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[2025] NSWCA 41
General information, not legal advice.
Court of Appeal (NSW)
2025-03-20
Gleeson JA at [1], Kirk JA at [2], McHugh JA at [3].
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Medium Neutral Citation: Emde v State of New South Wales [2025] NSWCA 41
Hearing dates: 18 February 2025
Date of orders: 20 March 2025
Decision date: 20 March 2025
Before: Gleeson JA at [1];
Kirk JA at [2];
McHugh JA at [3].
Decision: (1) Leave to appeal refused.
(2) The amended notice of appeal otherwise be dismissed.
(3) Notice of motion filed 18 February 2025 be dismissed with no order as to costs.
Catchwords: TORTS — false imprisonment — whether power to arrest lawfully exercised under s 99, Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — whether police officers suspected on reasonable grounds that the person committed offences — where suspected offences comprised breaches of an ambiguous order — “reasonably necessary” criterion — whether arresting officer’s satisfaction that the arrest was reasonably necessary was manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide
CIVIL PROCEDURE — Court of Appeal — competency of appeal — whether appeal involves matter at issue amounting to or of the value of $100,000 or more — need for party seeking to appeal to demonstrate that the appeal is not limited by monetary sum
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 14, 16(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
District Court Act 1973 (NSW), s 127(2)(c)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(1)
Migration Act 1958 (Cth), s 189(1)
Supreme Court Act (NSW), s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), rr 51.22, 51.41, 52.22
Cases Cited: AD v State of New South Wales [2023] NSWCA 115
BE Australia WD Pty Ltd (subject to a deed of company arrangement) v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414
Commissioner of NSW Police v Murphy [2024] NSWCA 311
Emde v State of New South Wales [2024] NSWDC 268
Fong BHNF Fong v Weller [2024] NSWCA 46
Gaynor v Attorney General (NSW) (2020) 102 NSWLR 123; [2020] NSWCA 48
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267
Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 378
Maynes v Casey [2011] NSWCA 156
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266
Reeves v State of New South Wales [2024] NSWCA 125
Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48
State of New South Wales v Randall [2017] NSWCA 88
Thoms v Commonwealth (2022) 276 CLR 466; [2022] HCA 20
Category: Principal judgment
Parties: Gerd Emde (Appellant)
State of New South Wales (Respondent)
Representation: Counsel:
H Weller (Solicitor) (Appellant)
G Reynolds SC / MJ Gollan (Respondent)
Solicitors:
Herbert Weller Solicitor (Appellant)
Norton Rose Fulbright (Respondent)
File Number(s): 2024/00273110
Publication restriction: Nil.
[This headnote is not to be read as part of the judgment]
The appellant consented without admissions to a final apprehended domestic violence order made in the Local Court at Windsor on 14 April 2022 (the ADVO). The protected person under the ADVO was the appellant’s adult daughter who worked at the Woolworths store at Richmond Market Place. Order 8 of the ADVO was as follows:
“8. You must not go into:
A) any place where Kimberly Jane EMDE lives, or
B) any place where she works, or
C) any place listed here
Woolworths Richmond, Richmond Market Place, Paget Street and Lennox Street, Richmond, NSW 2753.”
Police determined that the appellant entered Richmond Market Place, but not the Woolworths store, on two occasions after the ADVO was made. On 21 April 2022, the appellant was arrested on suspicion of two offences of breaching the ADVO. On 28 April 2022, he pleaded guilty to the offences at the Local Court at Windsor.
The appellant later commenced proceedings against the State of New South Wales in the District Court for damages arising out of the circumstances of his arrest. His claims (in battery, assault, wrongful arrest and false imprisonment) failed at first instance. A central issue was whether the appellant’s arrest was authorised by s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).
The primary judge found that the ADVO was ambiguous, but that the officer’s suspicion that the appellant had committed an offence was held on reasonable grounds for the purposes of s 99(1)(a) because it was reasonably open to construe the ADVO as prohibiting the appellant from entering Richmond Market Place. An important part of his Honour’s reasoning was his finding that the arresting officer had verified the ADVO terms over the police radio.
The primary judge applied the approach adopted by Basten JA in State of New South Wales v Randall [2017] NSWCA 88, finding that the officer’s s 99(1)(b) state of satisfaction that the appellant’s arrest was reasonably necessary was not manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide.
At first instance, the appellant had sought a global sum of $140,000 for wrongful arrest, false imprisonment, assault and battery. The primary judge contingently assessed compensatory damages for false imprisonment at $5,000, his Honour finding that there was no basis for aggravated or exemplary damages.
The appellant sought to appeal as of right with respect to his claim in false imprisonment. His notice of appeal certified for the purposes of r 51.22 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that his right of appeal was not limited by a monetary sum. At the hearing of the appeal, the appellant was granted leave to amend his notice of appeal to include a prayer for relief seeking leave to appeal.
The Court held (McHugh JA, Gleeson and Kirk JJA agreeing), refusing leave to appeal:
(1) The proper approach to the $100,000 monetary threshold in s 127(2)(c) of the District Court Act 1973 (NSW) is the same as that which applies to s 101(2)(r) of the Supreme Court Act 1970 (NSW). There must be a realistic prospect that the appeal would change the wealth of the appealing party by at least $100,000: [1] (Gleeson JA); [2] (Kirk JA); [32] (McHugh JA).
Jalubani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267; Gaynor v Attorney General (NSW) (2020) 102 NSWLR 123; [2020] NSWCA 48; BE Australia WD Pty Ltd (subject to a deed of company arrangement) v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414, applied.
