Iloski v State of Victoria [2026] VSC 125

POLICE TORTS - Further execution of warrant of possession by Sheriff's Office of Victoria - Police officers in attendance - During stand-off, first plaintiff operated a demolition saw - First plaintiff subsequently arrested - Claim by first plaintiff of battery, assault, trespass to land, trespass to goods, unlawful arrest and false imprisonment - Police had power and grounds to arrest - Reasonable use of force - First plaintiff failed to establish battery, assault, trespass to land, trespass to goods, unlawful arrest and false imprisonment.

Crimes Act 1958 (Vic) ss 323(1), 324(1), 324C, 458(1), 459(1) 462A, Residential Tenancies Act 2013 (Vic) ss 5(1), 6(1), 452(1), 472(1) - Slaveski v State of Victoria [2010] VSC 441, Brown v State of Victoria (No 3) [2025] VSC 765, Barker v The Queen [1983] HCA 18; 153 CLR 338, Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1, ACN 087 528 774 Pty Ltd v Chetcuti [2008] VSCA 274; (2008) 21 VR 559.

1 The plaintiffs, Robert and Daniel Iloski,[1] claim damages from the defendant, the State of Victoria, in relation to events at a residential property, involving officers of Victoria Police in September 2019, July 2020 and December 2021.

2 The plaintiffs are brothers, and together with their wives and children, lived at the property in Coonawarra Drive, Thomastown. In October 2018, the Commonwealth Bank of Australia (the CBA) obtained an order from the County Court to recover possession of the property. A warrant of possession was issued, and on 17 September 2019, that warrant was executed by the Sheriff's Office of Victoria (the SOV), with assistance from the Police (the first warrant).

3 On 18 September 2019, Robert obtained an interim order from the Victorian Civil and Administrative Tribunal (VCAT) which he claimed protected him from eviction on the basis that he was residing at the property under a residential tenancy agreement (the interim VCAT order).

4 Much of what occurred on 17 and 18 September 2019, is in dispute and the subject of this proceeding. What is agreed between the parties, is that some of the plaintiffs' goods were removed from the property by agents of the CBA, and on 18 September, Robert was arrested on three occasions, and Daniel was arrested once.

5 Subsequently, Robert was charged with multiple offences which included burglary, and trespass. Daniel was also charged. On 12 December 2019, the charges against Robert and Daniel were discontinued.

6 Some of the goods removed from the property were stored by the CBA at a storage facility in Epping. In July 2020, Robert admitted to gaining access to that facility, and removing some of his goods, which he took back to the property. Police were informed of this, and obtained a stolen goods and search warrant which was executed at the property. Following this, Robert was arrested, and the goods which had been removed from the storage facility, were seized.

7 On 1 December 2021, the SOV executed a further warrant of possession over the property, with assistance from police officers (the second warrant). On this day, for a period of approximately four hours, Robert locked himself inside the garage at the back of the property, and refused to exit. Whilst inside the garage, Robert operated a demolition saw (the demo saw), which at one stage during the stand-off, pierced a metal door, through which a police officer was attempting to enter from the other side. Eventually, the police officers removed the door. Robert exited the garage and was subsequently arrested.

8 In the plaintiffs' revised amended statement of claim, Robert claims damages for trespass to land and goods, conversion, detinue, unlawful arrest, false imprisonment, assault, battery, and malicious prosecution.[2] Daniel claims damages for trespass to land and goods, detinue, unlawful arrest, false imprisonment, assault, and battery. Both plaintiffs seek damages for pain and suffering, past and future loss of earnings, gratuitous care, together with a claim for aggravated and exemplary damages.

9 The defendant defends the proceeding on the basis that police officers attended the property to assist the SOV in the execution of the warrants, and were entitled to enter the property and make arrests in order to prevent any breaches of the peace, to restrain any apprehended breaches, and to investigate any reports of offending. The defendant denies that police officers committed assaults or batteries against either plaintiff, and denies unlawful arrest and false imprisonment, in either September 2019, or December 2021. In its amended defence, the defendant says the only goods it seized from the property in September 2019 were a firearm and ammunition, neither of which are the subject of the pleadings in this proceeding. As to the goods seized in July 2020, that was pursuant to a warrant, and in any event have since been returned to Robert. Finally, the defendant denies Robert's allegation of malicious prosecution in respect of the charges brought against him following the events of 18 September 2019.

10 For the reasons that follow, I am not satisfied that any of the alleged torts have been established, and I dismiss the proceeding.

11 Some background facts are relevant so as to understand what occurred between Robert and Daniel, the SOV, and the Police, on 17 September 2019 and beyond. Whilst the property ownership, financial dealings and loan arrangements of the family members are not in issue in the proceeding, such matters give context as to why the first warrant was assessed by the SOV as high risk, and why Robert and Daniel were aggrieved in respect of their eviction from the property. Where the background facts are disputed, I note this.

12 Robert and Daniel are the only children of Donco Iloski and Liljana Iloska. Robert is aged 45 and Daniel is aged 48.

13 Robert married his wife in 2005, and together they have two children, aged 19 and 15 years.

14 Daniel married his wife Tatjana Iloska in 2010, and together they have two daughters, aged six and three years.

15 In March 1980, Donco and Liljana became the joint registered proprietors of the property.[3]

16 In October 1992, Donco and Liljana also became the joint registered proprietors of a piece of land in Greenvale (the Greenvale land).[4] At the same time, Donco and Liljana granted the CBA a mortgage over the Greenvale land, as security for a loan.[5]

17 In July 1998, Donco and Liljana executed a mortgage over the property to the CBA.[6]

18 Subsequently, further mortgages were entered into in relation to the property, the Greenvale land, and also a commercial property which had been purchased in Campbellfield.[7]

19 In October 2006, Donco and Liljana entered into a loan agreement with Perpetual Trustees Victoria Limited (Perpetual).[8] In November 2006, Perpetual registered a mortgage over the property.[9]

20 Robert and Daniel bought into the Greenvale land with plans to subdivide it into three units. Building commenced in 2010, however there were construction issues and it was ultimately sold by the National Australia Bank, and the units were knocked down. A temporary portable building (described by Robert as a tent) was then erected on the Greenvale land.

21 Robert claims that in August 2013, he signed a lease agreement with his father (the lease agreement) in respect of the property. Under this agreement, Donco was the landlord, and Robert was the tenant.

22 Daniel claims that in late July or early August 2013 he entered into an oral lease agreement with Donco in respect of the property.

23 On 13 December 2013, the title of the property was transferred from Donco and Liljana, to Liljana and Tatjana as tenants in common, with Liljana owning 90% and Tatjana owning 10% (the December 2013 transfer). The consideration for the transfer was natural love and affection, and a sum of $47,000. On the same day, the Perpetual mortgage was removed from the property.

24 The plaintiffs allege the December 2013 transfer occurred as a result of fraud.

25 On 19 December 2013, the CBA registered a mortgage over the property, in respect of a loan agreement with Liljana and Tatjana.

26 On 12 April 2016, the CBA issued a notice of default and a notice of demand to Liljana and Tatjana.

27 On 7 June 2016, the CBA, as mortgagee over the property, issued a proceeding in the County Court against Liljana and Tatjana in respect of monies owed to it.

28 On 23 December 2016, the CBA obtained judgment in default against Tatjana.

29 In February 2018, the proceeding against Liljana proceeded to trial before Judge Cosgrave in the County Court Victoria. On 26 February 2018, Judge Cosgrave delivered reasons as to why the CBA was entitled to be subrogated to the rights which Perpetual had under the mortgage over the property.[10] Also in that judgment, his Honour provided reasons as to why he denied Robert leave to appear for Liljana as a 'McKenzie friend',[11] and why Liljana required an independent interpreter.[12]

30 On 7 March 2018, orders were made in the County Court declaring that the CBA had an equitable interest in respect of Liljana's interest in the property. Liljana was ordered to pay the CBA the judgment sum and interest, totalling $303,181.49, together with costs. In addition, Liljana was ordered to execute a mortgage to secure her debt to the CBA.

31 On 4 June 2018, Judge Cosgrave made orders appointing a Registrar of the County Court[13] to execute the mortgage of land.

32 On 27 June 2018, a mortgage of land naming Liljana as mortgagor of the property was executed by a Registrar of the County Court on behalf of Liljana, naming the CBA as mortgagee.

33 On 19 October 2018, Judge Cosgrave ordered that the CBA recover possession of the property from Liljana and sell the property.

34 On or about 22 October 2018, the first warrant was issued by a Registrar of the County Court in respect of the property.

35 In December 2018, the SOV executed a warrant of possession in respect of the Greenvale land (the Greenvale warrant). The defendant alleged that on the day the Greenvale warrant was executed, Robert drove at high speed through a fence on the Greenvale land, and improvised explosive devices were located on the Greenvale land.

The plaintiffs' grievances as to events prior to 2019

36 As noted above, the plaintiffs allege the December 2013 transfer was a fraud, as Donco and Liljana were both overseas at the time the transfer document was signed. Further, the plaintiffs allege that Gadens Lawyers were privy to the alleged fraud. In answer to many questions asked of the plaintiffs in cross-examination, they referred to these allegations, in what appeared to be an attempt to justify their refusal to accept the validity of the warrants of possession.

37 At the outset of the trial, I explained to the plaintiffs that this proceeding was not the forum to raise such allegations. The warrants of possession had been validly issued in accordance with a judgment and orders of the County Court, and this proceeding did not provide an opportunity for a collateral challenge to the legitimacy of those warrants.

38 So as to more readily understand the sequence of events, and the basis upon which each of the warrants were executed, it is convenient to first outline and evaluate the defendant's evidence, before summarising and evaluating the plaintiffs' evidence.

39 Relevant to the determination of liability in this proceeding, the defendant called the following witnesses:

(i) Mr Grant Taylor, regional manager of the SOV, who was the SOV officer responsible for, and present at, the executions of the Greenvale warrant, the first warrant and the second warrant.

(ii) Mr Mark Matthews, managing director and owner of the repossession firm, ABC Debt Services. Mr Matthews was engaged as the CBA's agent in respect of the execution of the first warrant.

(iii) Officer Apollonio, who was responsible for the preparation of the Police plan to assist the SOV in relation to the execution of the first warrant, and was present at the execution of the first warrant.

(iv) Officer Kenshole, who attended the property on 17 and 18 September 2019, and was the police officer who arrested Robert for the first and second times on 18 September.

(v) Officer Petrou, who attended the property on the evening of 17 September 2019 as the patrol supervisor.

(vi) Officer Faulkner, who was the most senior police officer at the property on 18 September 2019.

(vii) Officer Maffei, who attended the property on 18 September 2019, and directed the arrest of Daniel.

(viii) Officer Noviello, who made the third arrest of Robert on 18 September 2019. Additionally, in December 2021, officer Noviello was a member of the Critical Incident Response Team (CIRT), and attended upon the property in response to the stand-off involving Robert following the execution of the second warrant.

(ix) Officer Warne, who was present at the property during Robert's third arrest.

(x) Officer Ward, who attended the property on the evening of 18 September 2019, and arrested Daniel.

(xi) Officer Muntener, who attended the property on 18 September 2019.

(xii) Officer Di Clemente, who obtained and executed the search warrant.

(xiii) Mr Andrew Angeloni, an SOV officer, who assisted the executing officer during the first warrant, and was the SOV officer responsible for, and present at, the execution of the second warrant.

(xiv) Officer Choueiri, who was the Police forward commander for the execution of the second warrant.

(xv) Officer Walker, who was present at the property when the second warrant was executed.

40 I found each of these witnesses to be reliable and credible, and accept their evidence without qualification.

41 In addition, the defendant tendered numerous contemporaneous documents, together with extensive amounts of body worn camera (BWC) footage.

42 The following is a summary and analysis of the defendant's evidence relevant to my determination of this proceeding

43 Mr Taylor said that warrants are assessed by the SOV as low, medium or high risk. Doing so involves an assessment of information held by the SOV, as well as the Victoria Police's Law Enforcement Assistant Program. Mr Taylor said that if a warrant is assessed as high risk, the SOV can seek extra resources, commonly from the Police.

44 Mr Taylor was present when the Greenvale warrant was executed, which had been assessed as high risk. Mr Taylor said he saw Robert drive his vehicle through two fences on the Greenvale land. When this occurred, Mr Taylor said that officers from the SOV and the Police (who were several metres from one of the fences), took evasive action by stepping back to get out of the way. Mr Taylor said he was close enough to the fence that he feared for his safety at this time.

Planning for the execution of the first warrant

45 Mr Taylor said that within 10 days of a warrant of possession being received by the SOV, a notice to vacate letter is sent by the SOV, to the address of the premises which are the subject of the warrant, so as to advise the occupants the SOV is in possession of a warrant that it intends to execute. This letter provides a set date before which the warrant will not be executed; however, the letter does not stipulate the exact date of execution. Mr Taylor said the purpose of this is to allow the occupants the opportunity to vacate the premises before the given deadline. Mr Taylor said that once the set date is then arranged, a final notice to vacate may be sent to the address.

46 Mr Taylor said the SOV received the first warrant in early 2019, after which a notice to vacate was provided to the occupants at the property (the notice to vacate).

