Rouvinetis v Knoll & Ors

The pleadings 14By a further amended statement of claim dated 22 July 2009 the plaintiff brings proceedings seeking an award of damages for injuries he claims he sustained at the hands of the security personnel. He also claims exemplary and aggravated damages. 15Paliguard Pty Ltd, as the second defendant, is sued for assault, battery, and wrongful imprisonment on the basis of its vicarious liability for what are alleged to be the tortious actions of the security personnel. It also sued in negligence on the same basis. The first and third to 23rd defendants (each of the named members of the Executive of the NSWJBD and its president which together comprise the Executive of the NSWJBD) are also sued in negligence and for wrongful imprisonment. 16Despite having had the benefit of pro bono assistance from senior counsel pursuant to an order under Part 7 r 36 of the Uniform Civil Procedure Rules 2005 (UCPR) in May 2009, the plaintiff appeared at the hearing before me as a self-represented litigant. The first and third to 23rd defendants were represented by Mr Hewitt SC. Paliguard was represented by Mr Lloyd of counsel. 17I also note that despite the plaintiff's acceptance of the offer by the solicitor acting for the NSWJBD that Mr Knoll, the President of the Executive as at April 2009, was to be the nominated representative for the purposes of Rule 7.4 (1) (b) of the UCPR, the individual members of the executive were nonetheless named as defendants in the further amended statement of claim. Furthermore, specific allegations are made against the first and third to 23rd defendants collectively, and the first defendant as an individual (see paragraph 3 of the further amended statement of claim and [22] herein - although this may be a pleading error). 18The disputes identified in short summary of the facts above will need to be resolved since Paliguard's liability depends upon the plaintiff establishing, on the probabilities, that his version of how the security personnel conducted themselves, namely by unlawfully restraining him and by applying unprovoked, unreasonable and excessive force, should prevail. The plaintiff's version and the evidence of each of the three security guards, and two other security guards associated with Paliguard but who were working at the dinner but in a different capacity, are diametrically opposed. As to the central issues in dispute there is no room for that to be explained on the basis of a failure to recall or an honest but mistaken belief as to what happened. The witnesses called by Paliguard each gave evidence that in their assessment of the situation the plaintiff needed to be restrained because of his escalating physical aggression and his apparent determination to enter the hall after persistently refusing to comply with a direction that he leave. The plaintiff said he had no intention at any time of entering the hall. He simply wanted someone in authority to allay his suspicions that the guards (and presumably the caterers and those in the hall) were trespassers. 19A number of police officers were subpoenaed by the plaintiff to give evidence. They did not support his case. The COPS entry relating to the incident was tendered as was an incident report prepared by Paliguard on the night in which each of the security guards gave what I accept was a contemporaneous account of their dealings with the plaintiff. Despite a certain concurrence in their individual accounts of the plaintiff's behaviour and their dealings with him, there was no evidence to suggest that their accounts were prepared collectively. The plaintiff did not advance that submission.

The liability of the first and third to 23rd defendants 20The liability of the first and third to 23rd defendants for false imprisonment is predicated on a proof of the assertion in paragraph 31 of the further amended statement of claim that during the course of the plaintiff being restrained and handcuffed: ... duly authorised agents of the First and Third to Twenty Third Defendants became aware of the seizure of the Plaintiff, became aware that he was known to the school and that he represented no threat, but made no appropriate inquires, issued no instructions and took no action to ensure his immediate release. (emphasis added) 21On at least on one reading, their liability in negligence also seems to depend upon attribution of the same state of knowledge or awareness as alleged in paragraph 31. However, given the way the plaintiff has pleaded his case that is not entirely clear. 22Paragraph 3 of the further amended statement of claim (relevant generally to the liability of the first and third to 23rd defendants) contends that Paliguard: ... is a body promoted, influenced and controlled by the First Defendant . (emphasis added) 23The plaintiff does not contend that any other of the named defendants or the NSWJBD "promoted, influenced or controlled" Paliguard, although, as noted in [17] above, this may have been overlooked when the further amended statement of claim was drafted. No submissions were directed to this pleadings issue by either the plaintiff or by Mr Hewitt. 24In paragraph 16 of the further amended statement of claim the plaintiff pleads the following further facts in support of his claim: The protocols and procedures of the Second Defendant for security services at NSWJBD functions were (subject to security licensing requirements) determined or influenced by instructions from duly authorised employees or agents of the First and Third to Twenty Third Defendants complying with decisions of the Executive of the NSWJBD represented by the First and Third to Twenty Third Defendants. (emphasis added) 25(In their further amended notice of defence the defendants complain that paragraph 16 is unclear. I note that further and better particulars have been sought and not provided.) 26Before considering the evidence relied upon by the plaintiff as proof of what is alleged to be some special relationship of influence and control between Paliguard and the first and third to 23rd defendants, it is useful to set out the particulars of the duty of care they are said to owe the plaintiff and the particulars of breach upon which he relies. 27The particulars of duty are pleaded in paragraph 32 of the further amended statement of claim as follows: (a) Ensuring that the security services used by the First and Third to Twenty Third Defendants did not exceed legal and legitimate boundaries; (b) Ensuring that any security services which they used were not only licensed but maintained adequate, professional and legal standards in the exercise of their security activities; (c) Ensuring that their own influence and involvement in the existence, operation and management of the Second Defendant did not interfere with, impair or restrict compliance by the Second Defendant with its legal obligations and limitations; (d) Ensuring for the night of 9 April 2008, that adequate monitoring of the actions of the Second Defendant were carried out by officers of the First and Third to Twenty Third Defendants particularly when notified of an alleged security incident; (e) Compliance with term (h) of the Agreement for use of the School facilities which term required the First and Third to Twenty Third Defendants to ensure that any person they allowed onto the premises would properly conduct themselves, a term which among other things provided protection to persons such as the Plaintiff. 28The particulars of breach are pleaded in paragraph 35 as follows: (a) Failing to ensure (having regard to its control over the Second Defendant) that the Second Defendant could provide competent, safe and appropriate security services at the First Defendant's function; (b) Failing to adequately instruct the Second Defendant to use restraint and exercise respect for ordinary common law rights and obligations; (c) Failing to ensure that the Second Defendant adequately instructed its officers as to their rights to issue orders and directions to members of the public; (d) Failing to ensure that appropriate signage was erected advising that a private function was being conducted at Sydney Girls High School; (e) Failing to instruct the Second Defendant to free the Plaintiff from restraint as soon as particulars of the Plaintiff were known; (f) Failing to instruct the Second Defendant to release the Plaintiff as soon as it was learned from Dr Varady that the Plaintiff was known to the School and did not represent a threat; (g) Allowing the Plaintiff to remain handcuffed and restrained after the First and Third to Twenty Third Defendants became aware that the Plaintiff did not represent a risk. 29Paragraph 36 is pleaded in the following terms Further, and in the alternative the Plaintiff asserts: ... (b) The First and Third to Twenty Third Defendants allowed or permitted excessive force to be used by the Second Defendant after it became aware that the Plaintiff represented no threat. 30The first and third to 23rd defendants deny they owed the plaintiff any duty of care and deny any liability for the acts and omissions of Paliguard. Although Paliguard provided security services for the event and at the request of the NSWJBD, Mr Hewitt submitted that it did so as an independent contractor and that the Board is in the same position as the hotel in Zorom Enterprises Pty Ltd (in liq) v Zabow [2007] NSWCA 106; 71 NSWLR 354 such as to expose it to liability for the tortuous act of Paliguard's officers. The specific allegation in paragraph 36 is denied.