(2) There was no such realistic prospect where (1) there was no challenge to the primary judge’s contingent assessment of damages, and the notice of appeal did not claim any substantive relief; and (2) the appellant’s solicitor’s UCPR r 51.22(3) affidavit did not set out any material facts to support a variation in the judgment in an amount equal to or exceeding the monetary threshold : [1] (Gleeson JA); [2] (Kirk JA); [33]-[43] (McHugh JA).
Maynes v Casey [2011] NSWCA 156, considered.
(3) As to s 99(1)(a), the appellant had not demonstrated a reasonably clear error in the primary judge’s conclusion that the officers’ suspicion was held on reasonable grounds. The appellant’s submission that any ambiguity in the ADVO was to be disregarded in the s 99(1)(a) analysis was not supported by the statutory language, and his submission that the ADVO was not ambiguous was rejected on the facts: [1] (Gleeson JA); [2] (Kirk JA); [54]-[64] (McHugh JA).
(4) As to s 99(1)(b), the appellant conducted the appeal on the basis that a challenge to the arresting officer’s state of satisfaction that arrest was reasonably necessary will only be available where it can be shown that it was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide. The appellant had not shown a reasonably clear error in the primary judge’s conclusion that, notwithstanding the arresting officer’s lack of consideration of alternatives to arrest, it had not been shown that his state of satisfaction was manifestly unreasonable, or arbitrary, irrational, or not bona fide: [1] (Gleeson JA); [2] (Kirk JA); [75]-[100] (McHugh JA).
State of New South Wales v Randall [2017] NSWCA 88; AD v State of New South Wales [2023] NSWCA 115; Reeves v State of New South Wales [2024] NSWCA 125; Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 378, considered.
GLEESON JA**:** I agree with McHugh JA.
KIRK JA**:** I agree with McHugh JA.
M****cHUGH JA: New South Wales police arrested the appellant on suspicion of breaching the terms of an apprehended domestic violence order. He sought to challenge the finding of the primary judge, Andronos SC DCJ, that the arrest was lawful by reason of s 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). Although this matter might have raised questions of principle about a police officer’s power to arrest without warrant, in light of the way in which the argument proceeded it would not be appropriate for the Court to grant leave to appeal to consider those questions. Nor, given that the arguments advanced for the appellant did not demonstrate that he had suffered a reasonably clear injustice, is it otherwise appropriate to grant leave to appeal.
The appellant, who was 78 years old and physically frail, consented without admissions to a final apprehended domestic violence order (the ADVO) made in the Local Court at Windsor on 14 April 2022. The period of the ADVO was two years. The protected person under the ADVO was the appellant’s adult daughter Kimberly, who worked at the Woolworths at Richmond Market Place.
Order 8 of the ADVO was as follows:
“8. You must not go into:
A) any place where Kimberly Jane EMDE lives, or
B) any place where she works, or
C) any place listed here
Woolworths Richmond, Richmond Market Place, Paget Street and Lennox Street, Richmond, NSW 2753.”
The appellant took the view that the ADVO prohibited him from going into the Woolworths store (which was within Richmond Market Place), but that it did not otherwise prevent him from entering the Market Place. He continued to visit the Market Place, including to attend his preferred café there. On one occasion, Kimberly saw the appellant at the café, although he did not see her. Distressed, she reported the matter to the police. They investigated the matter, including by viewing closed circuit television recordings of the Market Place. This showed that the appellant had entered the Market Place, but not the Woolworths store, on two occasions after the ADVO had been made.
By s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act), a person who knowingly contravenes a prohibition or restriction specified in such an order is guilty of an offence, for which the maximum term of imprisonment is two years.
On 21 April 2022, the appellant was arrested outside a (different) café in Kurrajong on suspicion of two offences of breaching the ADVO. He was permitted to drive himself to the police station, where he was taken into custody, charged with the two offences and, after a period in custody of less than three hours, released on conditional bail.
On 28 April 2022, the appellant pleaded guilty to the two offences at the Local Court at Windsor. A conviction was not recorded and the proceedings were dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Notwithstanding his guilty plea, the appellant sued the State of New South Wales in the District Court for damages arising out of the circumstances of the arrest. His claims in the torts of assault and battery failed at trial, and were not pressed in this Court.
The appellant’s claim that the two police officers who arrested him did so wrongfully and thereafter subjected him to false imprisonment also failed at trial. A central issue in the proceeding which arose on the State’s defence was whether the arrest was authorised by s 99(1) of LEPRA.
Section 99(1) provides:
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,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
As to s 99(1)(a), the primary judge accepted the evidence given by the two officers that they subjectively believed that it was an offence for the appellant to enter Richmond Market Place. The main contest was whether their suspicion that entering the Market Place was prohibited by the ADVO was held on reasonable grounds. Two competing interpretations of the order were said to be relevant to that issue. The appellant submitted that the order prohibited entry only into “Woolworths Richmond”. The other construction was that the order (also) prohibited entry into “Richmond Market Place”, in which the Woolworths was located.
His Honour considered that the ADVO was ambiguous. However, he found that the officers’ suspicion was held on reasonable grounds because it was reasonably open to them to construe the ADVO as extending to Richmond Market Place. An important part of his Honour’s reasoning for that conclusion was his finding that the officer who made the decision to arrest, Senior Constable Newbould, had “verified the terms of the ADVO by having its terms read to him over police radio”: Emde v State of New South Wales [2024] NSWDC 268 (“J”) at [23]. That finding was not the subject of a ground of appeal.
