Photi v Target Australia Pty Ltd

District Court of NSW|2007-12-11

CITATION: Photi v Target Australia Pty Ltd [2007] NSWDC 265

HEARING DATE(S): 25/6/07-27/6/07 (hearing), 9/8/07, 24/8/07, 18/9/07, 4/10/07, 9/11/07, 23/11/07

DECISION: (1) Judgment for the plaintiff in relation to the claim for wrongful arrest, false imprisonment and defamation in the sum of $50,000; (2) Judgment for the plaintiff in relation to the claim for assault in the sum of $10,000; (3) Punitive damages of $25,000 (for causes of action other than defamation) awarded to the plaintiff; (4) Parties have leave to bring in Short Minutes of Order in relation to interest for the claims for general and aggravated compensatory damages; (5) Liberty to restore re costs and interest; (6) Exhibits retained for 28 days.

CATCHWORDS: Tort - assault - plaintiff arrested by store security officer - wrongful arrest - false imprisonment - defamation - justification - late plea of qualified privilege - damages - aggravated compensatory damages - punitive damages claim for causes of action other than defamation

Civil Liability Act 2002 (NSW) LEGISLATION CITED: Crimes Act 1900 (NSW), ss.352 and 195 Defamation Act 1974 (NSW), ss.7A, 13, 15, 16 and 46A Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss.99 and 100

Adam v Ward [1917] AC 309 Ainsworth v Burden [2005] NSWCA 174 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Bellino v Australian Broadcasting Commission (1996) 185 CLR 183 Bennett v Norban 151A.2d 476 (Pa.1959) Beoco Ltd v Alfa Laval Co Ltd [1994] 4 All ER 464 Chamberlain v R (No 2) (1984) 153 CLR 521 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 Crampton v Nugawela (1996) 41 NSWLR 176 Cretazzo v Lombardi (1975) 13 SASR 4 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 Guise v Kouvelis (1946) SR (NSW) 419 Howe and McCullough v Lees (1910) 11 CLR 361 John Lewis & Co v Tims [1952] AC 676 CASES CITED: Marsden v Amalgamated Television Services Pty Ltd [2003] NSWCA 186 McDonald v Coles Myer Ltd (1995) Aust Tort Rep 81-361 Myer Stores v Soo [1991] 2 VR 597 Roberts v Bass (2002) 212 CLR 1 Rogers v Nationwide News Pty Ltd (2003-2004) 216 CLR 327 Shepherd v R (1990) 170 CLR 573 Skalkos v Assaf [2002] NSWCA 14 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 State of New South Wales and Anor v Coleman [2000] NSWCA 183 State of New South Wales v Ibbett [2005] NSWCA 445 State of New South Wales v Ibbett (2006) 231 ALR 485 TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 Trantum v McDowell [2007] NSWCA 138 Zaravinos v State of New South Wales (2004) 62 NSWLR 58 Zaravinos v State of New South Wales [2004] NSWCA 320 Zarth v Williamson and Ors [2006] NSWCA 246

PARTIES: Plaintiff: Julia Photi Defendant: Target Australia Pty Ltd

COUNSEL: Plaintiff: C A Evatt / L Evans Defendant: M Barko

SOLICITORS: Plaintiff: Stephen Spinak Solicitor Defendant: McCabe Terrill

The plaintiff by way of statement of claim filed on 27 July 2006 seeks: (a) damages for wrongful arrest and false imprisonment, including aggravated damages and punitive damages; (b) damages for assault; and, (c) damages for defamation, including aggravated compensatory damages.

The circumstances giving rise to the claim relate to an incident which occurred on 30 August 2005 at the Target store at Westfield Shopping Centre, Burwood.

In relation to the claim for wrongful arrest and false imprisonment, the defendant has admitted (paragraph 75, defendant's submissions) that the plaintiff was arrested and imprisoned and that it is vicariously liable for the acts of the security guard Mr Geoffrey Parker. The issue in this part of the proceedings is a determination of the plaintiff's claim that the said arrest was unlawful. The assault claim arises from the circumstances in which Mr Parker restrained her, allegations that he punched and hit her, and the circumstances in which he took her mobile phone forcibly from her hand.

The defamation claim arises from words, gestures and conduct of Mr Geoffrey Parker in the course of making this arrest. I have dealt with this issue first.

These are proceedings brought pursuant to the Defamation Act 1974 (NSW) and the first issue for determination pursuant to s.7A Defamation Act 1974 is whether or not the words were spoken (which was denied in the pleadings and by Mr Parker), whether the imputations were conveyed and whether the imputations were defamatory.

The parties agreed to my hearing this part of the proceeding without a jury at the same time as conducting the trial on liability and quantum. They provided me with the questions similar to those given to juries in s.7A proceedings. Both the plaintiff and her sister, who was present at the time, were cross-examined in some detail about whether these words were said. The defence filed on 22 December 2006 contained a defence for the purpose of s.7A proceedings and in addition defences of unlikelihood of harm pursuant to s.13 Defamation Act 1974 and a defence of truth pursuant to s.15 Defamation Act 1974, as well as a defence to the claims for assault, wrongful arrest and false imprisonment. However, a later amendment to the defence meant that the defendant ultimately admitted that each of the imputations was conveyed and was defamatory.

The hearing - a late application to amend the defence

The defences relied upon by the defendant were justification (section 15) and unlikelihood of harm (section 13). The hearing commenced on 24 June 2007 and was completed on 27 June 2007. By reason of the nature of the defences pleaded, the plaintiff did not file a Reply, as malice is not an ingredient of the defences of justification and unlikelihood of harm. Counsel for the defendant addressed first. In the course of his address, he sought leave to amend the defence to plead a defence of qualified privilege at common law, notwithstanding the fact that the evidence had all been heard and both parties had closed their case.

This application necessitated the adjournment of the proceedings while the defendant considered its position as to whether or not to proceed with its application to amend in this very substantial matter at such a late time in the trial. The defendant was directed to file submissions by 16 July 2007 and the matter was stood over to Friday, 24 August.

Unfortunately, the defendant did not comply with the timetable and it was necessary to relist the matter on 9 August.

When the matter next came before the Court on 24 August 2007, the defendant did provide written submissions but it became clear from these submissions that the defendant had now also abandoned its s.13 defence and its s.7A defence. Accordingly, I directed the defendant to serve a draft amended defence pleading the new defence of common law qualified privilege and deleting the s.13 defence.

The matter was relisted on 18 September and 9 November and the plaintiff's counsel advised that an application would be brought for costs in relation to these late amendments. It was not until 23 November 2007 that I was able to reserve my judgment after receiving submissions concerning costs.

The impact of late amendments in defamation proceedings

The problem of late amendment in defamation proceedings has long been recognised as causing serious difficulties in defamation cases. In Aspects of the Law of Defamation in New South Wales (Law Society of NSW, Sydney 1990), Mr Tobin QC (at page 49) noted that as a result of "a spate of adjournments at trial usually resulting from later amendments to the defence, but also caused by a plaintiff's application to amend the imputations sued upon", new listing procedures were set up in the Supreme Court. This is a reference to the Announcement of 14 October 1988. The text of that announcement (set out at pages 50-51) notes that where a plaintiff cannot meet a proposed new defence at a trial, leave to amend will not usually be granted.

Following upon the implementation of this Announcement in the Supreme Court in 1988, applications to amend defences in the weeks prior to a trial were generally refused. However, the practice of permitting late amendments gradually crept back. In TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 the appellant successfully appealed the trial judge's refusal during the trial to permit defences of contextual truth to be pleaded. Despite noting that the case had "a most unfortunate history" including two prior jury discharges, the Court sent the matter back for a fourth trial, noting that this was "an unsatisfactory, indeed an appalling, state of affairs but this is only one of a number of libel actions in the last 10 or 15 years with a history of multiple trials" (at 704).

In Ainsworth v Burden [2005] NSWCA 174 the Court held that principles of case management should not prevail over the injustice caused by shutting the plaintiff out of litigating issues which were clearly arguable and already raised in the pleadings, albeit in other form, referring to State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. The trial judge had taken the view that a case commenced in 1996 concerning a 1993 publication where the relevant pleadings had been filed in 1999 and subject to numerous interlocutory applications, he considered it was too late for such an amendment to be made in 2004. Hunt AJA noted (at [58]) that the delay in making the application created a heavy onus on the moving party to demonstrate that his opponent was not prejudiced by the additional issues being raised at that stage.

The impact of these amendments upon the issues in the defamation claim is profound. The case was conducted by both parties on the basis that the plaintiff's account of what Mr Parker said was challenged. No evidence was led on malice. A defence of qualified privilege at common law is inconsistent with a denial of publication and more importantly, issues of malice (of the kind which would have been particularised in any Reply pleaded to any such defence) were not able to be put to Mr Parker.

The plaintiff has consented to the late amendment and has filed a Reply particularising malice. Mr Evatt made it clear to the Court that his client feared the expense of a loss at appellate level if such consent was not given.

No explanation is forthcoming for the late plea of qualified privilege at common law. It may be that the plea was a response to Mr Parker not coming up to his proof of evidence, in that another witness called by the defendant effectively conceded that the words the plaintiff and her sister said had been spoken were indeed spoken.