The interlocutory application to strike out the proceedings 31In November 2009 the first and third to 23rd defendants applied (unsuccessfully) to have the proceedings dismissed or struck out pursuant to r 13.4 and r 14.28 of the UCPR on a number of bases, including the plaintiff's failure to identify, with particularity, the identity of the " duly authorised agents" of the first and third to 23rd defendants who the plaintiff contends became aware that he was being unlawfully detained but failed to terminate his detention (see Rouvinetis v Knoll & Ors [2009] NSWSC 1212 ) . It is clear that proof of that state of affairs is foundational to the claim for false imprisonment as pleaded in paragraph 31. 32At the time of the hearing of the defendants' notice of motion the plaintiff was represented by senior counsel. Hulme J was persuaded that paragraph 31, although tenuous, was defensible as a valid and arguable claim the success of which would be determined by the evidence lead at trial. So far as the identity of the so called " duly authorised agents" was concerned his Honour said: That leaves the question who were the second group of "agents" referred to in para 31. Mr Gormly was unable to identify them except to say that it included an employee of the NSW JBD who was known to be present, possibly Ms Ydele Nathan (employed by the NSW JBD as an events co-ordinator). It was also thought that a person named Rothman (not the third defendant) was present. He continued, "What we do know is that there (were) members of the Jewish Board of Deputies, that is, defendants one and three to twenty-three present, some of them, and that there were authorised employees or agents of those people present, we just don't know their names" (T19.10). 33His Honour also noted that: Despite the present disarray of the plaintiff's case in terms of evidence to establish the matters alleged, the present application, insofar as it concerns the claim of false imprisonment, must be determined on the sole issue raised by the defendants as to whether "there is no proper pleading that any of (the) defendants engaged in any action of either imprisoning the plaintiff or causing the plaintiff to be imprisoned". I am satisfied that a case for liability of the defendants has been pleaded in that it is sufficiently alleged that liability arises from the actions of their agents (either members of the Executive of the NSW JBD or its employees) in failing to ensure the termination of the plaintiff's detention and allowing it to continue by the security guards who were also agents of the defendants. It is not alleged that the agents actually imprisoned the plaintiff themselves and whether the awareness and inactivity amounted to a promoting or causing of the continued imprisonment is tenuous. But the material before me is inadequate to permit a conclusion that no reasonable cause of action is disclosed and that the plaintiff should be denied a hearing on the merits after all appropriate interlocutory processes have been availed of. 34Despite his Honour's observation that the further amended statement of claim required amendment to ensure its compliance with r 15.1 of the UCPR, and Mr Gormly's frank acceptance of that fact, the pleadings were not amended prior to the hearing and no application to amend was made during the hearing. 35The plaintiff called no evidence at the hearing to establish who in attendance at the dinner was, or might have been, within a class of people described as the " duly authorised agents" of the first and third to 23rd defendants. The plaintiff's submissions failed to focus or grapple with this issue at all. Aside from the reference to the fourth defendant being present at the dinner and that Mr Wilmot made him aware of the presence of the plaintiff outside the hall and that he was demanding to speak to someone in authority (see [103]), the evidence was silent as to whether the guests at the dinner (including the first and third to 23rd defendants or any one or more of them who were, or might have been, at the dinner) were even aware that the plaintiff was on the landing outside the hall, much less that he had been restrained and then detained by security personnel and that the police had been called to escort him from the premises. 36These critical deficiencies in the evidence are sufficient to dismiss the claim against the first and third to 23rd defendants for false imprisonment as pleaded. 37Although, on one reading of the further amended statement of claim, these deficiencies are also fatal to the plaintiff's claim in negligence, the particulars of duty set out in [27] above are capable of grounding an action if there is proof of a relationship between the NSWJBD and Paliguard of a kind which renders them vicariously liable for the negligent acts of the security personnel Paliguard assigned to the function, or if Paliguard was under the direction or control of the NSWJBD in its provision of security services, even if Paliguard might also be classified as an independent contractor. Ultimately of course, even if the plaintiff is owed a duty of care, liability in negligence depends on the proof of breach of that duty (as pleaded). It is in this context, as Hulme J observed, that the particulars of breach refer solely to the actions of the first and third to 23rd defendants as individuals in failing to ensure or instruct the second defendant to do or refrain from conducting themselves in nominated ways, as distinct from some form of vicarious liability for the negligent acts of their " duly authorised agents" or breach of any duty of care Paliguard might owe the plaintiff. 38Even so, the deficiencies in the evidence I have identified above inevitably leads to the conclusion that the particulars of breach in subparagraphs 35(e), (f) and (g) cannot be established. The alternate ground of liability in paragraph 36(b) also fails for the same reason. For that reason, assuming that the plaintiff can establish that the first and third to 23rd defendants owed him a duty of care, I need only consider whether breach of that duty, as particularised in paragraph 35(a) to (d), has been proved.