As to the state of satisfaction required by s 99(1)(b), the primary judge referred to the two officers’ evidence, which he plainly accepted, “that they determined to arrest Mr Emde primarily because they considered it necessary to do so to protect the safety and welfare of his daughter and to prevent repetition of the offence”: at J[88]. Those reflect the matters in s 99(1)(b)(viii) and (i). His Honour also referred to the two officers’ evidence that the nature and seriousness of the offence (subpar (ix)) was a matter that they took into account.
As to the legal basis on which it was open to challenge the officers’ state of satisfaction, the primary judge referred to State of New South Wales v Randall [2017] NSWCA 88 (“Randall”) and AD v State of New South Wales [2023] NSWCA 115 as explained in Reeves v State of New South Wales [2024] NSWCA 125 (“Reeves”) at [111]-[112], [116] (Bell CJ); [211] (White JA); [212] (Stern JA). The primary judge held at J[82] that:
“once a defendant establishes that the officer subjectively held the relevant state of satisfaction, it falls to the plaintiff to challenge that state of mind on the basis that it was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide. If a plaintiff cannot do so, the exercise of the power to arrest is valid under s 99(1).”
Applying that approach, the primary judge considered that it was not manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide for the officers to have arrested the appellant on 21 April 2022.
That being so, the primary judge found that the appellant had not made out his claim for false imprisonment. His Honour gave judgment for the State.
Against the possibility that he might be wrong in respect of liability, the primary judge appropriately went on to assess damages for each cause of action on the assumption that liability had been established. The appellant had sought a global sum of $140,000 for wrongful arrest, false imprisonment, assault and battery. The primary judge did not accept that figure, and instead assessed damages as follows:
for the tort of assault, nominal damages;
for the tort of battery, $500;
for false imprisonment, compensatory damages of $5,000, his Honour considering that there was no basis on which to award aggravated or exemplary damages.
The appellant purported to appeal as of right to this Court. His notice of appeal certified for purposes of Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.22: “The right of appeal is not limited by a monetary sum.” No reason for that conclusion was identified, and it was undoubtedly wrong.
The judgment for the State from which the appellant sought to appeal was a final judgment of the District Court adjudicating the appellant’s causes of action. Section 127(2)(c) of the District Court Act 1973 (NSW) provides:
127 Right of appeal to Supreme Court
…
(2) The following appeals lie only by leave of the Supreme Court—
…
(c) an appeal from a final judgment or order, other than an appeal—
(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or
(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more,
... .
Unless the appellant could demonstrate that his appeal satisfied the monetary threshold, he needed to obtain leave to appeal. It was open to him to seek to do both in the alternative. Whichever path the appellant chose to follow, an important aspect of the context was that the appellant had made no express challenge (whether by ground of appeal or otherwise) to the primary judge’s contingent assessment of damages for false imprisonment at $5,000. Nor did the notice of appeal seek any form of substantive relief with respect to his claim for damages beyond setting aside the judgment below. The issue of damages thus did not arise on the notice of appeal.
The notice of appeal was filed on 6 September 2024 but not served until 17 September 2024. By letter to the appellant’s solicitor that day, the State’s solicitor asserted that leave to appeal was required because the primary judge’s assessment of damages at $5,000 was below the $100,000 threshold. The appellant did not agree.
What occurred next was unfortunate.
The procedurally regular way of resolving disputes about competency of an appeal is set out in UCPR, r 51.41, which provides:
51.41 Objections to competency of appeal
(1) A respondent who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 28 days after service on the respondent of the notice of appeal, apply to the Court for an order dismissing the appeal as incompetent.
(2) If the respondent fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent—
(a) the respondent is not entitled to costs of the appeal unless the Court otherwise orders, and
(b) the Court may order the respondent to pay the appellant any costs of the appeal proving useless or unnecessary.
That procedure was not followed.
Instead, as the State’s solicitor deposes (in an affidavit made the day before the hearing of the appeal), she appeared at a directions hearing on 2 October 2024. That was within the 28 days after service referred to in r 51.41(1). The solicitor deposes that she made submissions “in line with the contents of my [17 September 2024] letter to the Appellant. I was advised that leave was not required. As a result, I was under the impression that the issue of leave had been disposed of by the Court.” That evidence should be accepted.
However, although the solicitor’s impression may have been understandable in light of what had occurred at the directions hearing, it was mistaken.
The “issue of leave” — that is, whether it was required under s 127(2)(c) of the District Court Act — had not been determined by the Court. The State had not filed a r 51.41 notice of motion, and the Court had not determined the competency issue. Moreover, as explained below, this was a case in which leave was clearly required.
On 12 February 2025 (i.e., in the week before the hearing of the appeal) the Court, through the Registrar, directed pursuant to UCPR, r 51.22(3) that the appellant file and serve an affidavit setting out the “material facts on which the appellant relie[d] to show” that (as the notice of appeal certified) the monetary restriction on the right to appeal did not apply. The Registrar drew the appellant’s attention to the question of leave to appeal, pointing out that the appellant should be ready to address that issue at the hearing of the appeal. The Registrar also drew the appellant’s attention to the absence of any substantive relief sought in the notice of appeal.
The appellant’s response to the Court’s communication was thoroughly misconceived. The appellant took no step prior to the hearing of the appeal to seek leave to appeal. Nor did he apply to amend his notice of appeal to challenge the primary judge’s contingent assessment of damages or to seek any substantive relief as to damages. In purported compliance with the Court’s direction, the appellant’s solicitor made an affidavit on 14 February 2025. The solicitor deposed to a submission made to the primary judge “that an appropriate sum for general damages, exemplary and aggravated damages [was] the sum of $140,000.” The affidavit annexed a five-line “Schedule of Damages” seeking “a global amount for [the appellant’s] damages in the sum of $140,000”, which had been handed to the primary judge at the trial.
