Carvana v State of New South Wales

Catchwords

[2007] HCA 10 Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318 Beckett v New South Wales (2013) 248 CLR 432[2013] HCA 17 Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34 Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420[2011] NSWCA 342 Cameron v James [1945] VLR 113 Challenge Plastics Pty Ltd v Collector of Customs for the State of Victoria (1993) 42 FCR 397(2004) 81 ALD 422 Greer v Commissioner of NSW Police [2002] NSWSC 356128 A Crim R 586 Hrdavec v State of New South Wales [2022] NSWCA 52 Hyder v Commonwealth of Australia [2012] NSWCA 336[1999] HCA 21 Murphy v The State of New South Wales [2023] NSWSC 407 New South Wales v Ibbett (2006) 229 CLR 638[2006] HCA 57 New South Wales v Robinson (2019) 266 CLR 619[2019] HCA 46 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388[2001] HCA 69 Pargiter v Alexander (1995) 5 Tas R 158[1995] TASSC 62[2020] HCA 1494 ALJR 502376 ALR 575280 A Crim R 356 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513

Judgment (47 paragraphs)

[1]

Introduction

By his fourth amended statement of claim filed on 25 August 2022, the plaintiff, Mr David Carvana, has claimed damages for false imprisonment, malicious prosecution and trespass to goods against the defendant, the State of New South Wales. Mr Carvana was not legally represented.
It was not in dispute that, by virtue of s 9B(2) the Law Reform (Vicarious Liability) Act 1983 (NSW) and s 5 of the Crown Proceeding Act 1988 (NSW), the State was the appropriate defendant since it accepted that it would be vicariously liable in respect of relevant torts, if any, committed by the relevant officers and former officer of the New South Wales Police Force named in the pleading: Senior Constable Rae; Senior Constable Simpson; and, Mr (formerly Sergeant) Minns.
The facts and circumstances on which Mr Carvana's claims are based arise out of a complaint by Ms Fawcett concerning Mr Carvana's conduct towards her which led to SC Rae and SC Simpson attending Mr Carvana's business premises on 18 October 2017 and his subsequently being arrested, charged, bailed, and then dealt with in the Wollongong Local Court. First, I shall consider the witnesses and the factual findings as to what relevantly occurred on 18 October 2017 and thereafter. Next, I shall address the causes of action relied on by Mr Carvana and then, to the extent necessary, I shall consider questions of loss and damage.

[2]

The lay witnesses

In addition to himself as the principal witness in his case, the plaintiff, Mr Carvana, also called the following lay witnesses: 1. Mr Domenico Carvana, the plaintiff's father; and 2. Ms Ebony Fuller, the receptionist at Mr Carvana's office.
The defendant's lay witnesses who gave oral evidence were: 1. Mr Robert Minns; and 2. SC Cameron Rae.
The evidence also included affidavits or statements from the following witnesses (prepared for the purposes of these proceedings or for the purposes of the proceedings in Wollongong Local Court), without the maker of the affidavit or statement being called to give evidence: 1. SC Paige Simpson - her police statement of 18 October 2017, [1] and her police statement of 4 April 2018; [2] 2. Alyssa Jones - her affidavit of 7 July 2023, [3] her affidavit of 16 February 2023, [4] and her affidavit of 21 February 2023; [5] and 3. Susan Fawcett - her police statement of 18 October 2017. [6]
In assessing the evidence as a whole, I have taken into account that these witnesses who did not give oral evidence were not cross examined and I was not able to observe them give evidence. Accordingly, I approached their evidence with a degree of caution, as appropriate. Nonetheless, since Ms Fawcett's statement was made on the day of the incident in question, I accepted that the information in that statement was likely to have been fresh in her memory at that time and, therefore, likely to be more reliable than if the statement had been given some considerable time later. Furthermore, the statements of Ms Fawcett and SC Simpson were not made for the purposes of the present proceedings and thus were unlikely to have been influenced, subconsciously or otherwise, by the issues raised in these proceedings. None of their evidence was inherently incredible and it was largely consistent with other evidence. On these bases, it appeared to me that their evidence should generally be accepted, except if it was inconsistent with contemporaneous notes or recordings or other credible evidence.
Dealing with the lay witness called by the plaintiff who gave oral evidence (other than Mr Carvana) my observations and assessment were as follows.
Mr Domenico Carvana (the plaintiff's father whom I shall call Mr Carvana Senior), and Ms Fuller both gave evidence by audio-visual link. In making my assessment of their evidence, I did not give it more or less weight because it was given in this way. Mr Carvana Senior provided a written statement which had "October 2017" written on it, [7] and Ms Fuller provided an undated written statement. [8] It was somewhat unclear when and how their written statements had been prepared, although the evidence suggested that they had been prepared for the criminal proceedings in Wollongong Local Court, heard on 16 May 2018. I was not satisfied on the evidence that they were contemporaneous records of what those witnesses saw and heard on 18 October 2017, in the sense of being made on that date or within the next few days. In addition, Mr Carvana Senior expressly accepted that it was a possibility that he had "not remembered those events very well". [9] Ms Fuller said that she could not "give complete and full details but I do agree with what I've written in my statement and that's how I remember it still today". [10] From their preparedness to make appropriate concessions and my observation of the way in which they both gave evidence and the content of that evidence, I formed the view that both Mr Carvana Senior and Ms Fuller were each honestly attempting to tell the truth as they recalled it, assisted by their statements. I generally accepted their evidence except where it was inconsistent with evidence from contemporaneous notes or recordings or other credible evidence. I shall deal with any specific conflicts in the evidence when making findings as to what relevantly occurred.
As to the lay witnesses called to give oral evidence by the defendant, Mr Robert Minns, a retired sergeant of police, gave evidence by audio visual link and provided a written statement dated 30 January 2023. [11] Once again, I have not given this evidence more or less weight because of the manner in which it was given. Mr Minns's statement was said to be based on his refreshing his memory from: 1. the COPS event record relating, inter alia, to what relevantly occurred on 18 October 2017 at Mr Carvana's office and carpark and subsequently (the 18 October 2017 COPS Event); and 2. the Custody Management Report (CMR) concerning Mr Carvana's time at Wollongong Police Station on 18 October 2017.
It did not appear that Mr Minns, who was the custody manager at Wollongong Police Station in the early evening of 18 October 2017, made any other contemporaneous notes of his interactions with Mr Carvana on that day. Mr Minns was prepared to make appropriate concessions as to what he could recall or not and what may have happened. [12] I found nothing in his evidence that was inherently incredible or unlikely. Observing him give evidence and taking into account the content of the evidence he gave and all relevant circumstances, I formed the view that Mr Minns was an honest witness genuinely trying to recall what occurred on the relevant occasion and I generally accepted his evidence. If, however, there was any conflict between Mr Minns's evidence and contemporaneous records, I would accept what was in the records. As to specific conflicts in the evidence between Mr Carvana and Mr Minns, I shall deal with such matters when making my findings as to what occurred.
The other lay witness who was called by the defendant to give oral evidence was SC Rae. He provided a written statement dated 23 December 2022 which included as annexures his police statement dated 18 October 2017, the 18 October 2017 COPS Event and a USB containing the video recordings from Mr Carvana's telephone and recordings of the two 000 calls. [13] Like other witnesses, SC Rae made appropriate concessions and gave suitably qualified answers. [14] SC Rae was cross examined with some force by Mr Carvana. [15] Nonetheless, SC Rae's responses to these or other questions did not cause me to form the view that he was dishonest or that his evidence was generally unreliable. In my view, SC Rae conscientiously attempted to answer the questions he was asked in cross examination, some of which were not particularly clear, and I had no reason to believe that he was not being honest and frank. Once again, I generally accepted SC Rae's evidence except if there were contemporaneous notes or recordings which were inconsistent with that evidence. Specific matters about which he gave evidence and which were the subject of dispute are addressed when I make my factual findings.
Turning now to the principal witness in the plaintiff's case, Mr Carvana himself, he gave oral evidence and his statement (described as an affidavit) dated 26 August 2022 was admitted into evidence. [16] In addition, accounts of the relevant facts given by Mr Carvana as recorded in other documents were also in evidence. [17]
I formed the view, based on my observation of Mr Carvana and the evidence as a whole, that he was an intelligent and articulate man, who was an experienced and successful accountant who has also been involved in managing other businesses. My assessment was that Mr Carvana found it stressful to prepare and conduct his own case as an unrepresented litigant as well as finding it difficult to maintain objectivity in relation to his evidence, especially when it might adversely affect his case. I did not, however, form the view that Mr Carvana was generally deliberately dishonest.
In addition, I formed a number of other impressions concerning his evidence as a result of observing him in the witness box and in light of his evidence. First, Mr Carvana had a tendency to give unrestrained or somewhat exaggerated responses which were not always responsive to the question asked and aspects of which were not entirely credible. [18] One particular illustration of this is the following question and answer during Mr Carvana's cross examination: [19] "Q. So after you left custody on 18 October 2017, did you take any notes as to what happened during that day or, for example, did you take any notes of what you recalled happening on say 19 October? A. Okay. I'll tell you what I did after I was released from custody. I met up with quite a few people and had a coffee with them in a place in Wollongong at a coffee shop. These were knowledgeable people, friends, who tried to calm me down. From there I went home and didn't sleep. Sat in my chair, in my lounge chair with my little puppy dog that I just bought my daughter, and cried. I didn't write anything. The mind kept going on visualising for that night and months ahead till today what I went through, and I can repeat it perfectly."
Secondly, Mr Carvana appeared on occasions to be avoiding answering a question; sometimes anticipating where a line of questioning was going and trying to give his answers accordingly, rather than answering the question actually asked. [20] On other occasions, he appeared to be attempting to avoid answering questions and then contradicting himself in a subsequent answer. [21]
Thirdly, Mr Carvana on one occasion gave answers in cross examination which were inconsistent with earlier answers and evidence but appeared unwilling to acknowledge the full extent of any inconsistency. [22] Mr Carvana was also not prepared to concede that his memory of events was more likely to be accurate the closer in time to his arrest than later. [23] I did not gain the impression that Mr Carvana would make appropriate concessions contrary to his interests unless effectively left with no potentially arguable alternative.
Fourthly, at times during his evidence, Mr Carvana said he was "getting worked up" or similar descriptions. [24] This appeared to me to be correct and, when he was worked up, this interfered with his ability to answer questions reliably. This was also consistent with the fact that, when being psychologically assessed previously, Mr Carvana described himself as often "over-reacting" to situations. [25] My observation of him in court indicated that there was a degree of overreaction from time to time on his part, which may have been a response to being cross examined and a litigant in person but it detracted from the credibility and reliability of his answers.
Fifthly, Mr Carvana would often not wait for the end of a question and interrupted the cross examiner, including on occasion by claiming that the cross examiner was confused or was trying to upset him or some similar contention. [26]
The evidence which I accepted also established that Mr Carvana has had long standing anxiety and depression conditions, and these contributed to his becoming dependent on Alprazolam (a benzodiazepine supplied under the name Xanax or Kalma) from well before 2017. The evidence did not suggest that his mental health conditions had resolved by the time Mr Carvana gave evidence before me. I accepted the unchallenged expert evidence that long term benzodiazepine use, such as has occurred in Mr Carvana's case, can adversely impact an individual's capacity for memory. [27]
In light of my observations of Mr Carvana giving evidence, how the evidence unfolded in court and its content, his circumstances, including those outlined above, and ordinary human experience, I was of the view that in Mr Carvana's case the processes of memory in relation to the events on 18 October 2017 were probably overlaid subconsciously by perceptions of self-interest as well as conscious consideration of what could have been said or done, so as to provide an illustration of what McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315 at 319: [28] "All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed."
For these reasons and in the circumstances, I have accepted Mr Carvana's evidence where it is consistent with contemporaneous records or with the evidence of others. Where, however, there were no relevant contemporaneous records or his evidence conflicted with that of other witness, I approached his evidence with considerable caution. I shall deal with specific conflicts between his evidence and other evidence, when making relevant findings.