Do the first and third to 23rd defendants owe the plaintiff a duty of care? 39The NSWJBD is an unincorporated association whose Constitution provides that it shall act as the central authority and official spokesperson for the Jewish community of New South Wales in non-religious matters consistent with its specified aims and objectives. The Constitution also provides that the Board shall comprise two classes of Deputies each of who are subscribers to the Constitution. Each of the first and third to 23rd defendants were Deputies of the NSWJBD at the relevant time. They have the responsibility of promoting matters relating to the Jewish community in New South Wales. Other organisations may make application to be admitted as Constituent Bodies of the association under its Constitution. 40The constitution provides for an Executive which is empowered to make decisions, employ staff, recommend and pursue policy, manage and promote events, enter into contracts and otherwise manage the activities of the Board in accordance with and subject to its Constitution at the relevant time. As at April 2008 the Executive comprised each of the first and third to 23rd defendants. 41On 15 November 2007 Paliguard received a pro forma "Function Request Form" from the NSWJBD to provide security services for the Educators' Passover dinner scheduled for April 2008. The request specified that attendance at the dinner was by invitation and that the condition of entry was by reference to a guest list numbering 250. The request nominated Ydele Natham as the contact person for the event. That person is not named as a defendant. There was no evidence that she was in attendance at the dinner. 42In its further amended defence Paliguard admitted that it was a company which operated under the name of the Communal Security Group (CSG), and that CSG provides advice and security services in relation to various security risks the Jewish community faces from time to time. It also regularly consults with schools, synagogues and other institutions and provides security services for events organised by the Jewish Community without fee. It admitted that the third defendant was the sole director and shareholder on the night of the dinner and over the preceding months. He was not joined as a defendant in that capacity but as a member of the Executive of the NSWJBD. He did not give evidence. 43According to David Rothman, the Chief Executive Officer of CSG and the Head of Security from March 2008, CSG (by which I take him to mean the business undertaken by CSG through Paliguard) was set up by a member of the Jewish Community. That person was not named. Mr Rothman also gave evidence that the operations of CSG are funded by "the Jewish Community". To the extent that this might have shed some light upon the liability of the first and third to 23rd defendant, Mr Rothman was not asked to elaborate upon or clarify the nature of these arrangements. 44The plaintiff tendered three documents as potentially bearing upon proof of the liability of the first and third to 23rd defendants in negligence. 45The first appeared to be the results of an internet search of CSG undertaken by him in either October 2008 or 2009. There was no objection to the tender of the document. Although the document was not referred to in final submissions by either the plaintiff or counsel, because the plaintiff was self represented, and because it might have some relevance to the issue of liability by evidencing some relationship of influence and control exerted by the first and third to 23rd defendants over the second defendant, it warrants some consideration. 46The "Communal Security Group (CSG) (Council for Jewish Community Security (NSW) Pty Ltd)" (CJCS Pty Ltd) was named in the document as a company associated with the business of CSG. The nature of the association was not identified. There is no evidence at all as to the ownership or management of CJCS Pty Ltd. The document makes no reference to Paliguard as another business operating under the business name of CSG. There was no evidence in the proceedings of any relationship between Paliguard and CJCS Pty Ltd. 47The "Mission Statement" of CSG reads as follows: [CSG] operates under the auspices of the NSW Jewish Board of Deputies to provide security advice and assistance to the Jewish community. (emphasis added) The Council for Jewish Community Security, under the auspices of the NSW Jewish Board of Deputies, is tasked with the oversight of the Jewish Community's security and emergency management programs and policies. The CSG (Communal Security Group) is run by a small team of professional staff with hundreds of highly trained, committed and dedicated volunteers. These volunteers are tasked with the safety, security and protection of the NSW Jewish Community. The CSG motto is "To Protect Jewish Life and Jewish Way of Life" and it carries out this task in conjunction and consultation with State and Federal Authorities. It advises the community on threats and necessary requirements for Synagogues, Jewish Day Schools, Institutions and Communal Events. CSG focuses its priorities on an overall integrated security plan by providing expert security consultants, trained security personnel, 24hr incident management and response, proper protocol and procedures at installations, adequate physical and technical security and most importantly community support and awareness. 48The focus of the work done by CSG as reflected in its "mission statement" is consistent with David Rothman's evidence concerning CSG's business, however, he did not give evidence about nor was he asked whether CSG operated under the auspices of the NSWJBD in the provision of security advice and assistance to the Jewish Community . 49Even accepting that CSG operated under the auspices of the NSWJBD , in the sense that the business was subject to the "favouring influence or patronage" of the NSWJBD (see the Macquarie Dictionary definition of "auspices"), Mr Rothman was not asked whether Paliguard's operations were funded by the NSWJBD; whether it reported to the NSWJBD or critically, so far as the issue of liability is concerned, whether it took direction and instruction from it as at April 2008 in the delivery of security services as might have supported the allegation that it was controlled by it, or by the first defendant as its President, as pleaded. 50The plaintiff also tendered an email (the provenance of which was not made clear but, again, to which no objection was taken) which was said to be a message from the fifth defendant to other members of the Executive amongst a large number of other recipients in the following terms : The JCA Board of Governors last night accepted the Council for Jewish Communal Security P/L as a Constituent of the JCA in its own right. Members of the JCA Executive also made it plain, when the matter was discussed, that CJCS is ultimately the responsibility of and controlled by the NSW Board of Deputies . I advised, however, that Peter Wise has agreed to serve as Chairman of the CJCS Board and that, by arrangement with the President of the JBD, he will exercise an independent vote at the Board of Governors. (emphasis added) 51Whatever else this may reveal of the relationship between CJCS Pty Ltd and the NSWJBD, it is of no relevance to the question whether Paliguard is controlled by the NSWJBD as alleged by the plaintiff, much less whether their protocols and procedures at NSWJBD functions were determined or influenced by instructions from duly authorised employees or agents of the first and third to 23rd defendants, in turn complying with decisions of the Executive of the NSWJBD represented by the first and third to 23rd defendants, as pleaded in paragraph 31 of the further amended statement of claim.. 52Finally, the plaintiff also tendered without objection, a document headed "Resolutions/Recommendations of Executive meeting November 6, 2007" which provided as follows: Interim Terms of Reference for the NSW Jewish Board of Deputies Communal Security Group (CSG) Advisory Board Overview The Advisory Board recognises that the CSG is an asset of the Jewish Community that is responsible to the NSWJBD , and is required to provide the best practicable security it can for the community notwithstanding that the recipient of such service may not have paid for such services. (emphasis added) Objectives The CSG Advisory Board shall give the NSW Jewish Board of Deputies ("NSWJBD") and Paliguard Pty Ltd, advice in relation to: Recommending to the NSWJBD budgets (including as to salary and wages) for the management of the CSG for approval by the Executive of the NSWJBD and recommending an allocation for consideration by the Allocations Committee of the NSW Jewish Communal Appeal (JCA); Recommending to the NSWJBD, acting through its Executive, independent sources of income apart from the JCA, including any capital appeal, and persons who may be able to seek that funding, if the Honorary Officers wish to pursue such funding; and Appropriate risk management, accounting and other financial procedures and controls. ... 53There was no evidence concerning the provenance of this document, or the membership or composition of the Advisory Board, or its affiliation with the NSWJBD. David Rothman was not asked any questions as might have elaborated upon or clarified his understanding of the statement in the document that "the CSG is an asset of the Jewish Community that is responsible to the NSWJBD ". Moreover, there was no evidence that Paliguard in fact received advice or instruction in relation to its financial management consistent with the stated objectives of the Advisory Board at any time prior to 9 April 2008. Even if it did receive advice of that kind, it falls well short of establishing that Paliguard was controlled or directed in the delivery of security services by the NSWJBD. 54In the result, and despite evidence of a relationship of some kind between Paliguard and the NSWJBD in April 2008, the plaintiff has failed to establish that it was a relationship that imposed upon the first and third to 23rd defendants a duty of care of the kind pleaded in paragraphs 32(a) to (e) of the further amended statement of claim. 55Accordingly, I am satisfied that the liability of the first and third to 23rd defendants is not made out in either negligence or for false imprisonment and that they are entitled to a verdict in their favour.