The proper approach to the $100,000 monetary threshold in s 127(2)(c) of the District Court Act is the same as that which applies to s 101(2)(r) of the Supreme Court Act 1970 (NSW). It is well-established. As was said in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80(4)], a “‘matter at issue’ involves a realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000”. See, to similar effect, Gaynor v Attorney General (NSW) (2020) 102 NSWLR 123; [2020] NSWCA 48 at [16] (Bell P, Basten and Leeming JJA agreeing), quoting BE Australia WD Pty Ltd (subject to a deed of company arrangement) v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414 at [150] (Campbell JA): the appellant must demonstrate “a realistic prospect on appeal of lessening the prejudice that they suffer by reason of the order appealed against to an extent greater than $100,000”.
The appellant faced two basic problems with respect to the $100,000 threshold.
First, the primary judge had contingently assessed damages at $5,000. There was no express challenge to the trial judge’s assessment by way of ground of appeal. The appellant did not engage with the $5,000 figure, or with the reasoning which supported it, at all. Nor did the notice of appeal claim any substantive relief with respect to damages.
Secondly, the appellant’s solicitor’s UCPR r 51.22(3) affidavit made on 14 February 2025 was wholly inadequate. The purpose of a r 51.22(3) affidavit is to set out the material facts which permit the Court to consider whether there is a realistic prospect that the monetary threshold will be exceeded on appeal. Here the affidavit did no more than refer to the appellant’s submission at trial seeking a global figure of $140,000. That was not a “material fact”.
It is true that particular difficulties can arise in intentional tort cases where, as Basten JA pointed out in Maynes v Casey [2011] NSWCA 156 (“Maynes”) at [8] (Allsop P agreeing),
“… damages (if any) will be assessed according to the circumstances of the tortious conduct. That assessment will involve an evaluative judgment on the part of the court hearing the appeal or hearing a retrial, if the appeal succeeds.”
“Where the appellate challenge is to the assessment made by the primary judge on the basis of [the material evidence presented at trial], it will be sufficient for a solicitor’s affidavit to identify the relevant findings, together with material in the evidence which is said to support a higher (or lower) figure. It will be sufficient if such material allows the Court to be satisfied that the appellant has reasonable prospects of obtaining a variation in the judgment below in an amount equal to or exceeding the statutory figure”.
Basten JA was clear in saying that such evidence would be “sufficient”; not that evidence in that form is always necessary to establish that an appeal is competent. Thus, even where the UCPR, r 51.22(3) affidavit itself fails to set out material facts, it is still “open to the appellant to demonstrate, by argument, based upon the findings of fact made by the trial judge, that the variation in amount sought was reasonably supportable, without reference to other factual material”: Maynes at [10]. No attempt was made to do so in this case.
In these circumstances, there was no realistic prospect that the appeal would involve a matter at issue of at least $100,000.
At the hearing of the appeal, the State sought and was granted leave to file a notice of motion seeking an order dismissing the appeal as incompetent pursuant to r 51.41.
The appellant’s solicitor at first maintained the position that leave to appeal was not required. Later, he made an oral application to seek leave to appeal. The Court granted leave to the appellant to amend the notice of appeal to include a prayer for relief seeking leave to appeal, in circumstances where the State did not suggest that it would suffer any prejudice as a result.
The appellant’s solicitor also applied orally to amend the notice of appeal to include a ground of appeal challenging the primary judge’s contingent assessment of damages of $5,000. The Court refused the application to amend in this respect, in circumstances where:
the appellant had made no submission in writing in support of the foreshadowed damages ground of appeal;
the only oral submission was “that when you consider general damages and exemplary damages, $140,000 is appropriate” (this figure consisting of general damages of $20,000 and exemplary damages of $120,000): Tcpt, 18 February 2025, 9/14-43; and
the State’s Senior Counsel submitted that his client was prejudiced because he was not ready to address the Court on damages.
In the result:
The appeal does not involve a matter at issue of at least $100,000. The purported appeal as of right is therefore incompetent.
Leave to appeal is required.
“This Court has stated on numerous cases that it is usually or generally only appropriate to grant leave to appeal concerning matters that involve issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable: see eg Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl Ltd) [1995] NSWCA 69 per Kirby P; The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 at [13]; see more recently eg Shapkin v The University of Sydney [2024] NSWCA 156 at [39]. It is commonly sufficient to refer to those factors in deciding whether to grant leave to appeal. But as is implicit in the use of ‘usually’ and ‘generally’, whilst those factors are important they are neither exhaustive nor necessarily determinative. Thus this Court has also said, for example, that ‘leave should be granted only where there are substantial reasons to allow an appellate review … such as where there is an error of principle which, if uncorrected, will result in substantial injustice’: Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25].
There are no ‘rigid and exhaustive criteria’ as the ‘circumstances of different cases are infinitely various’: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177. The ultimate issue is the interests of justice, taking into account both the circumstances of the particular case and broader interests in resolving matters of public importance and clarifying the law. A range of considerations may be relevant.”
“With respect to His Honours findings, the Appellant submits there was one interpretation of the orders and that was the Appellant was only prohibited from entering the Woolworths store and no prohibition on entering the Richmond Market Place.”
That was evidently a submission directed to the objective element of s 99(1)(a): “the police officer suspects on reasonable grounds that the person is committing or has committed an offence”.