[3]

Findings concerning the events of 18 October 2017

There was no substantial dispute as to the background to the events of 18 October 2017 or as to many aspects of what occurred in the car park and later on that day.

[4]

Background to relevant events on 18 October 2017

In 2017, the plaintiff's accountancy practice, David Carvana & Associates, and a company with which Mr Carvana was associated called Emplus Solutions Pty Ltd occupied premises behind the post office at Fairy Meadow in New South Wales. Along the side of the premises was a driveway leading from the street to a car parking area behind. At the end of the driveway nearer the street there was a gate. At the entrance to the driveway, along the driveway and elsewhere in the car parking area were signs stating, variously, that: it was private property and unauthorised parking was not permitted; parking was only available for "employees or visitors" of David Carvana & Associates and Emplus Solutions Pty Ltd; or, parking was "Restricted / Customer parking only". It was not in dispute that Mr Carvana or some persons or entities associated with Mr Carvana owned the land which included the driveway and parking area.
Prior to 18 October 2017, Mr Carvana had been annoyed by unauthorised parking in that parking area. Ms Fawcett had parked her black SUV in the parking area previously when she went to the post office at Fairy Meadow and Mr Carvana had photographed or videoed her vehicle in the parking area and told her not to park there. Mr Carvana had also posted on social media concerning a black SUV parking in the parking area without his authorisation.
On 18 October 2017, Ms Fawcett again parked in the parking area. Mr Carvana saw her and asked her, in effect, not to park there but indicated that she could do it this one time. Subsequently, Mr Carvana realised that Ms Fawcett's black SUV was the vehicle he had videoed or photographed on previous occasions and he became annoyed that she was continuing to park in the parking area despite his warnings to her not to do so. As a result of becoming annoyed, Mr Carvana decided to let the air out of the tyres of Ms Fawcett's SUV.

[5]

The incident between Ms Fawcett and Mr Carvana on 18 October 2017

The evidence of what occurred in the car park involving Mr Carvana and Ms Fawcett on 18 October 2017 included: 1. the three video recordings which Mr Carvana recorded using his telephone; 2. the 000 calls made by Ms Fawcett; 3. Ms Fawcett's statement to police made on 18 October 2017, before police attended the parking area to speak to Mr Carvana and before the video had been viewed or seized by police; and 4. the statement of Mr Carvana Senior made some time later for the purposes of the criminal proceedings in the Wollongong Local Court against Mr Carvana.
Just before about 11:40 am on 18 October 2017, Mr Carvana began to let the air out of the passenger's side rear tyre of Ms Fawcett's vehicle and videoed himself doing so. The video showed Mr Carvana's thumb on the release valve of the tyre and a hissing sound from the air being released could be heard on the recording. After about 10 or 15 seconds, Ms Fawcett can be seen walking up the driveway towards Mr Carvana. As she approached her car, she said "Please don't do that. Don't touch my car". She arrived at the vehicle and asked Mr Carvana politely to stop. Ms Fawcett said "Please give me back my thing" and reached out to retrieve the tyre valve cap which Mr Carvana had removed but this was resisted by Mr Carvana who attempted to keep hold of it.
At this point the video swung around in various directions and Mr Carvana could be seen kicking or stomping on the running board of the vehicle one or two times. Ms Fawcett said in her statement that she observed no damage as a result of this. Ms Fawcett became upset and yelled out "For God's sake, what are you doing?" and Mr Carvana then said "I just realised who you were". Ms Fawcett loudly accused him of trying to damage her car and called out "Help, help, help, this man is abusing me." It was at this point that Mr Carvana said "I have not touched you" and also said that she had done it four or five times before and he had her on video. He continued saying "Fuck off my property" and told her never to come back. Ms Fawcett yelled out that Mr Carvana was "insane" then said she was leaving and called him an "insane lunatic".
Ms Fawcett said in her statement, after describing Mr Carvana stomping on the "step plate" of her car, that Mr Carvana used both hands to push her shoulders and chest while continuing to hold his telephone in one hand. She said that he gave her "a good shove and [she] took a big step back, about a metre and a half". In the first 000 call, Ms Fawcett repeated that Mr Carvana pushed her. As noted above, Mr Carvana expressly stated during the video recordings that he did not touch Ms Fawcett. On my review of the video recording of the incident, I was not satisfied that Mr Carvana made physical contact with Ms Fawcett so as to push her away, as recounted in her statement, although there was some earlier physical contact when Ms Fawcett attempted to recover the valve cap.

[6]

Police response to the 000 calls

At about 11:40 am, an urgent call was broadcast over the police radio to which two uniformed officers in a police vehicle, SC Simpson and SC Rae, responded. The information given to them was that: a male was verbally abusing the informant, punching her car and blocking her in but no person was injured; the person of interest had pushed the informant; there was a dispute over the informant parking on the person of interest's land; the informant had stopped responding to the telephone operator and was arguing; and, the situation was escalating.
After Ms Fawcett finished her first 000 call, she drove to a service station to refill her tyre with air and then returned to her place of work.
As a result of being assigned to deal with the incident, the police officers drove to the post office at Fairy Meadow, which was the location given to them, but were unable to locate Ms Fawcett.
From her workplace, Ms Fawcett called 000 again in order to let police know that she had returned to work so that she would feel safe and it was not an emergency anymore.
After being informed of the second 000 call at about 11:55 am, SC Simpson and SC Rae attended Ms Fawcett's place of work and spoke to her. Ms Fawcett then attended Corrimal Police Station where, at about 12:20 pm, she made her statement, which was in evidence in these proceedings. That statement was largely consistent with the video recordings made by Mr Carvana, except for some differences in the actual words used and Ms Fawcett's recollection that she had been physically pushed by Mr Carvana after he had stomped on the running board of her SUV.
Having obtained this statement from Ms Fawcett, SC Simpson and SC Rae went to the Fairy Meadow post office and then drove into the car parking area behind the post office where the incident involving Mr Carvana and Ms Fawcett had taken place. The police officers parked there at about 1:45 pm.

[7]

Police attendance at the carparking area

SC Rae parked the police vehicle behind Mr Carvana Senior's car. Mr Carvana was in the carparking area smoking a cigarette. SC Rae and SC Simpson left their vehicle and Mr Carvana became argumentative as to why they had parked as they did in the carpark. SC Simpson introduced herself to Mr Carvana and told him that she worked at Wollongong police station. SC Simpson said they wanted to speak to Mr David Carvana and he introduced himself but wanted them to go into his office. SC Simpson said that they could remain outside so as not to cause any parking issues and indicated that they only needed to talk to him briefly to advise him of the investigation and offer him the opportunity to be interviewed. Mr Carvana still insisted on their going into his office.

[8]

Events in Mr Carvana's office

The police officers and Mr Carvana went into his office and the door was left open. SC Simpson informed Mr Carvana that they were investigating allegations of assault against a female who had parked in the car parking area that morning and damage to her car. Mr Carvana was cautioned by SC Simpson.
When SC Simpson asked him what had happened in the car parking area that morning, Mr Carvana looked on his mobile telephone and told the police officers that the woman had done this countless times and he had photographs of her. While Mr Carvana was looking on his telephone he also called out to his receptionist and asked her the dates of the previous incidents. He showed the officers a photograph of a female similar to Ms Fawcett. When asked what had happened that morning, he spent a short time looking on his telephone for video footage of what occurred. Mr Carvana was again offered an opportunity to participate in an electronically recorded interview at Wollongong police station but he indicated that he did not want to do so.
Mr Carvana eventually located the video footage. Before Mr Carvana showed the video to SC Simpson, she could hear a hissing sound. There was a potential dispute as to whether, at this point, SC Simpson snatched the telephone out of Mr Carvana's hand, as Mr Carvana at one point contended, or Mr Carvana handed the telephone to her to look at the video which was playing, as SC Simpson and SC Rae stated. During cross examination on 10 July 2023, Mr Carvana said that SC Simpson "snatched the phone and put it in her pocket. 100%. Vivid memory". [29] In cross examination the next day, Mr Carvana said "I never ever in memory in this room used the word that she snatched the phone from me, snatched. So don't change my words, please". [30] Mr Carvana also gave evidence on the second day, however, that he passed the telephone to SC Simpson and that he had never held anything back from police. [31] That latter evidence was consistent with the evidence of SC Simpson and SC Rae and, based on the evidence as a whole and the other circumstances referred to above, I am satisfied that Mr Carvana voluntarily handed his telephone to SC Simpson so that the police officers could view video footage of the incident in the car parking area on the telephone.
While SC Simpson was holding the telephone and the video was playing, she saw what appeared to her to be Ms Fawcett approaching and having a conversation with Mr Carvana, his stomping on the side of the car, a physical confrontation between Mr Carvana and Ms Fawcett, and her calling out for help. SC Rae could also see the video footage. At about this time, SC Simpson accidently touched the screen of the telephone and the video restated from the beginning and she saw, for the first time, Mr Carvana's hand releasing air from the valve on Ms Fawcett's vehicle. SC Simpson's evidence, which I accept, was then as follows: "[Mr Carvana] became visibly uncomfortable that the video had restarted and that I could see him releasing the air. At this time I formed the opinion that it was necessary to preserve the evidence on the phone. I believed [Mr Carvana] had already intentionally handed me the phone after the images depicting the tyre had finished, so as to prevent me from viewing that evidence. [SC Simpson] said - Mr Carvana I will have to seize this phone as I have reason to believe it contains evidence of offences I am investigating. I will have to take it back to the police station, but I will get it back to you as soon as possible. [Mr Carvana] said - No, no you are not. It is my property. [SC Simpson] said - I understand that it is your phone, however due to the evidence contained in it I will have to obtain a police copy and get it back to you. [Mr Carvana] said - Give me my phone. It is my phone. I am calling my solicitor. [SC Simpson] said - I have no issue with you calling your solicitor, however I am still seizing the phone and will get it back to you as soon as I can. Due to the evidence on the phone I have to take it with me. I would be in trouble for not investigating this evidence. I will get it back to you."