47 In response to the notice to vacate, on 22 February 2019, Robert emailed a copy of the lease agreement to the SOV.

48 On 22 March 2019, Robert sent an email to the SOV, which set out the basis of Robert's belief as to why the Residential Tenancies Act 1997 (the RTA) protected his family from eviction. In this letter, Robert stated that he was aware of the provisions of the RTA. Thereafter, Robert contended that:

There is no provision in the [RTA], which enables the Sheriff or any of his Officers or agents, or in fact anyone, to interfere with the rights of parties to an agreement entered into and in force BEFORE any claimed agreement was apparently made and apparently giving rise to the envelope addressed to 'the Occupants' (herein returned to sender).

49 Mr Taylor said that the SOV obtained independent legal advice in respect of the lease agreement, and he was advised that the lease agreement did not preclude the SOV from executing the first warrant.

50 On 4 June 2019, Acting Deputy Sheriff, Loy Kop, wrote to Robert and informed him as follows:

Thank you for your email of 22 March 2019 regarding the notice to vacate served to the occupants of [the property] and claiming that you are a tenant at that property under the [RTA].

I have reviewed the matter and can advise that on 23 October 2018, the County Court issued a Warrant of Possession in relation to [the property]. The warrant gives sheriff's officers the power to enter the property and give possession to the [CBA]. To do so, officers may enter the property and remove any occupants from it, even if they are not named in the warrant.

I note that you have previously provided a lease document as evidence of your tenancy. As sheriff's officers have advised you previously, the [RTA] does not apply to it because:

• the property is not identified or recorded in the lease

• there are inconsistencies in the lease, for example one of the registered proprietors has not signed the lease and the schedule does not align with the terms of the lease

• the lease is for more than five years. The [RTA] (at the time the lease was entered into) did not apply to a fixed term agreement that was more than five years and where there was no provision allowing the landlord or tenant to determine the agreement by notice before the end of five years.

If you are a tenant to which the [RTA] applies, please provide additional evidence to support your claim ...

(the SOV 4 June letter).

51 Mr Taylor said he delegated responsibility for executing the first warrant to Mr Paul Mizzi.

52 Mr Taylor said that given his prior experience in executing the Greenvale warrant, he considered it likely there would be resistance to the warrant, from Robert and potentially others. Therefore, Mr Taylor said the SOV planned for the execution of the first warrant with assistance from the Police. Mr Taylor said operational planning meetings were held with police officers from Mill Park Police Station, including officers Bui and Apollonio.

53 Mr Taylor also said that as part of the planning, the CBA was required to provide a letter advising the SOV as to who their authorised representative would be for the first warrant.

54 Mr Matthews gave evidence that he was asked to attend a planning meeting at Epping police station on the morning of 17 September 2019. It was at this meeting that Mr Matthews formally identified himself to the SOV as acting on behalf of the CBA, and provided a copy of the letter authorising ABC to act in taking possession of the property. Mr Matthews said that Mr Sean Jamieson was also in attendance as a subcontractor of ABC.

55 Mr Taylor gave evidence that he arrived at the property at approximately 10am, in his capacity as operational commander. Mr Taylor said there were about 12 SOV officers in attendance. Mr Taylor said that SOV officers, Mr Mizzi and Mr Greg Walsh, executed the warrant.

56 Mr Taylor said that within a reasonably short period of time, Robert exited the property and crossed the road to speak to some police officers.

57 The BWC footage of officer Mitchel was tendered. This footage shows officer Mitchel standing with other police officers, in the driveway of the neighbouring property, when Robert left the property at 10:22am.[14]

58 Mr Taylor said that once everyone was off the property, including the SOV officers, the property was vacant and thus able to be formally handed over to the CBA. This was done at 1:06pm when Mr Jamieson, signed the back of the first warrant as agent of the CBA. The executed warrant was also signed by SOV officer, Mr Walsh. Mr Taylor said that once the property was handed over, the involvement of the SOV ceased.

59 Mr Matthews said that he observed the SOV officers execute the first warrant, whilst he stood a short distance away. Upon execution, Mr Matthews entered the property to carry out condition reports.

60 Once the property was handed over, upon instructions from the CBA, Mr Matthews and Mr Jamieson began packing and removing all assets from the property, which were to be subsequently taken into storage. Mr Matthews explained to Robert and Daniel they would need to speak to the CBA to gain access to their goods. Mr Matthews gave evidence that the occupants were permitted to retain some personal items, including items for a newborn baby and elderly parents.

61 Officer Apollonio was not on the property during the execution of the first warrant, however, she was at a nearby location receiving regular updates. Officer Apollonio said that after the SOV had executed the warrant, a request was made by the SOV for police officers to enter the property to inspect barrels of chemicals, to determine if they contained illegal substances. Officer Apollonio said that in response to this request, she instructed police officers to enter the property and inspect the substances, which were later confirmed to be legal. Officer Apollonio said that concluded her involvement in respect of the first warrant.

62 Officer Kenshole gave evidence that she was called out to the property on 17 September at approximately 4pm. She said that she spoke to Robert, Daniel and Liljana. Officer Kenshole said that as there was an apparent dispute as to whether the Iloski family were allowed to access the property, she suggested that Daniel and Robert seek to have the matter 'sorted at court'.

63 Officer Petrou gave evidence that he was called out to the property on 17 September at approximately 7pm. Officer Petrou said he previously knew Robert and Daniel as, like the plaintiffs, he had grown up in Thomastown. Officer Petrou spoke with both Daniel and Robert, primarily about their dispute regarding the warrant and what was to happen to their goods. Officer Petrou said that he entered the property, and allowed Robert to enter and collect some 'bare necessities' from inside the house.

64 Officer Petrou said that towards the end of the evening, he suggested to Robert that he attend court the following day, so that Robert could state his position, as would the SOV.

65 Officer Petrou said during this evening, Robert did not mention anything to him in relation to sums of money, including $260,000, being taken from the property.

66 Mr Matthews said the removalists worked until approximately 8-9pm, however as a result of altercations throughout the day, the police officers determined no further action was to be carried out. Mr Matthews said all the involved parties then reached an agreement that no one would enter the property that night.

67 The BWC footage of officers Mitchel and Petrou is consistent with the above oral evidence. It demonstrates the patience with which the police officers communicated with Robert and Daniel throughout the course of the day. In particular, officer Petrou spoke to Robert in a respectful and conciliatory manner.

68 Mr Matthews said that when he attended the property the next morning, he was informed that the locks to the property had been changed, and so he engaged a locksmith to resecure the property. Mr Matthews said the removalists then continued removing goods from the property.

69 Mr Matthews said that later in the day, Robert and Daniel re-attended the property. Mr Matthews said Robert provided him with a copy of the interim VCAT order, and Mr Matthews subsequently sought advice from Gadens Lawyers. Mr Matthews said he was then advised that the interim VCAT order did not prevent the CBA from continuing to remove goods from the property. Mr Matthews said he conveyed this advice to Robert, and the police officers. Mr Matthews confirmed at one stage he also spoke to someone from the Police over the phone, as the Police wanted to know their legal standing.

70 Mr Matthews said that by the end of the second day, about 90% of the goods had been removed from the property. Mr Matthews understood the goods were taken to a storage facility in Epping.

71 Officer Faulkner gave evidence that, at approximately 3:25pm, he arrived at the property, and was approached by Robert, who appeared agitated. Officer Faulkner said Robert showed him the interim VCAT order and informed him he had a right to re-take possession of the property.

72 Officer Faulkner's BWC footage demonstrated multiple warnings were given to Robert that if he re-entered the property, he would be arrested for trespass. Then at approximately 4:45pm, officer Faulkner placed an open hand against Robert's chest, in what appeared to me, to be an attempt to stop Robert entering the property. Soon after, officer Faulkner directed Robert across the road, at which time, he briefly raised his voice and demanded that Robert follow police officer's instructions not to re-enter the property. Officer Faulkner said to Robert he would seek further advice in respect of the interim VCAT order.

73 In his oral evidence, officer Faulkner said that he discussed the matter with Mr Matthews, and also sought legal advice over the phone from the Police prosecution's front line support unit. Officer Faulkner said he was advised that the interim VCAT order did not preclude the mortgagee (the CBA), from being entitled to the property. Officer Faulkner said this information was subsequently relayed to Robert. Such conversations were captured by officer Faulkner's BWC footage.

74 Officer Faulkner also gave evidence that during the course of the evening, he was informed by the CBA's agents that ammunition had been located on the property, and officer Faulkner directed another police officer to remove it.

75 Officer Kenshole, was also present at the property in the afternoon, and said she was present when officer Faulkner advised Robert and Daniel of the legal advice he had received in respect of the interim VCAT order. Officer Kenshole said that on numerous occasions she warned Robert and Daniel that if they entered the property, they would be arrested for trespass.

76 Officer Kenshole said she arrested Robert for trespass the first time, after he jumped the side fence to gain access to the property. The first arrest occurred at 6:38pm and is captured on officers Faulkner and Kenshole's BWC footage. Robert was informed that he was being arrested for trespassing, was informed of his rights, and handcuffed.

77 Officer Kenshole was also responsible for conveying Robert to Mill Park Police Station, where she said he refused an interview and was later released from custody.

78 At approximately 8:30pm, officer Kenshole said she was directed to re-attend the property and upon arrival, she observed both Robert and Daniel outside the property. Shortly after, Robert entered the property again, and officer Kenshole arrested Robert for trespass. The second arrest occurred at 9:47pm and is captured on officer Kenshole's BWC footage. Once again, Robert was informed that he was being arrested for trespassing, was informed of his rights, and handcuffed.

79 Officer Kenshole said she did not recall Robert complaining of the handcuffs being too tight whilst they were on, but recalled that later on, when Robert left the police station, he complained to her the handcuffs had been too tight. This complaint by Robert is captured on officer Kenshole's BWC footage.

80 The BWC footage demonstrated that the police officers repeatedly warned Robert not to enter the property. Those police officers remained calm and patient, despite Robert repeatedly berating them. In particular, I found officer Kenshole to be impressively tolerant of Robert's resistance to directions, and she remained measured throughout her dealings with him.

81 Officer Maffei gave evidence and said that he commenced his shift at approximately 8:30pm. Officer Maffei said that whilst completing paperwork at the police station, he received an email from his senior sergeant, outlining the difficulties which had taken place at the property. Soon after, officer Maffei said he received a job over the radio, which indicated Robert and Daniel had re-attended the property, and they were attempting to start a fire at the property. Officer Maffei said he then travelled to the property, and on his way there, came up with an arrest plan in relation to the brothers.

82 Officer Noviello said that when she commenced her shift on this day, she received a hand over briefing from officer Kenshole in relation to Robert and what had occurred at the property in the afternoon. Officer Noviello then received a job to attend the property, in relation to a trespass and burglary. Officer Noviello said she arrived at approximately 11:30pm, at which time she observed Robert holding a blow torch and a screw driver on the boundary of the property. She said she then observed Robert use the blow torch in an attempt to unlock a gate along the driveway. Officer Noviello said she told Robert to drop the items, and walk towards her. Officer Noviello said that Robert then stepped over the fence, and dropped the items, at which time she told Robert he was under arrest for burglary, and informed him of his rights. Officer Noviello said that she believed she had the power to arrest Robert under s 459 of the Crimes Act, for burglary.

83 Officer Noviello said she had 'spray' in her left hand but it was not used, nor did she draw any other weapon. Officer Noviello said that she applied handcuffs for the safety of Robert, herself and other police officers.

84 Officer Noviello said at no stage did Robert get to the ground, and she could not recall Robert making a complaint about the handcuffs.

85 Officer Warne started his shift at approximately 11pm and was soon after called to the property. Officer Warne said he was briefed as to the events of the afternoon at the property, including the two prior arrests of Robert. Officer Warne attended the property with officer Noviello. Upon arriving at the property, officer Warne observed Robert inside the fence of the property, holding an ignited gas torch and a jemmy bar. Officer Warne observed Robert hand the torch to someone from Fire Rescue Victoria (FRV), who had also attended the property. Officer Warne approached the fence and instructed Robert to get on the ground and to drop the items in his hands. Officer Warne said Robert did not initially respond to the request, but then Robert climbed over the fence, at which time officer Warne saw officer Noviello arrest Robert. After that, Robert was handcuffed, and conveyed to the divisional van. Officer Warne remained at the divisional van to monitor Robert while officer Noviello commenced an investigation at the property.

86 Officer Warne gave evidence he did not draw his weapon, nor did he observe officer Noviello draw her gun.

87 The BWC footage of officer Learmonth was tendered and begins at 11:30pm, when Robert is handcuffed. It is consistent with the oral evidence of officers Warne and Noviello as to what occurred after the arrest.

88 Thereafter, Robert was taken to Mill Park Police Station, where a record of interview was commenced. Officer Warne said this interview was paused for further investigation, at which time Robert was left in the interview room. Officer Warne said the interview was unable to recommence, due to Robert's aggressive behaviour inside the interview room. After consulting with a custody sergeant, officer Warne said that Robert was placed in a holding cell, for the safety of police officers and himself. Officer Warne said that he prepared a remand application for the Melbourne Magistrates' Court.

89 Following the third arrest, Robert was charged with burglary, criminal damage, criminal damage by fire, possessing house breaking implements, entering a private place without authorised excuse and acting prejudicial to good order (Robert's 18 September charges).