The liability of the second defendant for assault, battery, false imprisonment and in negligence 56The particulars of assault are pleaded as follows: (a) Without right or justification, blocking the Plaintiff's passageway in an aggressive manner by standing in his path; (b) Without right or justification, speaking to the Plaintiff words which required him to carry out an act that to their knowledge he was unwilling to do; (c) Without right or justification, speaking to the Plaintiff in an aggressive and offensive tone; (d) Without right or justification, physically confronting the Plaintiff, while garbed in security uniforms and representing a threat to carry out a physical act consistent with their verbal order to the Plaintiff to leave; (e) Without right or justification, uttering words in the nature of an order or instruction which, in the context of the moment, was physically threatening if non-compliance occurred. 57The particulars of battery are pleaded as follows: (a) Seizing the Plaintiff; (b) Throwing the Plaintiff violently to the ground; (c) Restraining the Plaintiff on the ground; (d) Handcuffing the Plaintiff; (e) Maintaining the restraint of the Plaintiff for a period of 25 minutes. 58The particulars of false imprisonment are pleaded as follows; (a) The officers of the Second Defendant acted without lawful authority; (b) The officers of the Second Defendant suffered no threat requiring any form of force or detention; (c) The Plaintiff was physically held in a fixed position on the ground for a period of 25 minutes; (d) The Plaintiff was handcuffed against his will without legal authority or the consent of the Plaintiff for a period of 25 minutes; (e) The Plaintiff was wrongfully and without right or authority, deprived by the Second Defendant of his liberty. 59The particulars of the duty of care the second defendant owed the plaintiff as follows: (a) To know and comply with the law concerning the use of force on another person; (b) To use force only as and when necessary; (c) To refrain from the use of excessive force; (d) To ensure that a security threat existed before using force against another person. 60The particulars of breach are pleaded as follows: (a) Failure on the part of the security officers to know or, alternatively, act in accordance with ordinary legal requirements for use of force on the person of another; (b) Failure on the part of the Second Defendant to adequately and appropriately train its security officers as to the appropriate use of force on another person; (c) Failure on the part of the Second Defendant to adequately train its security officers to respect ordinary common law rights and carry out ordinary common law obligations, specifically as to: (i) The right of freedom of movement; (ii) The right to be free of restraint or imprisonment; (iii) The right to be free from threat or assault; (iv) The right to be free from battery; (v) The obligation to avoid the use of force on another person; (vi) The obligation to properly and correctly assess whether threat exists; (vii)The obligation not to use force to achieve some personal wish or to ensure the compliance of another against their will. (d) Failure on the part of the security officers to speak to the Plaintiff in a courteous manner, thereby causing both affront, aggravation and fear; (e) Failure on the part of the security officers to treat the Plaintiff with dignity thereby causing affront, aggravation and fear; (f) Failing to answer the Plaintiff's reasonable questions thereby raising suspicion and affront.

Paliguard's business and the services it made available to the NSWJBD on 8 June 2008 61As at the date of the dinner David Rothman gave evidence that CSG employed five permanent staff members and one casual staff member, together with a number of licensed security guards who provided security services for nominated community events on a volunteer basis. 62Mr Pollak gave evidence that he provides security services to CSG as a supervisor approximately 8 to 10 hours per week. He holds a category 1ABCF security licence. In his witness statement, sworn on 16 September 2011, he said to become a supervisor it was necessary for him to undertake leadership and self-defence courses which consisted of early morning fitness trainings, team building and leadership development. He said he also underwent psychological testing. He also said there is a mentoring program within CSG in which volunteer security guards are taken to various venues to observe how they operate. The content of the mentoring program was not further elaborated upon. 63The other two security guards assigned to the function also prepared witness statements for the purpose of the proceedings. Mr Wilmot gave evidence that he undertook a security licensing course and commenced work with Paliguard in mid-2007 at which time he was taught to use the least force possible in the event of an incident and always to help other security guards involved in an incident. Mr Narunsky did not give any evidence as to the training he received, if any. Both hold category P1AC security licences. Mr Rothman holds a security master licence. 64There was no evidence as to what was comprised in a security licensing course or the training CSG gave its volunteer security guards. I was not addressed by counsel on the licensing requirements for security guards under the Security Industry Act 1997 although I note that a regime is expressly provided for in the Act. I am not aware as to whether Paliguard's operations were regulated by the Act (although I assume so) and, if so, what procedures are in place in order to ensure strict adherence with statutory requirements. On the other hand, the plaintiff did not cross-examine to suggest the training was inadequate or deficient in any respect despite the express pleading of a lack of appropriate training amongst the particulars of breach of duty. 65CSG also employed an information analyst to collate information it received from time to time relating to security threats and attacks on Jewish communities in Australia and overseas. It used a tiered alert system, ranging from 1 as a low threat and 6 as a high threat. It advised its security teams, both orally and in writing, of the currency of any particular threat referable to that alert system to enable security protection plans to be formulated particular to the needs of a community event and to enable specialised security to be provided where necessary. 66On 17 January 2008 CSG advised the NSWJBD that it had reviewed their request for security services for the dinner at the Sydney Girls High School and agreed to dedicate a security team "in light of current security risks facing the community". The risks were not identified. 67Mr Rothman gave evidence that the assassination in February 2008 of a prominent Hezbollah leader overseas was believed to be related to the receipt of anti-Semitic verbal abuse, hate mail and bomb threats by members of the Jewish community in Sydney. Following official communications from New South Wales Police and intelligence agencies the risk alert was elevated to 5. This was the level of alert on 9 April 2008. Mr Rothman gave evidence that he believed that Mr Pollak would have been privy to that information as a senior member of CSG and in his role of supervisor. 68In the confirmation email sent to the NSWJBD on 17 January 2008 and in accordance with its standard operating procedures CSG undertook to:

1. To carry out an Improvised Explosive Device (Bomb) sweep prior to the start of the function.
2. To carry out a screening process for the duration of the event to prevent access to anyone who may pose a threat to function guests/organisers. It is imperative that anyone entering the function is known to security, and having members of your organisation at the door will assist this process.
3. To carry out counter-surveillance operations.
4. To manage and implement Emergency Procedures should they be required. These tasks and decisions will be provided in consultation with the organisers of the event, and the CSG requests full support from your organisation in implementing these security procedures. In addition, please be aware that: In preparing for the event, the CSG will contact and liaise with any Police authorities and external contractors as it deems necessary. The CSG provides real time assessments of threat levels and situations and reserves the right to take full control of any event for which its services have been engaged if CSG personnel believe such action to be necessary and appropriate to minimise any current risk to the community. The CSG will only intervene where it is deemed that there is a threat to the function. ... 69There was no evidence as to the preparations undertaken in advance of the dinner for the security of the event. Mr Pollak's witness statement includes the following: Approximately 4 to 6 weeks before the function I was asked if I could supervise. In terms of preparation for functions, the usual process is to speak to the relevant stakeholders and devise a protection plan , especially regarding terrorism (which in my experience is a common threat at these functions). However, I do not recollect exactly what preparation I did in terms of this particular function. I have no reason to believe that it was other than my usual process. 70Under cross-examination he said that the protection plan he devised took account of "the terrorism factor that we were at risk of" but he was unable to recall any specific preparatory step taken by him consistent with that risk. 71Despite the significance that counsel sought to attach to the heightened state of alert current on the evening of the dinner as giving some context to the way in which the plaintiff was dealt with by the security personnel, in his incident report (prepared on the night) Mr Pollak did not claim that his first encounter with the plaintiff aroused his suspicion that he was or might be motivated by anti-Semitic sentiments consistent with the raised level of alert or more generally. To the contrary. Because of the way the plaintiff was dressed and that when Mr Pollak first saw him he was speaking to (or appeared to be speaking to) some catering staff, Mr Pollak believed (perhaps not unreasonably) that the plaintiff was asking for food. It was only when he stepped closer and claimed to have heard the plaintiff asking questions of the caterers about the function who informed him that it was a Jewish function, that the plaintiff started mumbling or screaming in what Mr Pollak described as "some Arabic or some similar sounding language" motivating Mr Pollak to insist that he leave. 72In his witness statement Mr Pollak said he believed the plaintiff presented a risk of harm to the guests at the function when he refused to leave. However, in the incident report he said he eventually "took the plaintiff to the ground" at the door of the hall not because of any concern he held, even at that time, that the plaintiff may have been intent on physically harming the guests (whether they were of the Jewish faith or not) or that he had any concerns that his motivations were anti-Semitic. Rather, Mr Pollak justified his physical restraint of the plaintiff as a response to his persistent refusal to leave coupled with his physical aggression when he attempted to block the plaintiff's entry into the hall. 73In these circumstances, I am not persuaded that the heightened level of alert about which Mr Rothman gave evidence had any particular bearing on Mr Pollak's response to what he described as the plaintiff's sustained and persistent determination to enter the hall or that it influenced his decision to "take him to the ground". Despite the submission of counsel that Mr Pollak was entitled to take into account the increased level of a terrorist threat, I am not persuaded that Mr Pollak took it into account. Were it otherwise, I would have expected that he (and/or the other security personnel) would have made specific reference to the risk alert in their detailed accounts in the incident reports prepared on the night. None of them did so. 74Accordingly, whether the force that was used on the plaintiff to restrain and detain him was reasonable falls to be determined by reference to whether the level of force that was used to physically restrain and detain the plaintiff was necessary both in proportion to the way the plaintiff acted in defiance of Mr Pollak's direction that he leave and Mr Narunsky's direction that he back off, or in self-defence, or the defence of others, or a combination of all these factors.