[9]

Events in the driveway and the arrest of Mr Carvana

SC Rae turned the police vehicle around in order to drive out of the driveway from the car parking area and onto the street. By this time, however, Mr Carvana was lying down on the driveway between the police vehicle and the exit onto the street preventing the officers from driving out. SC Rae drove slowly down the driveway towards Mr Carvana, stopped a few metres from where he was lying, wound down his window and told him to move out of the way. After a while, Mr Carvana stood up but remained in the middle of the driveway still preventing the officers from driving out. He was asked three or four times to move and SC Rae warned him that if he failed to move out of the way he was obstructing police and could be arrested. Mr Carvana continued to refuse to move out of the way until he had spoken to his solicitor on the telephone.
After waiting for several minutes with their conversation with Mr Carvana going around in circles, SC Simpson and SC Rae got out of their vehicle. Mr Carvana was still standing in front of the police car and did not move out of the way.
I find that Mr Carvana, in the driveway, appeared to be overreacting to the circumstances by lying on the ground and then standing in front of the police car and his speech and actions did not appear calm or rational.
There was then a dispute as to whether Mr Carvana was arrested by SC Rae or SC Simpson. Mr Carvana maintained he was arrested by SC Simpson. SC Rae's evidence was that he arrested Mr Carvana and SC Simpson's evidence was to the same effect. The Court Attendance Notice issued on 18 October 2017 in respect of the alleged offending recorded that SC Rae was the officer who "apprehended" Mr Carvana and SC Rae was listed first under the heading "Arresting Officer" but SC Simpson was also listed under that heading but after SC Rae. There did not appear to me to be any reason why SC Rae and SC Simpson would not have given truthful evidence, including in their statements made on or shortly after the day in question. Given his heightened emotional and physical state at the time of the events in question, it is more likely that Mr Carvana's recollection was faulty. In all the circumstances and based on the evidence as a whole, I find that SC Rae decided to arrest Mr Carvana and did so.
Senior Constable Rae gave evidence in par 21 of his statement to the effect that he suspected that Mr Carvana had committed "the offence of obstructing police … in circumstances where he was preventing us from leaving the car park, initially by laying on the ground in front of the vehicle and later by standing in front of the vehicle, blocking our exit". SC Rae also gave evidence that he was satisfied that it was reasonably necessary to arrest Mr Carvana in order to stop him from continuing to commit or repeating that offence. This satisfaction was said to be based on the senior constable's belief that if Mr Carvana was not arrested, he would continue to prevent the police officers from exiting the car park by standing in front of the vehicle or otherwise obstructing the driveway. In this regard, SC Rae relied not only on Mr Carvana's lying and standing in front of the police vehicle and conduct towards the police officers up to that point in the driveway but also on Mr Carvana's attempt to prevent the officers leaving his office and the officer's awareness that Mr Carvana had locked Ms Fawcett in the car park earlier that day, from the information provided over the police radio and in the video recordings depicting what occurred.

[10]

Events at Wollongong Police Station

At 2:30 pm, Mr Carvana arrived at Wollongong Police Station. In his statement, he said that he was "confused, upset, lost and obviously worried and anxious". According to him, he was told, when he arrived at the station: "you know where to go", and he responded: "are you guys on drugs, are you sure you have the right person, because I have never been here before, so where do I go?" and this elicited a stern response. If Mr Carvana did respond in this way, it could well have provided a basis for police officers forming the view that Mr Carvana was reacting aggressively and unreasonably, especially if the words "you know where to go" were actually spoken as a question. This was, in my view, the probable explanation of why Mr Carvana was instructed sternly where to go.
Mr Carvana's details were entered into the police custodial system and a Custody Management Record or CMR was created. Acting Sergeant Victoria Elliott was the Custody Manager at that time and read Mr Carvana a summary of Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPR Act). Mr Carvana signed the Form 31 Summary of Pt 9, adding and initialling a notation: "(Read by Custody Officer to me very well! [word indecipherable] all sounds Good!)". This would, in my view, have provided a reason for the officer to think that Mr Carvana was being flippant and antagonistic.
During Mr Carvana's assessment on being taken into custody, it was recorded in the CMR that he suffered from illness, namely a prior heart attack and anxiety, and his behaviour was aggressive. This last observation was also consistent with Mr Carvana's evidence that he found the questions asked of him by the officers completing the documentation "silly" and he said that "any silly question would be replied with a silly answer". Once again, this probably gave the appearance of Mr Carvana being flippant and antagonistic.
On a visual assessment, it was noted in the CMR that he was in pain and complained of tightness of his chest and stress. Mr Carvana provided details of his medication and identified that he had heart problems. An ambulance was called and attended from 2:40 to 2:55 pm. The CMR recorded: "Ambulance attended and completed an assessment of the customers heart ect. Nil issues identified No need to convey. Customer to be monitored in custody in case of further issue."

[11]

The Local Court proceedings

The charges the subject of the CAN were eventually listed to be heard on 16 May 2018 before Wollongong Local Court. On that occasion, Mr Carvana was represented by Mr C Nicholls and a solicitor.
The transcript of those proceedings [41] relevantly included the following: "PROSECUTOR: There are four sequences before the Court and I can indicate that I am seeking a plea to sequence 3 being the intimidation and upon that being entered I am withdrawing all other sequences that being sequence 1, common assault, sequence 2, hinder police and sequence 4, destroy damage property. NICHOLLS: I can indicate that the plea is entered. PROSECUTOR: Upon that those withdrawals are made and I can tender agreed facts and antecedents to confirm there's nothing known. I also believe there's some photographs. … After addresses on penalty, the magistrate continued:] Stand up please sir. Sir I don't know if you've been listening to other matters I deal with, you can see I am dealing with relatively serious matters. I am not going to trivialise this because there is a victim who in some regards did feel intimidated by your behaviour. You are a bloke, she is a woman, she looks fairly small, you look fairly fit. Do you understand all that, do you understand that dynamic? ACCUSED: Yes. HIS HONOUR: In relation to this you took matters into your own hands, it was unlawful, do not let it happen against or the Court will quickly record a conviction. I would accept that you have become frustrated in relation to parking and various things that have obviously gone on in an area that is your responsibility. In relation to this particular matter given your age your lack of criminal record, the circumstances of the offending behaviour and the fact that my view is that this is a one off out of character and will not happen again. There is remorse, contrition and insight. THE COURT WILL DISMISS YOU UNDER S 10(1)(a). Do not come back sir. Thank you I do not think I need to say anything further."

[12]

Relevant causes of action

Mr Carvana relies on three causes of action: 1. false imprisonment; 2. malicious prosecution; and 3. trespass to goods.
I shall deal with each cause of action in turn.

[13]

False imprisonment

In the present case, there was in effect no dispute that: 1. Mr Carvana was arrested without a warrant on 18 October 2017 at about 2 pm and was detained in police custody until he was released on bail at 6:23 pm; and 2. whether Mr Carvana was falsely imprisoned during that period depended on whether Mr Carvana's arrest was lawful.
The State contended that his arrest was lawful, since it was authorised by s 99(1)(a) and (b)(i) of the LEPR Act. If the arrest was so authorised, this constitutes a defence to the tort of false imprisonment. The burden of establishing the elements of the defence fall upon the State: Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 at [12], [37], [38]) (Bryson JA, Santow JA and Adams J agreeing).
Section 99 of the LEPR Act relevantly provided at the time of Mr Carvana's arrest: "99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if - (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons - (i) to stop the person committing or repeating the offence or committing another offence, … … (3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. …".
In addition, under s 202(1) and (2) of the LEPR Act as in force on 18 October 2017, which applied by virtue of s 201(1)(a) of that Act, a police officer who exercised the power of arrest under s 99 was required to provide, as soon as reasonably practicable, the following to the person subject to the exercise of the power: 1. evidence that the police officer is a police officer (unless the police officer was in uniform); 2. the name of the police officer and his or her place of duty; and 3. the reason for the exercise of the power.
Finally, it should be noted that s 4(1)(a) of the LEPR Act stated, at the relevant time, that unless the Act otherwise provided, the LEPR Act did not limit "the functions, obligations and liabilities that a police officer has as a constable at common law". One relevant aspect of the functions or obligations of an arresting officer at common law, which was also reflected in s 99(3) of the LEPR Act, was that an officer may only exercise the power of arrest without a warrant for the purpose of taking the person before a magistrate or authorised officer to be dealt with according to law to answer a charge for the offence for which he is arrested.

[14]

Did SC Rae suspect on reasonable grounds that Mr Carvana had committed an offence?