90 In relation to Daniel's arrest on this night, officer Maffei gave evidence that he was satisfied that Daniel was 'acting in concert' with Robert, as he was assisting in the commission of an offence, that being breaking a lock with a heat torch. Officer Maffei also said he believed Daniel had interfered with security guards whilst Robert was attempting to enter the property, and that after the second arrest, Daniel drove Robert from the police station back to the property in order for an offence to be committed. Officer Maffei instructed officer Ward to arrest Daniel while officer Ward was on route to the property.

91 Officer Ward gave evidence that at approximately 11:20pm, she received a job to attend the property in relation to people causing trouble, and was subsequently tasked by officer Maffei to arrest Daniel for 'acting in concert'. Officer Ward said that upon arrival to the property, she identified Daniel, arrested him, and placed him in two pairs of handcuffs, to extend his range of motion. This arrest occurred at 11:31pm and is captured on officer Ward's BWC footage. The footage shows officer Ward advising Daniel that he was under arrest for 'acting in concert with your brother and driving him to the address.'

92 Officer Ward said she placed her finger between Daniel's wrist and the handcuffs to ensure they were not too tight. In addition, officer Ward said that she used a key to ensure the handcuffs could not tighten nor loosen whilst in transit. Daniel was then placed in the police van and conveyed to Mill Park Police Station.

93 Officer Muntener gave evidence that he commenced his shift at 11pm and was tasked to attend the property. Officer Muntener said that when he arrived, the FRV was present as well as numerous Police units. Officer Muntener said Daniel was approached, identified and subsequently arrested by officer Ward. Officer Muntener said that Daniel was holding a mobile phone and waving his hands around. During the arrest, officer Muntener seized Daniel's phone. Officer Muntener said this was a standard procedure, as when waved around, a phone could be used as a weapon, and the person being arrested would not want their phone dropped and broken. In cross examination, Daniel did not challenge officer Muntener as to the reasonableness and/or lawfulness of the removal of his phone.

94 Daniel was charged with three offences which related to trespassing, damaging the property, and arson (Daniel's 18 September charges).

95 On 19 September 2019, whilst Robert was still in custody, he was transferred from the Mill Park Police Station to the Melbourne Magistrates' Court. Robert was then bailed to return to the Magistrates' Court on 12 December 2019.

96 Officer McAuley attended the Magistrates' Court on 19 September 2019. In an email from officer McAuley to several other police members later that day, he summarised what had occurred at the Magistrates' Court hearing. Officer McAuley noted that:

• Legal Aid and [Robert] believe he had the legal right to return to [the property] due to the [interim VCAT order].

• the Magistrate interpreted the order that [Robert] didn't have the legal right to return or enter.

(the McAuley email of 19 September)

97 Officer Warne said that he compiled a brief of evidence in respect of Robert's 18 September charges. However, officer Warne said those charges were later withdrawn on advice from the Office of Public Prosecutions (the OPP). Officer Warne said he was happy to be guided by the OPP, so he agreed with the decision to withdraw.

98 During cross-examination by Robert, officer Warne said that when he received the McAuley email of 19 September, it did not cause him to consider withdrawing the charges against Robert.

99 Orders from the Magistrate's Court, dated 12 December 2019, record that Robert's 18 September charges were 'struck out - withdrawn', with an order reserving the quantum of costs, to be paid by the Chief Commissioner of Police.

100 Officer Di Clemente gave evidence that whilst on the overnight shift at Whittlesea Police Station from 16-17 July 2020, he was tasked with the responsibility of investigating a break-in at a storage facility in Epping. Officer Di Clemente said he viewed CCTV footage taken on the morning of 16 July 2020, and subsequently spoke to the manager of the storage facility. After doing so, officer Di Clemente made an application to the Magistrates' Court and obtained the search warrant,[15] which authorised him to attend the property and search for goods, which officer Di Clemente believed Robert had stolen from the storage facility.

101 Between approximately 7:30am and 8am on 17 July, the search warrant was executed by officer Di Clemente and five or six other police officers. Upon arrival at the property, officer Di Clemente said he knocked on the door, identified himself and explained the reason for his attendance. Officer Di Clemente said after 10 minutes, Robert agreed to open the door, and when he did so, Robert informed officer Di Clemente that he was in possession of a firearm which was subsequently located by the police officers.

102 Officer Di Clemente said the nature of the search was explained to Robert, and that Robert then admitted to attending the storage facility in order to obtain goods which Robert he said belonged to him. Officer Di Clemente said Robert showed him the goods, which included a bike, and a clothes dryer. Officer Di Clemente said that a small plastic box of items was also searched, which contained various pieces of crockery. Officer Di Clemente said this box did not contain $40,000 in cash.

103 Officer Di Clemente said that during the search of the property, Robert's wife arrived home. Officer Di Clemente said that Robert was yelling and would not calm down, so he decided to remove Robert from the property. Officer Di Clemente said he placed Robert under arrest, put him in handcuffs, and conveyed him to Mill Park Police Station.

104 Officer Di Clemente gave evidence that Robert was subsequently charged for possession of an imitation firearm, driving unlicensed, trespass, burglary and theft. Those charges were heard at a contested hearing at Heidelberg Magistrates' Court on 23 June 2023, where charges in relation to possession of an imitation firearm and driving unlicensed were successful, however the others were not.

Planning for the execution of the second warrant

105 Mr Taylor said he delegated responsibility for the execution of the second warrant to Mr Angeloni. A fresh risk assessment was undertaken and this warrant was also determined to be a high risk execution. The SOV sought assistance from the Police to plan for this.

106 Mr Taylor said that only a preliminary notice to vacate letter was sent to the occupants of the property regarding the second warrant. Mr Taylor said that the SOV may determine that service of one or both notices to vacate could increase risk. He said such letters are sent as a courtesy, and are not required by legislation.

107 Mr Angeloni gave evidence and said that he prepared a formal risk assessment for the second warrant, and noted there was a risk of resistance, threats and a potential for violence. Mr Angeloni discussed these safety concerns with the Police, including officer Choueiri. It was noted that at the previous executions of warrants of possession, improvised explosives and firearms had been identified. Such safety concerns prompted Mr Angeloni to request the Police attend the execution of the second warrant.

108 Officer Choueiri was involved in discussions with the SOV regarding safety plans and strategies regarding execution of the second warrant.

109 Officer Walker gave evidence and said he had prior knowledge of warrants involving the plaintiffs through working in the CIRT between 2015 and 2020, and he had also been involved in the risk assessment for the first warrant. Leading up to the second warrant, officer Walker was involved in the Police's risk assessment discussions and conducted a drive-by of the property. Officer Walker was allocated the role of safety officer for the second warrant, and was in charge of assessing and mitigating any risks on the day.

110 Mr Taylor said that he was present on 1 December 2021, and watched from outside the property.

111 Mr Angeloni said that officers from the SOV and the Police, together with the agent for the CBA, a locksmith, and their security, met at a pre-planned rendezvous point for a briefing prior to attending the property. Mr Angeloni said the agent's role in the possession was to represent the CBA and to take formal possession of the property.

112 Mr Angeloni arrived at the property at 12:30pm, upon which he observed temporary fencing around the property, that the front door had been removed and bricked in, and there was a large sign detailing the occupants' grievances.

113 Mr Angeloni said access to the property was gained through a gate between the property and the neighbouring property. The BWC footage of officers Choueiri and Walker shows this occurred at 2:34pm.

114 Upon entering the property with other SOV officers and police officers, Mr Angeloni loudly announced the SOV's presence. Mr Angeloni heard a motor start from inside the garage. The side door to the garage was locked with a chain. As Mr Angeloni approached the door, he saw a blade protrude through the gap between the door and the door frame, just above the chain. Due to safety concerns, Mr Angeloni said the SOV handed the matter over to the Police and retreated to the front of the property.

115 Officer Choueiri said he was instructed that the SOV were to execute the second warrant and the Police would be there to assist. At the property, officer Choueiri said he observed a fence surrounding the property, the front house had been boarded up and CCTV cameras were installed. Officer Choueiri assisted the SOV gain entry into the rear yard through a side fence shared with the adjoining property. Officer Choueiri said he entered the property after the SOV retreated and assistance from police officers was needed.

116 Officer Choueiri said that entry to the garage was difficult to navigate due to clutter, and as both the outer and inner doors to the garage were secured by locks. Officer Choueiri said that he called out 'Police' numerous times. Officer Choueiri said he could hear a power tool being activated and revved up. Officer Choueiri said that as he had concerns for Robert's wellbeing, he sought assistance from FRV and Ambulance Victoria.

117 Officer Choueiri said he observed officer Walker use bolt cutters to get through the first door of the garage, and officer Walker then kicked the second door, before using a sledgehammer on the door. When officer Walker started using the sledgehammer, officer Choueiri said he heard a power tool being activated close to the door, which he believed was in attempt to intimidate the police officers. Whilst officer Walker used the sledgehammer against the second door, officer Choueiri, who was next to officer Walker, heard further revving, then observed sparks coming from the door. Upon stepping back, officer Choueiri said he noticed an incision in the door. Officer Choueiri was concerned for the safety of other police officers, himself, and for Robert. Officer Choueiri said he feared that Robert would come out with the power tool, and discussed concerns for Robert's mental health with officer Walker.

118 Officer Choueiri said that as he heard Robert preoccupied on the phone, he kicked the door where the lock had been broken, and managed to push the door ajar. Officer Choueiri then heard the power tool activated close to the door, causing him to step back to a safe distance and draw his firearm. Officer Choueiri said that at that time, he was in fear as he believed he was at risk.

119 This action by officer Choueiri is captured on his BWC footage. This footage shows officer Choueiri draw his gun at 3:15pm, and then at 3:19pm officer Choueiri says, 'if he does come out... I'm going lethal.' In cross-examination, officer Choueiri confirmed this meant he was going to shoot Robert.

120 Once the CIRT arrived, officer Choueiri returned to the front of the property. Later on, officer Choueiri said he observed Robert's arrest, and gave him a pat down search before he was conveyed to the divisional van.

121 Officer Walker was also present at the time the second warrant was executed. Shortly after the SOV and the Police gained entry to the property through a side gate, officer Walker said he heard the sound of an engine starting up inside the garage at the back of the property. Officer Walker said this noise raised concerns for the safety of the person inside the garage (later identified as Robert) from petrol emissions in a confined space, as well as the potential risk Robert posed to the SOV and the Police. Attempts to communicate with Robert were ineffective, with responses muffled by the door and running engine. Officer Walker said he had the CCTV cameras in the backyard redirected to increase the Police's tactical advantage. Officer Walker said he unsuccessfully attempted to gain entry into the garage by kicking the door couple of times, upon which the engine started running again. After taking a sledgehammer to the door, officer Walker heard the engine running then observed sparks coming towards him, so he pulled back and saw a blade protruding through the door. Officer Walker then contacted the CIRT as he considered there was a serious risk to police and the SOV officers on the property.

122 Officer Noviello said she attended the property on 1 December 2021, at approximately 5pm, in her capacity as a member of CIRT. Officer Noviello said she was informed that during the execution of a warrant at the property, there was a siege situation, and that general duties police officers had been confronted with a weapon, which was understood to be a demo saw. During the stand-off, and whilst attempting to negotiate a peaceful resolution, officer Noviello said that one or two windows were broken, so as to enable officers to observe Robert inside the garage. Further, an officer activated the laser beams of a conducted energy device (also known as a taser) through one of the windows. Officer Noviello explained this can be done as part of a risk assessment, so as to determine if a taser would be effective if deployed, and for the officer to know where the taser probes would land.

123 At 6:23pm, Robert exited the garage, and officer Noviello proceeded to arrest Robert. Officer Noviello informed Robert he was being arrested for 'assaulting Police'. Officer Noviello said that after Robert complained that he had a bad shoulder, she placed him in two sets of handcuffs, to extend his range of motion.

124 The BWC footage of officers Choueiri, Walker and Noviello captured some of the events which occurred at the property on this day. Of greatest significance, the demo saw blade is seen protruding through the door at 3:11pm. Further, there are multiple occasions where a revved up power tool is heard, often at the same time as police officers indicated an attempt to force entry into the garage.

125 The BWC footage demonstrated that police officers remained relatively calm and conciliatory throughout their dealings with Robert, despite Robert's conduct inside the garage, including the use of the demo saw. The police officers are heard expressing concern for Robert's health and safety whilst he remained inside the garage.

126 Mr Taylor said he recorded his communications with his staff and the Police via Microsoft Teams, and later that day, he transcribed these contemporaneous notes (and the time of such communications) into a running sheet of the day's events. This document was tendered into evidence, and the information contained in it aligned with oral evidence given by Mr Angeloni and officers Choueiri, and Walker, together with the BWC footage.

127 Robert and Daniel tendered recordings from their phones taken on 18 September 2019. In addition, Robert tendered CCTV footage from the property taken on 16 July 2020 and 1 December 2021.

128 Robert and Daniel both gave evidence. In respect of liability, no other witnesses were called by the plaintiffs.[16]

129 The following is a summary and analysis of Robert and Daniel's evidence, relevant to my determination of this proceeding.

130 Robert said that, save for approximately one month in 2018 when he lived in a 'tent' on the Greenvale land, he had otherwise lived on the property the subject of this proceeding since birth.

131 Robert said he was a qualified mechanic, chassis builder, dynamometer operator, and electrician. Robert said that he also obtained a diploma in legal practice from TAFE.