The written submissions for the State filed on 29 November 2024 were two and a half pages in length, only one of which addressed matters other than background. The State submitted that the relevant consideration was what was in the mind of the police officer, given what was available to him, acting reasonably in the execution of his duties. In answer to the appellant’s submission that there was only one interpretation of the orders, the State submitted: “The Appellant’s submission does not disclose any basis, logical or otherwise, as to why he says his Honour erred when making the findings referred to; the submission fails to disclose error.” The submissions did not refer to any authorities.
Well out of time, on 4 February 2025 the appellant filed written submissions of 11½ pages. While the document purported to be in reply, these were in substance fresh submissions in chief which represented the first substantial articulation of parts of the appellant’s argument, including as to s 99(1)(b). That was obviously unsatisfactory and, depending on how the State responded, might have had consequences for costs. However, the State did not respond to those submissions at all.
Subject to any question of prejudice to a respondent, the fact that an appellant has raised arguments for the first time in reply is not ordinarily a sufficient reason for the Court to refuse to consider the substance of the submissions. At least where the “reply” submissions are served well before the hearing, if a respondent wishes to proceed on the footing that the Court should disregard any submissions that are not truly in reply, and that issue cannot be resolved inter partes, the respondent should notify the appellant and the Court immediately, explaining the nature of any prejudice, so that the Court can determine how to proceed.
As that did not occur in this case, and as the appellant’s reply submissions were filed some two weeks in advance of the hearing of the appeal, the appropriate course would have been for the State as respondent to provide written submissions in advance of the hearing addressing the substance of the appellant’s arguments. However, that also did not occur.
The reason for providing written submissions containing all substantive arguments sought to be relied upon in advance of the hearing is simple. As was recently explained in Fong BHNF Fong v Weller [2024] NSWCA 46 at [37]-[38], doing so allows the other party — and this includes parties whose own conduct has been unsatisfactory — procedural fairness. It also enables the Court to identify and consider the issues in advance. That promotes efficiency in preparation and at the hearing, reduces the risk of misunderstanding, and puts the Court in a position to identify procedural problems or matters which may need to be addressed by the parties or the Court.
The first area of complaint concerns the objective element of s 99(1)(a): at [11]-[13].
The appellant submitted that the primary judge erred in holding that it was not the task of the Court to choose a single correct construction of the ADVO, and in finding that both constructions were reasonably available. Instead, the appellant submitted that the question was what a reasonable person, having all the background knowledge which would have been available at the time, would have understood the Magistrate to be using the language in the document to mean. The appellant submitted that there was only one objective construction of the order: that it prohibited the appellant only from entering the Woolworths store, not the whole Richmond Market Place. In his oral submissions, it was again submitted for the appellant that “there never was a prohibition of attending the Richmond Marketplace”: Tcpt,18 February 2025, 3/37.
To the extent that this was a submission that the ADVO was not ambiguous — or more particularly, that no reasonable person could understand the ADVO as prohibiting entry to Richmond Market Place — the submission should be rejected on the facts. To the extent that this was a submission that any ambiguity in the ADVO was to be disregarded in the s 99(1)(a) analysis, it is not supported by the statutory language.
As to the first point, court orders should, of course, be unambiguous. It is of fundamental importance that they be clear on their face so that the persons upon whom they operate, and those charged with their enforcement, have certainty about their operation.
Be that as it may, the context in which the ambiguity was relevant here was whether the statutory power of arrest of two police officers in the field was engaged. As a matter of ordinary understanding, even in their written form, the orders here were susceptible of more than one reasonable interpretation on their face. Given that the ADVO prohibited entry into “any place where Kimberly Jane EMDE … works,” but also referred to “any place listed here”, did it prohibit entry only into the premises of the particular enterprise where she worked (“Woolworths Richmond”), or was entry to the whole building (“Richmond Market Place”) forbidden to the appellant?
Moreover, an important part of the context is the primary judge’s finding at J[75], which is not attacked on appeal:
“On their unchallenged evidence, in accordance with usual practice, [the two officers] heard the terms of the ADVO over police radio. They did not see, and were not privy to, the formatting of the ADVO document. They would have heard ‘any place listed here’ and then references to Woolworths and to Richmond Marketplace.”
His Honour reasoned at J[74] that “[p]olice officers are required to make assessments in real time, with immediate consequences of acting or failing to act, which might prove extremely serious. What is reasonable must be understood in this context.”
Those circumstances were part of the reasoning which led to his Honour’s finding (at J[74]) that it was reasonably open to the officers to construe the ADVO in the way contended for by the State — as they in fact did. The appellant’s challenge to that conclusion did not engage with the reasoning by which his Honour had reached it.
As to the second point, the ambiguity in the ADVO was important to the primary judge’s approach to the application of s 99(1)(a) at J[70]-[75]. The substance of the appellant’s attack on that approach was to deny the ambiguity any role in the s 99(1)(a) analysis. The appellant in effect insisted that the s 99(1)(a) issue turns on whether the appellant breached the ADVO, and in particular in this case on the objective meaning of the orders.
The appellant’s challenge is not supported by the statutory language. The question posed by s 99(1)(a) is not simply whether “the person … has committed an offence” — in particular here, whether the appellant had breached the ADVO upon its proper construction. Instead, the statutory language begins with the words, “the police officer suspects on reasonable grounds that …”. The appellant’s submissions did not engage with how those words operate where the suspected offence is said to consist of breach of an order which is itself ambiguous.
Given the limited way in which the appellant formulated his attack on the primary judge’s approach to s 99(1)(a), he has not demonstrated that his Honour’s conclusion at J[77] that the officers’ suspicion was held on reasonable grounds involved a reasonably clear injustice.
