally. The arrests did not occur in public, and as such, there was no significant element of disgrace and humiliation involved. The gravamen of the plaintiffs' case was not humiliation, but rather was the anxiety which both plaintiffs experienced.
5. Given these matters, I would assess damages for false imprisonment at $20,000 in respect of both plaintiffs. As I will later discuss, this figure is intended to involve an element of aggravated damages.
6. As to the strip search, this exercise was entirely unnecessary. It caused distress and anxiety, and was degrading, such degradation being compounded by the requirement for the naked boys to squat, and handle their genitals. The strip search was moreover carried out without apparent regard to the requirements of ss 31 and 32 of LEPRA. I would assess damages at $20,000 for each plaintiff in respect of the strip search, such award including an element of aggravated damages.

Aggravated damages

1. The principal circumstances of aggravation to my mind are first the youth of the arrestees, and the failure of police to comply with police procedures in dealing with children. It also should encompass the failure of police to comply with the provisions of LEPRA in respect of strip searches.
2. It is to my mind unhelpful, to attribute a separate sum of damages in respect of these aggravating facts. To my mind they are inherent in everything that occurred on 7 April 2011. I have included an element of aggravated damages in the general damages which I have set forth earlier in these reasons.

Exemplary damages

1. I do not believe the case for exemplary damages had been made out.
2. I see no need for the defendant to be punished for the actions of the police concerned. I accept a submission of the defendant that there has never been a plea of justification in respect of the strip searches.
3. In addition I agree with the proposition that as the events in question have occurred a considerable time ago and thus there is little purpose in damages which are in the nature of damages punitive of the defendant.

Orders

1. In each proceedings there be orders: 1. That there be judgment and verdict for the defendant against the plaintiff. 2. That the plaintiff pay the defendant's costs.

Amendments 30 September 2022 - Typographical error - Catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2022