133 Robert said that his father was his 'best mate'.

134 In August 2013, Robert said that his father required him to sign the lease agreement, as his father wanted something 'official' in relation to their living arrangements. Robert said that he had nothing to do with the preparation of the lease agreement, and he simply signed it.

135 A copy of this lease agreement was tendered in the proceeding. The document contained nine pages of typed terms. The typed terms did not refer to the address or parties to the agreement - these were listed in a handwritten schedule at the back of the document. The schedule identified the landlord as Donco, and Robert as the tenant. The length of the lease was 10 years, with an option of a further 10 years. The rent was $200 per month. The schedule was in Robert's hand writing. Robert said Donco told him what to write in the schedule.

136 The end of the lease agreement contained Robert's signature, as well as Donco's. Robert was the witness to Donco's signature.

137 Robert denied that he created the lease agreement in February 2019 as a way of getting around the notice to vacate.

Matters giving rise to the warrants of possession

138 Robert said he was aware that the CBA brought a proceeding against Liljana and a trial proceeded before Judge Cosgrave. Robert said that at Liljana's trial he sought leave to interpret for her, because she does not speak English. When this was refused, Robert said that he left the Court and did not attend for the rest of the trial.

139 In cross-examination, parts of Judge Cosgrave's judgment were put to Robert. Most notably his Honour's statement that 'a significant aspect of this case involved the issue of Liljana's representation ... at the beginning of the trial, her son, Robert, applied to act for his mother and to interpret for her'. Notwithstanding what was contained in the judgment, Robert denied that he sought leave to appear on his mother's behalf.

140 Robert denied that he was aware judgment in default was entered against Tatjana.

141 Robert said that he was not present, when the SOV took possession of the Greenvale land. Robert said he subsequently attended, and was refused entry. Robert said that he drove his car onto the property, and through a fence. Robert denied that it was at high speed and said that he drove 'nowhere near' SOV officers. Robert said that he was subsequently convicted of a driving offence in relation to this day, but he did not admit that it was a reckless driving charge which related to the manner in which he drove onto the land.

142 Robert also accepted that he had rigged up detonators on the Greenvale land, and said he did this because his life had previously been threatened there. Robert said that he did not know how these devices came to be detonated on the day the Greenvale warrant was executed.

Events leading up to the execution of the first warrant

143 Robert said that on 22 February 2019, he opened the notice to vacate, which was addressed to the occupants of the property. Robert said he then made contact with the SOV, and informed an SOV officer that he had a lease in respect of the property. Robert then sent a copy of the lease agreement to the SOV.

144 In cross-examination, Robert was taken to the SOV 4 June letter. Robert accepted that he received this letter, but did not accept what was asserted in it. Robert denied that after reading this letter, he looked up the provisions of the RTA.

145 Robert said that at the time officers from the SOV and the Police arrived at the property, he was home, together with his parents, sister-in-law and her child. Robert said that he was in the backyard, and his father informed him there were people at the front of the property. Robert said that he went to the gate and saw a lot of people wearing yellow vests. Robert said that he opened the gate, and as soon as he did so, he was informed by an officer from the SOV, that he needed to get off the property, as the sheriff was 'taking the house'. Robert said that he got 'thrown to the street', and was forced across the road.

146 Robert said that both officers from the SOV and the Police were wearing yellow vests, but he was sure it was a police officer who pushed him across the road.

147 Robert said that Mr Mizzi from the SOV pushed him in the chest.

148 Robert also said he was pushed in his chest, and grabbed by the shoulders 'many times' by police officers as they sought to prevent him re-entering the premises.

149 Robert said that as he was not shown any paperwork to understand what was happening, he travelled into the city and attended upon the Federal, County and Supreme Courts to enquire as to how he could be protected as a tenant who had been 'booted' out of his home. Robert said that whilst in the Supreme Court's Prothonotary, he accessed his emails and then had a court employee print five or six copies of the lease agreement.

150 Robert said he then returned to the property, and walked into the house. He said that it looked like his family had been robbed. Robert said he got upset and told everybody to get off the property, which they did. Robert said that he then changed the locks, and he sat inside the house on his own.

151 After approximately one hour, Robert said he was called outside by officer Petrou. Robert said that at this time he complained to officer Petrou about what was going on, and expressly stated that a shoebox containing $260,000 in cash was gone from the house. Robert explained that this money had been saved up from cash given at his wedding in 2005, and was also from his children's christenings. Robert said he believed the removalists took this money. Robert denied he made up this allegation.

152 Robert said that he showed officer Petrou the lease agreement, who then subsequently spoke to Mr Matthews. Robert said that through officer Petrou, an agreement was then reached that no-one would be on the property that night, and Robert would have the opportunity to sort it out in court the following day.

153 Robert said he stayed with Daniel in Daniel's car for the night, and no-one entered the property.

154 Robert said that at about 8:30am the next morning two people from the CBA tried to jump the fence and get onto the property. Robert said he drove a ute over the driveway and then locked the gate. After that, Robert said he travelled to the city, and went to VCAT. Robert said that at VCAT, he was assisted to complete a residential tenancy application form.

155 In the application form, Robert identified himself as the tenant of the property, and Donco, as the landlord/respondent. Robert also listed the CBA as 'Mortgagee', and the second respondent. The application was made under ss 452 and 472 of the RTA and sought 'a declaration that the tenant has a tenancy'.

• I moved in to the property in 2013.
• I have a tenancy agreement and pay regular rent of $200 per month.
• The property has been the subject of proceedings by the bank. They do not involve me.
• The Sherrif attended yesterday without issuing any notice or warning and evicted me. They are not allowing me or my family any access. They haven't provided me with any paperwork.

157 Robert then appeared before a VCAT member, who made the interim order.

The application is amended as follows: the name of the landlord is amended to [Liljana] of 67 Merri Concourse, Campbellfield 3061 and [Tatjana] of [the property].

The [CBA] is an interested party to the proceedings.

The principal registrar is directed to amend the register accordingly and to send a copy of these orders to each party which shall be sufficient as notice to each party of the amendment made.

Upon hearing the evidence of the tenant, given in the absence of the landlord, the Tribunal finds that:

1. The landlord and the tenant are parties to a tenancy agreement subject to the [RTA].

2. There is sufficient evidence to justify the making of the following interim order.

Pending the further hearing of this application, the Tribunal orders that:

1. The landlord and the landlord's servants or agents are restrained from:

- obtaining or attempting to obtain possession of the rented premises other than in accordance with the provisions of the [RTA].

- entering the rented premises other than in accordance with the provisions of sections 85, 86 and 87 of the [RTA]

- interfering with the tenant's goods

1. The hearing is adjourned to a date to be fixed by the principal registrar at which time the landlord shall be heard as to whether this order should be affirmed , varied or set aside.

The principal registrar shall immediately send a copy of this application, order and notice of hearing to the landlord and immediately send a copy of this order to the police at the police station closest to the rented premises.

159 Robert said after the VCAT hearing, he returned to the property and showed the interim VCAT order to officers Kenshole and Faulkner. Robert said that he was frustrated the police officers did not accept his claim that the interim VCAT order entitled him to go onto the property. Robert said that at one stage he was screamed at by the police officers and forced across the road in front of his neighbours. Robert said that he felt like a little kid and was embarrassed.

160 Robert was adamant that the interim VCAT order gave him rights. He said that he wanted to get arrested, so that he could 'go to court and get a judge to decide it'. At one stage Robert said that he tried to call the Chief Commissioner of Police.

161 Robert accepted that he was told many times that if he went back on to the property, he would be arrested.

162 Robert said that as the police officers would not allow him to enter the property, he arranged for his wife to drive him around the block and then when she returned, he exited the car, ran and jumped over the low fence on the left hand side of the property. Robert said that despite him calling out and saying that he was not resisting, the Police put handcuffs on him. Robert said he was then told 'you're trespassing, you're under arrest.'

163 Robert said he was not sure whether it was on this occasion that he was pushed to the floor, or at the time of the second arrest.

164 Robert said that he was driven to Mill Park Police Station and taken into an interview room. Robert said he was advised that he was not to be charged and he was permitted to leave.

165 Robert said that he went straight back to the property and proceeded to argue with police officers as to why he had been arrested, then released without charge. Robert said he then 'tricked them somehow' and stepped back onto the property. Robert said he was again placed in handcuffs and arrested. Robert said there were four police officers on him, and excessive force was used to arrest him and push him towards the divisional van. Robert said he was then driven to the Mill Park Police Station. Robert said following the second arrest, the same thing happened as after the first arrest - he was released without charge.

166 Robert said his wife and Daniel were waiting for him outside the police station, and they took him back to the property. At that time, Robert said nobody was at the property and so he jumped the fence, and a big gate, and then entered the house. Robert said that he saw cameras inside the house that were not his, which he proceeded to pull off the walls. Robert said that as one of the doors at the front of the house could not be opened, he went to the garage and got a blowtorch. Robert said that he used the blowtorch to melt the lock on the front door and he then went outside to open the padlock on the front gate. Robert said he was then approached by someone from FRV, who told him to put down the blow torch and he was told he would be provided bolt cutters instead. Robert said he put down the blowtorch and then provided the FRV officer with a copy of the interim VCAT order. Robert said that police officers then came and he was told he was under arrest. Robert said that a police officer pointed a gun, a taser 'or some sort of weapon' at him, and Robert claimed he said in response, 'Put that thing away, what are you pulling that out for?'

167 Robert said that he was again handcuffed. Robert accepted that following this arrest, he did not complain about the handcuffs. Robert said he was handled by four police officers, placed in the back of a divisional van, and conveyed back to the Mill Park Police Station. Robert said that he stayed silent during the police interview. Robert complained that following the third arrest, he was detained for a long, and excessive period of time.

168 Later in his evidence, Robert said that when handcuffed after each of the three arrests on 18 September, the cuffs were so tight, his hands started to turn blue.

169 Robert said the following morning, he was taken from the Mill Park Police Station to the Melbourne Magistrates' Court where he was released on bail, on condition that he would not enter, or be within, 200 metres of the property.

170 On 24 September 2019, Robert emailed VCAT and provided an unsworn copy of an affidavit, which he stated 'will be sworn at VCAT.' Relevant to this proceeding, in this affidavit, Robert stated that:

4. Mr Donco Iloski had the [lease] agreement prepared by a professional person; I was not part of the preparation.

...

17. On 17 September 2019, within 2 minutes, the front yard of the property, the footpath and the driveway was full of bright yellow vests worn by adult male and females, with the words Sheriff on the back.

18. I immediately went outside, as soon as I came close the leader, I was grabbed by my shoulders and taken across the road.

19. I had socks on my feet without shoes, I didn't have my telephone, I had left the stove on and I had absolutely no warning.

20. I tried to tell Paul Mizzi, who seemed to be the leader, that I had a valid lease agreement in place which I was not in breach of and I was not in rental arrears. Paul pushed me in the chest and said, I don't care and I don't want to hear it.

171 In cross-examination, Robert said that he had prepared this affidavit, and believed he subsequently had it sworn.

172 Robert and his wife attended VCAT for a further hearing on 24 September 2019, at which time, the CBA were represented. On that day, VCAT ordered that:

1. Pending further order, the order dated 18 September 2019 is affirmed, save that it is varied to state at order 3 that the landlord and the landlord's servants or agents , and the [CBA] and its servants or agents are restrained.
2. By 1 October 2019 the [CBA] shall file and serve any further documents upon which it relies.
3. By 8 October 2019 and [sic] tenant shall file and serve any further documents upon which he relies.
4. Upon receipt of the documents in orders 2 and 3 and Tribunal's decision is reserved. The Tribunal will provide written reasons for its decision.
5. Direct the Principal Registrar to provide a copy of this order to the Officer in Charge of the police station nearest to the rented premises as expeditiously as possible.

173 The following day a further order was made by VCAT in the following terms:

The Tribunal finds that:

1. The interested party has requested a variation to the order dated 24 September 2019.

2. It is appropriate given the corrospondence [sic] received by the Tribunal to re-list the matter for further hearing before Senior Member Price.

3. As a preliminary issue it will be necessary for the Tribunal to consider whether or not the [first warrant] has been executed. This will be relevant to the Tribunal's decision to affirm, vary or set aside the order dated 18 September 2019.

The Tribunal orders that:

1. The Principal Registrar is directed to list the matter for hearing before Senior Member Price on 1 October 2019 at 9:30am.
2. Orders 2-4 of the order dated 24 September 2019 are set aside.
3. By 30 September 2019 the interested party is to file and serve any documents in relation to the execution of the [first warrant].

174 On 1 October 2019, Robert said that he returned to VCAT, and again the CBA was represented. After this hearing, Robert's VCAT application was struck out for want of jurisdiction. The Senior Member ordered that the orders of 18 September 2019 and Order 1 of the orders, dated 24 September 2019, be set aside.

175 On 12 December 2019, Robert said he appeared at the Magistrates' Court, at which time the 18 September charges against him were withdrawn and the Chief Commissioner was ordered to pay costs. After that, Robert said that he returned to the property. Robert said there was nothing inside the house and things in it were broken. He said that he had to buy some blowup mattresses and a new TV and PlayStation for his children.

