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Judgment

1. THE COURT: This is an application for leave to appeal from orders of the District Court (J Smith SC DCJ) of 29 March 2019 (Pham v State of New South Wales [2019] NSWDC 73).
2. The applicant was the plaintiff in the court below. He claimed damages including aggravated and exemplary damages, from the State of New South Wales for alleged wrongful imprisonment and assault and battery in respect of conduct of police officers on 13 December 2012.
3. The applicant was briefly arrested late that night, handcuffed, searched and locked in a police van. About 10 minutes later the arresting officer discontinued the arrest, removed the applicant (who resisted) from the van, put the applicant on the ground and removed his handcuffs. In the course of doing so, the officer cut his thumb and some blood went onto the applicant's shirt. The applicant suffered injury to his ankle.
4. After a four-day trial the primary judge gave judgment for the defendant. The primary judge accepted the evidence of the arresting officer and rejected the evidence of the applicant and his mother-in-law as to the circumstances of the arrest.
5. The incident to which the police were called was a dispute between the applicant and a builder working on an adjoining property, a Mr Kayrouz. Mr Kayrouz or one of his workers had parked a black utility vehicle in the driveway of the applicant's property. The applicant parked him in. In a 000 call made on the night of 13 December, Mr Kayrouz said that the woman living in the property had told him that the car could be parked in the driveway. After he was parked in, Mr Kayrouz knocked on the door on a number of occasions which prompted the applicant to call 000 in an hysterical state (Judgment [13]). Due to other more urgent calls it was some hours before the police could attend. The arresting constable gave evidence, which the primary judge accepted, that in a telephone conversation the constable had with Mr Kayrouz at 10:53pm, Mr Kayrouz told him that the applicant had threatened to stab him and that he (Mr Kayrouz) just wanted to take his car and go home (Judgment [30]).
6. After the police arrived, the constable asked the applicant to move his vehicle which was parked behind Mr Kayrouz's utility. The applicant refused. The constable said that the applicant was gesticulating and angry. He said that the applicant grabbed the constable's appointments belt at the point where the handcuffs holster was. The constable said he believed he had been assaulted without any provocation, and he suspected that the applicant may have committed the offence of intimidation. He placed the applicant under arrest. The applicant was placed into the rear of the police vehicle. The constable searched the applicant's clothing for anything that might be used to harm him or to aid the applicant's escape.
7. The constable asked Mr Kayrouz to provide a statement and come to court. Mr Kayrouz said that he would do so, but he was tired as he had been there all day and asked if he could go home. The constable said he could and asked for his ID. He made an entry in his notebook relating to Mr Kayrouz, including his driver's licence and telephone number. He then decided to discontinue the applicant's arrest as he felt that there was no further threat to Mr Kayrouz and the emergency had disappeared (Judgment [57]). He took hold of the applicant to remove him from the vehicle, taking hold of the handcuffs. At that point the applicant snatched his hands back and, in doing so, injured the constable's thumb which bled freely. He then pulled the applicant out of the vehicle. The applicant was resisting. The handcuffs were released.
8. The primary judge found that the constable suspected that the applicant had committed the offence of intimidation contrary to s 545B of the Crimes Act 1900 (NSW), or an offence of intimidation contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Judgment [103]). The constable suspected that the applicant had threatened to stab Mr Kayrouz with a knife and that suspicion was reasonable, particularly having regard to the applicant's aggressive and emotional behaviour (Judgment [107]). The primary judge also accepted that the constable had suspected on reasonable grounds that it was necessary to arrest the applicant to prevent a repetition or continuation of the offence or commission of another offence. The applicant's bizarre conduct, his refusal to co-operate with the reasonable request to remove the car and his grabbing at the constable's appointments belt which had on it his firearm, OC spray, handcuffs and a baton, formed a reasonable basis for the constable to suspect that it was necessary to arrest the applicant to prevent his committing another offence, whether it be of assault or intimidation (Judgment [108]).
9. The primary judge also found that the constable was entitled to exercise a common law power of arrest to prevent a breach of the peace (Judgment [111]).
10. Accordingly, the primary judge dismissed the claim. Against the possibility that he was wrong in doing so, his Honour assessed the applicant's damages as $1,000 for injury to the applicant's ankle that was suffered during the arrest together with $500 for aggravated damages, being a total of $1,500. That finding was made against the possibility that some findings of fact might be made that were diametrically opposed to the findings of fact that were made (Judgment [130], [134]-[137]).
11. On 2 July 2019, the applicant, then represented by a solicitor, filed a notice of appeal dated 24 June 2019, purportedly as of right, from the orders of the primary judge.
12. On 30 July 2019 the applicant filed an amended notice of appeal dated 26 July 2019, again purportedly as of right. In the purported notice of appeal, the applicant appealed "from the part of the decision below in relation to excessive force which was unreasonably and unnecessarily used by police during discontinuance of arrest which resulted in appellant's injury on his ankle".
13. The purported amended notice of appeal did not include this ground. Instead, the grounds of appeal were that the primary judge erred in his factual findings and in his preference for the evidence of the police officers rather than those of the applicant and his mother-in-law.
14. In support of the summons for leave to appeal, the applicant's summary of argument stated that the applicant's main contention was that the arrest was unlawful because the police officer had no unqualified intention to charge the applicant at the point of arrest or during the period of detention. The summary of argument which supported the summons seeking leave to appeal stated that, although it would be contended that the judge's contingent award of damages was inadequate, it was not maintained that the appeal concerned an issue above $100,000.
15. In oral submissions counsel for the applicant (who did not appear at trial) submitted that the lawfulness of the arrest was the central issue at trial and the defendant had the onus of showing that the arrest was lawful. This meant, so it was argued, that the respondent needed to prove that when the arrest was effected the constable intended to charge the applicant with the offence suspected. It was not enough that the constable reasonably suspected that the applicant had committed an offence.
16. The primary judge made no finding on this question. That was because this ground was not raised as an issue at trial. The applicant's statement of claim raised grounds on which he claimed the arrest was unlawful. Those grounds did not include that the constable did not intend to charge the applicant. This was not raised in the issues presented to the judge at the beginning of the trial. Had it been raised, the onus would have been on the respondent to show that the constable had that intention, unless (as the respondent argued) it were sufficient that the arrest was justified to prevent a breach of the peace, irrespective of the constable's intention to charge the applicant.
17. Counsel for the applicant submitted that the boundaries between the common law power of arrest to preserve the peace and the statutory power under s 99 of the Law Enforcement (Powers & Responsibilities Act 2002 (NSW) were unclear.
18. Had the issue of the constable's intention to charge the applicant been appropriately flagged as an issue, there were strong grounds for saying that he had that intention when the arrest was made in the expectation that Mr Kayrouz would provide a statement. No such statement was forthcoming. Counsel for the applicant submitted that a conditional intention to charge the applicant was insufficient. Whether that is an accurate characterisation of the constable's evidence is debatable.
19. Counsel for the applicant submitted that the respondent ought to have drawn the primary judge's attention to the decision of this court in Robinson v State of New South Wales [2018] NSWCA 231 and that the primary judge's decision cannot stand with the High Court's decision in New South Wales v Robinson [2019] HCA 46; 94 ALJR 10. The respondent submits that reference to Robinson did not arise on the issues that arose at trial. Counsel also submitted that even if the issue had arisen, the arrest was lawful by reference to the reasons of Bell, Gageler, Gordon and Edelman JJ at [111] and [114], to which might be added [115].
20. We are not persuaded that the proposed ground of appeal is more than merely arguable. Although the application might have raised a question of principle if the issues had been appropriately identified at trial, that was not done. The application is not an appropriate vehicle for determining the issues now sought to be raised.
21. The contention that the primary judge erred in preferring the evidence of the police officers to that of the applicant and his mother-in-law is not seriously arguable. On the primary judge's credit findings, it is not seriously arguable that the arresting officer used excessive force in removing the applicant from the police vehicle.
22. The purported notice of appeal and amended notice of appeal are incompetent.
23. The primary judge ordered that the applicant pay the respondent's costs on the ordinary basis up to and including 9 November 2016 and thereafter on the indemnity basis pursuant to r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW). On 9 November 2016, the respondent had offered to compromise the application on the basis that there be judgment for the defendant with no order as to costs. By that time significant costs had already been incurred by the respondent of in excess of $50,000. The indemnity costs order raises no issue of principle, nor any arguable error.
24. If leave were granted and the appeal were successful, the likely outcome would be a new trial. That would be a result out of proportion to the amounts and issues at stake. The case involves a 10 or 15 minute arrest where the applicant behaved hysterically, lunged at the constable's appointments belt and reportedly threatened to stab Mr Kayrouz.
25. For these reasons we make the following orders: 1. The applicant's summons seeking leave to appeal be dismissed with costs. 2. The purported notice of appeal and amended notice of appeal dated 24 June 2019 and 26 July 2019 be dismissed as incompetent. 3. The applicant pay the respondent's costs of the purported notice of appeal and amended notice of appeal, including the costs of the respondent's notice of motion filed on 12 July 2019 in proceedings 2019/126103 to dismiss the appeal as incompetent.