The factual findings as to the circumstances preceding Mr Carvana's arrest have been set out above. It was not suggested in the present case that SC Rae did not suspect Mr Carvana had committed an offence when he arrested Mr Carvana. In that regard, SC Rae's evidence was credible and well supported by the surrounding circumstances. Having regard to all the evidence as a whole, I accept that he did actually suspect, at the relevant time, that Mr Carvana had obstructed police and committed an offence under s 58 of the Crimes Act, which at the time, relevantly provided: "Whosoever: … … wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable … shall be liable to imprisonment for 5 years."
As to whether there were reasonable grounds for SC Rae's suspicion, a number of propositions have been established in the authorities which have dealt with s 99(1)(a) of the LEPR Act or substantially similar provisions in other Acts. Many of these authorities were reviewed by McColl JA (Hoeben JA agreeing) in Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 571 (Hyder) when considering s 3W of the Crimes Act 1914 (Cth) which relevantly corresponds in large measure with s 99 of the LEPR Act. In addition, the Court of Appeal has also recently considered the operation of this section in Hrdavec v State of New South Wales [2022] NSWCA 52 (Hrdavec). The propositions derived from these authorities relevantly include: 1. The test which has to be applied in order to determine whether, in a case of arrest without warrant, the requirement that there be reasonable grounds for the suspicion said to justify the arrest is satisfied serves to protect individuals but there is also a public interest in the detection of crime and bringing those who commit it to justice: Hyder at [13] and [14] and the cases there cited. 2. In determining whether the arresting officer had the relevant state of mind, namely suspicion, the court is considering a preliminary stage of the investigation, rather than one requiring evidence amounting to prima facie proof: Hyder at [14] and the cases there cited. 3. For an arresting officer to "suspect on reasonable grounds", the suspicion must actually be held by the officer, and there must also be facts which are sufficient to induce that state of mind in a reasonable person: Hrdavec at [16] (Bell CJ, Basten and While JJA); Hyder at [15(1) and (2)] and the cases there cited. 4. A reasonable suspicion involves less than a reasonable belief but more than a possibility and there must be something which would create in the mind of a reasonable person an apprehension or fear that the relevant state of affairs existed: Hrdavec at [16]; R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 at [53(a)] (Smart AJ, Spigelman CJ and Simpson J agreeing). 5. What constitutes reasonable grounds for suspecting must be judged against what was known or reasonably capable of being known at the relevant time and whether the relevant person had reasonable grounds for forming a suspicion is to be determined not according to the subjective beliefs of the officer at the time but according to an objective criterion: Hyder at [15(7)] and the cases there cited. 6. The information acted on by the arresting officer need not be based on direct observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: Hyder at [15(8)] and the cases there cited.

[15]

Was SC Rae satisfied that the arrest was reasonably necessary to stop Mr Carvana committing or repeating the offence?

Section 99(1)(b)(i) depends on the state of satisfaction of the arresting officer, relevantly for this case, that SC Rae was "satisfied that the arrest is reasonably necessary … to stop the person committing or repeating the offence …". Accordingly, unlike the requirement for reasonable grounds under s 99(1)(a), "a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the state of satisfaction was manifestly unreasonable, or 'arbitrary, capricious, irrational, or not bona fide', as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611; [1999] HCA 21 at [131]-[137]]." (footnotes omitted): State of New South Wales v Randall [2017] NSWCA 88 at [13] (Basten JA, McDougall J agreeing on the question of liability at [142]).
As noted above, SC Rae's evidence was that he was satisfied that it was reasonably necessary to arrest Mr Carvana in order to stop him from continuing to commit or repeating the offence of obstructing police. This satisfaction was said to be based on his belief that if Mr Carvana was not arrested he would continue to prevent the police officers from exiting the car park by standing in front of the vehicle or otherwise obstructing the driveway. SC Rae did not rely, however, only on Mr Carvana's conduct in the driveway but also on his earlier attempt to prevent the officers leaving his office and SC Rae's awareness that Mr Carvana had locked Ms Fawcett in the car park earlier that day, which was derived from the information provided over the police radio and the video recordings depicting what occurred and Ms Fawcett's statement.
Given my assessment of SC Rae as a witness and taking into account all the evidence as a whole and my findings, I accept that the senior constable was satisfied that it was reasonably necessary to arrest Mr Carvana in order to stop him continuing to commit or repeating the offence.
Accordingly, the requirement in s 99(1)(b)(i) has been satisfied.

[16]

Did SC Rae, as soon as reasonably practicable, inform Mr Carvana of his name, his place of duty and the reason for Mr Carvana's arrest?

In light of my findings above that SC Rae was in uniform and that he told Mr Carvana his rank, name and station and that he was under arrest for obstructing police, I am satisfied that SC Rae complied with s 202 of the LEPR Act, when arresting Mr Carvana.

[17]

Did SC Rae intend to take Mr Carvana as soon as reasonably practicable, before an authorised officer to be dealt with according to law to answer a charge for the offence for which he was arrested?

It was not submitted in the present case that at the time SC Rae arrested Mr Carvana he did not intend to take him before an authorised officer to be dealt with in relation to the offence for which he was arrested. No such suggestion was put to the senior constable in cross examination. Furthermore, after Mr Carvana was arrested and taken to Wollongong police station, SC Rae and SC Simpson attended and Mr Carvana was charged with the offence for which he was arrested, as well as other offences. As specified in the court attendance notice, Mr Carvana was required to appear before a magistrate in the Local Court to answer those charges but, in the meantime, was released on conditional bail. SC Rae's intention at the relevant time can be inferred from his relevant conduct.
In all the circumstances, I am satisfied that at the time of arresting Mr Carvana SC Rae intended to take him before an authorised officer to be dealt with in relation to the offence for which he was arrested and, thus, s 99(3) of the LEPR Act was complied with.

[18]

Conclusion on false imprisonment

As each of the relevant requirements has been met, in my view, Mr Carvana's arrest on 18 October 2017 was lawful. It follows that, in this case, Mr Carvana was not falsely imprisoned on that day and his claim for false imprisonment must fail.
In light of that conclusion, it is not necessary to consider at this point the operation of s 43A of the Civil Liability Act 2002 (NSW), upon which the State relied in the alternative. It can be noted, however, that in State of New South Wales v Madden [2024] NSWCA 40, the Court of Appeal recently held that s 43A did not apply in a case involving false imprisonment, because s 3B(1)(a) of the Civil Liability Act was engaged by virtue of the fact that intent to deprive a person of their liberty involved an "intent to cause injury" within the meaning of that paragraph.

[19]

Malicious prosecution

In order to be successful in his claim of malicious prosecution, Mr Carvana must prove on the balance of probabilities each of the elements of that tort.
The elements of the tort of malicious prosecution were identified in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 (A v NSW) as follows at [1]: "(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause." (Footnote omitted)
Once again, I shall deal with each element in turn.

[20]

Were relevant proceedings initiated by a defendant?

It was not in dispute that the criminal proceedings against Mr Carvana instituted by CAN H65336205 were proceedings of the type to which the tort of malicious prosecution applies and I accept that this is so.
From the fourth amended statement of claim, it appeared that Mr Carvana's case was that SC Simpson, SC Rae and Sgt Minns or one or more of them was "the prosecutor", that is the person who initiated and, if relevant, maintained the proceedings.
It was evident from the CAN itself that SC Simpson was nominated as the "prosecutor" in respect of the four charges, sequences 1, 2, 3 and 4 listed in the CAN, which have been set out above. In addition, the State has accepted that it will be vicariously liable in respect of any tortious liability of SC Simpson as a result of her involvement in the relevant events on 18 October 2017. Based on my findings as to what occurred on that day and the description of SC Simpson as "prosecutor", I am satisfied that SC Simpson was the prosecutor who initiated the proceedings. As to SC Rae, while he was listed as the apprehending officer and the first of the arresting officers on CAN H65336205, his involvement appears to have been more indirect or peripheral in issuing and serving the CAN. In those circumstances, I was not satisfied that he was relevantly the prosecutor who initiated the proceedings or, in so far as it may be relevant, maintained them. As to Sgt Minns, his only role in relation to Mr Carvana was as custody manager after taking over from A/Sgt Elliott and, in my view, he should not be held to be the prosecutor in respect of the charges in the CAN.
In any event, if I am wrong in that regard and SC Rae or Sgt Minns or both of them should also be considered to be a prosecutor, there was no dispute that the State would be liable for any tort those officers may have committed as a result of that involvement.
For these reasons, I am satisfied that SC Simpson, one of the persons in respect of whom the State was vicariously liable, was relevantly the prosecutor and thus the first element of the cause of action for malicious prosecution has been made out.

[21]

Did the proceedings terminate in favour of Mr Carvana?

As noted above, in the Local Court Mr Carvana pleaded guilty to sequence 3, the intimidation charge and, on that plea being entered, sequence 1, the common assault charge, sequence 2, the obstruct police charge and sequence 4, the destroy or damage property charge were withdrawn. In respect of sequence 3, the Magistrate dealt with it under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act).
Section 10(1)(a) of the Sentencing Procedure Act provides: "(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, …".
It follows from the terms of s 10(1)(a) and the Magistrate's decision that Mr Carvana must have been found guilty of the offence of intimidation to which he pleaded guilty but, notwithstanding that finding, the relevant charge was dismissed without proceeding to conviction.
The State submitted that: "[Mr Carvana] has not established that the second limb of the tort of malicious prosecution [favourable termination] has been satisfied in the circumstances were three charges were withdrawn against him as part of a plea bargain where [he] pleaded guilty to the charge of intimidation". (Emphasis in original)
The High Court has held that any termination of criminal proceedings that does not result in conviction is favourable to the plaintiff for the purposes of the tort of malicious prosecution: Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 (Beckett) at [6] (French CJ, Hayne, Crennan, Kiefel and Bell JJ.). At [6], their Honours explained that the requirement that the prosecution has terminated favourably to the plaintiff avoids the possibility of conflict in the decisions of the court trying the criminal charge and the court trying the civil action and they expressly adopted what was said by Professor Salmond: [42] "What the plaintiff requires for his action is not a judicial determination of his innocence, but merely the absence of any judicial determination of his guilt."
It does not appear that, in stating the principle in Beckett in those general terms, the High Court had in mind the situation that arises if a charge is dealt with under s 10(1)(a) of the Sentencing Procedure Act and there is, thus, a judicial determination of guilt but no conviction. Nor does it appear that the Court's attention was drawn to a judgment of the Full Court of the Supreme Court of Victoria which held that where an offence is found proved but no conviction is recorded, under a provision similar to s 10(1)(a), that will not amount to a favourable termination of the proceedings for the purposes of malicious prosecution: Cameron v James [1945] VLR 113 at 117 (Herring CJ and Gavin-Duffy J) and 121 (Martin J). [43]

[22]

Were the proceedings initiated (or maintained) maliciously?