As to questions of principle, suspicion on reasonable grounds is a familiar concept. It has a long history in the context of powers to arrest and to issue warrants. Thus it was said in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112:
“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v Anderson [[1942] AC 206]”.
The Court went on to explain at 115 that the “facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.” The Court referred to Kitto J’s statement in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 at 303: “A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it.”
Neither party addressed the Court on the George v Rockett line of authority (although the State did appear to embrace its account of suspicion).
Moreover, in this case the arresting officer’s evidence was that he did not consider the ADVO ambiguous. It is thus not necessary to consider the correctness of the following submission (which was not in any event the subject of full argument) made by Senior Counsel for the State:
“… provided that there are two reasonable constructions and one of them involves the commission of an offence, then the police officer is entitled to say if both constructions are reasonable, then I’ve got reasonable grounds for thinking that an offence has been committed because there is a reasonable construction which results in a finding that the person has committed an offence.” (Tcpt, 18 February 2025,17/16-21)
A related point should be noted. The question how s 99(1)(a) operates where the offence is said to consist of breach of an ambiguous order arguably raises an issue of principle about mistakes of law. Let it be assumed that the appellant’s construction of the ADVO is correct, such that the arresting officer’s suspicion that the appellant had committed an offence by entering Richmond Market Place was based on a mistaken understanding of the order. That would arguably be a mistake of law. The issue of principle would be whether the officer’s suspicion can be “on reasonable grounds” for the purposes of s 99(1)(a) where the grounds involve a mistake of law of that kind.
Prior to the hearing, the Court drew to the parties’ attention two authorities addressing a similar issue in a different context: Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 (“Ruddock”) at [40]-[41] (Gleeson CJ, Gummow, Hayne and Heydon JJ); [228]-[230] (Callinan J); and Thoms v Commonwealth (2022) 276 CLR 466; [2022] HCA 20 (“Thoms”) at [40]-[44] (Kiefel CJ, Keane and Gleeson JJ); [45]-[46] (Gageler J); [84] (Gordon and Edelman JJ); [87]-[88] (Steward J). Those cases concerned s 189(1) of the Migration Act 1958 (Cth), and in particular the words “an officer knows or reasonably suspects that a person in the migration zone … is an unlawful non-citizen”. An issue in Ruddock was whether, because decisions to cancel the respondent’s visas were each later quashed, a belief or suspicion that detention was required that had been based on those decisions (i.e., based on a mistake of law) could not be considered reasonable. The High Court rejected that argument. As the joint judgment said at [40], “The short answer to the contention is that what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time.” Thoms covered similar territory.
Based on that reasoning, it is arguable that what constitutes reasonable grounds for the s 99(1)(a) suspicion — in the language of George v Rockett, “facts which are sufficient to induce that state of mind in a reasonable person” — is to be determined by reference to “what was known or reasonably capable of being known at the relevant time”. If so, that might arguably lend support to the approach the primary judge took to the ambiguity found in the ADVO in this case, and in particular to his Honour’s reliance on the fact that the terms of the ADVO had been conveyed to the officers over the radio.
At the hearing of the appeal, the appellant’s solicitor accepted that Ruddock and Thoms might be relevant to s 99, but he made no submission on the point. In answer to a question, Senior Counsel for the State indicated that he was unaware of any Court of Appeal decision attending to the question whether the High Court authorities were applicable to s 99. However, he submitted that the issue was not one of public importance as there was no doubt that a mistake as to the construction of the order would not disentitle the officers from relying on s 99.
The appellant’s second area of complaint concerns the primary judge’s finding that the police officer who made the arrest was satisfied that the arrest was reasonably necessary for one or more of the reasons in s 99(1)(b). Both officers gave evidence that the New South Wales Police Force takes domestic violence very seriously: at J[27]-[28]. The arresting officer described this as the Police Force’s “number one priority”. The officers’ evidence was that they considered it necessary to arrest the appellant to protect the safety and welfare of his daughter and to prevent repetition of the offence (at J[88]), and also that they took into account the nature and seriousness of the offence (at J[92]). As noted above, those are the reasons identified in, respectively, subpars 99(1)(b)(viii), (i) and (ix).
The appellant’s solicitor acknowledged that in order to attack the finding as to the officer’s state of satisfaction, it was necessary to come within the approach identified by Basten JA in Randal**l at [13]. There his Honour said:
“… unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, or ‘arbitrary, capricious, irrational, or not bona fide’”.
At [31] of the reply submissions, which is addressed below, the appellant listed a series of matters which were said to lead to that conclusion.
However, as will be seen, in the way in which the appellant developed the argument, the substance of his submission was largely that the Court should form its own view that the arrest was objectively unreasonable. The heart of the appellant’s argument was that in all the circumstances it was not a “proportionate response” for the police to arrest the appellant.
It is convenient to address the matters listed at [31] of the reply submissions in groups, and to begin with the last of them, which the appellant made a focus of his written submissions:
“… not having given any consideration to an alternative to arrest and stating that there was no alternative to arrest …”
“The reasonably foreseeable consequences of continued freedom (either alone or in conjunction with other available measures) are to be compared with the obvious consequences of arrest. That comparison is to be made by reference to the whole of the circumstances prevailing at the time. The comparison will quantify the extent, if any, to which a continuation of freedom creates a risk that the attainment of any one or more of the stated law enforcement outcomes will be jeopardised. Only if, according to an objectively reasonable assessment, continuing freedom (with or without some other available measure) presents a significant risk to attainment of any of the law enforcement results will immediate arrest be a proportionate response to that risk and therefore substantially preferable and ‘reasonably necessary’. The police officer is required to assess the situation at hand and make an evaluative judgment.