The divergent accounts of what occurred on the night

The plaintiff's account 75The plaintiff tendered his statement of 8 September 2011. After striking out irrelevant material and wholly inappropriate anti-Semitic language and innuendo, his statement became his evidence in chief. He was cross-examined. What follows is a summary of his evidence. 76He claimed to be a well-known senior constituent of eastern Sydney with a duty to protect the school (as an institution of the State) and that he entered the school grounds on the evening of 9 April 2008 in that capacity. 77He said that it was when he came to the southern door of the hall that he noticed three people in white, engaged with crates and containers in what looked to him like catering activity. He said before he had occasion to speak with them two men dressed in black came towards him waving extendable batons, and talking into what appeared to be radios in their left breast pockets of their jackets. He noticed that the two men were wearing skullcaps. He said he did not recognise the men as authorised security officers employed by the school and that he was extremely surprised to see the men were armed. 78He said he was told by one of them "This is a private function. Go. Get out", to which he responded: I am well known to the Principal and to the school's administrators and I will not depart until I see who you are and what you are doing here, otherwise the Police must be called. 79Although the plaintiff tendered evidence in the form of the COPS report to support the claim that he was known to the Principal and/or to the school's administrators, he called no evidence that he was entitled to enter the school grounds at any time with their express authority to check or ensure the security of the school. That said, the plaintiff's account of the exchange with Mr Pollak was not challenged in cross-examination. In addition, it was not put to him that either of the men in black indentified themselves as security officers (or that that was something he knew or believed from their attitude or apparel) or that they told him anything about the function (in particular that it was convened with the Principal's express authority) , other than it was a private function. It is for this reason amongst others that I am unable to determine whether the plaintiff was in breach of s 4 of the Inclosed Lands Protection Act by refusing to leave the school since it is by no means clear that I could or should be satisfied that Mr Pollak's presentation and demeanour answers the description of a person "apparently in charge" of the school grounds whose direction to leave the plaintiff was obliged to comply with. 80If the plaintiff were advised that Mr Pollak was acting with the authority of the Principal, there is at least some prospect he would not have taken the course of seeking or demanding confirmation of that fact which might have averted the physical confrontation that ensued. The plaintiff said as much in final submissions. It is not necessary for me to find that as a fact. 81The plaintiff said that he then walked away from the men in black, east to north in a circular direction around the perimeter of the hall to further investigate the use to which the school premises were being put. He agreed with the proposition put him in cross-examination that he did not accept that there was an authorised private function in progress largely because of the way he was spoken to and the aggression of the men he described as "the men in black". He said in cross-examination that he had the expectation that security personnel appointed to a function in a public school would deal with a member of the public who might enter the premises with "humility, collegialism (sic) and obligations to explain what it is". He went on to say: ...I am not going to threaten anybody. And I never threaten anybody when they came into Marrickville public school, which I was using, because they hear the music and have the smell of the goodies. But they join us, and we have no security up there to pass the children and the neighbours who came in to see what was going on. 82The plaintiff said that he then climbed seventeen stairs to the entrance to the hall. He claimed that he was unaware, even at that time, that there was a dinner in progress in the hall despite having seen caterers and despite the tables, benches, trays and crates in the vicinity. He said that the two men in black followed him and as he ascended the stairs he was confronted by three further men in black. He said they came towards him, waving their extended batons and that they also said "Go. This is a private function. Go", t o which he responded: I know the school's people and they know me, I will not go if I do not see one of them, otherwise the Police must be called in. 83He said he had no intention of actually entering the hall. His intention was to have somebody in authority come out and assure him that the use of the school was authorised. He said he did not accept that any of the men in black had any authority to demand that he leave, again, it would seem, as a result of what he regarded as their improper and aggressive manner. 84Under cross-examination he said it did not occur to him to leave and to report his suspicions about the misuse of the school premises to police or to speak to the school principal about it the following day. He rejected the proposition that the mere presence of the caterers should have satisfied him that the school premises were being used with the school's permission and authority (and even their participation) given the inherent unlikelihood that the school would be broken into or used impermissibly to supply people with food by contracted caterers. His evidence on this issue was implausible to say the least. He also rejected the proposition that he disapproved generally of the school being used for private functions and that he was angered and annoyed when he learnt it was being used in this way and that he behaved aggressively towards the security guards for that reason. He agreed that in correspondence with the school after the event, and in various of the documents that had been filed in the proceedings, he was critical of the use of the school being made available to the Jewish community, in particular because of his disapproval of the use of what he then knew to be the community's deployment of armed personnel on state school premises. 85The plaintiff said that when he reached the top of the stairs, and without advancing any distance onto the landing area that served as the entrance to the hall, he was immediately and simultaneously assaulted by all five of the men in black. He denied swinging his arms around aggressively or yelling at them. He denied that it was only at the top of the stairs that a baton was produced because he refused to withdraw. He denied punching or kicking the person who produced the baton. He denied punching or kicking anyone. 86He said he was forced face down into the concrete as a result of which he sustained "deep leg and facial abrasions". He said that one of the men in black got hold of his head, another sat with his full weight on his lower back and the other two got hold of his wrists and pulled his arms backwards. He said the pain was intense and he screamed for help "...until his vocal chords collapsed". He said he heard someone say "They know him". He did not identify that person. 87He said that he was held face down on the ground and not moved into a sitting position until the police arrived about 25 - 30 minutes later. He said a police officer (who he claimed was Constable Dahar) lifted him from being face down on the ground to a sitting position. He then noticed that his tracksuit was "shredded to pieces" as a result. He said after the police arrived the Principal came and spoke to him and said "I know you love the school but this is a private function" to which he replied "Why don't you put a sign on the door?". 88On 11 April 2008 the plaintiff presented to his general practitioner with what the doctor reported as multiple abrasions to his forehead and painful and bruised shoulders and arms. There was also bruising to both legs, especially his knees. He was treated with analgesics and referred for radiological investigation. An X-ray of both shoulders, performed on 17 April 2008, confirmed the presence of degenerative change with no evidence of acute fracture or injury. Whilst there was no significant tendon or ligament tear there was evidence of tendinopathy which was said to be "possibly due" to recent trauma. An ultrasound was performed the following day which confirmed a full thickness rotator cuff tear within the suprapinatus on the right shoulder with findings of impingement on the left shoulder. It was not suggested that these injuries predated the incident although it was put to the plaintiff that he has overstated the range and extent of his injuries and ongoing disability. 89His general practitioner reported that he was treated with anti-inflammatory medication and that, although his condition had stabilised by October 2009, he has residual weakness and in his shoulders with associated pain fluctuating with changes in the weather.

The evidence of the security guards (and Mr Lander and Mr Chait)

The first encounter 90Mr Pollak made a written statement dated 16 September 2011 to which he attached the incident report he prepared on the night of the incident. Mr Narunsky and Mr Wilmot also prepared witness statements bearing the same date. Mr Wilmot attached a handwritten statement dated 9 April 2008 to his statement and Mr Narunsky attached an incident report he said he prepared on the night. 91Mr Pollak said he first saw the plaintiff at the back door of the hall (the door the plaintiff referred to as the southern door) speaking with a caterer. He said he was alone at that time as Mr Wilmot and Mr Narunsky were stationed at the front of the hall. This was consistent with his responsibility for rotating the available security personnel between different positions within the school complex, inclusive of what he said was a roaming position close to the function area, being the position that he was in a time he first saw the plaintiff. Mr Pollak said he was carrying a radio, a baton, a security safety hat and a Glock 17 pistol which was well concealed within his jacket. Although there were two other security guards at the function who CSG used from time to time, namely Mr Lander and Mr Chait, they were not present in that capacity but as part of their paid employment with a stage and lighting company. 92Mr Pollak said he moved closer to listen to the conversation the plaintiff was having with the caterers and realised that the plaintiff was asking questions about the function. Mr Pollak said he attempted to ask the plaintiff some questions. He did not give evidence of what he asked the plaintiff or what he attempted or intended to ask the plaintiff. He said that he became aware that the plaintiff believed that the function was organised or attended by Jewish people, and that the plaintiff immediately started to become verbally aggressive as a result of which Mr Pollak asked him to leave. He said when the plaintiff refused, he radioed Mr Wilmot who arrived and took up a position behind the plaintiff. Mr Wilmot confirmed that he responded to Mr Pollak's call. He said that when he arrived he heard Mr Pollak tell the plaintiff to leave or he would call the police. Mr Narunsky described to be plaintiff in the following terms: ...163cm tall with white and grey shortish hair and a white and grey beard, unshaved. He was wearing a green cotton tracksuit and barefoot. He had a large "beer belly". He was of the Middle East/Mediterranean appearance. 93Mr Wilmot said that he then radioed through to Mr Narunsky to attend. Mr Narunsky confirmed that he responded to the call and that when he arrived Mr Pollak told him to call the police. 94Mr Narunsky said the plaintiff was very aggressive and that he was muttering in a language he thought was Arabic and that he also heard the word "Jew" used. Mr Pollak said that the plaintiff attempted to move past him and that he repeated the direction that he should leave. It was the common position of Mr Narunsky and Mr Pollak that while Mr Narunsky was placing a call to the police the plaintiff walked away (as if appearing to leave). As a result, Mr Pollak told Mr Narunsky to cancel the call. The plaintiff then walked towards the entrance to the function. Mr Wilmot described him as walking "slightly manically around the school". 95Mr Pollak said that he directed Mr Wilmot to the back door of the hall and Mr Narunsky to the front door. Mr Wilmot said that he was instructed by Mr Pollak to go into the hall and ask the function organiser to get the Principal of the school to come out and talk to the man because he claimed to know her. (Mr Pollak did not give this evidence. It is however consistent with the plaintiff's account of what was said between himself and Mr Pollak which, as I have noted, was not challenged.)