The requirement of malice, in relation to the tort of malicious prosecution, relates to the purposes for which the proceedings were commenced or maintained. In this context, malice can be described as acting for purposes other than a proper purpose of instituting criminal proceedings and such malicious purposes include, but are not limited to, purposes of personal animus, to punish the plaintiff or to stop the plaintiff bringing a civil action against the defendant: A v NSW at [55] and [92] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). A proper purpose of a prosecution is to carry the law into effect: A v NSW at [40].
Furthermore, the improper purpose must be the sole or dominant purpose of the prosecutor: A v NSW at [91]. Malice can be proven by inference, but conjecture or suspicion will not be sufficient to prove malice: A v NSW at [93].
In the present case, the State observed that, despite the requirement in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 15.4 that a pleading that alleges any condition of mind including malice must give particulars of the facts on which the party pleading relies, Mr Carvana's fourth amended statement of claim did not contain such particulars nor were particulars of malice provided in any other form, despite the State pointing out the deficiency to Mr Carvana.
The fourth amended statement of claim: 1. alleged in pars 99-101, in effect, that the charges in sequences 1, 2 and 4 were each "initiated by the defendant"; 2. alleged in pars 105-107, in effect that "the defendants (Sen Con. Page Simpson, Sen Con. Cameron Rae and Sgt. Robert Minns) acted with malice in bringing the prosecution of [Mr Carvana]" for the charges in each of sequences 1, 2 and 4; and 3. contained, under the heading "clarification of points 105-107 as requested by defendants solicitors", Mr Carvana's version of what happened 18 October 2017 in narrative form.
Accordingly, as I understand Mr Carvana's case, it was that malice on the part of SC Simpson, SC Rae and Sgt Minns or one or more of them affected the initiation or commencement of the proceedings and should be inferred from the totality of each of the police officers' conduct in relation to him on 18 October 2017.
I have set out above my findings in relation to what occurred on 18 October 2017.

[23]

Were the proceedings initiated (or maintained) without reasonable and probable cause?

As to the fourth element that the proceedings were initiated or maintained without reasonable and probable cause, the High Court has held that an action for malicious prosecution does not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge: A v NSW at [56].
The notion of "reasonable and probable cause" involves "both an objective and a subjective aspect": A v NSW at [61]. Thus, "the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it?": A v NSW at [58]. Further, the inquiry has a "temporal dimension" requiring consideration of what material was available to the prosecutor at the time the prosecution was commenced or maintained: A v NSW at [59]; see also Beckett at [4].
Consequently, in order to satisfy the fourth element, Mr Carvana was required to show, on the balance of probabilities, either: [45] 1. the subjective element that SC Simpson (or, if relevant, SC Rae or Sgt Minns) did not honestly conclude that the material on which they acted provided a proper case for prosecution; or 2. the objective element that that material, considered in light of all the facts of the particular case was not objectively sufficient to support the conclusion that there was a proper case for prosecution.
As to the first, subjective element, because SC Simpson did not give oral evidence and there was no evidence that she lacked a belief that the material on which she relied did not provide a proper case or basis for prosecution, Mr Carvana had to rely on an inference that SC Simpson did not honestly believe that to be the case: see A v NSW at [61]. SC Simpson, like SC Rae, had personal knowledge of the police officers' interactions with Mr Carvana, had heard the radio messages relating to Ms Fawcett's 000 calls, had seen the video recordings of the interactions between Mr Carvana and Ms Fawcett and had read Ms Fawcett's police statement, because they had participated in taking that statement. In addition in SC Rae's case, it was not put to him in cross examination that he did not believe that the same information available to him provided a proper basis for those charges. Subsequently, SC Simpson and SC Rae briefed Sgt Minns and prepared their own statements and SC Simpson prepared CAN H65336205. In addition, there was no evidence which suggested that SC Simpson (and if relevant SC Rae) did not actually believe that there was a sufficient basis for the initiation of the proceedings as a result of the information available to them. In all the circumstances, I do not accept that Mr Carvana established on the balance of probabilities that SC Simpson, and if relevant SC Rae, did not honestly conclude that the material on which they acted in issuing the CAN provided a proper case for prosecution. Indeed, the evidence as a whole led me to infer that SC Simpson (and SC Rae) did believe that there was a proper basis for the prosecution.

[24]

Conclusion on malicious prosecution

Since Mr Carvana failed to make out the third and fourth elements of the tort of malicious prosecution, his claim on this basis fails.

[25]

Trespass to goods

On 18 October 2017, Mr Carvana's mobile telephone was handed to SC Simpson so that she could watch the video recording and thus she obtained possession of it but it was not returned to him, despite his demands, until 26 October 2017. The case was conducted on the basis that, if SC Simpson's seizure and retention of Mr Carvana's mobile telephone was not lawful, the State would be liable for trespass to goods.
It is possible that the cause of action could more appropriately have been framed as one in detinue on the basis that Mr Carvana voluntarily gave possession of the telephone to SC Simpson but she unreasonably refused to return it on demand. [46] SC Simpson's refusal would have been unreasonable, if she was not lawfully entitled to refuse to return the telephone at the time of the demand. Given the way in which the case was conducted, I have proceeded on the basis that Mr Carvana was claiming for trespass to goods and would be successful in such a claim unless it could be established that SC Simpson's seizure of his telephone was lawful. Nonetheless, since there would have been no difference in the factual enquiry involved, I also accepted that if SC Simpson's seizure of the telephone was unlawful and she was not entitled to retain it, the tort of detinue would have been made out in the circumstances of this case.
The State contended that the seizure of the mobile telephone was lawful on two, alternate bases: 1. the seizure was authorised under s 21(1)(b) of the LEPR Act; or 2. the seizure was authorised under the common law principle articulated in Ghani v Jones [1970] 1 QB 693.
I shall deal with each of these bases in turn.

[26]

Was the seizure authorised under s 21(1)(b) of the LEPR Act?

It was accepted that in the present case SC Simpson and SC Rae did not attend or carry out any functions at Mr Carvana's premises pursuant to a warrant.
In these circumstances, s 21 of the LEPR Act may be applicable. That section relevantly provided, as at 18 October 2017: "(1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists: … (b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence, …. (2) A police officer may seize and detain: … (b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, … found as a result of a search under this section."
A "relevant offence" for the purposes of s 21(1)(b) included an indictable offence: LEPR Act, s 20(a).
In addition, as at 18 October 2017, s 202(1) and (2) of the LEPR Act, which applied by virtue of s 201(1)(a) of that Act to the exercise the power of search under s 21, required an officer exercising the power to search to provide, as soon as reasonably practicable, to the person subject to the exercise of the power the following: 1. evidence that the police officer is a police officer (unless the police officer was in uniform); 2. the name of the police officer and his or her place of duty; and 3. the reason for the exercise of the power.
The State submitted that the officers had authority to search Mr Carvana under s 21(1)(b) because, by the time they saw the video recording, if not before, they suspected on reasonable grounds that Mr Carvana had in his possession the telephone which was "used in, or in connection with. the commission of a relevant offence, vis [sic] intimidation of Ms Fawcett" and intimidation within s 13(1) of the Crimes (Domestic and Personal Violence) Act was a serious indictable offence.
There is a problem with this submission. Even if the officers were authorised under s 21(1)(b) to search Mr Carvana that would not, by itself, have provided lawful authority to seize his telephone. It appeared to be implicit in the State's submissions, but was not expressly stated, that the seizure of the telephone was said to be lawful under s 21(2)(b) because it was: 1. "a thing that the police officer suspect[ed] on reasonable grounds may provide evidence of the commission of a relevant offence", and 2. [was] found as a result of a search under [s 21 of the LEPR Act]".

[27]

Was the seizure authorised under common law?

The State submitted that, if the Court did not accept the State's contention that the seizure of the telephone was authorised under the LEPR Act, the seizure was authorised under common law. The State relied upon the judgment of the English Court of Appeal in Ghani v Jones [1970] 1 QB 693 (Ghani) and submitted that the circumstances in the present case satisfied the requirements for lawful seizure set out in that Ghani. It was also submitted that the principle in Ghani continued to apply and had not been abrogated by the LEPR Act.
In Greer v Commissioner of NSW Police [2002] NSWSC 356; 128 A Crim R 586 (Greer) at [17], Bell J summarised the circumstances in which the principles in Ghani may apply as follows: "In Ghani v Jones [1970] 1 QB 693 Lord Denning MR enunciated a number of principles governing the common law power of police to seize articles in connection with an investigation. Ghani v Jones was concerned with the seizure, without a warrant, of certain property that included passports in connection with an investigation into the disappearance of a woman believed to have been murdered. His Lordship articulated five principles governing the seizure of articles in connection with an investigation in circumstances where no person has been arrested or charged (at pp 708 -709)".
The relevant portion of the Master of the Rolls' judgment in Ghani at 708-9 was as follows: "What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual his privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied: First: The police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of the first importance that the offenders should be caught and brought to justice. Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber). Third: The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable. Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned. Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards."

[28]

Conclusion on trespass to goods

It follows, given the basis on which the parties conducted the proceedings, that the State is not liable for trespass to goods, because Mr Carvana's telephone was lawfully seized.

[29]

Conclusion on liability and costs

For all of the reasons given above, Mr Carvana has been unsuccessful in establishing any of the causes of action on which he relied. As a result, there should be judgment for the defendant, the State.
The State submitted that if it were successful, it wished to be heard on the question of costs. In these circumstances, it is appropriate for the parties to be given the opportunity to make written submissions and put on any relevant evidence as to costs within a short period, such as two weeks each. The question of costs can then be dealt with on the papers, subject to either party seeking to have an oral hearing on that question, if they so wish. If an oral hearing on costs is sought, the parties may apply to my Associate to obtain a suitable date for such a hearing.

[30]

Damages

Since Mr Carvana has been unsuccessful in respect of each of the causes of action relied upon for the reasons given above, he is not entitled to any award of damages. As a general rule, however, a judge should determine all issues before him or her even if that is not necessary to determine the proceedings. This is to be done in order to assist the appeal process and to obviate recourse to a new trial if an appeal is successful: PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 at [15] (Leeming JA, Basten JA and Simpson AJA agreeing) and the cases there cited.
For this reason, I shall address the relevant issues raised in relation to damages, on the assumption that, contrary to my conclusions above, Mr Carvana succeeded on one or more of his claims of false imprisonment, malicious prosecution and trespass to goods.

[31]

Mr Carvana's damages claims

At the outset, it is useful to note how Mr Carvana pleaded and particularised his claims for damages.

[32]

The pleaded claims of loss and damage

Mr Carvana's pleading of his claim for damages was contained in pars 35-40 of his fourth amended statement of claim as follows: "35. Since the arrest and imprisonment of the complainant by the defendant, the complainant has suffered deteriorating psychological health and severe psychological injury as a direct consequence of his arrest and imprisonment by the State of New South Wales. 36. Consequently, the complainant has been unable to perform his professional work at a standard required by his profession and the business activity of the partnership has been severely damaged. 37. Consequently, the complainant has had to terminate a business entity of which he was director and owner called Emplus Business [sic] Solutions Pty Ltd [hereafter 'the business'] into liquidation. 38. The plaintiff has as a consequence of the tortious acts of the defendant, suffered significant financial loss and loss of opportunity with the closure of his business due to the psychological and emotional effects of his false imprisonment and malicious prosecution by the defendant. 39. The plaintiff's business was placed into liquidation on or about May 2019. 40. As a consequence of the actions of the State of New South Wales, and the resulting psychological injury of the first plaintiff, the plaintiff's marriage has deteriorated, and divorce proceedings are at foot."
The fourth amended statement of claim did not include a claim for, or particulars of, aggravated or exemplary damages.