A vital component in the comparison is the alternatives to arrest at the disposal of the police officer. …”
The appellant’s complaint based on Jankovic that the arrest was not “proportionate” was in substance an argument that the Court should form its own “objectively reasonable assessment” of the arrest. It might be thought that that approach is in tension with what Basten JA said in Randall about the limited basis upon which the existence of a state of satisfaction may be challenged. The question whether there is any conflict between Randall and Jankovic was addressed in Reeves at [108]-[121]. It is unnecessary to rehearse what was said there. It is enough to note that the Chief Justice, while doubting that any conflict arose, held at [116] that if there was a conflict between those decisions, the interpretation of s 99(1) given by Basten JA should be preferred; see also at [121].
On that understanding, which was not challenged, the question is not whether the police officer’s response was objectively proportionate. An arrest is not “unlawful merely because the police officer’s satisfaction … is not reasonable”: see Jankovic at [7] (White JA), quoted in Reeves at [113]. If there are any remaining tensions in the case law they were not drawn out in argument in this matter and it is not appropriate to address them.
The question thus was whether the officer’s s 99(1)(b) state of satisfaction was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide. In the present case, the primary judge accepted that whether the arresting officer considered alternative courses short of arrest was relevant to that question: at J[84]. His Honour took that matter into account, along with the other matters of which the officers gave evidence: in particular, their concern for the welfare of the appellant’s daughter, the fact that there had been a repetition of the suspected offence over a short space of time, the fact that the suspected offence was the breach of an ADVO, and the nature and seriousness of the offence: at J[91]-[93].
The appellant has not shown a reasonably clear case that the arresting officer’s lack of consideration of an alternative to arrest meant the officer’s state of satisfaction was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide.
The first group of matters on which the appellant relied in the list at [31] was as follows:
“The Police Officers having been told that the Appellant’s daughter was not sure whether her father could enter the Market Place or not; the Police Officers having not read the ADVO; the Police Officers having relied upon another person reading or interpreting its terms; the Police Officers referring to or being referred to the incorrect order when approaching the Appellant”.
These matters go not to the s 99(1)(b) issue, but rather to the reasonableness of the officers’ suspicion that the appellant had breached the ADVO. That was part of the s 99(1)(a) issue (and, as noted above, the appellant did not engage with the basis on which the primary judge addressed that issue, including that the officers had heard the order over police radio). These matters do not bear on the question whether the arresting officer’s state of satisfaction was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide.
Moreover, whether or not the appellant’s daughter was certain that her father was prohibited from entering the Market Place, she was undoubtedly concerned about his being there and described herself as scared when she saw him. Those matters tended to show the seriousness of the suspected offence.
The next group of matters was as follows:
“… knowing there was no violence or threat of violence; … the Police being of the opinion that any breach of an ADVO no matter what the circumstances constituted violence ...”
As to the first point, violence itself is not mentioned in s 99(1)(b). It may, of course, be relevant to other matters such as the need to protect the safety of a person or the seriousness of the offence. But an absence of violence in the commission of the suspected offence is not of itself a reason for thinking that the arresting officer’s state of satisfaction was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide.
As to the second point, this was a reference to the cross examination of the junior police officer, who had said in answer to the proposition that there had been no violence, “Well, I would consider a breach of an ADVO to be violent”: Tcpt, 25 October 2023, 65/43. Given the nature of an ADVO, and its concern to prevent domestic violence, that very general characterisation of a breach of an ADVO is understandable. It is true that s 14(4) of the CDPV Act draws a distinction between offences that are constituted by an “act of violence against a person” and those that are not. But that is not to the point for present purposes. Nor is the officer’s general characterisation, given that she did not suggest that this was a reason why the arrest was necessary. Neither matter has any bearing on the question whether the arresting officer’s state of satisfaction was manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide. In any event, the officer who gave that evidence was not the arresting officer; it was the senior officer who actually made the arrest.
The next matter was as follows:
“… the Appellant having been told and believing that he could go into the Market Place but not the Woolworths store …”
The appellant’s state of mind is irrelevant to the question under s 99(1)(b), which is concerned with the arresting officer’s state of mind.
The next matter was as follows:
“… considering the Appellant’s age and frailty …”.
No doubt this could be a significant consideration in an officer’s s 99(1)(b) state of satisfaction, depending on the nature of the suspected offence and the circumstances in which it was suspected to have occurred. But it cannot be determinative. After all, the Local Court made the ADVO against the appellant notwithstanding his age and physical health. The power to make such an order in s 16(1) of the CDPV Act is conferred for the purpose of protecting people from domestic violence, intimidation (including harassment) and stalking: Commissioner of NSW Police v Murphy [2024] NSWCA 311 at [96]. That being so, the mere fact that a person reasonably suspected of breaching an ADVO was elderly and frail would not make it manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide for a police officer to form a state of satisfaction that it was reasonably necessary to arrest the person.
The appellant made two other submissions directed to s 99(1)(b).
First, the appellant emphasised evidence that the arresting officer had suggested to the appellant that he go to the courthouse to vary the order when he left the police station. It was submitted that the reason for the variation was to remove the restriction on entering Richmond Market Place so that the appellant could visit his doctor and his chemist there, and go to a café. It was submitted that this was a real indicator of the officer’s state of mind about whether or not there needed to be an arrest. The appellant went as far as submitting that, contrary to the primary judge’s finding, “[c]learly the Police Officers never believed that the Appellant’s presence in the Market Place was a serious matter and did not believe that an arrest of the Appellant for the protection [of] his daughter was necessary”: at [21].