Whatever the reason for such a late amendment, it has not only created problems for the plaintiff, but also for the Court. The defendant's failure to file written submissions by the due date created further delays. Time in court is a precious commodity, especially in a busy court such as the District Court, and instead of a judgment being able to be handed down promptly after the hearing in June 2007, there have been applications for amendment and costs which have delayed the handing down of judgment to December 2007 when, by reason of the heavy work load this Court has in the last week of term and the long delay since the hearing, there could well be inadvertent oversights in my judgment.

Having noted the unfortunate circumstances of the late application to amend, I now turn to a consideration of the evidence in the case.

I shall first set out the plaintiff's version of the circumstances in which she was apprehended by a security employee of Target stores, Burwood, Mr Geoffrey Parker.

The plaintiff, Julia Photi, is a Dictaphone typist for a radiology centre. On the afternoon of 30 August 2005 the plaintiff, her one year old daughter Mary and her sister, Doula Photi, went to the Target department store at Burwood to purchase some clothing for the baby. The plaintiff and her sister went to the cash register with $150.00 worth of goods which they paid for by cash and by using some vouchers for items previously returned to Target. The plaintiff's sister was carrying the baby and the plaintiff was carrying the goods to be purchased.

The plaintiff and her sister passed through the cash register a few minutes before closing time; an announcement had been made that the store would shortly be closing. As they approached the exit door a large and well-built gentleman wearing navy blue shorts, a navy blue polo neck top with a badge and a navy blue baseball cap stopped the plaintiff. As it was close to closing time, there were a number of people in the vicinity. Both the plaintiff and her sister said that when this man, who was later identified as a security officer named Geoffrey Parker, spoke to the Plaintiff, he did so in a loud voice, and people were looking at them.

The first thing Mr Parker said, according to the plaintiff, was "Give me back my razors". He then said, "I work here and I saw you steal some razors" (T-15). In response to denials by the plaintiff he said "The cops will be here soon, give me back the razors you've stolen"; "The police will be here soon, give me back my razors you stole" and "Look, give me back the razor. You stole the razors". This is the publication relied upon for the claim for defamation, including repetitions of these statements by Mr Parker inside the store shortly afterwards.

Mr Parker then grabbed the plaintiff by the arm, the plaintiff sad in her evidence. He dragged her to the front of the store next to the registers where the trolleys were. She told him again "Look I haven't taken anything, you can check my bag". Mr Parker replied, "There is no need, the cops will be here soon". She then said "Look you can check my bag, I haven't done anything. You can either check my bag or I am leaving" but he did not do so. She started to walk off. Mr Parker then grabbed her by the back of her pants and her shirt and dragged her further into the store (T-16). He dragged her from the left side of the cash registers towards the right hand side and towards the office administration centre. The plaintiff said, "Let me go, I haven't done anything".

There were a number of people coming towards them from the Target staff. The plaintiff felt embarrassed because she wanted to prove that she had stolen nothing but Mr Parker "just wouldn't listen to me" (T-16 Line 41). At this stage her baby started to cry.

When the plaintiff and her sister arrived at the Manchester section of the department store, she said once again, "Look, I haven't taken anything" and opened her bag upside down and emptied everything onto a display bed in the Manchester part of the store. No razors could be seen in the contents of her handbag. Mr Parker said "No I don't want to touch your bag, I don't want to look at your bag" and the plaintiff replied "Well, it's ok for you to grab me and push me around and you don't want to touch my bag". She then said "You can get a female staff member to come and search me if you like, I haven't got any razors". Mr Parker then said, "Well it might have been someone else then". The plaintiff said, "What do you mean it may have been someone else? See you don't even - you are just accusing me and you don't have evidence that it is even me?" Mr Parker replied, "The cops will be here soon and they will deal with it".

By this stage the plaintiff's daughter was crying loudly and watching what was happening and that the plaintiff decided the best thing to do was to pack everything back up and proceed back to the administration section. As she packed up her bag she said, "I haven't got anything, I showed you my bag" (T-17). She was surrounded at this stage by several staff members and some security men from Westfield. Mr Parker kept holding onto her shirt the whole time. She struggled and tried to escape his hold, but unsuccessfully. By the time she reached the administration section there were three security men from Westfield, the store manager and another female employee (T-17-18) surrounding the plaintiff and her sister. The plaintiff attempted to explain to the manager that she did not have anything, saying "Look I've emptied my bag, I don't have anything. You've seen there is nothing in my bag". The store manager did not reply.

The plaintiff said she was then dragged about eight metres to the office door and that throughout this time Mr Parker kept saying "Give me back the razors, I saw you steal the razors" (T-20).

When she reached the office administration section, the door was opened and the plaintiff's sister, who was standing about a metre behind her, tried to come in with her. However, Mr Parker closed the door in her face and would not let her in. The plaintiff said, "I want my sister to be with in. I am not going in there by myself". The plaintiff said she was petrified and did not want to be in there by herself with him. (T-20). However, Mr Parker said "No she is not coming in" and closed the door on the plaintiff's sister, who was carrying the plaintiff's baby. The plaintiff attempted to resist going into a room but Mr Parker grabbed her saying, "look I don't care if you are a woman, I'll hit you anyway" (T-20).

The plaintiff, by now shaking and scared according to her version of the incident, was pushed into a room and onto a chair, which she attempted to get out of. Mr Parker's hands were flying around as he attempted to grab her. He punched her at least three times and twisted her arm back. The Target manager was also present. He had his arm across the door and his leg across the door so that the plaintiff could not get out. The store staff kept saying, "The cops will be here soon".

The plaintiff's sister called the plaintiff on her mobile phone and said, "Are you alright?" The plaintiff said "Look, just get my solicitor on the phone".

A few minutes later, the plaintiff's telephone rang. The person on the phone was Brett William Galloway, a solicitor. He told her to put the security guard onto the phone. The security guard refused to accept the call, so the solicitor told her to put the phone on loudspeaker.

Mr Galloway, who was called to give evidence, told the court that the words he spoke were words to the effect that the plaintiff's detention was unlawful, that the security staff should release her immediately, that they could take her particulars and if there were any problems she would be made available at some other stage and that there would be legal proceedings if he did not take that course (T-78). Mr Galloway was not cross-examined on the accuracy of this statement, which I note is consistent with the plaintiff's account of what he said (T-21).

The plaintiff's mobile phone rang a third time but this time Mr Parker grabbed her hand so she could not answer the phone, took the phone from her and passed it to the Target manager. The plaintiff then said to the Target manager, "Look, if you want to get involved too, please give me back my phone before I sue you as well". The Target manager passed the phone straight back to the plaintiff and Mr Parker then became angry with her and started "telling her off" (T-22) for returning the plaintiff's mobile phone to her. Mr Parker then left the room where the plaintiff is being held but the store manager remained and had his arm and leg across the door to prevent the plaintiff from getting out of the room.

The plaintiff said in her evidence that the police arrived at approximately 7:00pm. She thought she had been there for about two hours by this stage. She said the police officers said to her "Just shut up and sit down", to which she replied, "Look at me, I am all bruised and I have got scratches" and she showed the officers the marks. She said the two male police officers who attended asked her if she was on drugs and asked her whether if they searched her bag they would likely to stab themselves with anything and then they searched her bag.

At this stage the plaintiff observed a female Target employee watching a surveillance tape at a desk in the room (T-23). The plaintiff was then strip searched by the female police officer (T-23). She was forced to strip down to her underwear. The plaintiff said all of a sudden the Target staff member got up and whispered something to one of the officers who walked over to her and had a look at the television screen. Then he called her over to say "Well who is that then?" The plaintiff looked at the television screen and saw a girl who was "very skinny, had curly long hair and looked nothing like me" (T-25). The plaintiff said, "Well that's not me, first of all I am not that skinny. Secondly I don't have curly long brown hair" (T-25-26). The officer then asked if that was her sister and the plaintiff said that it was not and the officer was then sent out to speak to her and have a look at her to make sure it was not her (T-26 Line 30-32). The plaintiff's sister had long braids of blonde hair. It was a very noticeable hairstyle and very different to the hairstyle of the person on the videotape.

After the police had strip searched the plaintiff, searched her handbag and checked to see what the plaintiff's sister looked like, the plaintiff was told that she was not to be arrested (T-26) and was permitted to leave the store. By this stage, the shop door was closed and the shopping centre was in darkness. The front doors of Target were opened for her. Her sister was sitting outside with her daughter. One of the Westfield security men approached her and said, "What happened?" The plaintiff did not know how to get out of the building after hours. The Westfield security officer gave her directions as to which exit to use to get to her car in the car park. The plaintiff thought it was approximately 7:30-7:45pm by this time.

The plaintiff went home for the evening and the next day went to see her doctor. The doctor checked her bruises and scratches and told her to have some photographs taken. Those photographs were tendered (Exhibit A).

In cross-examination, it was put to the plaintiff that the police arrived at approximately 5:30pm and that she left the store at the latest at 6:30pm. Since the plaintiff was in a very distressed state for much of the time, I would regard any inaccuracy by the plaintiff about the length of time that she was kept in the department store as being a minor matter.

The plaintiff adhered to her description of events in cross-examination. She agreed that she swore and used bad language, as she had in chief, and said she was frightened and upset.

The plaintiff's sister gave evidence (T-55-63). Her description of events was consistent with the plaintiff's description. Her preoccupation, apart from being worried about her sister, was that she had her sister's baby in her arms and the baby was crying and needed to be calmed down (T-62). The only inconsistency counsel for the defendant could point to between her evidence and the plaintiff's evidence was that her evidence was Mr Parker dragged the plaintiff by the top of her arm and thereafter by the shirt, which is a minor discrepancy at best.

The principal witness for the defendant was the security officer, Mr Parker. Mr Parker was something of a reluctant witness. He did not attend the hearing at all in February 2007, with the result that the case had to be adjourned. The explanation given for this was that medical evidence that he was having treatment for depression.

Mr Parker failed to attend again on the first day of the hearing, although a subpoena had been issued. His failure to attend on the first day of the trial resulted in an application to me on behalf of the defendant to issue a warrant for his arrest on the basis that he had failed to comply with the subpoena. When Mr Parker did finally give evidence, it was clear that he was, if not a reluctant witness, certainly an unhappy one.

His evidence was that he first saw the plaintiff at least an hour before the incident (T-104). The description of what he saw was very general: " Q: Do you recall where she was in the store when you first observed her? A: Not exactly sure, no, she was all over the store.

Q: When you first saw, can you recall the description of her, what did she look like? A: No I could not actually describe her. Just stocky, stocky build.

Q: Do you remember what she was wearing? A: No, not at all.

Q: Do you remember the nature of her hair? A: No, no, sorry.

Q: When you first saw her, what part of her person did you see, back, front, face, what? A: No I can't recall."

After this unpromising description, Mr Parker went on to say that, while hidden behind a shelf behind the plaintiff, he observed her removed a packet of some sort from a shelf and that she then moved to another aisle where she ripped the packet open and removed the contents. He said, "I was watching her hands and her hands were actually facing me because I was behind the shelf that she was facing. She was not thinking anybody was there. I was behind that shelf, she was facing that shelf". He could only see her whole body and her face by moving (T-104).

Mr Parker said that he did not lose sight of the plaintiff as she moved to the other aisle (although he apparently did not move from his position behind the shelf referred to earlier) and that after she ripped the packet open and discarded the empty packet, she was met by another female and they then made their way to the front of the store. Mr Parker's description of this other person was as follows: "Q: Can you describe this other female for us? A: No, sorry, your Honour I can't.

Q: Tall, fat, thin, fair, dark? A: Slimmer than the other person."

When prompted with a reference to the other witness having a particular hairstyle, he remembered she had braided hair (T-106). He was also unsure whether there were two ladies or three. He initially said there were "two ladies there, two other ladies at the time" and when asked if there was a third person said, "there was [sic] three ladies, but there was two other ladies besides the person we are dealing with". It was then put to him, in leading fashion: "Q: And you mentioned one of them had braided hair? A: Yes.

Q: One of them, I take it, didn't have braided hair? A: Yes."

One of the features of this case that it was never clear to me when the defendant's witnesses were going to assert that there were two or three ladies in the group of person under observation.

Mr Parker said he grabbed the discarded empty packet and observed this woman moved to the front of the store. He said "I could see she had the razor blades in her hand, the packet, they were actually packets". She had "other groceries and things" but he could see her holding the razors in her hand (T-107). When asked if she would be able to hold anything else in her hand which was holding the razors, he noted that she had a bag of some sort. He was then asked: "Q: Are you sure that she had any other groceries? A: I'm not sure, no." (T-108)
In other words, what Mr Parker said he saw was a person whom he identified as the plaintiff go to the cash registers holding only the razors in one hand, along with her handbag, and have a transaction at the cash register (T-108 Line 56-57), while the razors remained in her hand (T-109 Line 2). She then left the store with "the other friend" "to meet the third person". He went outside and confronted three ladies and a baby (T-109 Line 41).

Mr Parker denied the plaintiff's version of the conversation. He claimed he said "I'm from Target Security and have you left the store without paying for anything?" He said that these words were spoken in a soft-spoken voice (T-110). He said that the plaintiff hold him to "fuck off" and said "I haven't got any razor blades", a surprising statement from someone to whom such a general claim of not paying "for anything" had been made. Mr Parker said he then showed her the empty packet, which he removed from his back pocket and said "Just give me the razor blades back and you can go". He said the plaintiff was abusive and swearing and told him to "fuck off". He said "Please come back into the store with me back to the security office". He said the only other persons in the vicinity were the manager, a couple of staff member from the store and a couple of security guards from Westfield (T-110-111). He was asked whether there were other people outside the store and he said, "there may have been, I didn't really pay much attention to anyone else" (T-111).

Despite the plaintiff's reluctance to return to the store, it was Mr Parker's evidence that in response to his request she accompanied him back into the store and started to walk towards the office. He said he did not in any way physically touch the plaintiff but that when they came to the Manchester section that the plaintiff "erupted and became abusive again" and said "fuck off I am not going anywhere, I haven't got any razor blades" and she grabbed her handbag and tipped it upside down onto a display bed. He said that the plaintiff was swearing, carrying on and yelling but that he continued to speak to her in a polite voice and asked her to calm down. He could not recall who put the plaintiff's items into her handbag.

After this incident, he and the plaintiff continued to walk towards the office. He was asked whether at any stage he had any physical contact with the plaintiff and he said "I may have placed by left hand onto the lower part of her back" which he then agreed meant that he did put his left hand at her lower back. He denied that this was to exert any force and said it was "just to let her know that I was there, please walk this way" (T-114-115). When they reached the office door, he said she became abusive once again and he said, "please calm down and walk into the office". He said she walked into the office section without any physical force being exerted. He said that the plaintiff continued to yell and scream and say she did not have the razor blades. He said that he stood in the door way because the plaintiff kept trying to leave (T-117). He said she was using her hands and body weight to try and get pass him. Mr Parker weighed between 90 to 95kgs and was reasonable muscular and fit (T-118). He claimed that he received a number of blows but he denied that he had any time struck the plaintiff. He recalled the plaintiff receiving a telephone call in which she had spoken in the Greek language and said that she "kept on making phone calls, one or two or three" and that at one stage she said that she had a solicitor on the phone and she was going to sue everyone and put this person on the loudspeaker. Mr Parker could not recall what this person said (T-121). Although he agreed that his person appeared to be giving legal advice. He agreed that he had taken the plaintiff's phone from her and that he gave it to the store manager (T-121-122). He denied threatening to hit the plaintiff and said that she said to him "Go on, hit me" (T-122 Line 39). He was asked if he remembered seeing the child again in the store after the first meeting outside the front and he said "No, not at all" (T-123 Line 7).

Mr Parker showed the razor blade packet to the police and subsequently retained it. He kept it for several months before his wife threw it away (T-123). His estimate was that the plaintiff had purchased goods at 5:00pm, she would have left the store after about an hour or an hour and a half after he first stopped her.

In cross-examination, Mr Parker was again asked to describe the plaintiff and her companions: "Q. You say there was [sic] three women and a baby, is that right? A. Yes, sir.

Q. Were they all in black? A. I can't recall.

Q. Can you recall what any of them were wearing? A. No, sir." (T-126)

When asked when the plaintiff stopped holding the razor blades in her hand Mr Parker said he did not know (T-127.28).

Mr Parker said there were no video film surveillance facilities, and he did not see any video on the night in question (T-128). This evidence was not only in contradiction of the plaintiff, but in contradiction of other witnesses who described the playing of videotape from cameras, although not of the incident in question. He also had no recollection of telling his supervisor Ms Malten "I just can't believe I've done this" (T-129.9) or telling her that he was in trouble (T-129.18-.19), although he agreed that he resigned that night and had never returned to work at Target. He could not remember Ms Malten telling him to calm down (T-134.46).

Although Mr Parker walked away from his job that night, telling his employers "I won't be back" (T-141.2), he denied that this was because of this incident (T-141.5) and said that this incident had "no role at all" in resigning from a job that he had held for several years.

A problem which emerged during cross-examination was that whereas the plaintiff was cross-examined only about the barcode on the razor blade packet, and the police constable who attended was asked similar questions, Mr Parker volunteered in cross-examination (but not examination in chief) that there was a security device attached to the packet of razors. He was, however, unable to describe it, adding that "I didn't really pay attention to the security [device]". Mr Evatt asked: "Q. You don't know whether it had a security device on it or not, do you? A. I didn't really think it mattered actually."
Although he suspected that if the plaintiff did not have the razors, her sister must have had them, he could offer no explanation for not requiring the plaintiff's sister to be searched other than "I never saw her do anything" (T-152.20).

Mr Parker denied telling the plaintiff that the police would be here soon and that they could deal with the matter (T-153.10, T-154.16-.25). He said "I didn't say anything". He denied having used any kind of force or restraint on her and said that she had gone with him voluntarily, although she had been yelling and shouting all the time. He agreed he took away her mobile phone because "She just kept on ringing people" (T-156.4) and that if people were under arrest they were not allowed to ring up.

Other store employees were called on behalf of the defendant. Karen Anne Frazer, the store manager of Target Bondi, said she heard yelling at the other end of the store. She thought two customers were fighting so she went up to see what she could do to help and asked the register supervisor to hit the duress button as she knew something was wrong. When she arrived she saw Mr Parker and the merchandising manager, Mr Abudy Harb. She saw two women there who were yelling and shouting. She saw one of the women tip her bag out onto the bed and then put the contents back into her bag and go to the office area. She then went to phone police and on the way encountered the Westfield security staff, who were on their way to the incident.

Ms Frazer went into the office where she saw Ms Photi "pushing" into Mr Parker. She said Mr Parker then put his arms under her and lifted her up and moved her around into the office. The plaintiff then got her phone out and said she was ringing her solicitor. Ms Frazer had to be present so she remained at the doorway, observing what was going on. When Mr Parker took the plaintiff's mobile phone she returned it to the plaintiff after the plaintiff complained. She noted the arrival of the police and she heard the police speak to the plaintiff. She left the store at 6.30pm, by which time the plaintiff had already left.

Ms Frazer said that she did check the CCTV footage. There were thirteen active cameras in the store, but only two were working, and these were the two for the store in the back dock area. Consequently there was no film of the incident. When she realised that only two of the cameras were working she did not bother to look at the other cameras because "it was of no relevance" (T-171.46-.47). She had checked each of the cameras from the loss prevention room, which was the room where the plaintiff was held. I note that this was the procedure that the plaintiff described seeing.

Although Ms Frazer had a confident manner, there were a number of omissions from her evidence. She was quite sure that the police officer threatened to spray the plaintiff with capsicum spray, but neither the plaintiff nor the police officer said this, nor were they asked about it. The description of the plaintiff and her sister omitted the plaintiff's baby, which the plaintiff's sister was carrying. Since the baby was screaming and crying at the time, according to the evidence of other witnesses present, this tends to suggest that by the time Ms Frazer walked the fifty metres from the other end of the store, the plaintiff was already inside the office, in which case she would have seen little, if any, of the events prior to the plaintiff going into the store office. If so, this part of her evidence is reconstructed; if not, her recollection is deficient in this respect.

Ms Jacqueline Bet, the night field manager, also gave evidence. She said she had first seen the plaintiff in the toy department with two other people and "a little boy in a pram" (T-185.3). She saw her there for approximately half an hour. She later heard yelling and screaming in the office and saw the plaintiff with Mr Geoff Parker and Mr Abudy Harb. She did not hear Mr Parker accusing the plaintiff of stealing razors and did not see him holding her, although she said the plaintiff was struggling. She just saw him asking the plaintiff to settle down. Ms Bet had trouble describing how it was that the plaintiff was "struggling" if Mr Parker was not holding her in some way, but she insisted that "they weren't holding and touching her when I saw" (T-190.58). She was asked: "Q. How could they struggle if they didn't hold or touch her? A. I said they were struggling with - like they were asking her to settle down…

Q. A verbal struggle, is that right? A. Yes." (T-191)

The plaintiff's one year old baby daughter was never in a pram according to any other witness. Nor were they in the toy department for about half an hour.

Ms Bet's description of the plaintiff "struggling" in circumstances where she was not being touched by any of the defendant's employees is implausible. She stated quite clearly at T-186 "She was fighting, she was like kicking and raising her arms, like she was fighting" and she saw Mr Parker "trying to hold her arms down because she was kicking and like raising her arms" (T-186-187). This is not a verbal struggle.

Ms Zena Fox also gave evidence for the defendant. She said she had seen the plaintiff in the nursery department earlier in the afternoon and that she saw the plaintiff going towards the office past the registers accompanied by Mr Parker and Ms Frazer. She was standing about four to five metres away and she heard the plaintiff yelling, screaming and swearing but said Mr Parker was not speaking. She said Mr Parker and the plaintiff walked side by side towards the office. She said Mr Parker was not touching the plaintiff but that the plaintiff was "yelling and screaming" (T-195).

However, Ms Fox said that from where she was she could not really see very much: "Q. Could you see him touch her at all? A. No, I couldn't see from where I was. I didn't take any notice to be honest, there wasn't a rumpus or they weren't fighting so I didn't take any notice, I just seen [sic] them walking."
In cross-examination Ms Fox said she was just being a "stickybeak" because she heard some noise being made by a woman. She did not see the incident where the plaintiff emptied out her handbag in the manchester department, nor did she notice the baby, although other witnesses described the baby crying at the time (T-197). She drew on a map where her location was, which showed her vision would have been restricted by the shelves of goods.

Mr Abudy Harb was also called to give evidence. He first became involved with the matter when he was at the front of the store and he heard a noise from outside the store, namely "some loud voices outside" (T-201). He looked outside and he saw Mr Parker and the plaintiff. He said the loud voices he heard were both male and female (T-201.17). He said he heard Mr Parker say to the plaintiff "I'm from Target security and you've actually got something on you and I need to take you back into the store" to which the lady said "No, I'm not coming in" following which she "forcefully" walked into the store (T-201-202).

Mr Parker walked back into the store beside her. He said there was no physical contact between them. When they reached the manchester area "it broke out again" (T-202.55). By this he meant that there was yelling and swearing coming from the female customer (T-203). Mr Harb said that it was when this occurred that he "came onto the scene" and said "Look, can we put our voices down" (T-203) because "it was quite loud and at that stage there was [sic] customers everywhere and I tried, like you know, to quieten then [sic] all down so we can at least take them to an area, like in the office area, and discuss the problem" (T-203). He saw the plaintiff empty her handbag onto the bed beside her "to show that she had nothing, or that there was nothing in her handbag". The plaintiff said, "Check what's in there, … I've effin' got nothing" (T-204). He said the plaintiff's sister was also swearing very loudly. He said that although the plaintiff did not want to go in the office and was "shoving" and "trying not like to get into the office area" (T-205) Mr Parker was not touching her. He said the plaintiff said "I'm not going in there, I've done nothing, I don't want to go in there". He said Mr Parker replied "Let's go into the office and discuss this" (T-206). At this stage he said the plaintiff was shoving and punching Mr Parker.

Mr Harb, like the other witnesses called by the defendant, had some difficulty describing how it was that the plaintiff, if she did not want to go into the office, did not just turn around and walk away. He claimed this was because Mr Parker was telling her that he wanted her to go into the loss prevention office, though clearly this was not something which would stop the plaintiff from turning around and walking away if she did not want to go in. Eventually he said at T-206: "He [Mr Parker] was standing in her way, like he was showing her the way to go into the office and she didn't want to go into that office and she was like "no I've done nothing wrong, I want to go" and he's saying to her "no I want you to go into the office so we can see where"." (T-207)

When asked by me what it was that would physically stop the plaintiff from just walking away he said "Well, obviously we're standing there, we're not going to allow her to leave". He said he was standing in the way for this purpose (T-207).

He then conceded that Mr Parker "physically put his hands under her and actually got her into the office" (T-207). He initially said "dragged her into the office" (T-208) but then attempted to withdraw this admission. He portrayed Mr Parker as asking very reasonably "all I need, you know, from you is where are those razors, you know, that you actually had on you" but the plaintiff, to Mr Harb's displeasure, insisted that "I've got nothing, I've told you, like I've already shown you in manchester" and then Mr Harb noted, "she actually tried to leave the office again" (T-208). Mr Parker stood in the doorway. He said Mr Parker did not do anything while she hit and punched him and just stood there to stop her going out of the office (T-209). Mr Harb said he left when the police arrived. He did, however, see the incident where the plaintiff's telephone was taken from her by Mr Parker.

In cross-examination Mr Harb denied that outside the store Mr Parker and the plaintiff had the conversation which the plaintiff described (T-212). However, it transpired that Mr Harb had actually reconstructed this conversation, in that his attention had been drawn by loud voices, and that he had assumed that "it must've happened like before … all this could have - like when I heard, as soon as I heard all the noise, noises, like all I heard Geoff was "I'm actually from Target loss prevention, I need you to come into the office". So obviously that all happened before me".

He conceded that any opening statement by the plaintiff about being from Target was obviously made "before I actually got there". He agreed that he did not know how long they had been out there with loud voices before he came onto the scene (T-213.26). He went on to say "Well, I didn't hear [Mr Parker] say anything, but obviously that all happened prior to me being there". He said, "That's something that he would say if he apprehended someone, yes" (T-213.42-.43).

There is clearly an element of reconstruction by Mr Harb in what he claims was said, in that his attention was drawn by the plaintiff's loud voice when she refuted whatever it was that Mr Parker said to her, and this was what drew his attention. He went on to concede that any denial by the plaintiff of taking anything would also have been said before he came onto the scene (T-214.27). He was quite sure that Mr Parker did not touch her, saying "He persuaded her obviously to come into the office".

It was put to Mr Harb that he was trying to cover up for Mr Parker because he knew that if a security officer touches or grabs or manhandles a customer then that would lead to his dismissal. Mr Harb said that Mr Parker had been "mistreated by the superiors of Target and loss prevention" (T-215.57-.58) and that the problem was that "by the time [the plaintiff] actually hit the office she had no razors on her and obviously that's a lot, like if she didn't have the things on her, you know that's - like he arrested her for no reason". He said that Mr Parker had been "told off about that" (T-216).

In the course of cross-examination Mr Harb said that the following statements had been made at the manchester section: "Give me back my razors";

"Look, give me back my razors, you stole my razors";

In other words, Mr Harb was able to hear the publication of the statements in the matter complained of, although he placed this publication as occurring in the Manchester section and not outside the store.

He said that Mr Parker was speaking to her in a quiet voice, perhaps a little bit louder than normal, but nevertheless a one-on-one conversation. He said that Mr Parker had a high-pitched voice (T-218). He said that there were shoppers around and "obviously they would have heard" (T-218) but that "they would have heard [the plaintiff's] voice more than what they would have heard what Geoff was actually trying to say" (T-218), particularly those shoppers who were milling around closely. He agreed that shoppers were looking at the plaintiff and Mr Parker because "everyone, you know, obviously when you hear noises you look, like you know, there's nosy people to look around, so obviously, yeah, they would have seen".

Mr Harb noticed the plaintiff's sister, but did not notice that she was carrying a small child (T-218-219). He was quite sure there were only two women present.

Although even Mr Parker conceded that he had put a directional hand on the plaintiff's back to guide her into the office, Mr Harb denied that this had occurred (T-219-220). This must cast serious doubt on the evidence of Mr Harb, as must his inconsistent evidence about the circumstances in which the plaintiff was picked up by Mr Harb. He claimed she was punching and shoving, but not struggling (T-221.54) and that all Mr Parker was doing was just trying to keep her "in that position" (T-222).

Mr Harb did, however, confirm that there were surveillance camera monitors in the room where the plaintiff was kept and that these films can be played back. However, he was quite sure that no one looked at the films while he was there, because he was outside the office until 6.00pm (T-226). He said "I know for a fact that not all the cameras were working. There was probably about two or three working at that time". He was sure that a no point would anyone watch the video in the presence of the plaintiff. He was, however, sure that the cameras were not playing at all.

I find it implausible that Mr Harb would be able to state with confidence whether or not the surveillance cameras in the store, and in particular in the area where the plaintiff was, were not working on the day. There were thirteen surveillance cameras in the store, at least some of which were working on the day. It is implausible that Mr Harb would have known definitively one way or the other whether the surveillance camera in the area where the razors are kept on the shelves was working or not.

Mr Harb was cross-examined about a statement he gave in which he described Mr Parker as pushing the plaintiff towards the office. He said that Mr Parker was "not pushing the plaintiff by a hand but by his body" and that he was "pushing towards, towards her" (T-227). He said that Mr Parker was not physically pushing the plaintiff but "pushing towards her" (T-228). I find this description of the manner in which the plaintiff was taken from the manchester section to the office completely fanciful. Eventually he said that Mr Parker "bumped" against the plaintiff but could not say how many times (T-230). Again, I find this whole description highly implausible.

Mr Harb was also cross-examined about having said in his statement that only Mr Parker was in the office with her while he and Ms Frazer were outside the office.

Mr Harb was clearly sympathetic to Mr Parker's predicament and to the circumstances in which he was, in Mr Harb's opinion, harshly treated by Target for the circumstances of his arrest of the plaintiff. He was clearly reconstructing the conversation outside the store and his description of the manner in which the plaintiff was conveyed from the manchester department to the administration office against her will is not only inconsistent with the version given by the plaintiff and indeed Mr Parker, but implausible.

The defendant also called Constable Justin Veitch, the police officer who came to the store. He attended with a policewoman whose job was to strip search the plaintiff.

Constable Veitch said that when he entered the office the plaintiff was screaming and swinging her arms. He told her to sit down and she "snapped out of her anger". He spoke to the plaintiff about her version of events and recorded this in his police notebook. He said that the plaintiff made no complaint of being punched or beaten by Mr Parker and did not show him any injuries. The plaintiff was strip searched, no razors were found, and she was permitted to leave.

The version of events which he recorded in his notebook as the plaintiff's version of what happened is (with dots for illegible portions) as follows: "Then a security officer in plain clothes came up to me and said "You've taken my razors and I want them back", he was waving a packet at me. He then said "Can you come with me". I then came back in the store. He said, "Come with me" I said "No, I'll wait for the police". He said "No you are coming to the security room" and grabbed me by the pants and shirt and has pushed me along … when we got to the manchester we stopped. I offered to check my bags which he declined … the security has taken me back to the security room, they would not let my sister or child in with me … in the security room I denied having the razors, my solicitor called me and told me if there is no stolen things in my bag … I continued to struggle and try … once my bags were checked."

All of the evidence points to the plaintiff being restrained and to her being taken into the administration office against her will. Mr Parker's admission that he put his hand at her back and the description of him lifting her into the office against her will, and standing against the door to prevent her from getting out, would be sufficient evidence of assault and of restraining the plaintiff against her will.

However, if I accept the plaintiff's version, it is clear that Mr Parker went much further than that. He not only dragged the plaintiff back into the store, but dragged her into the administration section even after she had emptied her handbag in order to show him she did not have the razors. He used force on her not only to get her into the room but to keep her there, and the photographs of the plaintiff's injuries corroborate this.

In addition, there is clear evidence that the words complained of were spoken by Mr Parker within the hearing of customers in the store, whether at the time asserted by the plaintiff (outside the store) or at the time stated by Mr Harb, namely in the manchester section.

On the balance of probabilities, I accept the plaintiff's version. It is corroborated by her sister, and the versions of what was said outside the store by Mr Harb appear to be reconstructed. On the balance of probabilities, I find that Mr Parker made these statements outside the store and repeated them again in the manchester department.

Having made the necessary findings in relation to the evidence, I now turn to a consideration of the causes of action for defamation, assault, wrongful arrest and false imprisonment.

The plaintiff in written submissions submits that the gestures and conduct formed a "dramatic pantomime" that suggested to the assembled crowd outside the store that the plaintiff was a thief in that she had stolen something from the Target store. That gestures and conduct are actionable in the circumstances of a shoplifting case has been held to be the case in Bennett v Norban 151A.2d 476 (Pa.1959) where the Supreme Court of Pennsylvania held that "the entire incident" was slanderous of the plaintiff. The incident in question there was that a red-faced and angry assistant manager directed the plaintiff to remove her coat, then said "What about your pockets?" and reached in and, after not finding anything, then searched her purse. The Court held that this was a "dramatic pantomime".

Mr Parker said in his evidence that "I confronted the lady" (T-109) and when asked by me how he introduces himself he said "I confront people and I say" (T-140).

Mr Harb said that there were "loud voices" outside the store (T-201) and that Mr Parker had a high-pitched voice (T-218). Mr Harb thought there were about twenty to thirty onlookers; the plaintiff thought there were approximately fifty people. It is not in dispute it was close to closing time and there were many people around the cash registry and the store exit. In addition, Mr Parker said he held up an empty packet of razors and, if he did so (the plaintiff said he did not), that would be a clear indication to passers by of what was going on.

Although the defendant denied speaking the words in the manner complained of, Mr Harb said he heard the defendant say these words.

In practical terms, since the defendant has now conceded that words were spoken conveying the imputations pleaded and that these imputations are defamatory, it is clear that the evidence points to words being spoken and gestures being made capable of conveying the imputations. This brings me to the question of the defences to be pleaded.

The imputations are of criminal conduct. The appropriate approach to take concerning the standard of proof to apply to an imputation of criminal conduct has been explained by Levine J in Marsden v Amalgamated Television Services Pty Ltd [2003] NSWCA 186 and endorsed by the Court of Appeal ([2002] NSWCA 419) at [61].

The defendant submits that each of the following imputations is a matter of substantial truth: (a) the plaintiff is a thief; (b) the plaintiff stole some razors; (c) the plaintiff so misconducted herself that her behaviour warranted the police being called.
No defence under s.16 was pleaded. Consequently, the issue in this case is whether each of these imputations is individually true. Imputations (a) and (b) are an act and condition in very similar terms. The truth of any imputation that the plaintiff so misconducted herself that her behaviour warranted the police being called would not, even if a defence of partial justification were pleaded, be sufficient to amount to a successful plea of partial justification. Even if this imputation were true, its truth could only play a role in mitigating damages. The defendant's submissions were entirely silent on this point.

It is a requirement of the defence of truth that each imputation raised should relate to a matter of public interest. No submissions were made on this issue by the defendant and no plea of public interest is contained in the defence. The public interest identified by the defendants in submissions is that stores must deter and/or prevent there from occurring so as to keep the cost of goods sold as low as possible. This is sufficiently a matter of public interest in my view.

While the defendant has not given me specific submissions as to the evidence of justification for each of the imputations, there are submissions about ss.352 and 195 Crimes Act 1900. At the time of the events the subject of this case, s.352 Crimes Act provided the defendant's employees with a statutory power of arrest (this section was subsequently repealed and ss.99 and 100 of the Law Enforcement (Powers and Responsibilities) Act 2002, which came into force on 1 December 2005, now apply. The defendant's employees also are entitled to rely upon the common law powers of arrest. The defendant submits that its employee Mr Parker saw the plaintiff pick up a packet of razors from the cosmetic section, carry it to the next isle, rip the packet open and discard it and then carry the razors to the registers. The razors were subsequently not found in the possession of the plaintiff, whom the defendant says was in the company of two other women. It is submitted that the plaintiff has denied any dealing with the razors and, accordingly, has not provided an innocent explanation or a reasonable hypothesis consistent with innocence: Shepherd v R (1990) 170 CLR 573.

This submission by the plaintiff fundamentally misconceives the High Court's explanation of Chamberlain v R (No 2) (1984) 153 CLR 521, which the High Court sought to explain in Shepherd, and also misconceives the onus in relation to a defence of truth, which in a defence of justification lies upon the defendant, not the plaintiff. Further, as counsel for the defendant points out in his helpful written submissions, it is inconsistent with the evidence. An explanation consistent with innocence would be the existence of the third female seen by Mr Parker in the vicinity. The plaintiff's denial, and the fact she did not have the razors, is also evidence consistent with innocence.

In the defendant's written submissions, the defendant has elided the imputations and treated the plea of justification as going to the publication rather than to each of the imputations. In addition, the defendant has also elided the defences of justification and qualified privilege, and included references to the publication being "reasonable" (paragraph 23 written submissions concerning justification). It is submitted, for example, that "Even if the Court does not find that the plaintiff was the actual thief it must be accepted that Mr Parker honestly, albeit mistakenly, believed she was". Mr Parker's belief would be irrelevant to a defence of justification, although it is of course relevant to a defence of qualified privilege.

The defendant submits (written submissions, paragraph 54): "Mr Parker has nothing to gain from the proceedings and in our submission gave clear, credible and honest evidence. The plaintiff of course has everything to gain from the proceedings. The offence could easily have been committed out of view of the plaintiff's sister."

When assessing whether a witness gave clear, credible and honest evidence, regard must be had to much more than the demeanour of the witness. In particular, regard should be had to inconsistencies with the evidence of other witnesses, particularly with regard to what was said prior to the plaintiff being taken to the Target office. The Court of Appeal has warned against substituting findings on demeanour for an analysis of the evidence, and the degree of weight I will place on demeanour will be in accordance with these warnings.

I do not accept the submission that the defendant's witness gave clear, credible and honest evidence. The defendant's case up until the close of evidence was a denial that the words attributed to Mr Parker had been spoken. In addition, it was the defendant's case that Mr Parker had not touched the plaintiff at all apart from putting his hand at the small of her back in a directional sense at one stage. Both these statements are inconsistent not only with the evidence of the plaintiff, but with the evidence of other employees called by the defendant. Mr Harb agreed that Mr Parker had said the words attributed to him, and several other witnesses, including not only the plaintiff's sister but also employees in the store, agreed in their evidence that Mr Parker had had his hand on the plaintiff not only to bring her to the office, but also to keep her there. Indeed, it defies belief that the plaintiff, who was by all accounts screaming, shouting and very upset, would have accompanied Mr Parker to the office if some form of physical force, however slight, had not been used.

However, the principal problem that all of the defendant's witnesses, including Mr Parker, have is that the identification of the plaintiff was not clear. It is clear from the evidence that the plaintiff made substantial purchases totalling approximately $150 and that when she approached the cash register she was carrying her purchases in one hand and her handbag in the other. Her sister was carrying her baby daughter Mary. It is hard to see how she could have been carrying all these items in one hand and a packet of razors in the other. Mr Parker's description of her omits all reference to the purchases of infant's clothing, cosmetics and other items which she was carrying. Furthermore, his description of her is vague in the extreme. The description given by the other store employees is similarly vague. One of them cannot remember there being a baby at all, while another claims there was a little boy in a pram. It was closing time and there were many people in the store near the cash registers.

What is clear is that the plaintiff, when challenged by Mr Parker, denied that she had the razors, offered to show him the contents of her handbag, returned with him to the store, albeit under a degree of compulsion, emptied the contents of her handbag onto a bed in the manchester department to show she did not have the razors and, when searched by a police officer, was indeed found not to have the razors.

Mr Parker denied there was surveillance equipment in the interview room. The plaintiff's evidence was that a female store employee looked at the video in this room (T-23). The plaintiff went on to say at T-25: "Well, she was watching it there. I was talking to the officers and she was watching it on the right-hand side of me and then all of a sudden she got up and she whispered something to one of the officers who walked over to her and had a look at the TV screen. Then he's called me over and he said "Well who's that then?

Q. What did you see? A. I saw a girl that was very skinny, had curly long hair and looked nothing like me. She was wearing different clothes…

Q. What did you see this girl doing? A. She was standing there in the make up section, it looked like.

Q. Yes? A. I don't know what she was doing. I just saw -

Q. Did you see her doing anything with razors? A. No I didn't.

Q. But they didn't have a film of you it was of someone else was it? A. It was someone else.

Q. What did they say to you about the girl? A. I said "Well that's not me, first of all I'm not that skinny. Second of all, I don't have curly long brown hair".

Q. But did they say it was you? A. Well, they asked who it was, then the officer turned around and asked whether it was my sister, and my sister had plaits all though her hair, and I said "No, it's not my sister" so they sent the officer out to - … and the police officer actually went out there and spoke to her and had a look at her to make sure it wasn't her."

The defendant did not in discovery provide any CCTV. Mr Parker in his evidence denied that there was any CCTV facility in the room where the plaintiff was kept. His evidence on this point was, however, contradicted by Ms Frazer. She said that the CCTV cameras were kept in this room but that eleven of the thirteen cameras were not working, and that she did in fact look at the CCTV.

There are some factors from which I can draw inferences in support of the plaintiff's evidence. First of all, there clearly were CCTV cameras available on screens in this room, and Ms Frazer agreed she looked at some CCTV film for the purpose of ascertaining whether the plaintiff had been seen on videotape. The circumstances in which the plaintiff was then escorted to the front door, allowed out of the front door of Target and left in the closed shopping centre may be conduct more likely to be consistent with the plaintiff's version of some other person being identified on the security camera, particularly when one has regard to the material in the statement by Mr Parker's supervisor (a witness who was available to give evidence but who was not called). The plaintiff came out of the office and was let out into the shopping centre in darkness. She was wandering around the empty shopping centre when one of the Westfield security men approached her. She asked him how to get out because her car was still in the car park and he gave her directions as to which exit to use.

Finally, in relation to the evidence about whether or not the plaintiff was assaulted, there is corroboration in that the plaintiff went to the doctor the next day. He wrote down where the bruises and scratches were and told her to have some photographs taken. Those photographs are exhibit A in these proceedings. They indicate a number of physical injuries.

So far as I am aware, the plaintiff is a responsible member of the community with no prior criminal record (bearing in mind that any such record could have been tendered in support of the plea of truth to imputation (a) or as evidence of bad reputation) and was making substantial purchases from the Target department store in the company of her sister and baby daughter. Her behaviour in shouting, screaming and swearing was interpreted by the staff at Target as being evidence of guilt. However, actions speak louder than words, and the plaintiff's actions in offering to empty out her handbag and in fact doing so was conduct consistent with innocence. There was no justification for calling the police in such circumstances.

The defendant has not discharged its onus of proof in relation to any of the imputations. Accordingly, the defence of justification fails in relation to each of the imputations.

The defendant in written submissions has set out eighteen bases upon which it is asserted that the occasion was one protected by qualified privilege at common law.

The plaintiff submits that even if an occasion of qualified privilege were established, that occasion would have been exceeded by reason of the conduct and gestures as well as the loud voice used by Mr Parker, which was able to be heard by Mr Harb. Even if bystanders did not hear the actual words he spoke, his words and gestures would clearly have conveyed the imputations that the plaintiff was a thief, and his holding up of the empty packet of razor blades (which I find was in fact held up by him) would have conveyed imputation (b). The claim in particular (d) that the words uttered by Mr Parker were not broadcast to the general public but were limited to the confines of a discussion between Mr Parker and the plaintiff is a misstatement of the evidence. Not only did the plaintiff's sister and Mr Harb hear what was said, but it is likely, given the dramatic events, that members of the public would have been quick to appreciate what was going on.

A requirement of common law qualified privilege is that the publication must be made to recipients with a corresponding interest or duty: Adam v Ward [1917] AC 309 at 334 per Lord Atkinson. The plaintiff submits that the publication was excessive and that it was not protected by any privileged occasion. There was no reciprocity of duty and interest between Mr Parker and onlookers to whom the defamatory matter was published by reason of his conduct, gestures and loud voice, as their only interest would be in seeing the drama as a matter of gossip or curiosity, which is not an "interest" in the relevant sense: Howe and McCullough v Lees (1910) 11 CLR 361.

The plaintiff complains that the defendant's identification of the duty and interest is confusingly pleaded and that if the plaintiff had had the opportunity, the defence would have been challenged at an interlocutory stage. The plaintiff complains that the duties set out at (n), (o) and (p) of the further amended defence have no corresponding interest appeared to have been pleaded with respect to the plaintiff. At (r) and (s) Doula Photi and Mr Harb appear to be said to have an interest, but not the plaintiff.

It is important not to conflate issues of malice and issues of excess of privilege. I shall first deal with the question of whether or not the publication was made on an occasion of qualified privilege at common law.

In a practical sense, the circumstances in which a store detective apprehends a person to determine whether or not that person has left the store without paying for an item, perhaps innocently or mistakenly, is clearly a publication capable of falling within the confines of the defence of common law qualified privilege. It is, however, well established that an occasion of privilege can be abused by the publication of additional matter that is "extraneous" (Adam at 318 per Lord Finlay LC) or "beyond what was germane and reasonably appropriate to the occasion" (Adam at 321 per Earl Loreburn). The defendant's bona fide belief as to relevance will not be sufficient (Adam at 334 per Lord Atkinson). In Bellino v Australian Broadcasting Commission (1996) 185 CLR 183 Dawson, McHugh and Gummow JJ said at [43]: "It is true that, at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion. Moreover, the inclusion of the irrelevant part in the communication affords evidence of malice and can destroy the privilege attaching to the relevant part."

In Skalkos v Assaf [2002] NSWCA 14 the Court of Appeal dealt with a publication which, notwithstanding the absence of malice of the publisher, lost the protection of the defence of common law qualified privilege because of the vituperative tone of the letter (at [31]) and the language used (at [43]).

In the present case, the evidence is that Mr Parker spoke in a voice which was not only loud but, I find, angry. I also find that he physically restrained the plaintiff. Furthermore, his manner of approach was angry and confrontational (see Mr Parker's use of the word "confront" on two occasions at T-109). In addition, having had the benefit of seeing the plaintiff and Mr Parker in the witness box, I can take into account that Mr Parker is a large powerfully built and very fit man while the plaintiff is a small, plump young woman. In the course of his evidence he referred to his high level of physical fitness. He had the appearance of someone who was employed to perform security work. I find that he confronted the plaintiff in an aggressive fashion, shouted at her and used force to bring her back into the store.

The following words are admitted by the defendant as being said by Mr Parker: "Give me back my razors";

"Look, give me back my razors, you stole my razors";

This is not the language of inquiry or compromise. This is the language of accusation.

I respectfully adopt the discussion of this issue by the Court of Appeal in Skalkos v Assaf. Any occasion of privilege was lost by reason of Mr Parker's aggressive and loud-voiced language and conduct.

In the event that privilege has not been lost by reason of excessive publication, the defence would fail by reason of the defendant's malice. The plaintiff submits that the publication was outrageous and high-handed in that Mr Parker in his language, gesture and conduct, including assaulting and battering the plaintiff, was conduct amounting to malice.

The defendant submits that Mr Parker's words to the plaintiff were spoken in good faith with an honest belief in their truth and that there was no ill will, spite or other motive in that he acted out of a sense of duty or in bona fide protection of his own legitimate interests (defendant's submissions, paragraph 24). Not only has Mr Parker denied that he spoke the words complained of, but there is no evidence of his honest belief in the truth of each of the imputations.

Putting the technical issues to one side, there are other matters to take into account when considering issues of malice, including the particulars set out in the Reply which I gave leave to the plaintiff to file when the plaintiff consented to the amending of the defence.

The particulars of malice identified in the reply are as follows: (a) The words referred to in paragraph 1 of the plaintiff's statement of claim and which the defendant admits were said were spoken in a loud and angry voice by the defendant's employee (Mr Parker) in the hearing of fifty or more customers and/or persons passing by.

(b) The aggressive conduct of Mr Parker in grabbing hold of the plaintiff and assaulting her and speaking the words complained of in a loud voice caused the persons who heard what he said (see (a) above) to point and look at the plaintiff causing her embarrassment, hurt and upset.

(i) When he first accosted the plaintiff he said words to the effect if she would return the razors she could go and that would end the matter. (ii) Mr Parker denied assaulting the plaintiff and speaking in a loud voice which said evidence is contradicted by other employees of the defendant.

(d) Mr Parker overstepped the mark and was more aggressive than he should have been. Such conduct resulted in Mr Parker resigning and not returning to his employment with the defendant. (e) Mr Parker had no valid grounds for apprehending the plaintiff. If razors were removed from the package it was not by the plaintiff and Mr Parker, if he did see someone interfere with razors was confused as to the identity of that person as such person was not the plaintiff but probably someone else.

In addition, the plaintiff relies upon the conduct of the defendant in these proceedings, including the provision of what are called "biased and unhelpful written submissions … which ignore those [sic] many parts of the evidence which supported the plaintiff's case and was unfavourable to the defendant's case". In addition, it is asserted that Mr Parker had no reasonable grounds or cause to arrest, speak to and/or assault the plaintiff.

Neither of the parties have really dealt with this issue. I have received a document from the defendant entitled "Defendant's Supplementary Written Submissions Concerning the Defence of Qualified Privilege" dated 22 November 2007, but this deals with the issue of costs. The plaintiff simply states in written submissions that the matters set out in paragraph 2 of the Reply have all been established (written submissions, paragraphs 6-7).

The rationale of the defence of qualified privilege is that there are occasions when the publication of defamatory material should, for reasons of public policy, be protected, but only if the privilege occasion has been used for the reason for which it was established, and not for some personal reason unconnected with the general welfare of the community. The improper motive generally asserted by a plaintiff is an intention on the part of the defendant to injure the plaintiff in some way. The states of mind and examples of a defendant which may be relevant to such an exercise include knowledge of the falsity, recklessness as to whether or not the imputations were true or false, failure to enquire, the inclusion of material irrelevant to the occasion of qualified privilege, the manner and extent of publication including the language used in the matter complained of, the publication of other defamatory material and the conduct of the litigation including the conduct of the trial.

Whatever may have been the belief of Mr Parker, this is a good example of a case where a person deliberately refrains from making enquiries because he prefers not to have the result, and instead wilfully shuts his eyes for fear that he may learn the truth (Roberts v Bass (2002) 212 CLR 1 at [84]-[86]). Although Mr Parker sought to present himself as someone who was enquiring of the plaintiff as to whether or not she had goods she had not paid for, in fact that was not the case. As far as he was concerned, the plaintiff was a thief, and her attempts to show him her bag at the cash register, and to tip out the contents of her bag in the Manchester section is conduct that is consistent with a lack of interest in the truth of the imputations. I have indicated elsewhere that the manner and extent of publication, including the use of physical force and an angry tone of voice, amount to malice. The manner and extent of publication went far beyond the "one-on-one" asserted by Mr Harb.

The fact that the plaintiff herself contributed to this by screaming, shouting abuse and using swear words does not excuse the defendant. Mr Parker is a very large muscular man. He was not wearing a Target uniform and did not produce any identification. He used force to bring the plaintiff into the store and she quickly found herself surrounded by a number of other Target employees and Westfield security staff. Mr Harb told me in his evidence that he weighed considerably less when the incident took place, but seeing him in the witness box gave me some idea of the impression which he would have made on the plaintiff, even if he had been twenty kilos lighter at the time. At 180 centimetres in height, he was at least twenty centimetres taller than the plaintiff. In addition there were at least two Westfield Security officers in uniform, Ms Frazer and possibly Ms Bet and/or Ms Fox. It is not hard to understand why the plaintiff must have been terrified.

A claim of malice on the basis of conduct of the litigation is no more than an example of the principle that conduct on the part of the defendant subsequent to publication may be taken into account. It is, however, an inference which the Court is likely to be reluctant to draw. The availability of this inference is discussed by Jordan CJ in Guise v Kouvelis (1946) SR (NSW) 419 at 422-423 as being "an ill will which continued and received a new manifestation at the trial".

The basis of the claim in relation to conduct of the trial does not relate to the belated raising of the defence, but to the contents of counsel's submissions, including what is asserted to be misstatements of evidence. One of the real difficulties I have had, notwithstanding having a transcript, is that by reason of the lateness with which the defendant's application to amend was made and submissions were served, it is difficult for me, in the absence of some specific examples put forward by counsel for the plaintiff (and appropriately answered by the defendant) to go through the transcript to locate any obvious examples of distortions of the evidence. Accordingly, I am of the view that this ground of malice is not made out. I am, however, satisfied in relation to the matters set out in paragraphs (a), (b) and (c) of the Reply. Paragraph (d) (namely Mr Parker's resignation) is not relevant to the issue of malice and paragraph (e) is not evidence of malice.

Accordingly, I am satisfied that in the event that the privilege was not lost by reason of the circumstances discussed in Skalkos v Assaf, which excluded malice, then the privilege would still be lost by reason of the malice of the defendant as set out in particulars (a), (b) and (c) of the Reply.

The claims for wrongful arrest and false imprisonment

The period of false imprisonment and wrongful arrest commenced from the time that the defendant's employee took physical hold of the plaintiff. It was the plaintiff's evidence that she was brought back into the store by Mr Parker taking physical hold of her, and that on the way to the store office and for the entire time she remained there she was restrained without her consent.

I do not accept the defendant's submission that the first time Mr Parker touched the plaintiff was at the manchester section. The plaintiff had been brought back into the store by Mr Parker by his use of force when she was unwilling.

It is conceded that Mr Parker arrested the plaintiff. The burden is on the defendant to prove the lawfulness of the arrest (Zaravinos v State of New South Wales (2004) 62 NSWLR 58 at 59). The question is whether Mr Parker arrested the plaintiff without lawful justification. Pursuant to s.352(2), which is relied upon by the defendant as justifying the arrest, Mr Parker could only lawfully have made an arrest without warrant if the offence had actually been committed, or immediately thereafter, according to the submissions of the plaintiff, referring to NSWLRC Report No 66, note 11 page 5 and page 6.

The plaintiff submits that Mr Parker arrested the plaintiff for an ulterior purpose, namely to obtain further information regarding the location of the razors. Mr Parker in fact said "Once we were walking back to the office I felt I had to find out where the razors were" (T-139.5). This is not a lawful purpose for arresting a person. Those who arrest must be persuaded of the guilt of the accused; a person cannot be arrested so as to seek further evidence and detaining the person who is arrested or taking him to some spot where they can or may find further evidence is not a lawful purpose for arresting the plaintiff (see John Lewis & Co v Tims [1952] AC 676 at 691).

Mr Parker did not know where the razors were. In addition, his high-handed and confrontational conduct meant that the arrest was inappropriate. The plaintiff denied having the razors and offered to show him what was in her bag. He would not accept her denial or her offer to show him what was in her bag. By the time they reached the manchester section and she tipped open the contents of her bag to show she did not have the razors, his persistence in taking her to the office to be physically searched was really little more than bullying conduct. The plaintiff submits that Mr Parker persisted in his conduct in respect of the plaintiff because he was ashamed of his confrontational and high-handed behaviour to her. However, a more likely explanation was not that he was ashamed of his conduct, but that he was unable to back down. He had created a scene in which other Target employees and Westfield security officers were present. The fact that Mr Parker never returned to Target after the incident is submitted by the plaintiff to be consistent with his consciousness of his own shameful conduct. However, it would appear from the evidence of Mr Harb and the report of Mr Parker's supervisor that the real reason was the defendant's consciousness of Mr Parker's shameful conduct.

The defendant has not discharged its onus in relation to wrongful arrest and false imprisonment and the plaintiff is entitled to damages.

The defendant in written submissions (paragraph 43) draws to my attention the evidence of the defendant's witnesses denying any touching at all. I have indicated elsewhere in my judgment that their statements are inconsistent and implausible. The defendant's submissions do not refer to the photographs taken of the plaintiff which clearly show a number of bruises and scratches. I am satisfied the plaintiff was assaulted.

In relation to the assault claim, as with the false imprisonment claim, the defendant refers to the plaintiff's conduct as justification. The plaintiff's bad language and her fear is consistent and indeed understandable in that she was confronted by a stranger, not identifiable by wearing any Target uniform, who confronted her with accusations, grabbed hold of her and dragged her to the administration office. The plaintiff's fear turned to alarm when she found herself surrounded by at least two other Target employees and two Westfield security officers. She was taken into an office without her sister and baby being able to be present. The baby was crying and distressed. For an ordinary member of the public this would have been quite frightening. Her behaviour was understandable in this context, and I particularly have regard to the warnings of the Court of Appeal in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 in relation to the demeanour of persons whose cultural background may be a contributing factor. This would extend to an analysis of a person's conduct in real life, and not merely in the witness box.

Damages are "at large" for intentional torts and the Civil Liability Act 2002 does not apply: State of New South Wales v Ibbett [2005] NSWCA 445.

I shall deal first with the issue of damages in relation to the claim for defamation.

The plaintiff gave evidence of her feelings of humiliation and hurt to feelings (T-15, 29). She said that being falsely accused of stealing made her upset, embarrassed, very emotional, very distressed and crying. Her solicitor, Mr Brett Galloway, said that when she spoke to him over the telephone she was "hysterical".

The defendant submits that the plaintiff did not call any evidence on the issue of damages in respect of her claim for defamation and there was no direct evidence given by her sister or anyone else as to reputational damage, nor did the plaintiff give evidence of any incident of social ostracism or insulting or abusive remarks made to her since the incident. It is submitted that any claim for damages for defamation would be minimal (paragraph 80, written submissions). However, a plaintiff is not required to prove that his or her reputation has been damaged by publication of defamatory imputations. It is sufficient to rely on the presumption that some damage must inevitably be caused to reputation by the publication of defamatory imputations.

This is very much a case where damages for hurt feelings as well as by way of vindication are called for. The importance of vindication was explained by Blackstone in Commentaries on the Law of England as being that the judgment should not only afford a reparation for injuries sustained, but be a full vindication of the innocence of the person traduced. The sum awarded must be sufficient to convince a bystander of the baselessness of the charge. It is not simply the judgment in favour of the plaintiff, but the amount of damages which determines the nature and extent of vindication that a plaintiff has obtained. An award of damages serves two functions, namely vindication and consolation. In the present case, where there is no claim for injury to reputation but only injury to feelings, it is necessary to mention vindication although as a general rule compensation for injury to reputation and injury to feelings may often be sufficient of themselves to provide the plaintiff with a complete vindication. Essentially, however, the purpose of vindication is that the final sum awarded in damages must be sufficient.

As the principal claim is damages for hurt feelings, the evidence of the plaintiff must be given appropriate weight, as must the evidence of her sister. Each of them gave evidence on this issue, and each of them is accepted by me as an honest and truthful witness.

When assessing the sum of damages I must have regard to the limited extent of publication and also to the provisions of s.46A Defamation Act 1974. Section 46A provides that when awarding damages, the Court should ensure there is an appropriate and rational relationship between the relevant harm and the quantum of damages awarded. When considering general damages the Court is to take into account damages for non-economic loss in personal injury awards in the State of New South Wales.

In Rogers v Nationwide News Pty Ltd (2003-2004) 216 CLR 327 the High Court explained the manner in which s.46A(2) should be applied when assessing the quantum of damages. Hayne J noted it was important to identify the features and characteristics of this case and what features or characteristics are relevant to compare with other cases. Any comparison which is drawn must look to the particular plaintiff, not to what others may have thought of the defamatory words that were published, or what kind of physical injury was sustained (per Hayne J at 354).

It is clear that this matter was published to a very limited audience of people, most of whom had no idea who the plaintiff was. The very limited extent of the publication and the requirement for damages to bear a rational relationship with the facts of the case means that the damages must fall towards the lower end of the scale.

However, I should also have regard to the issue of aggravated compensatory damages. The plaintiff relies upon the following as being matters of aggravation: (a) the bringing of a plea of truth and persevering with allegations of criminal conduct in circumstances where the stolen material was never located and the plaintiff was never charged, including references by Mr Parker in his evidence to the plaintiff as being violent and calling her a shoplifter; (b) no apology has ever been given by the defendant to the plaintiff; instead the defamatory imputations have been "persisted in to the end" (per McHugh J in Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 241);

(d) the conduct of the litigation, including the failure to concede in submissions that there would have been a number of bystanders to whom the matter complained of was conveyed, the provision of self-serving and false evidence during the hearing, the late plea of qualified privilege which meant the defendant's pleadings were finalised months after the hearing and the plaintiff was unable to know the case she had to meet until an unreasonably late stage;

(e) the conduct of Mr Parker on the day in question, including his disregarding of the several opportunities he had to discontinue the imprisonment of the plaintiff, which is relevant not only to the tort of false imprisonment (as to which see Myer Stores v Soo [1991] 2 VR 597 at 598).

The defendant submits that the claim by the plaintiff for damages for defamation "would not even make the threshold levels required to be awarded [sic] any general damages" (written submissions, paragraph 83). This submission overlooks the significance of the hurt to feelings component.

It is not necessary for a plaintiff to call persons who heard or read a publication and thought less of the plaintiff. In Crampton v Nugawela (1996) 41 NSWLR 176 at 193 the matter complained of was published to an audience of twenty-two people. The plaintiff did not call any witnesses who were present and indeed the defendant called one of those persons present who said they had not read the matter complained of. The Court of Appeal declined to disturb the award of damages of $600,000. While that quantum of damages is completely out of range for a case such as the present, the fact remains that it is not uncommon for plaintiffs to be unable to call evidence of actual damage to reputation, largely because such damage is often unknown to the plaintiff.

Comparable verdicts for defamation proceedings where there has been an award of aggravated compensatory damages by reason of an unsuccessful plea of truth but a very limited publication are Trantum v McDowell [2007] NSWCA 138 (publication to sixteen persons, $50,000) and Zarth v Williamson and Ors [2006] NSWCA 246 (publications about solicitors to their client, their receptionist and an officer in the Legal Services Commission resulting in damages awarding $80,000).

It is important, however, that I should also have regard to comparable cases of personal injury where awards are made under statutory regimes, in the manner explained by Rogers v Nationwide News at 351 and following. A person's reputation should not be valued more highly than life or limb. I note that in Rogers v Nationwide News the High Court endorsed a careful analysis of personal injury awards by the trial judge and I gratefully borrow from the discussion of the range of such awards as described by the High Court in Rogers.

However, most importantly, there is substantial overlap between the plaintiff's claim for damages for defamation and for false imprisonment. The plaintiff and defendant in written submissions have both acknowledged this, although neither of them has provided any submissions as to how I am to go about the task.

False imprisonment cases are cases which by their nature have been said to give rise to aggravated damages, which is a concept not dissimilar to the expectation flowing from a failed defence of truth in defamation. That is to say, it is an expectation, but not a general rule.

At a glance

Court

Decision date

Source

Judgment (228 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (22)

Cited By (4)