[33]

Particulars of loss and damage

Mr Carvana's claim for damages being limited to psychological injury was confirmed by his statement of particulars which was in the following terms: "PARTICULARS OF INJURIES RECEIVED Psychological PARTICULARS OF CONTINUING DISABILITIES Psychological PARTICULARS OF OUT-OF-POCKET EXPENSES Various medical expenses from date of incident and ongoing. Defendants have subpoenaed Medicare and Medical records and can verify costs. Difficult for me to calculate, however specifically recall going to see a Psychiatrist (Dr Pai) just before incident in order to whine off Kalma, which we planned and agreed to, however, just after incident, went to visit him again and the advice then changed to 'forget about it at this stage'! This medication alone cost me in excess of $60 every 2 months. Due to the stress the situation caused me, I also had to have an angiogram performed at The Wollongong Hospital in 2019 by Associate Professor Astin Lee. Obviously all extra GP visits, various Psychologists, the Psychiatrist, the Heart Specialist, hospital stays (which included the breaking of a hip and shoulder at the same time) and medicinal costs are attributable to the Police incident. PARTICULARS OF CLAIM FOR DOMESTIC ASSISTANCE OR ATTENDANT CARE Unquantifiable as was looked after by my ex wife whilst married and would not drive for months. Since 2020 have been living with my parents to look after me, provide for me and have given me the opportunity to live with them, if not I would be homeless. PARTICULARS OF LOSS OF INCOME Emplus Solutions Pty Ltd - company was formed in April 2004 and purchased a Labour Hire business for $200,000. Traded extremely well and employed up to almost 100 casuals per year. Voluntary liquidation without much debt in April 2019 - could have been sold easily for $500,000 LOSS $500,000 Consulting fees paid to me from this company varied but were in excess of $50,000 per annum. LOSS $300,000 David Carvana & Associates - established by myself in 1996 from and grew to introduce a partner (2005?) and by 2017 had in excess of 3300 clients. After incident, could not manage it like previously and put it on market around October 2018. By May 2019 a merger was finalised with another Accountant from Ramsgate and myself and Mark Gillies sold 60% of business, but retain 20% each. This sale was far less than market value that was what we thought the best option to keep trading. LOSS $150,000 By April 2020 I was thrown out of the business completely and all my email addresses, etc.. sabotaged and people questioned why??? (Did I steal, lose my mind, it etc …) LOSS UNQUANTIFIABLE By 2017, I was receiving distributions from the Accounting Firm of at least $200,000 per annum. This continuously increased, hence, only allowing two years, LOSS $400,000 Owning 22% of 37 Princess Highway & 17 Cambridge Avenue, Fairy Meadow was to be our future development (2 street rare frontage and a great area) of combined commercial and residential. As the other owners became concerned due to my well-being and situation, we sold the whole property to a developer for far less than market value. LOSS $150,00 Attributable loss of developing and selling. LOSS UNQUANTIFIABLE Annette Rental received at time of selling was over $20,000 per year my share. LOSS Not having hardly any income at all since 2020, I have also had to draw twice on my Superannuation Fund to make ends meet. LOSS $20,000 + future growth PARTICULARS OF LOSS OF EARNING CAPACITY AND FUTURE ECONOMIC LOSS Not allowing for the Rental Property at all, one would easily assume that between my Labour Hire Company (Emplus) and my Tax Agent firm (David Carvana & Associates) I should have been generating an increasing income that would be easily be $350,000 per year. In theory, if I would have worked till the age of 67, that would be in an 12 year loss form 2 years ago, which would equate to $4,200,000 (without allowing for increase in prices, etc…. which always apply) as well as the possible sales of Emplus Solutions Pty Ltd and the shareholdings I retained at the reduced sale price of my Tax Practice. LOSS $5,600,000 approx. PARTICULARS OF ANY OTHER AMOUNTS CLAIMED costs involved with defending original case by Police and in Wollongong Local Court in 2018 which went from several charges to almost none. LOSS $30,000 (guessing but could have been more) The cost of losing my family, a lifestyle and more importantly watching your young daughter, only 11 then and about to commence High School suffer and struggle and require the assistance of Psychologist and Doctors for at least once trying to 'self-harm'! LOSS NO AMOUNT OF MONEY CAN REPLACE …".

[34]

The evidence of loss and damage

Mr Carvana's evidence in his statement concerning the loss and damage he claimed was largely consistent with the pleading and particulars and was as follows: "8. Before the event of October, 2017 at my property (and office), I was leading quite a happy life, with 2 successful businesses, a lovely huge home in a prestige area of Wollongong (Balgownie), driving very nice vehicles and had a beautiful wife, a precious young daughter and an older wonderful son. I also owned a decent percentage of the properties of my business premises and the property behind it that backed onto the next road parallel to ours and this was meant to be developed. 9. After the incident with Police, I began to go downhill dramatically (in particular psychologically) and slowly but surely all fell apart. Upon release from the Police Station, I could hardly have a full night's sleep, I was frightened to drive a car for months and had to be driven around by others. My anxiety shot through the roof and a simple task from the past became what seemed impossible - I have been under medical advice and medications non-stop and still find I can not still have one night's sleep as per before the event without waking up a few times as a minimum. 10. I attended the Wollongong Court to defend my charges from the Police in April or May of 2018 and to no surprise, not only were all charges dropped by the Police (except for now intimidation of the lady driving the vehicle, who consistently parked illegally in my private car park), but we were advised of this weeks before as well as the non-attendance of Sen Con Simpson and Sergeant Minns!!! I think this alone is a crucial part and crux of my claim - if they acted professionally, properly and without malice, they would have pursues all charges - they did not because they knew they did wrong and could not win any case against me and wanted to avoid being made to look like fools. I can only thank both the previous Justice and now Justice Cavanagh for not having thrown this case out of court as the defendants have been asking and finally giving me the opportunity in questioning these officers at the trial in February. 11. By January of 2019, my marriage commenced falling apart, in April of the same year my Labour Hire Company (Emplus Solutions Pty Limited) was placed into voluntary liquidation, without me even contemplating to sell it, etc…. due to all the pressure and by May 2019, we merged our Accounting Practice quite rapidly which saw me being thrown out of what I commenced in June of 1996 by April 2020. As the marriage was crumbling, I had no option but to sell the family home which settled in April of 2020 and left me with nothing but debts. The Commercial property was also fire sold as all other parties began panicking and I took my last blow there. In 2020 I called Volkswagen Finance and asked them to repossess my Jaguar X 3ltr supercharged model as I could no longer afford it and had not made a payment since April of 2020. 12. From date of separating, I have been living with my parents and simply try paying my daughter's school fees, health fund and whatever I can to spoil her and keep her stable after what she has been through - I have had to take her to counsellors, etc…… and do all to keep her safe as she did attend self harm - doctors and psychologists can verify this."

[35]

Consequential loss generally

From the pleading, particulars and evidence, it appeared that Mr Carvana's principal claims in damages related to consequential loss suffered as a result of psychological injury and his resulting inability to continue to perform his duties in relation to the labour hire business of Emplus Solutions Pty Ltd, his accounting practice and his interests in the properties at 37 Princess Highway and 17 Cambridge Avenue, Fairy Meadow which, in turn, were alleged to have led to substantial financial loss and damage as well as family distress and marriage breakdown.
There are at least two difficulties with Mr Carvana's claims for such consequential loss and damage.

[36]

Availability of damages for consequential loss and damage suffered as a result of intentional torts

First, consequential loss and damage suffered as a result of intentional torts, such as those relied upon by Mr Carvana in the present case, are limited. The principles which govern recovery of consequential loss in such cases were discussed in State of New South Wales v Spedding [2023] NSWCA 180 (Spedding) and reiterated in State of New South Wales v Madden [2024] NSWCA 40. In Spedding, Bell CJ, Ward P and Adamson JA explained at [291] that, in cases of intentional torts in order to be entitled to damages for consequential loss flowing from physical or mental harm, a plaintiff is required to prove that: 1. the tortious act caused the physical or mental harm; and, 2. the tortfeasor had: 1. an actual intention to cause the harm; or 2. a presumed intention to cause the harm, and such harm will be presumed if it is the natural and probable consequence of the tort. [56]
In relation to the first requirement, for the reasons set out in more detail below, I was not persuaded that Mr Carvana proved on the balance of probabilities that he suffered any physical injury or any discrete psychological injury beyond a temporary increase in his symptoms of anxiety, as a result of the subject incident. Nor did I accept the increase in anxiety symptoms caused him to reduce his workload or any reduction in his earning capacity.
As to the second requirement and even if it be assumed, for the purposes of consideration of this point, that the tortious act or acts in the present case caused Mr Carvana psychological harm and this had the consequences for his business, professional and property interests which he claims, neither the facts that I have found nor the evidence as a whole provide, in my view, any significant basis for an inference that SC Simpson, or SC Rae or Sgt Minns actually intended to cause Mr Carvana any psychological harm of the type allegedly suffered, or any other mental or physical harm, or any harm to his business, professional or property interests or any harm to his family relations.
Furthermore, I do not accept that the evidence as a whole supports the inference that the natural and probable consequence of Mr Carvana's being arrested, taken to Wollongong police station, charged and released on bail after approximately four and a half hours was that he would suffer psychological injury of the nature or extent alleged or that he would suffer loss, as claimed, to his business, professional and property interests as well as to his family relations.