A threshold difficulty with this submission is that, as the State submitted both at trial and on the appeal, it was not put to the arresting officer that he had not in fact been satisfied that the arrest was reasonably necessary for one or more of the s 99(1)(b) reasons. Nor was it put to him that he did not believe a breach of an ADVO was a serious matter, or that he was not genuinely concerned for the welfare of the appellant’s daughter, or that his professed state of mind was not bona fide.
In any event, there is no logical inconsistency between (1) the officer’s view, formed after the arrest and after spending time with the appellant, that it might be appropriate to vary the ADVO for the future, and (2) the officer’s state of satisfaction that it was reasonably necessary, for the reasons in s 99(1)(b)(viii), (i) and (ix), to arrest the appellant for a suspected breach of the ADVO in the form it was in at the time of the arrest. The officer reached that state of satisfaction in circumstances where he suspected on reasonable grounds that the appellant was guilty of an offence under s 14(1) of the CDPV Act. An element of the suspected offence was that the appellant had knowingly contravened a prohibition specified in the ADVO, which is a serious matter. Any view the officer later formed that it might be appropriate to vary the ADVO is no basis to assert that the arresting officer’s state of satisfaction was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide at the time of the arrest.
Although this case might have raised issues of principle or public importance, no such issue was fully argued, in circumstances where the leave application and the appeal were being heard concurrently and there was to be no further hearing. Nor, in the way in which the appellant advanced his challenge to the decision below, has he shown error amounting to a reasonably clear injustice. Moreover, the appellant sought no positive relief with respect to damages in his notice of appeal. Even if he had sought an order that, in the event his appeal succeeded so as to establish liability, he have judgment in the amount contingently assessed by the primary judge, the amount at issue in the appeal would have been $5,000.
In all the circumstances, it is not in the interests of justice to grant leave to appeal.
As the notice of appeal is otherwise incompetent for failure to meet the monetary threshold in s 127(2)(c) of the District Court Act it should be dismissed.
Ordinarily costs would follow the event. However, the circumstances of this case as described above are somewhat unusual. That is so both as to when and how the two dispositive questions (competency and leave to appeal) arose, and as to how submissions were made on those issues.
As to competency of the appeal, as the State filed no r 51.41(1) notice of motion before the hearing of the appeal, the State is not entitled to costs of the appeal unless the Court otherwise orders: UCPR, r 51.41(2)(a). The Court should not do so in circumstances where no written submissions were filed by either party on the issue of competency, and the State’s oral submissions on the issue occupied 16 lines of transcript.
No written submissions were filed by either party on the application of the principles relevant to leave to appeal. Nor did the appellant make any oral submissions on that subject to which it was necessary for the State to respond. As to the appellant’s substantive complaints about the decision below, the State filed written submissions of two and a half pages, much of which was background. The State did not address in writing the arguments raised in the appellant’s reply submissions, including all arguments directed to s 99(1)(b). Neither the appellant nor the Court was given prior notice of almost the whole argument the State advanced at the hearing.
In these circumstances there should be no order as to costs.
The orders I propose are as follows.
Leave to appeal refused.
The amended notice of appeal otherwise be dismissed.
Notice of motion filed 18 February 2025 be dismissed with no order as to costs.
**********
Emde
State of New South Wales [2025] NSWCA 41
(2011) 82 NSWLR 336
(2020) 102 NSWLR 123
(1990) 170 CLR 104
(1966) 115 CLR 266
(2005) 222 CLR 612
(2022) 276 CLR 466
(2013) 82 NSWLR 268
(1981) 148 CLR 170
Neither the appellant’s written nor his oral submissions were organised by reference to the grounds of appeal. In the circumstances, it is not sensible to attempt to address the arguments by reference to those grounds. However, two broad areas of complaint about the primary judge’s decision emerge.
In the result, although this case might have been an appropriate one in which to consider the points of principle identified above, the arguments were not argued and it would be inappropriate for the Court to address them further.
Secondly, the appellant submitted, apparently in relation to s 99(1)(b), that there was evidence that the appellant had told the police that he was entitled to go to the Market Place, but not to the Woolworths. The appellant pointed to two passages of transcript that he said showed that the appellant had told the police officers that he was entitled to enter the Richmond Market Place. In the first passage, the appellant gave evidence about a conversation (apparently at the police station after the arrest) in which the appellant was informed that he could not go into the Market Place. That evidence does not indicate that the appellant asserted to the contrary. In the second passage, the arresting officer agreed in cross examination that the appellant might have said that he was entitled to go into Richmond Market Place, but the officer could not recall it. That evidence is neutral. This submission thus fails at the factual threshold for want of evidence to support it.
But even if the appellant had asserted to the police before the arrest that the ADVO did not prevent him from entering the Market Place (a claim about the interpretation of the ADVO that might be relevant to the s 99(1)(a) issue), that would have been of, at most, marginal relevance to the s 99(1)(b) issue. The officer suspected on reasonable grounds that the appellant had committed the offence. That being so, anything the appellant had to say about the scope of the order could have little, if any, bearing on the officer’s state of satisfaction that the arrest was reasonably necessary for one of the s 99(1)(b) reasons. Such statements could not render the arresting officer’s state of satisfaction manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide.
It follows that, in the way in which the appellant’s argument was put, he has not made out a reasonably clear error in his Honour’s conclusion at J[93] that the arresting officer’s state of satisfaction was not manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide.