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[2026] NSWCA 98
respondent. The summons for leave to appeal was dismissed with costs. A separate costs order concerning the unpressed motion for further evidence was unnecessary (at [23]–[24]).
The Court of Appeal did not decide a full appeal about whether the search was lawful. It decided whether Fuller should be allowed to appeal. It refused leave because the proposed arguments did not overcome several accepted, unchallenged circumstances said to support the officer’s suspicion; the primary judge had also found that Fuller entered Unit 1107. The Court considered the proposed grounds weak and further litigation disproportionate to the $2,000 damages assessment. It dismissed the summons with costs.
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2,223 words · generated 08/10/2026
In Fuller v State of New South Wales [2026] NSWCA 98, the Court of Appeal considered an application for leave to appeal, not a fully argued appeal. The applicant, Christopher Fuller, challenged the District Court’s dismissal of claims connected with a police search. Mitchelmore JA and Ball JA dismissed the summons for leave to appeal with costs.
5 cited instruments linked from this judgment.
The search occurred on the evening of 13 January 2024, outside the building known as Kendall at 43 Morehead Street, Redfern. Constable Fletcher performed a pat-down search because he suspected Fuller possessed prohibited drugs. The interaction lasted about eight minutes and was recorded on body-worn video ([5]). Fuller brought claims against the State for assault, battery, trespass to goods and false imprisonment. The central issue at trial was whether the search was authorised by s 21(1)(d) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), or LEPRA ([6]–[7]).
Section 21(1), as set out in the judgment, permits a police officer to stop, search and detain a person without a warrant if the officer “suspects on reasonable grounds” that one of the listed circumstances exists. Paragraph (d) concerns possession or control of a prohibited plant or drug in contravention of the Drug Misuse and Trafficking Act 1985 ([7]).
The primary judge found that Constable Fletcher’s suspicion rested on five grounds and that those grounds provided reasonable grounds ([8]). Fuller did not challenge four of those grounds on appeal. They included that he and his partner were in a part of Redfern known as a hotspot for drug activity and did not appear to be from the area; that he was in an area said to be dangerous at that time of night; that he was far from home; and that he had been “deceitful” in his initial response about where he had just been ([8]–[9]). The primary judge found that the officer knew Fuller’s volunteered statement that he had been at 55 Morehead Street was false, having seen him enter 43 Morehead Street and having viewed CCTV footage ([9]).
The only asserted basis of suspicion Fuller sought to challenge was the officer’s claim that he and his partner had entered Unit 1107, which the officer understood to be “running hot”, meaning that police had a high level of suspicion about drug-related activity there ([10]). Fuller said they had attended Unit 1106. The primary judge considered that proof of entry into Unit 1107 was not necessary, but also accepted Constable Fletcher’s evidence that the entry occurred ([10]).
Fuller proposed three grounds of appeal. The first challenged the conclusion that the State did not have to prove entry into Unit 1107. The second challenged the treatment of evidence from Constable Fletcher and Senior Constable Feneley. The third concerned whether a suspicion under s 21(1) could be attacked as capricious ([13], [18]). The Court concluded that none justified leave.
The Court applied the leave threshold described at [3]. It said leave is generally appropriate where a case raises an issue of principle, a question of general public importance, or a reasonably clear injustice that goes beyond an arguable error. It also noted that caution is appropriate where only a small monetary sum is involved. The proportionality of litigation costs to the amount in dispute was relevant, as reflected in the authority quoted in that paragraph.
The Court’s key response to the first two proposed grounds was that Fuller did not grapple with the cumulative effect of the other accepted grounds for suspicion. At [14], it explained that success on a Unit 1107 argument would not be enough unless Fuller also showed that the other grounds, taken together, were insufficient. The proposed notice of contention had put that issue in play. The Court considered the unchallenged circumstances, including the apparent untruthfulness about where Fuller had been, likely to provide reasonable grounds ([14]).
The Court separately explained why the first proposed ground would not affect the result. The primary judge had found, on the balance of probabilities, that Fuller entered Unit 1107, accepting Constable Fletcher’s evidence despite Fuller’s evidence ([15]). So even if Fuller’s legal point about the need for proof were correct, the factual finding meant the ground would “go nowhere” on the record as decided.
On the credibility ground, the Court accepted that the primary judge had not specifically dealt with each argument advanced against Constable Fletcher. But it considered that the judge had accepted the officer’s evidence on the critical matters and explained why ([17]). The Court described Fuller’s points as tenuous. It also noted that if this ground succeeded, a retrial might be needed, which the amount at stake would not justify ([17]).
The third proposed ground concerned capriciousness. The judgment distinguishes a general review concept associated with statutory opinions or states of satisfaction from the specific language of s 21(1). The Court observed that s 21(1) requires reasonable grounds for a suspicion and differs in its terms from s 99(1)(b), which concerns an officer being satisfied that an arrest is reasonably necessary for a statutory purpose ([19], [21]). It found no error in the primary judge’s view that capriciousness was not a separate criterion under s 21(1). In the alternative, it said that, given the finding of reasonable grounds, the officer could not be said to have acted capriciously ([21]).
Finally, the $2,000 damages assessment was not challenged. That, together with the weak proposed grounds and the costs of further proceedings, weighed against leave ([22]). The Court ordered the State’s costs of the leave application. Because Fuller did not press his motion to receive further evidence, no separate costs order for that motion was necessary ([23]–[24]).
The judgment does not purport to change the statutory test in s 21(1) of LEPRA. It applies the text set out at [7]: the relevant power depends on an officer suspecting on reasonable grounds that the person possesses or controls a prohibited drug or plant. The decision is principally about appellate leave and the application of that statutory test to the proposed grounds.
Before this decision, the authorities cited in the judgment supplied the leave framework and the context for the capriciousness argument. The Age Company Ltd v Liu is cited for the general leave threshold ([3]). Mohareb v Local Court of New South Wales is cited for caution in applications involving small sums ([3]). Ritson v Commissioner of Police, New South Wales Police Force is cited in connection with proportionality between costs and the amount in dispute ([3]). The Court did not set out those cases’ full reasoning, so the propositions here are limited to how this judgment describes and uses them.
For capriciousness, the judgment notes that the concept has been applied in cases where statutory power depends on an opinion or state of satisfaction, citing Minister for Immigration and Multicultural Affairs v Eshetu ([19]). It also refers to State of New South Wales v Randall as an example involving the statutory “satisfied” requirement in s 99(1)(b) of LEPRA ([19]). The Court distinguished that type of statutory wording from s 21(1), and relied on State of New South Wales v Dennis in explaining that capriciousness was not a criterion applied to s 21(1) ([21]).
After this decision, the source text supports a narrow account: this Court refused leave on the facts and proposed grounds before it. It reasoned that unchallenged circumstances could independently matter to the reasonable-grounds assessment, and that the factual finding about Unit 1107 weakened the proposed appeal. It did not decide a full appeal on the lawfulness of the search, nor did it announce a new general test for all s 21 searches.
At [3], the Court states that leave is generally appropriate for issues of principle, public importance or reasonably clear injustice beyond a merely arguable error. In plain English, an arguable disagreement with a trial judge is not, by itself, enough under the approach described. The proposed appeal must satisfy the more demanding considerations the Court identifies, including where only a small sum is involved.
At [14], the Court says the applicant would also have to show that the other grounds relied on by Constable Fletcher were not sufficient, taken together, to establish reasonable grounds. In plain English, challenging one part of the officer’s explanation did not answer the whole case if other accepted circumstances could still support the suspicion.
At [15], the Court points out that the primary judge found on the balance of probabilities that Fuller went into Unit 1107. In plain English, the argument about whether the State needed to prove entry did not remove the factual finding that the primary judge had already made.
At [21], the Court says that s 21(1) differs in its terms from the arrest provision and that capriciousness was not a criterion applied to s 21(1). In plain English, the Court treated the search provision’s express requirement of reasonable grounds as the relevant test, rather than importing a separate capriciousness test from provisions framed around an officer being “satisfied”.
At [22], the Court ties the result to the weak proposed grounds, absence of a qualifying issue or reasonably clear injustice, and the costs compared with the amount at stake. This explains why the decision is not simply an assessment of whether any argument could be made; the Court considered both merits and proportionality at the leave stage.
The decision is most directly relevant to applications for leave to appeal from a civil judgment where the monetary amount is small and the proposed appeal does not identify a clear injustice, a matter of principle or an issue of public importance. The particular sum here was $2,000, and the Court expressly treated the amount and costs as significant ([2], [22]).
It is also relevant where a proposed challenge focuses on one factual basis for a police officer’s suspicion, but other grounds accepted by the trial judge remain unchallenged. The Court’s reasoning at [14] shows that an appeal argument may be incomplete if it does not address whether the remaining circumstances, considered cumulatively, could still satisfy the statutory requirement.
A further relevant pattern is where an appellant challenges the need to prove a fact, but the trial judge has also found that fact proved. As [15] illustrates, the legal challenge may not affect the outcome if the factual finding independently answers the point.
For arguments about capriciousness, the decision concerns s 21(1) of LEPRA specifically. It distinguishes that provision from statutory language concerning an officer being “satisfied” about whether arrest is reasonably necessary ([19], [21]). The judgment should not be read from its text as deciding the operation of capriciousness under every statutory power or in every setting.
These descriptions concern the circumstances and reasoning in this judgment. The decision did not determine a full appeal about the search’s lawfulness, and the source text does not establish how another court would treat materially different facts.
The judgment provides no information about later judicial treatment of Fuller v State of New South Wales [2026] NSWCA 98. It therefore does not support a statement that a later court has followed, distinguished, applied or criticised this decision.
The cases discussed in this judgment are earlier authorities, not later treatment of Fuller. The Court cites The Age Company Ltd v Liu, Mohareb, and Ritson for aspects of the leave threshold and proportionality ([3]). It discusses Eshetu and Randall as part of the background to capriciousness and statutory states of satisfaction ([19]). It refers to Dennis when distinguishing the operation of s 21(1) from the arrest provision ([20]–[21]). Those citations explain the reasoning used in Fuller, but they cannot establish how subsequent courts have treated it.
The judgment does not decide whether the search was ultimately lawful after a full appeal. It decides only that the proposed grounds did not justify leave. Its reasoning relies in part on findings made by the primary judge, including that Fuller entered Unit 1107 and that the officer relied on several other circumstances ([8]–[10], [15]).
The judgment does not identify whether each of the five grounds found by the primary judge was independently sufficient, or whether some combination was required. It expressly notes that the primary judge did not indicate whether each ground was necessary or whether some combination was sufficient ([8]). The Court’s leave reasoning was that the unchallenged circumstances appeared sufficient in combination ([14]), rather than a detailed re-evaluation of every possible combination.
The capriciousness discussion is also tied to the statutory wording considered. The Court says that s 21(1) differs from s 99(1)(b) and that capriciousness had not been applied to s 21(1) ([19], [21]). It does not decide the operation of that concept under all other LEPRA powers or statutory tests.
There is a textual difference within the judgment that a reader should keep in view: [19] discusses s 99(1)(b), while the quoted passage from the primary judge at [20] refers to s 99(2)(b). The Court’s own discussion at [19] and [21] identifies s 99(1)(b). The judgment does not separately explain that difference.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Fuller v State of New South Wales [2026] NSWCA 98
Hearing dates: 22 May 2026
Date of orders: 25 May 2026
Decision date: 25 May 2026
Before: Mitchelmore JA, Ball JA
Decision: The summons for leave to appeal is dismissed with costs.
Catchwords: APPEALS — application for leave to appeal from dismissal of District Court proceedings for false imprisonment — value of claim assessed at $2,000 — primary judge’s conclusion supported by unchallenged findings — proposed grounds of appeal otherwise weak — no issue of principle, question of public importance or reasonably clear injustice identified — leave refused
Legislation Cited: District Court Act 1973 (NSW) s 127(2)(c)(i)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 21(1)(d), 99(1)(b)
Cases Cited: Fuller v State of New South Wales [2025] NSWDC 350
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106
State of New South Wales v Dennis [2025] NSWCA 118
State of New South Wales v Randall [2017] NSWCA 88
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category: Principal judgment
Parties: Christopher Fuller (Applicant)
State of New South Wales (Respondent)
Representation: Counsel:
A C Canceri (Applicant)
J Sexton SC with J Brezniak
Solicitors:
Aussie Lawyers (Applicant)
Norton Rose Fulbright Australia (Respondent)
File Number(s): 2025/00378964
Publication restriction: Nil
THE COURT: By a summons filed on 4 December 2025 the applicant seeks leave to appeal from orders made in the District Court of New South Wales by Waugh SC DCJ on 5 September 2025: see Fuller v State of New South Wales [2025] NSWDC 350 (PJ). By those orders, the primary judge gave judgment for the State of New South Wales (the State) in relation to the applicant’s claim for false imprisonment, battery and trespass to goods and ordered that the applicant pay the State’s costs of the proceedings.
Leave to appeal is required because the value of the applicant’s claim is less than $100,000: District Court Act 1973 (NSW), s 127(2)(c)(i). The primary judge made a contingent assessment of the applicant’s damages at $2,000.
As is frequently observed, 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 The Age Company Ltd v Liu (2013) 82 NSWLR 268 at [13]; [2013] NSWCA 26. Moreover, and significantly in the context of this application, this Court exercises caution about granting leave to appeal in cases where only small monetary sums are involved: see Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [29]. A grant of leave is not appropriate where the prospects of appeal are poor and the amount involved is small. As Gleeson JA observed in Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106 at [39] (Emmett AJA agreeing):
Injustice involves a balancing exercise and the entitlement of parties to justice is not unconditional and must have regard to a number of factors, including the proportionality of the costs involved to the amount in dispute.
On the evening of 13 January 2024, the applicant was subjected to a pat-down search by a member of the New South Wales Police Force, Constable Fletcher, when the applicant was outside the building known as “Kendall” at 43 Morehead Street, Redfern. The search was performed because Constable Fletcher suspected the applicant to be in possession of prohibited drugs. The search was recorded by a body-worn video camera and occurred during an interaction that lasted some 8 minutes.
The applicant commenced proceedings against the State claiming damages for assault, battery, trespass to goods and false imprisonment in relation to the search. The principal issue before the primary judge was whether the search was justified under s 21(1)(d) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) and, in particular, whether Constable Fletcher suspected on reasonable grounds that the applicant was in possession of prohibited drugs.
Section 21(1) relevantly provides:
21 Power to search persons and seize and detain things without warrant
(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—
…
(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.
The primary judge concluded that Constable Fletcher’s suspicion that the applicant had a prohibited drug in his possession or under his control was based on five grounds, which provided reasonable grounds for Constable Fletcher’s suspicion: PJ[124]. The primary judge did not indicate whether each of the five grounds was necessary or, in some combination, sufficient to meet the requirement of reasonableness. Three grounds were supported by unchallenged evidence from Constable Fletcher which the primary judge accepted, namely that: (i) the applicant and his partner, who he was with at the time, were in a part of Redfern known to be a hotspot for drug activity, and the men did not look like they were from the area: PJ [103]-[105]; (ii) the applicant was present in an area which was dangerous at that time of night: PJ[106]‑[107]; and (iii) the applicant was far from his home: PJ[108]-[109]. The applicant does not seek to challenge these grounds on appeal.
A further ground, which the applicant does not seek to challenge on appeal, was what was said to be the applicant’s “deceitfulness” in his initial responses to Constable Fletcher: PJ[110]-[114], [118]. Constable Fletcher’s evidence was that he had seen the applicant and his partner enter 43 Morehead Street and had observed CCTV footage showing the applicant and his partner take the elevator and enter a unit on level 11 in that building. However, when approached by Constable Fletcher the applicant volunteered that he had just been at 55 Morehead Street, an assertion which Constable Fletcher knew to be false: see PJ[114]. The primary judge found that not only would Constable Fletcher have considered this apparent untruthfulness to be significant, as a matter of logic and consistently with “ordinary human experience”, but he actually considered it to be significant at the time: PJ[114].
The only ground the applicant seeks to challenge is Constable Fletcher’s observation that the applicant and his partner attended Unit 1107, which Constable Fletcher understood to be “running hot” (a term used by members of the NSW Police Force’s proactive crime team to refer to a high level of suspicion concerning drug-related activity): see PJ[48], [90]-[102]. The applicant conceded that Constable Fletcher knew that Unit 1107 was linked to drug‑related activity: see PJ[123]. However, the applicant’s case was that he and his partner in fact attended Unit 1106, and that it was necessary for the State to prove as a matter of fact, on the balance of probabilities, that the applicant had entered Unit 1107. The primary judge considered that it was not necessary for the State to prove as a matter of fact that the applicant went into Unit 1107 (PJ[90]). However, and in any event, his Honour accepted Constable Fletcher’s evidence that he saw the applicant enter Unit 1107, setting out what he took into account in so finding: PJ[91]-[94]. It is these conclusions the applicant seeks to challenge in the first two of the three proposed grounds of appeal.
The third proposed ground of appeal seeks to challenge the primary judge’s rejection of the submission that “capriciousness” is available as a basis to attack a suspicion formed for the purposes of s 21 of LEPRA.
1 The Court below erred in holding that it was not necessary for the respondent to prove as a matter of fact that the appellant went into unit 1107.
2 The Court below failed to engage with the appellant’s argument that the evidence of Constable Fletcher and Senior Constable Feneley of having observed the appellant enter unit 1107 was not credible or reliable.
Both grounds and the written submissions made in support of them assume that success in relation to either of those grounds is sufficient to establish the absence of reasonable grounds for the purposes of s 21 of LEPRA. That is not correct. In order to obtain the relief he seeks from this Court, the applicant would also need to satisfy the Court that the other grounds relied on by Constable Fletcher were not themselves, when taken together, sufficient to establish reasonable grounds for his suspicion. The applicant was put on notice of that issue by the draft notice of contention. However, not only has he failed to address it, but his prospects of success in relation to it appear to be low. The applicant’s “deceitfulness” when questioned by Constable Fletcher about where he had been when taken together with the other uncontested circumstances relied on by Constable Fletcher appears to be sufficient to constitute reasonable grounds.
Moreover, the grounds of appeal themselves are weak. As to ground 1, the primary judge accepted Constable Fletcher’s evidence that “he saw [the applicant] go into unit 1107 and that this was one of the facts and circumstances he relied upon to form the suspicion that [the applicant] had a prohibited drug in his possession or control”: PJ[93], [94]. That is, the primary judge was satisfied on the balance of probabilities that the applicant did go into Unit 1107 (based on Constable Fletcher’s evidence and notwithstanding the evidence given by the applicant). It follows that even if the point sought to be raised by ground 1 were correct, it would go nowhere given the factual findings of the primary judge.
As to ground 2, at first instance, the applicant submitted that Constable Fletcher was not a credible witness for two reasons. One was because the State allegedly changed its case from alleging “the officers held the mistaken belief that [the applicant] had attended unit 1107” to “[the applicant] did indeed attend unit 1107 because Constable Fletcher observed this to occur” and that that change in case could only have occurred because of a change in instructions given by Constable Fletcher. The other was that Constable Fletcher’s evidence concerning his first entry in his computerised operational policing system audit report was implausible because he could not recall why he had undertaken some of the searches recorded there when he appeared to have a good memory of most of the events concerning the applicant.
Although the primary judge did not specifically deal with those arguments, the primary judge accepted Constable Fletcher’s evidence on the points critical to the outcome of the case and explained why: PJ[68]-[74]; [94]. The primary judge was not obliged to deal with every point raised by the applicant for why Constable Fletcher’s evidence should be rejected. The points raised by the applicant appear to be tenuous. Moreover, if that ground were upheld, the likelihood is that it would be necessary to order a retrial. The amount in issue would not justify that course.
The primary judge erred in holding that the question of whether Constable Fletcher was acting capriciously did not arise under s 21(1) of [LEPRA].
That ground derives from an invitation by the applicant’s counsel for the primary judge to find that Constable Fletcher’s state of satisfaction was formed “capriciously”, a consideration that has long been applied as a ground of review in cases where a decision-maker’s power depends on the formation of an opinion or on a state of satisfaction (see the discussion in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [131]‑[137]; [1999] HCA 21 per Gummow J). It has more recently been applied in relation to the statutory requirement in s 99(1)(b) of LEPRA that an arresting officer be “satisfied” that the arrest is “reasonably necessary” for one of the statutory purposes set out in s 99(1)(b)(i) to (ix): see eg State of New South Wales v Randall [2017] NSWCA 88 at [13] (Basten JA).
The issue was addressed by the primary judge in this way:
[71] In closing oral submissions, counsel for [the applicant] said that in relation to whether Constable Fletcher subjectively held the suspicion, [the applicant] was not submitting that Constable Fletcher was dishonest. Counsel submitted that on the basis that Constable Fletcher considered only “the possibility” that [the applicant] was in the possession of a prohibited drug, as opposed to reaching a positive state of mind that he was in possession of a prohibited drug, his state of satisfaction was formed “capriciously”. Ultimately, counsel for [the applicant] submitted that it would seem that the court was able to find that the suspicion was honestly held and counsel did not push “too heavily” the submission about acting capriciously.
[72] In circumstances where the question is subjective, the concession that [the applicant] was not submitting that Constable Fletcher was dishonest is significant.
[73] In my view, in light of the general legal principles I set out earlier, a question of whether Constable [Fletcher] was acting “capriciously” does not arise under s 21(1) of LEPRA. Such a question may arise under s 99(2)(b) of LEPRA: State of New South Wales v Dennis [2025] NSWCA 118 at [59] per Kirk JA (Mitchelmore JA agreeing).
[74] Having regard to all of those matters I accept Constable Fletcher’s evidence on this question.
[75] For those reasons, I am satisfied that Constable Fletcher did in fact suspect that [the applicant] had in his possession or under his control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited drug before requiring [the applicant] to submit to the search.
It follows that none of the proposed grounds of appeal raise any question of principle or matter of public importance, nor an injustice which is reasonably clear in the sense of going beyond a merely arguable error. The proposed appeal does not have sufficient prospects to warrant a grant of leave. Moreover, in circumstances where the applicant makes no challenge to the primary judge’s assessment of damages at $2,000, the disproportionality of the costs of this litigation to the amount involved is a significant consideration telling against a grant of leave.
The respondent sought its costs of the application for leave to appeal, including its costs of a notice of motion that the applicant filed, dated 20 January 2026, by which he sought that the Court receive further evidence. Counsel for the applicant confirmed at the hearing that the notice of motion was not pressed. An order for costs of the application for leave will be made in favour of the respondent, rendering a separate order for costs of the notice of motion unnecessary.
The summons for leave to appeal is dismissed with costs.
**********
Fuller
State of New South Wales
(1999) 197 CLR 611
(2013) 82 NSWLR 268
The summons for leave to appeal was dismissed with costs. A separate costs order concerning the unpressed motion for further evidence was unnecessary (at [23]–[24]).
By a proposed notice of contention, the respondent contends that the unchallenged findings of the primary judge themselves provided reasonable grounds to suspect that the applicant was in possession of a prohibited drug, irrespective of the ground which is the subject of challenge.