[37]

Generally causation of psychological injury not established

Secondly, the evidence adduced in these proceedings relating to the issue of psychological injury did not, in my view, support the awarding of the consequential damages claimed (assuming such were recoverable), except for a limited award of damages in relation to a temporary increase in anxiety symptoms. Mr Carvana did not allege that he had suffered any physical injury and, on the evidence as a whole, I would not find that there was any such injury.
As to psychological injury, I was not persuaded that there was any medical evidence sufficient to establish on the balance of probabilities that Mr Carvana suffered any discrete psychological injury as a result of any of the relevant conduct of any of the police officers or that any psychological injury actually suffered by Mr Carvana caused him to be unable to perform his duties in respect of the labour hire business or the accounting practice or property interest such that: 1. the labour hire business was required to be put into voluntary liquidation and not sold for a proper value; or 2. the accounting practice was required to be merged in about May 2019, which then led to Mr Carvana being "thrown out" of the practice in about April 2020; or 3. 37 Princess Highway and 17 Cambridge Avenue, Fairy Meadow had to be sold, whether at an undervalue or otherwise; or 4. any of the other consequences financial or personal alleged by Mr Carvana.
I gave particular consideration to the medical and psychological records tendered by Mr Carvana because this was the principal, if not the only, evidence relating to his psychiatric or psychological condition which he put before the Court. I noted the medications, diagnoses and opinions referred to in those records and the apparent history and information provided at various times by Mr Carvana as recorded by the doctors and the psychologist. In my view, taken overall, those records were consistent with, and provided support for, the opinions of Dr Samuell who was called by the State.
As noted above, the only expert psychological or psychiatric evidence adduced in the present case was that of the clinical and forensic psychiatrist, Dr Samuell, who assessed Mr Carvana by AVL on 29 November 2022. Although Mr Carvana sought to raise questions concerning the doctor's expertise or competence based on internet reviews of his professional performance, I do not accept that anonymous comments left on a website or websites concerning Dr Samuell constitute credible or reliable material upon which I could base a conclusion that the doctor lacked the required expertise to express the opinions that he did or that his evidence should be rejected as unreliable. Dr Samuell holds degrees of Bachelor of Medicine and Bachelor of Surgery and is Fellow of the Royal Australian College of Psychiatrist and I accept that he is suitably qualified to express opinions concerning Mr Carvana's psychological or psychiatric conditions. I observed the doctor give evidence and there was nothing in his demeanour, presentation or answers which caused me to form any adverse view of his honesty or reliability. Indeed, I formed the view that his evidence was measured, credible and supported, where appropriate, by the observations and material which he identified. In particular, I accept his observations of Mr Carvana and the manner in which he interacted with Dr Samuell during their AVL consultation. In addition, in my view, the assumptions upon which Dr Samuell's opinions were based, including the matters set out in the medical and psychological records which he reviewed for the purposes of preparing his two report, were supported by the documentary and oral evidence before me (which I have referred to in more detail in the confidential appendix to this judgment), and his conclusions were adequately explained in his reports and in his oral evidence. For all of these reasons and in the absence of any evidence to the contrary, I accepted Dr Samuell's evidence as a whole.

[38]

Other evidence concerning Mr Carvana's employment and financial affairs post October 2017

Having regard to the findings in the confidential appendix and on all the evidence, I find that after the incident in October 2017, Mr Carvana was capable of working and had continued involvement in the provision of financial services to clients and has worked as a manager and in house accountant for a different labour hire business operated by Bizvis Pty Ltd for some time and probably to a greater extent than he was prepared to accept or concede in evidence.
Some aspects of Mr Carvana's evidence in these regards led to confusion rather than clarity. For example, during cross examination Mr Carvana was asked questions about a website said to be current at February 2023 for an entity called "David Carvana Financial Services", [57] about which the website stated: "David Carvana Financial Services is a strategic business partnership between David Carvana and Associates and RFE Group. We are experts in taxation, superannuation, investments, wealth creation and risk management. The team at David Carvana Financial Services is passionate about delivering real outcomes to wealth accumulators."
Next to the words "Meet the Team" on that website, Mr Carvana's photograph was displayed, along with the photographs of three other team members, and Mr Carvana is described as a "Principal" of David Carvana Financial Services. Also on the website, David Carvana Financial Services Pty Ltd is said to have the ABN 30623364134 and to be a "Corporate Authorised Representative … of iPraxis Pty Ltd" which is said to hold a nominated Australian Financial Services Licence.
During cross examination of Mr Carvana, that website was referred to in the following passage: [58] "Q. And I think there's still a website, Mr Carvana - I'm not sure if you're aware of it - called David Carvana Financial Services Group, that's still live on the web at the moment. Are you aware of that? A. Not at all. I don't look at it. I've got no involvement in it. So I'm glad you alerted me to it. Q. So you weren't aware, sitting here today, that there was a website which styled itself in the web pages David Carvana Financial Services Group? A. Honest to God, no idea. Can you note that for me, Chris, please?"
Subsequently, Mr Carvana provided an Australian Securities and Investments Commission (ASIC) extract in relation to a company called "Lifestyle Financial Services Wollongong Pty Ltd" which indicated that: the ABN of that company was 30623364134; it had been registered on 12 December 2017; it was originally known as David Carvana Financial Services Pty Ltd; but, it had been deregistered on 20 June 2021. [59]

[39]

Lack of evidence as to Mr Carvana's interests

In addition to the absence of medical evidence supporting his claimed loss and the lack of documentation concerning Mr Carvana's employment and professional and business activities and the unsatisfactory evidence that he did give, there was also no evidence sufficient, in my view, to establish on the balance of probabilities the quantum of his claimed losses in relation to the labour hire business operated by Emplus Solutions Pty Ltd, his accounting practice David Carvana & Associates and the properties at 37 Princess Highway and 17 Cambridge Avenue, Fairy Meadow, said to have been suffered because of any inability to work as a result of the subject incident (if contrary to my conclusion, such an inability had been established on little evidence).
As to Emplus Solutions Pty Ltd, the company went into liquidation on 24 May 2019 and was deregistered on 14 June 2021. The evidence adduced by the State and put to Mr Carvana in cross examination established that Mr Carvana beneficially owned 100 ordinary shares and 1 founder's share in Emplus Solutions Pty Ltd, one other person beneficially owned 100 shares and a third person owned 50 shares other than beneficially in that company. There was no significant evidence that the company was put into liquidation because of Mr Carvana's inability to work, nor was there evidence as to what happened in relation to the liquidation. Moreover, from Mr Carvana's evidence in cross examination, I was also satisfied that Bizvis Pty Ltd, which also operated a labour hire business, was incorporated at about the time Emplus Solutions Pty Ltd went into liquidation in 2019 and was owned by Mr Carvana's sister and brother-in-law, who have also been directors, and had its registered office at David Carvana & Associates and operated out of 37 Princess Highway, Fairy Meadow, for some time. [64] I infer that a labour hire business of the type previously carried on by Emplus Solutions Pty Ltd could have been, and probably was, carried on subsequently by Bizvis Pty Ltd. Mr Carvana worked in that business. In my view, Mr Carvana did not establish on the balance of probabilities that the liquidation of Emplus Solutions Pty Ltd was relevantly caused by any inability on his part to work because of any psychological injury suffered as a result of the subject incident.
As to his accounting partnership before or after the subject incident, not only were there no tax returns or other documents in evidence giving financial details relating to that practice, there were also no documents evidencing any transactions involving David Carvana & Associates, such as a merger or Mr Carvana leaving or being "thrown out" of the practice, as claimed by Mr Carvana. His evidence in cross examination included: [65] " Q. So, is your evidence that it was only a merger of two accounting practices, and not an element involving a sale? A. No, it was a merger, and it also involved the purchaser paying the current people a monetary amount. Q. So when you say "current people", you mean people at the time of the merger in 2020? A. Okay. So there were three partners; correct? There's Troy Burns, who owns Lifestyle Accounting - came to merge with us, gave us some money, and we were shareholders. Within a year, or whatever it was, I walked out the door. I was thrown out the door."

[40]

Conclusion on consequential loss

For all of these reasons, in my view, Mr Carvana was not entitled to recover damages for consequential loss as claimed, even if it were assumed that he had successfully established that the State was liable in respect of the torts upon which Mr Carvana relied. The only recoverable damages for consequential loss were limited, in my view, to $10,750 for the temporary increase in his symptoms of anxiety and the treatment required for that increase, as explained above and in the confidential appendix to this judgment.

[41]

Aggravated and exemplary damages

As noted above, there were no particulars, identified as such, given in the fourth amended statement of claim or in the statement of particulars of any facts and circumstances said to provide a foundation for a claim of aggravated or exemplary damages, as required by rr 15.7 and 15.8 of the Uniform Civil Procedure Rules 2005 (NSW).
In any event, in my view, neither aggravated nor exemplary damages would have been justified or appropriate in the present case. [69]
Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 (NSW v Ibbett) at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). Relevant injury to the plaintiff for these purposes includes injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47.
While aggravated damages are compensatory in nature and focus on the injury suffered by the plaintiff, exemplary damages are not compensatory and are awarded to mark the court's disapprobation of the conduct and to punish the wrong-doer and to deter and, thus, they are punitive in nature and focus on the conduct of the person causing the harm: State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320; at [87]-[88] (Beazley P); NSW v Ibbett at [35].
In light of my findings, which have been set out above, I was not satisfied that there was any relevant conduct on the part of the police officers on 18 October 2017 which caused injury to Mr Carvana's feeling as a result of humiliation or insult beyond that which is ordinarily involved in torts of the type relied upon by Mr Carvana and which would be encompassed in an award of compensatory damages for such torts. [70] Mr Carvana's response to the relevant events appears to have involved overreaction on his part to various situations, including perceived sternness or harshness of the police officers. In my view, any sternness or harshness perceived by Mr Carvana was caused either by his surprising and unreasonable conduct, such as blocking the officers' exit by lying down on the driveway, or by his flippancy and antagonistic attitude, while at the police station. Thus, any additional feelings of humiliation or insult perceived by Mr Carvana were not caused by the officers' actions but by his exaggerated reactions which, in the circumstances, were not justified, especially in light of his conduct which precipitated the officers' actions.

[42]

Injury by way of interference with personal liberty and property and with his dignity and reputation

Since Mr Carvana was a litigant in person, the State in its submissions implicitly assumed, and I accept, that he intended to claim, in addition to the consequential loss and damage pleaded and particularised, damages for interference with his personal liberty, his dignity and reputation, feelings of distress or humiliation or his right to possession and use of his property as a result of the torts on which he relied.
I shall deal with the assessment of damages in those regards, on the assumption that liability had been established, separately in respect of each cause of action.

[43]

Damages for false imprisonment

In relation to damages that may be awarded for false imprisonment, it is to be recognised that this tort is a form of trespass to the person, it is actionable per se, regardless of whether the victim suffers any harm, and it protects and vindicates a person's right to freedom from interference with personal liberty as a fundamental legal right: Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26 at [45] (Gordon J); State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 (Smith) at [153] (McColl JA, Leeming JA and Sackville AJA generally agreeing). Furthermore, compensatory damages for false imprisonment reflect not only the interference with personal liberty but also the adverse impact upon the person's dignity and reputation and may be assessed by reference to, inter alia, the duration of the deprivation of liberty and the hurt or injury to the person's feelings including mental suffering, disgrace or humiliation: Smith at [154] citing French J in Goldie v Commonwealth of Australia (No 2) [2004] FCA 156; (2004) 81 ALD 422 at [14].
Compensatory damages for false imprisonment cannot, however, be computed on the basis that there is some kind of applicable daily rate since a substantial proportion of the ultimate award must be given for what has been described as "the initial shock of being arrested": Smith at [155].
If it is assumed that Mr Carvana was falsely imprisoned because his arrest was not lawful, he would be entitled to compensatory damages for interference with his personal liberty, the adverse impact upon his dignity and reputation and hurt or injury to his feelings as a result of his being detained for the period of approximately four and a half hours between his arrest and his release on bail. As I have explained above, there was, in my view, no excessively demeaning or humiliating conduct on the part of the officers involved such as to attract aggravated or exemplary damages.
Examples of compensatory damages awarded in other cases of false imprisonment with some similarity to the present case include: 1. $10,000 upheld by the Court of Appeal for false imprisonment of about three hours being the time taken to convey the person to the police station, process her through the custody desk, and arrange the assistance of an interpreter to interview and involving police seizing the her arms and forcing her to the ground to handcuff her in order to effectuate the imprisonment: State of New South Wales v Abed [2014] NSWCA 419; 246 A Crim R 549 at [224]-[226] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing); 2. $10,000 for false imprisonment of about two and a half hours which involved "the detained person being handcuffed and marched through a crowd of onlookers and then incarcerated in a police paddy wagon, locked in a cell at the police station and fingerprinted and photographed as a criminal" described by the Court of Appeal as "a most terrifying and unforgettable experience": Coyle v State of New South Wales [2006] NSWCA 95 at [99]-[100] (Tobias JA, Mason P and Handley JA agreeing); 3. $10,000 for false imprisonment for two and a half hours because of an arrest contrary to the provisions of s 99(1)(a) of the LEPR Act, without circumstances justifying an award of exemplary or aggravated damages: Murphy v The State of New South Wales [2023] NSWSC 407 at [190] (Davies J); and 4. $8,000 for false imprisonment for" well short of one day" in which the person was not mistreated and he was not shocked to be arrested: Hrdavec v State of New South Wales [2021] NSWSC 560 at [477]-[478] (Walton J).

[44]

Damages for malicious prosecution,

In relation to malicious prosecution, it is necessary to note that, since this tort is an action on the case, in addition to the elements of the tort of malicious prosecution identified above, proof of actual damage is required: Rock v Henderson [2021] NSWCA 155 (Rock) at [109] (Wright J, Bell P and Brereton JA agreeing). In Rock, the Court of Appeal reiterated, at [14] (Brereton JA, Bell P agreeing) and [109], that the types of damages that might be recovered in malicious prosecution proceedings are: 1. damage occasioned by injury to reputation; 2. damage to the person in the sense of injury to life, limb or liberty; and 3. damage to property of the person both by being put to the expense of defending the proceedings as well as consequential economic and property loss that is not too remote.
In addition, as held in Rock at [14], once damage under any of those three heads is proved: 1. the award of damages is at large, subject to the limitation that they must not be unreasonably disproportionate to the injury sustained; 2. damages are available for mental distress, for example where it is occasioned by a serious criminal charge; and 3. aggravated and exemplary damages may be awarded.
I have already found that Mr Carvana did not establish on the balance of probabilities that he suffered, except for a temporary increase in his anxiety symptoms, any psychological or other injury to life or limb as a result of what occurred on 18 October 2017 or his prosecution in the Local Court or that he suffered any loss to his business, professional, property, personal or family interests as a result of such an injury. Thus, no damages should be awarded under those heads, even if Mr Carvana had been successful in his claim for malicious prosecution, except for the amount of $10,750 explained above. Similarly, I have already explained that aggravated and exemplary damages should not be awarded.
As to other heads of damage, for the mental distress and injury to reputation inherent in facing criminal charges of the types in sequences 1, 2 and 4 in the CAN and any resulting injury to liberty prior to Mr Carvana being released on bail, I would assess the damages at $10,000 in the circumstances of the present case, on the assumption that Mr Carvana was successful in his claim of malicious prosecution.
Finally, in relation to Mr Carvana's costs of defending the proceedings, he has particularised his claim as "LOSS $30,000 (guessing but could have been more)". While there was no specific evidence on this topic, the evidence established that Mr Carvana was represented by counsel and solicitor in relation to the Local Court proceedings. Even in the absence of specific evidence about the costs actually incurred, I am prepared to allow damages by way of out-of-pocket expenses of $15,000 for the costs of defending the Local Court proceedings.

[45]

Damages for trespass to goods

On the assumption that the seizure of his telephone was unlawful and the State is liable to Mr Carvana for trespass to goods, which is a wrong to possession, the damages recoverable should reflect the fact that, unlike many cases of trespass to goods, the goods were not said to have been damaged or destroyed. In those latter types of cases, the measure of damages has been explained in Fleming's The Law of Torts (11th edition, Thompson Reuters, 2024) at par 4.40 as follows: "A plaintiff who has been actually deprived of goods in his or her possession is prima face entitled to recover their full value as in an action for conversion: the judgement, in effect, forces a compulsory purchase upon the wrongdoer. But in case of mere damage, falling short of complete destruction, the proper measure of damages is the actual loss suffered in consequence of the trespass, like any diminution in value of the chattel.36 [Footnote 36 was "But unlike detinue, not for deprivation of possession: Pargitter v Alexander (1995) ATR ¶81-349"]" (Other footnotes omitted)
As I have already noted, Mr Carvana's claim in respect of his telephone may have been framed as a claim in detinue, rather than trespass to goods in that, although Mr Carvana voluntarily gave possession of the telephone to SC Simpson, she refused to return it on demand, assuming for these purposes that her retention of the telephone was unlawful.
This may have some significance because the categories of damages recoverable for trespass to goods have been held to be different from the heads of damage available for detinue: Pargiter v Alexander (1995) 5 Tas R 158; [1995] TASSC 62; (1995) Aust Torts Reports 81-349 (Pargiter) (Zeeman J), which has been cited with approval in Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342 at [173] (Allsop P). In Pargiter, it was explained as follows: "Trespass to chattels is a wrong to possession … committed by an act of the defendant and as a direct consequence thereof. … The essence of the tort of detinue is the wrongful detention of a chattel to which the plaintiff has the right to immediate possession which requires that there be a demand and a wrongful refusal to comply with that demand. On one set of facts both torts may be established although there may be a trespass without detinue or detinue without a trespass. The different elements of the two Torts assist in defining the nature of the damage which may flow from each. Damages in trespass are by way of compensation for the injury done to the chattel by reason of the wilful interference with it, although nominal damages may be awarded where no actual damage occurs …. In a case in detinue, where the plaintiff hires out the chattel to users as part of his business, the normal measure of damages for the detention of the chattel is the market rate at which it could have been hired, and that principle may extend to other chattels as well….Reasonable costs incurred by way of hiring a replacement chattel during the period of wrongful detention would appear to be recoverable on the same basis. … In such a case [of a plaintiff being deprived of possession for a time] damages are not to be assessed on the basis of the depreciation in value but on the basis of the loss suffered by the plaintiff by reason of not having been able to dispose of the [property] when he would have done had it not been for the defendant keeping him out of possession. …".

[46]

Orders

For all of these reasons, the orders of the Court are: 1. Judgment for the defendant. 2. The defendant is to file and serve any written submissions and evidence relating to the costs order to be made in these proceedings on or before 29 March 2024. 3. The plaintiff is to file and serve any written submissions and evidence relating to the costs order to be made in these proceedings on or before 12 April 2024. 4. The question of costs is to be dealt with on the papers, unless a party in its written submissions notifies the Court and the other party that it seeks to have an oral hearing on costs. 5. If an oral hearing on costs is sought, the parties have liberty to contact Wright J's Associate to obtain a suitable date for such a hearing.

[47]

Endnotes

Ex O, and also part of Ex AC.
Ex 26.
Ex AB.
Ex 25.
Ex 25.
Part of Ex AC.
Ex B
Ex C.
Tcpt, 11 July 2023, p 428(1) - (3).
Tcpt, 11 July 2023, p 436(10) - (11).
It was explained that it was probably prepared on 23 January and corrected on 30 January 2023 and this accounted for the two different dates on the document: tcpt, 11 July 2023, p 443(26) - (34).
See for example tcpt, 11 July 2023, p 453(13) - (29), p 464(48) - (50).
Ex 23.
See for example tcpt, 13 July 2023, p 557(3) - (33), p 589(14) - p 590(9).
See for example tcpt 13 July 2023, p 557(26) - (33), p 561(4) - (14), p 567(46) - (49), p 584(46) - p 585(9).
Ex A.
These included, for example, Ex 7 the statement of claim dated 9 October 2020, Ex 8 the amended statement of claim dated 28 June 2021, Ex 9 the second further amended statement of claim dated 16 July 2021 (although it appears to be misdated 2001), Ex 10 the third further amended statement of claim dated 14 June 2022, and Ex 13 a document headed "B" which Mr Carvana in effect accepted was probably prepared based on what he told someone - tcpt,11 July 2023, p 380(28) - (42).
See for example tcpt, 20 February 2023, p 65(8) - (48); tcpt, 10 July 2023, p 301(7) - (44), p 304(6) - (28), p 305(4) - (11) and (23) - (26), p 335(43) - p 337(26).
Tcpt, 20 February 2023, p 27(19) - (28).
See for example tcpt, 21 February 2023, p 138(1) - (37), p 139(5) - 141(9), p 206(45) - p 208(43); tcpt, 10 July 2023, p 302(34).
Tcpt, 20 February 2023, p 56(19) - (50).
See for example tcpt, 11 July 2023, p 381(6) - (32) compared to tcpt, 10 July 2023, p 303(23) - p 305(7), p 307(12) - (14).
See for example tcpt, 10 July 2023, p 337(13) - (21).
See for example tcpt, 20 February 2023, p 75(31).
Ex Q pp 462, 503 and 505.
See for example tcpt, 20 February 2023, p 72(3) - (24) and (41) - (48), p 73(44) - p 75(4), p 87(48) - p 88(7); tcpt, 10 July 2023, p 303(24) - (33) and (46).

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (47 paragraphs)

Parties

Legislation Cited (13)

Cases Cited (64)

Cited By (2)