176 Robert said that as his goods which had been removed from the property in September 2019 had not be returned, he 'brainstormed' a plan to take them back. Robert said that he knew they were being held at a storage facility in Epping, so he and his wife arranged to hire a storage unit at the same facility. As the facility offered 24-hour access, very early on the morning of 17 July 2020, Robert went to the storage unit and proceeded to remove some of his goods which were being stored there by the CBA.

177 Robert said that he took numerous items which included a clothes dryer, a bike, two boxes which contained kitchen wares, and an imitation firearm.

178 Robert said that within about four hours of returning home, the Police knocked on his door with a search warrant. Robert said that he was not shown the search warrant, but opened the door and was compliant with the Police. Robert said he knew that removing the goods from the storage facility was not appropriate, but he did not consider it to be burglary as they were his goods, and he had a right to access the storage facility.

179 Robert said that he was arrested and handcuffed in front of his wife, and then taken to the police station, but released without charge. Robert considered the handcuffs were unnecessary as he told the Police he would not run away. Further, Robert complained the handcuffs were on too tight.

180 Robert alleges that on this day, $40,000 was stolen from a box by either officer Di Clemente, or another unnamed police officer. Robert said this sum of cash had been paid to his wife for long service leave from her work. Robert wrote to Police Standards and complained about this. When Robert was cross-examined on why he did not follow up this alleged theft, he stated he 'couldn't care less' about the money. Robert denied this allegation of theft of $40,000 was a lie.

181 In approximately August 2020, the house on the property caught fire. Thereafter, Robert lived in the garage at the back of the property, as the house was uninhabitable.

182 On 1 December 2021, Robert said he was in the garage, when he saw on one of his security cameras, that a lot of cars had arrived outside the property. Robert said there was temporary fencing around the property, and he could see SOV and police officers out the front. Robert said that given what happened in September 2019, this time he decided to stay inside, and resolved that 'whatever happens, happens'.

183 Robert said it was difficult for the SOV and police officers to get to the back, and it took them a long time to work out how to get onto the property. When they eventually came to the garage, Robert said the police officers called out and asked him to come outside. Robert refused and told them to get off the property, as they were trespassing.

184 Robert said that whilst this was going on, he was working inside his garage, and using a demo saw to cut bricks, to construct a fireplace for the garage.

185 Robert said that when he heard some big thuds against the steel door, he pushed a table against it. After doing that, Robert said he started up the demo saw again, and as he was cutting a brick on the ground:

the demo saw jumped into the door, like, it sort of touched - I don't know if it went through or not but it touched the door. And after that I didn't hear from the police anymore.

186 Robert denied that he started the demo saw to scare off the police officers. Robert accepted that when the police officers observed the sparks come through the door they would have been concerned for their own safety.

187 Robert said that sometime after this, officers from the CIRT attended. A window in the garage was broken, and he saw a laser light against one of the walls. Robert said that he thought he was going to get shot and killed. Robert then called out to officers to say that he was going to come out.

188 Robert said that as he was attempting to exit through the door which he had barricaded with the table, he could see an officer who had a gun pointed at him.

189 Robert said that as soon as he opened the door, he was grabbed by his shoulders, and pushed up against the garage wall. Robert said he was handcuffed, but was not told why he was under arrest. Robert said despite telling police officers he had a problem with his shoulder, he was pushed even harder against the wall, and his arm was 'pretty much twisted.' Robert said that after complaining, the police officers used two sets of handcuffs to restrain him. Robert said that he started feeling sick and light headed.

190 Robert said he was forcefully moved by three or four police officers to the front of the property. He was then taken to the Mill Park Police Station. Robert said that he did not participate in the interview. He was subsequently released without charge, and returned to live at the property.

191 Robert said that as part of this proceeding, he has viewed the BWC footage in which officer Choueiri stated that he was 'going lethal'. Robert said that he keeps replaying this statement over in his mind.

192 Robert claimed that these events, and his interactions with the Police have 'totally twisted' his life. Robert said that he is angry every day, and cries a lot. Robert said that he has not sought medical treatment for his condition.

193 Robert said that after this proceeding was issued, he was charged for the events which occurred on 17 July 2021. Robert said that on 23 June 2023, the criminal charges against him were withdrawn in the Magistrates' Court, save for a small fine he received in respect of possessing an imitation firearm.

194 Robert said that the goods he had removed from the storage facility, were held by the Police for a period of time, and then after the charges were withdrawn, he was allowed to collect them.

195 Robert said the remainder of his good removed on 17 and 18 September 2019, have not been returned to him. Robert made an application to this Court for the return of his goods kept in storage. This application was heard by Ginnane J on 8 June 2023, and was dismissed.[17] Robert appealed to the Court of Appeal, and leave to appeal was refused on 12 March 2024.[18]

196 Daniel said that he had lived at the property all of his life. At the time the first warrant was executed, Daniel said that he was living there with his wife and nine-month-old daughter, together with Robert and his family. Daniel said that his parents visited every day.

197 Daniel said that he entered into an oral lease agreement with his father in late July or early August 2013, that he pay his father $200 a month to live at the property. Daniel said that it was his father's decision to require Daniel to enter into this lease agreement.

198 Daniel said that until hearing Robert's evidence in court, he was not previously aware of the written lease agreement between Robert and his father.

Matters giving rise to the warrants of possession

199 Daniel said that his wife's name had been placed on the title of the property by way of fraud. Daniel said that he was aware County Court proceedings were brought by the CBA against both his wife and mother. Daniel said he was not aware of the default judgment being entered against his wife. Daniel said that he knew his mother went to the County Court to fight the proceeding on the basis it was a fraudulent loan, but said that prior to September 2019, he was not aware of the judgment against his mother.

200 Daniel also said that Robert did not advise him of the notice to vacate received from the SOV in early 2019, nor was he aware of Robert's subsequent correspondence with the SOV.

201 Daniel said he was working at a car dealership in Prahran. He recalled his wife telephoning him at work on this day, and informing him that 'Police are kicking us out, there is police everywhere.' Daniel said that he was surprised about this, and maintained that Robert had not previously informed him of the notice to vacate.

202 Daniel said he then left work and when he arrived at the property, his wife and daughter were in their car, parked on the street. Daniel said that as his baby needed milk, he asked a security guard, for permission to enter the property to collect a bottle sanitiser and some milk bottles. Daniel said the security guard refused this request. Daniel said he thereafter asked the Police, and was ignored. Daniel said that he then went to the shops to buy what was needed to enable his baby to be fed.

203 Daniel said that after returning from the shops, he stood outside the property 'trying to understand why this was happening and why we weren't allowed to go inside and get our goods.' Daniel said he was then approached by two police officers who requested to search his bag. Daniel said that he initially refused this request, as the police officers could not produce a search warrant. However, he then said that because the police officers were 'getting pretty aggressive towards' him, he felt threatened, and agreed to empty his bag onto the nature strip. Daniel said that his bag included items such as medication and his wallet, but no weapons. Daniel said that after this occurred, the police officer simply said 'thank you', and he was left to repack the bag himself.

204 In cross-examination, Daniel accepted that following execution of the first warrant, the Police seized ammunition from the property, which belonged to Daniel and was contained in a locked box.

205 Daniel said that for most of the day, he remained outside the property and observed people removing his goods, without his permission.

206 Daniel said towards the end of the day, officer Petrou spoke to both Daniel and Robert. As part of this conversation, an agreement was reached that, as Robert was going to VCAT the following morning 'to obtain paperwork', the two brothers would stay the night in Daniel's car across the road from the property, not re-enter the house and to make sure no one else entered the house.

207 Daniel said it was very upsetting to be denied the right to go back into his home, and to see people he did not know, handling his family's goods.

208 Daniel said that he remained outside the front of the property, and was still denied access to his home.

209 Daniel said that later in the evening, after the second time Robert was taken to the Mill Park Police Station, Daniel collected Robert, and took him back to the property. Daniel said that he was standing in the driveway of his neighbour's house, when he was surrounded by police officers. Daniel said that one police officer 'quite violently' grabbed his phone out of his hand, jabbed him 'really forcefully 'in the neck and then handcuffed him. Daniel complained that the handcuffs were 'extremely tight', and on several occasions he asked for the handcuffs to be loosened. Daniel said he also informed the police officers that he has heart issues. Daniel said that he was informed by a male police officer that the handcuffs were 'not tight at all' and that a female police officer told him that he would not be wearing them for long, as he was only being taken to the Mill Park Police Station.

210 Daniel said that excessive force was used by police officers when the handcuffs were placed on him.

211 Daniel said it was only after he had been handcuffed, that he was told what he was arrested for.

212 Daniel said that when he was taken to the Mill Park Police Station he was detained, and charged with offences identified at paragraph [94].

213 Daniel said the 18 September charges against him were 'dropped' in December 2019 and an order was made for his costs to be paid.

214 Daniel said since the events the subject of this proceeding, he has changed as a person. Daniel said that he has become a recluse. Daniel said this impacted upon his ability to sell cars, and he has instead obtained full time employment in a role which involves organising aged care for members of the Macedonian community. Daniel said he continually has thoughts as to what occurred at the time the first warrant was executed, and he recalls seeing his daughter crying.

215 During Robert's evidence, he stated that he would not be calling his parents or his wife to give evidence.

216 As the plaintiffs were not legally represented, in response to Robert's statement that those family members were not to be called, I proceeded to inform the plaintiffs that an adverse inference could be drawn if there was an unexplained failure by a party to call a witness who could be expected to give relevant evidence about a particular issue.[19]

217 In closing submissions, the defendant asked me draw adverse inferences against the plaintiffs for not calling Donco and Liljana as witnesses. In relation to Donco, it was submitted that he could have given relevant evidence in relation to the alleged written lease agreement with Robert.

218 Both plaintiffs had been challenged in respect of the legitimacy of the alleged leases.

219 Robert said that Donco was his best mate. As there was no evidence the plaintiffs were estranged from Donco and given there was no explanation for Donco's absence, I draw an inference that Donco's evidence would not have assisted either plaintiff in respect of those alleged leases.

220 I also note that Robert's wife was not called to give evidence. Robert's wife could have given evidence as to Robert's claim that sums of $260,000 and $40,000 went missing from the property. The sum of $40,000 was said to have been long service leave monies paid to Robert's wife. Robert was challenged in relation to such sums of cash being held at the property, and was also challenged as to his failure to complain to the Police about this at the time.

221 Given there was no explanation for the absence of Robert's wife, I also draw an inference that her evidence would not have assisted Robert's claim in respect of the alleged missing cash sums of money.

222 I have significant reservations as to Robert's credibility as a witness. The following are examples of his evidence which I did not accept, and which cause me to reject his evidence unless it was either non-controversial, or corroborated by another witness, save for his co-plaintiff, Daniel.

223 Robert maintained that the lease agreement was genuine. However, there are a multitude of reasons, which, when considered collectively, cause me to reject Robert's evidence in respect of this. These reasons are as follows:

(i) The original signed copy of the lease agreement was not produced. The terms in the agreement are in Robert's handwriting. Donco's purported signature was witnessed by Robert.

(ii) No credible explanation was given as to why Robert was required to sign a written lease agreement, whereas Daniel was allegedly only required to enter into an oral lease agreement. Both brothers were living at the property at the same time.

(iii) Robert initially stated in his VCAT affidavit that this lease had been prepared by a professional person, whereas in his oral evidence, Robert said he was not sure where his father got it from. Robert's evidence on this was confusing.

(iv) As noted above, Donco was not called as a witness to corroborate Robert's claim the lease agreement was entered into in August 2013, and to explain how it came to be prepared, and why it was for one son only.

224 Despite detailed reasons from Judge Cosgrave explaining why his Honour refused Robert's request to appear on his mother's behalf in the County Court trial, Robert denied that he made such an application. It is improbable that his Honour fundamentally misconceived Robert's application to assist his mother in the trial. Robert's refusal to acknowledge a proposition which seemed relatively clear on the face of that judgment, and was of no consequence to the determination of this proceeding, reflected poorly upon his credibility as a witness.

225 Robert was challenged as to his knowledge of the RTA when he received the 4 June SOV letter. Robert had obtained a legal diploma from TAFE. Robert's communications with the SOV around that time demonstrated his proficiency in understanding the legal issues pertaining to the property, and in his letter to the SOV on 22 March 2019, Robert expressly stated that he was aware of the provisions of the RTA. The 4 June SOV letter referred to the RTA and explained why it did not protect Robert from eviction. Robert's denial that he looked up the RTA when he received this letter also lacked credibility.

226 Robert's oral evidence as to the involvement of police officers in his eviction from the property at the time of the first warrant, was inconsistent with his affidavit provided to VCAT on 24 September 2019, which only referred to SOV officers. I note that in this affidavit, Robert alleged it was an SOV officer who pushed him in the chest on 17 September 2019, and no allegations were made against any police officers. This affidavit was prepared by Robert within a week of the first warrant being executed (and he believed he had it sworn at that time) and Robert offered no credible explanation for the discrepancy between what was a contemporaneous account by him of the first eviction, and his oral evidence in this trial. I accept the defendant's submission that Robert's oral evidence as to the involvement of the Police in his eviction was said so as to advance his claim against the defendant in this proceeding.

227 Robert alleged there was a shoe box containing $260,000 in cash which was stolen from the property on 17 September 2019. Robert said that he reported the theft of this very substantial sum of money to officer Petrou. There is no BWC footage which records such a complaint, and officer Petrou denied being told this. Officer Petrou was not challenged on this in cross-examination. Further, as noted above, Robert's wife was not called to corroborate this alleged theft. When the evidence regarding this allegation is considered as a whole, I am not satisfied $260,000 was stolen from the property on this day.

228 In addition, Robert alleged that $40,000 was stolen from the box of goods which was removed from the property when the search warrant was executed on 17 July 2020. Save for one email complaining about this, there was no further evidence that Robert pursued the loss of such money. To the contrary, in cross-examination, Robert said that he didn't care about such money. Robert did not cross-examine officer Di Clemente on this alleged theft. Further, Robert's wife was not called to corroborate a cash payment for this sum being made to her by her employer for long service leave, nor the theft of such money. I am not satisfied $40,000 was stolen from the property on this day. Robert's willingness to make these two unfounded and very serious allegations involving substantial sums of cash, reflects very poorly on his credibility.

229 In December 2021, at the time officers from the SOV and police were attempting to enter the garage, Robert said he was inside cutting bricks so as to construct a fireplace. Notwithstanding his skills as a qualified mechanic, chassis builder, dynamometer operator, and electrician, Robert claimed that whilst cutting a brick on the floor, his demo saw 'jumped into the door'. This occurred at the very moment police officers were attempting to enter the other side of the barricaded door with a sledge hammer. Put simply, Robert's evidence on this defies belief, and I do not accept his explanation for how this happened.

230 The defendant criticised Robert for not having complied with Court orders in which he was required to discover documents, including those relevant to his claim for loss of earnings by 30 August 2024. Robert's explanation for this was that his documents (including profit and loss statements from his former business) were destroyed in February 2025 when the house on the property was demolished. However, such evidence does not explain why such documents had not been produced at the time required by the Court orders. Further, Robert offered no satisfactory explanation as to why documents were not subsequently produced from government agencies including the Australian Taxation Office, and Centrelink. Robert claimed he had been unable to obtain his financial records from his accountant and bookkeeper. In cross-examination, he said that he could not recall the surname of his bookkeeper, and has been unable to successfully contact his accountant, who still has a practice in Reservoir. Such evidence, when considered together, also reflects poorly upon Robert's credibility as a witness.

231 I also have significant reservations as to Daniel's credibility as witness. The following are examples of Daniel's evidence which I did not accept, and which cause me to reject his evidence unless it was either non-controversial, or corroborated by another witness, save for his co-plaintiff, Robert.

232 Daniel gave evidence that at the time such events occurred, he was not aware of:

(i) the judgment in default entered against his wife;

(ii) the judgment against his mother;

(iii) the communication between Robert and the SOV in early 2019, relating to the notice to vacate.

233 At the time these events occurred, Daniel was living with both his wife and Robert, and Daniel saw his mother on a very regular, if not daily basis. Given the closeness of the family, I do not accept as credible, Daniel's evidence that he was not informed of such significant events. This information directly related to the property Daniel was living in with his family. Quite simply, I consider his evidence that he was not aware of such matters, to be fanciful.

234 I also consider Daniel's evidence that he had an oral lease agreement with his father as vague, and lacking credibility. As stated at paragraph [219], I draw an adverse inference from the absence of Donco to corroborate an oral lease with Daniel.

235 Daniel's evidence that he was not aware of the (alleged) lease agreement between Robert and Donco until he heard Robert give evidence of this at trial, also lacked credibility. Although I do not accept this was a genuine agreement, it's claimed existence was the basis of Robert obtaining the interim VCAT order, and being so agitated in his dealings with police officers on 18 September 2019. It is highly likely that Daniel was aware of Robert's reliance on this alleged document by at least that time. Daniel's refusal to acknowledge this, also reflected poorly upon his credibility as a witness.

Relevant legislative provisions and legal principles

236 Before turning to findings of facts relevant to the determination of this proceeding, I will briefly outline the legislative provisions and legal principles relevant to the events which form the basis of the plaintiffs' claim.

237 Officers of the SOV have powers to enter and take possession of real property for the purpose of taking possession of such premises pursuant to a warrant of possession.[20] SOV officers are permitted to use any reasonably necessary force, and assistance, in exercising such power under a warrant of possession.[21]

Crimes Act

238 Relevant to this proceeding, a police officer has the power to arrest a person without a warrant in the following circumstances:

(a) Under s 458, when the police officer:

(i) finds the person committing any offence, and the police officer believes on reasonable grounds that arrest is necessary, either to ensure the person appears before a court, to stop the offence being continued or repeated, or for the safety of members of the public or the other person;[22] or

(ii) has been instructed to do so by any other police officer having power under that Act to apprehend that person.[23] If this occurs, the police officer instructing the arrest, is required to have such a belief on reasonable grounds.[24]

(b) Under s 459, when the police officer believes on reasonable grounds the person has committed an indictable offence in Victoria.[25]

239 Under both powers of arrest, the police officer must have held the necessary belief on reasonable grounds. If so, and if it later appears, or is found that the person did not commit the alleged offence, the arrest is not taken to be unlawful.[26]

240 As part of a lawful arrest (unless certain exceptions apply which are not relevant here), the police officer must inform the person of the following:

(i) that they are under arrest;[27] and

(ii) the offence, or the facts which constitute the offence, which is the basis of the arrest.[28]

241 Technical or precise language need not be used when communicating the basis of the arrest.[29] In Slaveski v State of Victoria, Kyrou J explained:

The sufficiency of the communication is to be considered as a matter of substance and by reference to the principle that a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.

Provided that the arrestee is informed of the facts that are said to constitute the offence for which the arrest is effected, it does not matter that he or she is later charged with a different offence from that specified by the arrester.[30]

242 Section 462A of the Crimes Act provides for the use of force to prevent the commission of an indictable offence. It states that:

A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.

243 Recently in Brown v State of Vic (No 3),[31] Harris J set out principles relevant to the use of force when effecting an arrest:

The assessment of whether a belief is on reasonable grounds and of whether a use of force is not disproportionate to the objective for the purposes of s 462A must be considered in the context of the circumstances in which the use of force occurred. In Walker v Hamm,[32] in the context of considering a defence under s 462A, Smith J observed, in a passage later cited by the Court of Appeal in Gebrehiwot v State of Victoria:[33]

What is critical is that the issue of the reasonableness of the police officer's conduct should be approached in a realistic manner and that due consideration is given to the reality that the officer has to make decisions quickly, often in emergencies and under pressure. As Heydon JA said in Woodley v Boyd:

And, in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight.

In McIntosh v Webster (1980) 43 FLR 122 at 123, Connor J said:

[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.[34]

Residential Tenancies Act

244 The RTA applies to landlords and tenants under a tenancy agreement.[35] A renter under a residential tenancy agreement may apply to VCAT if a dispute has arisen under an agreement, or there has been a breach of the agreement or the provisions of the RTA in relation to the agreement.[36] VCAT has general powers to restrain any action in breach of a residential rental agreement or the provisions of the RTA,[37] or require any action in the performance of a residential rental agreement or of duties under the RTA.[38]

245 The version of the RTA in operation in August 2013,[39] provided that the RTA did not apply to fixed term rentals which exceeded five years.[40]

246 For a plaintiff to succeed in an action for damages for trespass to land, the plaintiff must establish that:

(i) the plaintiff was in possession of the land; and

(ii) the defendant entered the land without justification.[41]

247 In Barker v The Queen, Brennan and Deane JJ stated:

Justification may take a variety of forms including, inter alia, a paramount right to possession, some other statutory or common law right of entry, the leavy and licence of the person in possession and, in the absence of negligence, involuntary and inevitable accident.

...

[H]owever, a person who has lawfully entered and been upon land which remains in the possession of another is liable in trespass if his justification for being upon the land ceases or if he performs acts upon the land which take him outside the scope of his justification for being thereon.[42]

248 In Halliday v Nevill,[43] Brennan J noted that the tort can apply to private persons and officers of government alike. His Honour stated:

A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.[44]

249 For a plaintiff to succeed in an action for damages for trespass to goods, the plaintiff must establish that an act of the defendant, intentionally or negligently, interfered with the plaintiff's possession of a chattel.[45] A defendant will not be liable for trespass to goods where they were acting with the plaintiff's consent, or with lawful authority.[46]

250 For a plaintiff to succeed in an action for damages for conversion, the plaintiff must establish the defendant dealt with goods in a manner repugnant to the plaintiff's possession or immediate right to possession of such goods.[47] Additionally, the defendant must have intended to do the act which deprived the plaintiff of his possession or immediate right to possess the goods.[48]

251 For a plaintiff to succeed in an action for damages for detinue, the plaintiff must establish that:

(a) the plaintiff had an immediate right to possession of the goods; [49]

(b) the plaintiff made a lawful demand for the return of the goods from the defendant;[50] and

(c) the defendant refuses to deliver up such goods.[51]

252 In ACN 087 528 774 Pty Ltd v Chetcuti,[52] Hargrave AJA (with whom Ashley and Dodds-Stretton JJA agreed) set out the elements a plaintiff must establish to succeed in an action for damages for assault:

(1) A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith. It is enough if the threat is to make contact to the body of the plaintiff without the plaintiff's consent or without any legal justification.

(2) A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary to prove that the defendant in fact intends to carry out the threat.

(3) The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent.

(4) The apprehension in the mind of the plaintiff must be objectively reasonable.

(5) The plaintiff's reasonable apprehension caused injury, loss or damage to the plaintiff. This requirement attracts the ordinary common law concept of causation by reference to commonsense and, where appropriate, consideration of normative factors such as value judgments and policy considerations.[53]

253 In Brown, Harris J also summarised the principles relevant to an action for damages for battery:

To establish the tort of battery, the plaintiff must prove the following:

(a) there has been a positive and voluntary act directed by the defendant's conscious mind, which may be satisfied by a wilful intent to apply force, a reckless indifference as to the plaintiff suffering the application of force;

(b) there was a direct application of force that interferes with the plaintiff's person; and

(c) that direct application of force is unlawful or offensive and done without consent.

In Carter v Walker, the Court of Appeal considered in some detail the contemporary law of battery in Australia. The observations of the Court relevant to the batteries alleged in this case are the following:

(a) 'it is a so-called "intentional" tort, but care needs to be taken in considering the intention which is relevant';

(b) 'it involves the defendant doing an act which causes physical contact with the plaintiff', an act which 'must have a direct rather than consequential impact on the plaintiff';

(c) 'it does not require that the defendant intend the plaintiff any harm, or that the plaintiff suffer harm in fact and it is actionable per se';

(d) 'if the act is voluntary, and the defendant "meant to do it" in the sense of meaning to contact the plaintiff, it will be relevantly intentional';

(e) 'it may be that an act should also be considered intentional if it is substantially certain that the act will result in contact with the plaintiff'; and

(f) 'once battery is established, immediate harm and consequential damage are compensable. The boundary of entitlement is set by the conception of 'natural and probable consequence (or "result")'.[54]

254 For a plaintiff to succeed in an action for damages for false imprisonment, the plaintiff must establish that:

(i) the defendant intended to imprison, confine or restrain the plaintiff;[55]

(ii) the imprisonment, confinement or restraint was against the plaintiff's will;[56] and

(iii) the imprisonment, confinement or restraint on the plaintiff's liberty must have been total, such that there was no reasonable means of escape from detention.[57]

255 Where a plaintiff establishes imprisonment, the defendant bears the onus of proving such imprisonment was justified.[58] In a police tort claim such as this, the defendant must establish the arrest, which lead to the imprisonment, was lawful.[59]

256 An arrest, even if initially justified, can lead to false imprisonment if the plaintiff is detained for an excessive period of time. Section 464A of the Crimes Act, provides that a person taken into custody for an offence must be released unconditionally, released on bail, or brought before a bail justice or the Magistrates' Court, within a reasonable time. Section 464A(4) lists a series of matters which must be considered in determining a reasonable time, including the complexity of offences, travel time, time taken to communicate with others and the need to allow the plaintiff to rest. If the police do not release the person or take the person before the Magistrates' Court or a bail justice within a reasonable time, then any detention of the plaintiff after the expiry of a reasonable time will be unlawful.[60]

257 For a plaintiff to succeed in an action for damages for malicious prosecution, the plaintiff must establish that:

(a) the proceeding to which the tort applies was initiated against the plaintiff by the defendant;[61]

(b) the proceeding was terminated in the plaintiff's favour;[62]

(c) the defendant acted maliciously in initiating or maintaining the proceeding;[63] and

(d) the defendant acted without reasonable and probable cause.[64]

258 Before considering the parties' submissions on the plaintiffs' pleaded causes of actions, I will outline my findings of fact relevant to the proceeding. Where such findings of fact also involve the application of relevant legal principles, I will state so.

259 In reaching these findings of fact, I have had regard to the whole of the evidence. I have viewed the parts of the BWC footage and video footage relied upon by the parties. For any matters which are disputed, for the reasons given above, I prefer the evidence of the defendant's witnesses over that of Robert and Daniel.

260 The property was initially owned by Donco and Liljana, but since December 2013, the registered proprietors were Liljana and Tatjana.

261 Neither plaintiff had a lease in respect of the property. For the reasons given in paragraph [223], I am not satisfied the lease agreement produced by Robert was a genuine document which was entered into in August 2013 to formalise a tenancy arrangement between Robert and Donco in respect of the property. For the reasons given in paragraph [234], I am also not satisfied Daniel had an oral lease with Donco.

262 The County Court ordered that the CBA was entitled to take possession of the property, and the first warrant of possession was ordered on or about 22 October 2018.

263 Given the circumstances surrounding the execution of the Greenvale warrant, it was reasonable for the SOV to identify safety risks associated with the proposed execution of the first warrant as high risk, and to seek assistance from the Police. The SOV was authorised to seek assistance from the Police.

264 The planning by the SOV and the Police, as to the execution of the first warrant was careful, considered and proportionate to the identified risks.

265 On 17 September 2019, SOV officers entered the property at approximately 10am. At this time Robert was present on the property, but Daniel was not.

266 Only the SOV officers entered the property prior to Robert being evicted.

267 Robert exited the property at approximately 10:22am.

268 The police officers only entered the property after Robert had been evicted, and did so, at the request of the SOV officers.

269 Soon after Daniel attended the property. Daniel said that his bag was searched by two officers, but he did not identify them by name. Daniel did not cross-examine officers Kenshole or Petrou in respect of this aspect of his claim. There was no BWC footage of this search. On the evidence before me, I am unable to make any positive findings in respect of the occurrence of this alleged incident.

270 At 1:06pm on 17 September 2019, the SOV handed possession of the property to the CBA's appointed agent, Mr Matthews.

271 Mr Matthews was responsible for coordinating the removal of goods from the property, with such goods being placed into removal trucks, and taken to a storage facility in Epping. For the reasons given in paragraph [227] above, I am not satisfied a cash sum of $260,000 was removed from the property on this day.

272 Throughout the course of the day, and into the evening, the police officers were patient, calm and conciliatory towards Robert and Daniel, who were clearly distressed as to their eviction from the property.

273 On 18 September 2019, Robert attended VCAT and lodged an application in its Residential Tenancy List. Robert did so despite being previously advised there were multiple reasons why the (alleged) lease agreement was not subject to the provisions of the RTA, and whilst also knowing that the landlord in this (alleged) lease agreement, was not a registered proprietor of the property.

274 The interim VCAT order was of no legal effect as at the time it was made, as the CBA had acquired legal possession of the property, and the order did not restrain the CBA.

275 Prior to the first arrest, Robert had been warned on multiple occasions that if he entered the property he would be arrested. Robert was obstinate and defiant in his dealings with the police officers.

276 On two brief occasions, officer Faulkner used an open hand to push Robert away when he attempted to enter the property. The force used was modest, and was not an 'open palm punching', as contended by Robert in his aide memoire of the BWC footage.

277 Prior to Robert's first arrest, officer Kenshole saw Robert enter the property. I am satisfied that at the time of Robert's first arrest, officer Kenshole had a reasonable belief that Robert was trespassing. Robert was informed of the reason for his arrest. I am satisfied the arrest was lawful. Robert was not taken to the ground. Handcuffs were applied. Robert did not complain about the handcuffs being too tight. Minimal force was used to arrest Robert. Given Robert's defiant behaviour, the use of handcuffs was not disproportionate to the objective of effecting the arrest and safely conveying Robert to the Mill Park Police Station.

278 Prior to Robert's second arrest, officer Kenshole saw Robert enter the property. I am satisfied that at the time of Robert's second arrest, officer Kenshole had a reasonable belief that he was trespassing. Robert was informed of the reason for his arrest. I am satisfied the arrest was lawful. Robert was not taken to the ground. Handcuffs were applied. Robert did not complain about the handcuffs being too tight. Minimal force was used to arrest Robert. Given Robert's defiant behaviour, the use of handcuffs was not disproportionate to the objective of effecting the arrest and safely conveying Robert to the Mill Park Police Station.

279 Prior to Robert's third arrest, officer Noviello saw Robert enter the property, and observed him use a blow torch in what appeared to her to be an attempt to unlock a gate along the driveway. I am satisfied that at the time of Robert's third arrest, officer Noviello had a reasonable belief that he had committed the indictable offence of burglary. Robert was informed of the reason for his arrest. I am satisfied the arrest was lawful. No gun was pointed at Robert. Further, Robert was not taken to the ground. Handcuffs were applied. Minimal force was used to arrest Robert. Given Robert's defiant behaviour, the use of handcuffs was not disproportionate to the objective of effecting the arrest and safely conveying Robert to the Mill Park Police Station.

280 After his third arrest, Robert was conveyed to the Melbourne Remand Centre, and the following day, appeared before a magistrate at which time he was bailed.

281 Prior to the time of Daniel's arrest, he had collected Robert from the Mill Park Police Station and driven him back to the property. I am satisfied that at the time of Daniel's arrest, officer Maffei had a reasonable belief that Daniel had interfered with security guards, and had collected Robert from the police station and driven him back to the property, understanding Robert would trespass again. With such reasonable belief, officer Maffei was authorised to instruct officer Ward to arrest Daniel.

282 Daniel was advised of the reason for his arrest - which was stated to be for 'acting in concert'. Whilst the common law offence of 'acting in concert' had been abrogated,[65] I am satisfied this was a lay explanation provided to Daniel, being the equivalent of the statutory offences of complicity, under ss 323 and 324 of the Crimes Act. The use of this phrase provided Daniel with a clear basis to understand the reason for his arrest. Whilst Daniel was not ultimately charged under s 324 for being involved in the commission of an offence, at the time he was arrested, officer Maffei had a reasonable belief that Daniel had collected Robert from the police station, and drove him back to the property, understanding Robert would trespass again. Therefore, the arrest of Daniel was lawful.

283 At the time of Daniel's arrest, two sets of handcuffs were applied to extend his range of motion, and officer Ward checked they were not too tight, and used a key to ensure they would not tighten whilst in transit. Minimal force used to arrest Daniel. In all the circumstances at the time of Daniel's arrest, the use of handcuffs was not disproportionate to the objective of effecting the arrest and safely conveying Daniel to the Mill Park Police Station.

284 On 12 December 2019, on the advice of the OPP, the criminal charges against Robert, in relation to his conduct on 18 September 2019, were terminated in Robert's favour.

285 There is no evidence to support a finding that officer Warne, acted maliciously or improperly in initiating or maintaining the criminal proceeding against Robert.

286 Robert arranged to gain access to the same storage facility in Epping, where his goods were stored. On 16 July 2020, Robert used that access to remove some of his goods from the storage facility.

287 On 17 July 2020, the Police attended upon the property with the search warrant. After some initial resistance, Robert let the police officers inside, without the use of force. The police officers then removed the goods which Robert had removed from the storage facility.

288 For the reasons given in paragraph [228], I am not satisfied a cash sum of $40,000 was stolen by officer Di Clemente, nor any other police officers on this day.

289 The second warrant of possession was issued and provided to the SOV for execution on the property. Given what had occurred in September 2019, the SOV sought assistance from the Police. The SOV were authorised to seek such assistance.

290 The planning by the SOV and the Police, as to the execution of the second warrant was careful, considered and proportionate to the identified risks.

291 On 1 December 2021, the property was barricaded through the construction of a high wire fence. Access through the front of the property was restricted. SOV officers, with the assistance of police officers, identified access through the side of the property. Due to safety concerns, the SOV requested police officers to enter the property to provide assistance.

292 The SOV and police officers entered the property at 2:34pm.

293 Despite repeated requests to leave the property, Robert remained locked inside the garage and intermittently powered up a demo saw. Given the close proximity between specific actions by police officers, and this sound coming from inside the garage, I infer Robert powered up the demo saw in an attempt to intimidate the police officers outside of the garage. Further, I do not accept the piercing of the door by the demo saw was accidental.

294 Officer Choueiri saw sparks coming from the door, and noticed the incision in the door. I accept that Officer Choueiri was concerned for the safety of other police officers, and himself.

295 At 6:23pm, after a stand-off of approximately 4 hours, Robert eventually agreed to exit the garage. Once outside, Robert was arrested by officer Noviello.

296 Prior to Robert's arrest, officer Noviello had been informed Robert had confronted police officers with a weapon, and she therefore had a reasonable belief that Robert had committed the offence of assaulting a police officer. Robert was informed of the reason for his arrest. I am satisfied the arrest was lawful. When Robert complained about his shoulder, two sets of handcuffs were used. The force used to arrest Robert was not excessive, and was not disproportionate to the objective of effecting the arrest and safely conveying Robert to the Mill Park Police Station.

297 Having made those findings, I will now consider each of the plaintiffs' causes of action in this proceeding, in the order in which they are pleaded.

298 Robert alleges that on 17 September 2019, police officers forced entry to the property and attempted to evict him from the property, without explanation, and without proof of authority to evict. Further, Robert alleges the police officers had no authority to be on the property. Robert claims he had lawful possession of the property at that time, and he seeks damages from the defendant for the tort of trespass to land.

299 Robert makes the same allegations in relation to 18 September 2019 as detailed in the paragraph above. In addition, Robert alleges that despite providing police officers with the interim VCAT order, he was prohibited from entering the property, without lawful justification.

300 There was no dispute in this proceeding as to the validity of the first warrant. The SOV executed the first warrant in accordance with the powers given to the SOV, under the Sheriff Act. Robert's lawful possession of the property ended when he walked off the property at 10:10am on 17 September 2019. As at that time, only SOV officers had entered the property.

301 The police officers subsequently entered the premises at the request of the SOV.

302 The CBA were granted lawful possession of the property at 1:06pm.

303 There is no foundation to Robert's claim as to trespass to land. From 10:10am on 17 September 2019, he was able to be excluded from the property. This claim must be dismissed.

304 Robert alleges that on 17 and 18 September 2019, police officers unlawfully removed a large number of his goods from the property; or the Police permitted unknown males to remove such goods. Over three and a half pages, the revised amended statement of claim individually lists each of the household goods said to have been unlawfully removed. Robert also alleges police officers supervised the breaking open of locked filing cabinets and containers.

305 Robert alleges the police officers had no authority to permit, allow or provide assistance to persons interfering with the plaintiffs' goods. Robert contends such acts constituted trespass to goods and conversion.

306 There is no evidence to support a claim against the police officers for trespass to goods and conversion. The Police were called in by the SOV to inspect large drums which contained unknown fluids. The request by the SOV to Police for assistance was reasonable in the circumstances.

307 The CBA arranged for the removal of the goods from the property, in accordance with the warrant of possession granted in favour of the CBA.

308 Robert's claim in respect of trespass to goods and conversion must be dismissed.

309 Robert alleges that on 18 September 2019, he demanded the return of his goods from police officers. Robert alleges the Police committed the tort of detinue by wrongfully refusing his lawful demand that his goods taken from the property be returned.

310 Given I am not satisfied the Police removed Robert's goods, there can be no failure of the Police to deliver up such goods. Robert's claim in respect of detinue must be dismissed.

311 In respect of the first arrest, Robert alleges his arrest was unlawful because:

(i) he was not provided with an explanation for the reason(s) for the purported arrest with sufficient particularity for him understand why he was under arrest;

(ii) he had a legal right to be on the property, and thus there was no reasonable basis for his arrest; and/or

(iii) police officers used excessive force, which was unreasonable and disproportionate to achieve the aims and purpose of the arrest.

312 Robert repeats the same allegations in respect of the second and third arrests.

313 In my findings of fact above, at paragraphs [277]-[279], I find that each of the arrests were lawful, and the force used was not disproportionate. I therefore dismiss Robert's claim that his first, second and third arrest was unlawful, and that excessive force was used.

314 Robert asserts he was directly and intentionally and/or negligently totally restrained by police officers during his three arrests. He alleges this was without lawful justification, amounting to false imprisonment. Further, Robert alleges that he was restrained for an excessive period.

315 For the reasons previously given, I am not satisfied that Robert was unlawfully arrested. After the third arrest, Robert was taken to the Melbourne Remand Centre, and on the same day, appeared before a Magistrate, and was granted bail. This occurred within a reasonable period of time. There is no evidence to support a claim by Robert that the period of his detention was excessive.

316 For those reasons, Robert's claim of false imprisonment must be dismissed.

317 Robert alleges that on 17 September 2019, he was assaulted by police officers when he was 'held by the shoulders' and 'demanded' to leave the property, without explanation. Robert then alleges he was 'aggressively' told to wait across the road. Robert claims these actions caused him to apprehend that he would be unlawfully touched and/or arrested and/or restrained.

318 Robert alleges he was assaulted by Police on 18 September 2019 during 'heated interactions' with police officers, which caused him to 'apprehend that he was being and/or would continue to be' unlawfully touched, arrested, and imprisoned.

319 Additionally, Robert alleges he was assaulted during his third arrest, when a police officer pointed a weapon at him, causing him to fear for his safety.

320 Robert has failed to satisfy me that a police officer 'aggressively' told him to wait across the road and held him by his shoulders.

321 As observed above, the police officers were calm, patient and conciliatory. I reject Robert's allegation the police officers engaged in 'heated interactions' with him.

322 I am not satisfied a weapon was pointed at Robert at the time of his third arrest.

323 For those reasons, Robert's claim of assault must be dismissed.

324 Robert alleges that on 17 September 2019, a police officer grabbed him by his shoulders and forced him across the road. Robert also alleges that a police officer pushed him in the chest when he attempted to protest being forced from the property.

325 Robert also alleges that he was physically handled by police officers during unlawful arrests, including an allegation that he was tackled to the ground, and 'manhandled' with excessive force, which he asserts amounts to battery. Robert also alleges the application of handcuffs was unnecessary, and the handcuffs were too tight, and this constituted battery.

326 I am not satisfied that on 17 September a police officer grabbed Robert by his shoulders.

327 On 18 September 2019, Officer Faulkner used an open hand to push Robert away when Robert attempted to enter the property. The use of force was modest and justified as it was applied to prevent Robert entering the property and committing the offence of trespass. This was a lawful use of force, and did not constitute a battery.

328 I am not satisfied that Robert was tackled to the ground, nor that he was handled with excessive force.

329 As stated above, I am not satisfied that the force used to arrest Robert on the first, second and third occasions, was disproportionate to the objective of safely effecting those arrests. I am also not satisfied the handcuffs were too tight.

330 For those reasons, Robert's claim of battery on 17 and 18 September 2019, must be dismissed.

331 Robert alleges the Police acted with malice, ill will and bad faith when bringing criminal charges against him, and for allowing those allegations to remain on foot until struck out by a Magistrate on 12 December 2019. Robert also complains that the Chief Commissioner of Police has not complied with the order that he pay Robert's legal costs of the criminal proceeding.

332 Officer Warne initiated the charges against Robert. The proceedings were terminated in Robert's favour. However, there is no evidence to support an allegation that officer Warne acted maliciously in initiating and maintaining the charges.

333 Robert's reliance on the McAuley email of 19 September is misconceived. This email merely reported that Robert and his lawyer believed he had a legal right to return to the property. The email reported that at the bail hearing, the Magistrate interpreted the interim VCAT order such that Robert did not have a legal right to enter the property. There was nothing in this email to give officer Warne a basis to re-assess the legitimacy of the charges. That is, there remained a reasonable and probable cause for officer Warne to maintain the prosecution. Any non-payment of costs, subsequent to a court order, is not a basis to establish malicious prosecution.

334 For those reasons, Robert's claim for malicious prosecution must be dismissed.

335 Robert alleges Police committed the torts of trespass to land, trespass to goods, conversion, and detinue when they attended the property on 17 July 2020, entered by force and re-gained possession of the items that Robert had removed from the storage facility.

336 There are no particulars provided in respect of such claims.

337 On this day, Robert did not have a right to lawful possession of the property. Officer Di Clemente had authority under the search warrant to enter the property, and remove goods which had been taken from the Epping storage facility. Robert's claim in respect of the torts alleged to have been committed on this day, must be dismissed.

338 Robert alleges police officers attended the premises without authority, and committed trespass to land on 1 December 2021, as their entry into the property was unlawful and unjustified.

339 On this day, Robert did not have a right to lawful possession of the property. Robert's claim for trespass to land must be dismissed.

340 Robert alleges the Police committed trespass to goods by unauthorised cutting of wires to surveillance cameras he had installed on the property, destroying the wires, and thereby interfering with his goods.

341 I note that Robert did not give evidence in support of this allegation. In any event, on this day, police officers lawfully attended the property at the request of the SOV, to assist in the execution of the second warrant. Officer Walker said that he had the cameras redirected to increase the police officers tactical advantage. It was not put to officer Walker that the wires were cut.

342 Robert's claim in respect of trespass to goods on this day, must be dismissed.

343 Robert alleges the Police assaulted him when police officers demanded that he leave the garage, without sufficient explanation, causing him to apprehend he would be unlawfully touched, arrested or restrained.

344 Additionally, Robert alleges he feared he would be shot and killed, when he saw a laser light from the taser, coming through a garage window.

345 I am satisfied that on multiple occasions, police officers called out to Robert and provided him with an explanation for why they were on the property, and why he needed to leave the garage. Robert remained in the garage, and continued to intermittently operate the demo saw.

346 I am satisfied the taser was activated through a garage window so as to enable the police officers to assess how effective this device may be if required to apprehend Robert. It was soon after this occurred, that Robert exited the garage.

347 None of the officers' acts on this day, constituted an intentional threat of harm without legal justification. If Robert had followed the clear directions of the police officers at the outset, the prolonged stand-off would not have occurred.

348 Robert's claim in respect of assaults against him on this day, must be dismissed.

349 Robert alleges that he was unlawfully arrested, on the basis that he had a legal right to be on the property, and/or he was not provided with a sufficient explanation for the arrest. In addition, Robert alleges the arrest was carried out with excessive force, this rendering the arrest unlawful.

350 For the reasons previously given, Robert was lawfully arrested on this day for assaulting a police officer. He was provided with a sufficient explanation for his arrest, and the force used to arrest him was not disproportionate to the objective of effecting the arrest.

351 Robert's claim that he was unlawfully arrested on this day, must be dismissed.

352 Robert alleges the police officers committed battery when physically handling him during his arrest, and by applying the handcuffs and/or applying the handcuffs too tight. In the alternative, Robert alleges the police officers handled him with excessive force, or with force disproportionate to the objectives of the arrest, thereby amounting to battery.

353 As stated above, I am satisfied that the force used to arrest Robert on this day was not disproportionate to the objective of safely effecting his arrest. Robert's claim of battery on this day, must be dismissed.

354 Robert alleges he was falsely imprisoned by the police officers when they arrested him and conveyed him to Mill Park Police Station, and later released him without charge.

355 I am satisfied Robert's arrest on this day was lawful. There is no evidence to support Robert's claim that he was falsely imprisoned on this day, and thus this claim must also be dismissed.

356 Daniel relies on the same allegations as Robert in respect of trespass to land.

357 Daniel was not present when the first warrant was executed, and was lawfully able to be excluded from the property after that time.

358 For the same reasons as those given in paragraphs [300]-[302], there is no merit in this claim. This claim must be dismissed.

359 Daniel relies on the same allegations as Robert in respect of the removal of household goods from the property. In addition, Daniel alleges police officers unlawfully took his phone when he was arrested, and this constituted an act of trespass to goods.

360 In relation to the removal of the household goods by the CBA, for the same reasons as those given in paragraphs [306]-[307], there is no merit in this claim.

361 In relation to the removal of Daniel's phone at the time of the arrest, I accept officer Muntener's evidence this was done to protect Daniel's phone, and to ensure the safety of people in the vicinity of the arrest. Daniel has failed to satisfy me this constituted a trespass to his goods.

362 For those reasons, Daniel's claim as to trespass of goods must be dismissed.

363 Daniel relies on the same allegations as Robert in respect of detinue.

364 For the same reasons as those given in paragraph [310], there is no merit in this claim, and it must be dismissed.

365 Daniel alleges he was lawfully seeking entry to the property when he was arrested and that he was not informed of the basis for his arrest until hours later when he was at the Mill Park Police Station. Daniel also alleges the arrest was rendered unlawful as excessive force was used, which was unreasonable and disproportionate to achieve the arrest.

366 In my findings of fact above at paragraphs [281]-[283], I find that this arrest was lawful and that the force used was not disproportionate to the objective of effecting the arrest.

367 Daniel's claim that he was unlawfully arrested on this day, must be dismissed.

368 Daniel alleges he was falsely imprisoned by the police officers when they arrested him and conveyed him to Mill Park Police Station.

369 For the reasons given, I am satisfied Daniel's arrest on this day was lawful. There is no evidence to support Daniel's claim that he was falsely imprisoned on this day, and thus this claim must be dismissed.

370 Daniel alleges that he was assaulted by police officers when they demanded to search his bag, telling him they thought he was concealing a gun in it. Daniel alleges that this demand caused him to apprehend that he would be unlawfully touched and/or arrested.

371 Daniel gave evidence of the request to search his bag, and that he conceded to the request as he felt threatened. However, Daniel did not give evidence that he reasonably believed that the application of violence was imminent with this request. Further, Daniel did not cross-examine any officers as to this request being unjustified or unlawful.

372 Daniel has failed to satisfy me he was assaulted by the Police, and this claim must be dismissed.

373 Daniel alleges the police officers committed the tort of battery when physically handling him during his arrest, and that police officers 'manhandled' him with excessive force. Specifically, Daniel alleges he was forcefully tackled to the ground, handcuffed too tightly, and shoved into a divisional van.

374 I am not satisfied that Daniel was tackled to the ground, nor that he was handled with excessive force. As stated above, I am not satisfied that the force used to arrest Daniel was disproportionate to the objective of effecting that arrest.

375 For those reasons, Daniel's claim of battery must be dismissed.

376 The plaintiffs have failed to satisfy me of any of the alleged torts, and are therefore not entitled to any damages.

377 I will hear from the parties as to the form of orders.

[1] For convenience, and without intending any disrespect, in this judgment I will refer to the plaintiffs and other family members by their first names.

[2] The revised amended statement of claim also included a claim by Robert for private nuisance, but this was not advanced by the first plaintiff at trial.

[3] CBA v lloska [2018] VCC 144, [2] ('CBA').

[11] Derived from the case McKenzie v McKenzie [1971] P 33, a 'McKenzie friend' is a term given to a lay person who the court grants permission to assist an unrepresented party.

[12] CBA (n 3) [24]-[34].

[13] Pursuant to s 49B of the County Court Act 1958 (Vic).

[14] The BWC footage was time stamped with 'Zulu time', which is Greenwich Mean Time. The defendant advised, and the plaintiffs accepted that Zulu time is 10 hours behind Australian Eastern Standard Time, and 11 hours behind Australian Eastern Daylight Time.

[15] Pursuant to s 92(2) of the Crimes Act 1958 (Vic) ('Crimes Act').

[16] Dr Justin Lewis and Dr Matthew Tagkalidis gave oral evidence relevant to damages.

[17] Iloski v State of Victoria [2023] VSC 321.

[18] Iloski v State of Victoria [2024] VSCA 32.

[19] Jones v Dunkel [1959] HCA 8; (1950) 101 CLR 298.

[20] Sheriff Act 2009 (Vic) s 20 ('Sheriff Act').

[21] Ibid s 21(1)(b).

[22] Crimes Act (n 15) s 458 (1)(a).

[24] DPP v Dixon [2020] VSC 743, [55] (Kaye J).

[25] Crimes Act (n 15) s 459 (1)(a).

[27] R v Stafford (1976) 13 SASR 392, 399-400; Slaveski v State of Victoria [2010] VSC 441, [108]-[110] ('Slaveski').

[28] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21(4); Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 ('Christie'); Slaveski (n 27) [111]-[119].

[29] Christie (n 28) 573, 587, 593, 604.

[30] Slaveski (n 27) [113]-[114], quoting Christie (n 28) 587-8.

[31] [2025] VSC 765 ('Brown').

[32] [2008] VSC 596 (Smith J) ('Walker').

[33] [2020] VSCA 315, [104] (Tate, Kaye and Emerton JJA).

[34] Ibid [56], quoting Walker (n 32) [55].

[35] Residential Tenancies Act 2013 s 5(1) ('RTA').

[41] Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338, 356 (Brennan and Deane JJ) ('Barker').

[43] [1984] HCA 80; (1984) 155 CLR 1 ('Halliday').

[44] Ibid 110; cited with approval by the majority in Plenty v Dillon (1991) 171 CLR 635, 639.

[45] Slaveski (n 27) [293] (Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204, 224 (Dixon J) ('Penfolds Wines'); see also National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861.

[46] Slaveski (n 27) [299]; Smethurst v Commissioner of Police (Cth) [2020] HCA 14; (2020) 272 CLR 177, [67] (Kiefel CJ, Bell, Keane and Nettle JJ).

[47] Penfolds Wines (n #) 229 (Dixon J).

[48] Ibid; Slaveski (n 27) [302]; Rendell v Associated Finance Pty Ltd [1957] VicRp 88; [1957] VR 604, 613 (O'Bryan J).

[49] Bellinger v Autoland Pty Ltd [1962] VicRp 72; [1962] VR 514, 519; Slaveski (n 27) [320].

[50] Nelson v Nelson [1923] QSR 37, 40; Bellinger v Autoland Pty Ltd [1962] VicRp 72; [1962] VR 514, 520; Grant v YYH Holdings Pty Ltd [2012] NSWCA 360, [43] (McColl JA, Tobias AJA agreeing at [98]).

[52] [2008] VSCA 274; (2008) 21 VR 559.

[53] Ibid 565 [16] (Hargrave AJA, Ashley JA agreeing at 560 [1], and Dodds-Streeton JA agreeing at 561 [4]). See also Slaveski (n 27) [241]-[242].

[54] Brown (n 31) [47]-[48].

[55] Gesah v Ross [2013] VSC 165, [49].

[56] McFadzean v Construction Forestry Mining and Energy Union [2007] VSCA 289; (2007) 20 VR 250, 264 [41] (Warren CJ, Nettle and Redlich JJA).

[58] Myer Stores Ltd v Soo [1991] VicRp 97; (1991) 2 VR 597, 599 (Murphy J), 625 (McDonald J), 611 (O'Bryan J), quoting Carnegie v State of Victoria (Supreme Court of Victoria, Crockett, O'Bryan and Gray JJ, 14 September1989) 4.

[59] Slaveski (n 27) [251].

[60] Biddle v Victoria [2015] VSC 275, [142]; Slaveski (n 27) [252]-[253].

[61] A v New South Wales [2007] HCA 10; (2007) 230 CLR 500, 502 [1] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).

[65] Crimes Act (n 15) s 324C.