The plaintiff refuses to leave and approaches the hall 96It would appear that while Mr Wilmot went to find the Principal Mr Pollak followed the plaintiff notifying Mr Narunsky by radio that he may try and gain access through the front door. Mr Pollak said he followed the plaintiff up the stairs, where the plaintiff was met by Mr Narunsky who had positioned himself at the front door of the hall at Mr Pollak's direction, 97Mr Wilmot said that while he was ushering the Principal out of the venue (presumably in order that she might speak to the plaintiff) he heard another radio call requiring him to go immediately to the front door. 98Mr Narunsky said the plaintiff walked towards him and that he held his hand out denying him entry to the function. He said that the plaintiff continued coming towards him, "coming into my space" , and raising his voice. Mr Narunsky said that when Mr Pollak came up the stairs behind the plaintiff, the plaintiff turned and directed his attention at Mr Pollak. Mr Narunsky said that Mr Pollak "screamed at the plaintiff to leave" and "raised his baton". At this point Mr Pollak said he drew and extended his baton (for the first time), telling the plaintiff to back off. Neither Mr Narunsky nor Mr Wilmot gave evidence that they were armed or, if they were, that they raised their batons at any time. 99Mr Narunsky said that it was at that point that the plaintiff ran at Mr Pollak, pushing and kicking him and, in defence of Mr Pollak, he then pushed and kicked the plaintiff into a railing. He said Mr Pollak then dropped his baton, took hold of both of the plaintiff's arms and "took him to the ground". Mr Pollak said he took hold of the plaintiff's arms to restrain him and that he then "took him to the ground in my guard". 100Mr Wilmot gave evidence that when he got to the front door he joined Mr Pollak and Mr Narunsky in a semi-circle between the plaintiff and the entry door (apparently leaving the Principal to make her own way outside the hall if she did). The plaintiff was the only source of evidence that the Principal spoke with him, although police eventually spoke with the Principal according to the COPS entry. Mr Wilmot drew a diagram depicting the positions of the plaintiff, himself, Mr Pollak and Mr Narunsky which was attached to his handwritten statement prepared on the night. It is compelling evidence which contradicts the plaintiff's account that he did not encroach any distance on to the landing and that five security guards (brandishing batons) confronted him as he ascended the stairs. 101Mr Wilmot also gave evidence that the plaintiff became very aggressive and kicked Mr Pollak. This account was consistent with Mr Pollak's and Mr Narunsky's evidence that Mr Narunsky responded by kicking the plaintiff whereupon the plaintiff then turned to attack him. He said that it was at that point both Mr Narunsky and Mr Pollak grabbed the plaintiff and took him to the ground. Mr Wilmot assisted in restraining the plaintiff on the ground after which he applied the handcuffs to the plaintiff's wrists. 102In a statement dated 14 September 2001 Mr Chait said that he saw the plaintiff coming up the stairs "waving his arms and kicking". He gave evidence that the plaintiff was both physically and verbally aggressive and he was unable to see how any less force could have been used to detain him in the circumstances. 103In the incident report Mr Lander contributed to on the night, he said that he was alerted to the incident at the front door of the hall when he was radioed by Mr Chait. He arrived to see the plaintiff in a highly agitated state being told to "leave the area" and to "step back". He said he was told to go and get Mr Miller (the fourth defendant) who was a guest at the function. He said he went and found Mr Miller and they returned to the scene "within 20 seconds". He said that as they arrived Mr Wilmot ran past him (seemingly from within the function where he had gone to find the Principal). Mr Lander said that Mr Pollak had arrived by that time and that the situation had escalated with the plaintiff swinging his arms around and yelling. He said the plaintiff was highly aggressive and not listening to various directions for him to leave. Mr Lander said that he placed a call to 000 because he was not aware of the name of the local area command and wanted immediate police assistance. He said as he was being connected with 000 the plaintiff attempted to attack Mr Narunsky (who then responded by kicking the plaintiff) at which time the plaintiff was also trying to punch Mr Pollak. 104The incident report also records Mr Lander as saying: I advised the police after giving them details of our location that a man had become violent with security on site and had attacked them and they were in the process of securing him and needed police assistance. They got the location again as it was confusing to them where we actually were and how to enter the area of the school and said they were despatching cars. At this moment the man was being secured and searched by security. The team then began to [re-secure] the area and I heard sirens of approaching cars. This is also compelling evidence contradicting the plaintiff's account in material respects. 105Mr Pollak said that when he was on the ground, the plaintiff became immediately co-operative and said he would leave if he were released from restraint. Mr Pollak told him that the police were on their way and that he preferred to wait for them to arrive. He said he then sat the plaintiff up and waited for the police to arrive. Mr Pollak asked him if the plaintiff was "okay" and checked him for any signs of injury. He gave no evidence and was asked no questions as to whether he observed any injuries. In his witness statement he said: I have no doubt that I acted in accordance with my training on the night. I thought that Mr Rouvinetis presented a risk of harm to the attendees at the function because I considered that he was aggressive and that he was trying to get into the function. That is why I stopped him from entering. I only used physical force after he assaulted me. At this point I felt threatened by his verbal and physical assault. I consider that I did not use excessive force in holding Mr Rouvinetis on the ground and when detaining Mr Rouvinetis until Police arrived. I used the minimum force necessary to stop him continuing to assault me and the other guards.

The evidence of the police 106Constable Kuljanin gave evidence that he arrived at the scene at about 8:45pm and that at that time the handcuffs were removed from the plaintiff's wrists and he was lifted from a sitting position to his feet. He then set about interviewing various people in order to all gain an understanding as to what it occurred. This was consistent with the COPS record, tendered by the plaintiff, which also records that the incident was first reported at 8:40 when the 000 call was logged as "necessitating action". 107The other police officers called by the plaintiff gave no relevant evidence. In particular, Constable Dahar gave evidence that although she was on duty on the evening with Constable Burley, and that their calls signs appeared on COPS entry, she had no memory of attending the incident and had no recollection of seeing the plaintiff at any time in April 2008. (This contradicted the plaintiff's evidence that she raised him from his position face down on the ground.) Constable Burley gave similar evidence. He identified officers Kuljanin and Grey as the car crew that attended the incident. Constable Grey did not give evidence. 108Constable Kuljanin denied that the incident at the school was the subject of two incident reports such as might have explained the officer recording receipt of a broadcast radio message at 9.15pm in the narrative of the entry that followed the electronic recording of various call times. The inconsistency in the COPS record was explained by the police officer who said that he appointed 9.15pm as the time when the incident was noted in his notebook, but 8.45pm as the time he actually arrived on the scene. He also gave evidence that officers Burley and Dahal had driven past the school at some point but that he had signalled to them that the matter was under control and they did need not attend. 109The independent observations of the police officer of the condition of the plaintiff upon arrival are as follows (the plaintiff is identified as "POI" and Mr Pollak as "VIC"): The POI breath nor clothing smelt [sic] of intoxicating liquor at the time police spoke with him however he constantly spoke over police and did not want to listen. Police did observe a red mark, bruising and a minor graze of the POI's forehead from the struggle, the VIC restrained the POI to the ground. Police also saw minor red marks on the POI's wrists from the handcuffs the VIC applied on the POI. ... Shortly after police spoke with the Principal of the Sydney Girls High School, Dr Margaret Varady, who informed police that she sees the POI around the school from time to time. From the school perspective, Dr Varady told police, she wishes that no formal action be taken against the POI. Police again explained the situation to the POI who wasn't cooperative and did not wish to listen to what police had to say. The POI, in accordance to section 197 of Law Enforcement (Powers and Responsibilities) Act 2002, was given an official police move along direction. 110The following information was provided by Mr Pollak: VIC told police that the POI walked into the Sydney Girls High School from Anzac Parade, Moore Park and was seen walking towards the private function being held. The function that was being held in the gymnasium included very important Jewish community leaders and Ministers. VIC approached the POI in the rear car park of the Sydney Girls high School and explained to the POI that there was an important function and that he has to leave the vicinity of the school as he is trespassing on Department of Education grounds. Following the short conversation with the VIC, the POI's mood had changed, he was staring at the VIC, his fists were closed, he was moving his arms side to side and he commenced to shout. POI paced past the VIC towards a door of the gymnasium. POI attempted to open the door to the gymnasium and gain entry to the private function that was being held. VIC told the POI to, "Stop". However the POI continued to attempt to completely open the rear door to gymnasium. Consequently the POI turned around and pushed the VIC, following by attempting to kick the VIC. The VIC felt in fear for his safety and at the same time undertaking his duties as a security guard used reasonable force to stop the POI from entering the function; restrained the POI to the ground and placed him in handcuffs. POI became even more aggressive, swearing and yelling at the VIC. A security guard working at the same location, called "000", requiring police assistance. Police arrived shortly after.

Resolving the factual disputes 111There are significant differences between the plaintiff's evidence and the accounts of the witnesses called on behalf of Paliguard as to what happened when Mr Pollak initially confronted the plaintiff and what happened on the landing. However, for the reasons which follow, not every dispute raised by the evidence bears upon whether the plaintiff has proved breach of Paliguard's duty of care (as pleaded) or the other intentional torts allegedly committed by the security guards such as to found his claim in damages.

The initial confrontation 112I am satisfied that the plaintiff was initially confronted by Mr Pollak and that he was alone at that time. The plaintiff's evidence that there were "two men in black" who confronted him may simply have been as a result Mr Wilmot responding quickly to Mr Pollak's radio call. However, since the plaintiff was not cross-examined to contradict his version of what was said to him at the time of the first confrontation and given that Mr Narunsky was dispatched to find the Principal I accept his evidence at least in so far as what was said to him and what he said in response. 113It follows that he was not informed by Mr Pollak at that time, and I am satisfied not at any later time, about the type of function that was being held in the school hall, namely a formal dinner of invited guests convened with the authority of the Principal, or that his authority to exclude the plaintiff from the premises was with the express approval of the Principal. It is also material to what happened thereafter that, at least so far as the evidence before me is concerned, that neither Mr Pollak nor any of the security personnel assigned to the function by Paliguard pursuant to the arrangement it had with the NSWJBD to provide security, wore clothing that designated them as security officers, whether that be the CSG insignia, or by having the word "Security" displayed prominently on their clothing. In addition, apparently none of them made any claim to be security officers. I am unable to come to any firm view as to whether the plaintiff in fact spoke with the caterers and learnt from them that it was a dinner convened by the Jewish community, or as Mr Pollak claimed, that he regarded the plaintiff as reacting negatively to that information. The plaintiff's political views (such as I am able to understand them) do not bear relevantly upon the issues it is necessary for me to decide in order to resolve the ultimate issue of the plaintiff's liability in damages. 114The fact that another member of the public passing through the school grounds on the evening of 9 April 2008, perhaps taking a shortcut between Anzac parade and the adjoining playing fields en route to South Dowling Street or intent upon some other entirely innocent transit through the open school gates, might have been persuaded to comply with a direction to leave because a private function was in progress (even if delivered in the manner Mr Pollak adopted) is not to the point. On the other hand, even accepting that Mr Pollak spoke curtly or even dismissively because he believed the plaintiff was a homeless person or someone asking for food and therefore not deserving of an explanation, is not to the point. Equally, it is not to the point that the plaintiff might have reacted adversely to learning the school was being used for a community event or that he resolved in his own mind to test the bona fides of Mr Pollak and then Mr Wilmot and Mr Narunsky because of some misplaced sense of public spirit to determine whether they were intruders who should be evicted. That said, the confrontation between the plaintiff and Mr Pollak (with each taking an intransigent position viz the other, although for different reasons) appears to have set the tone for what was to follow. Mr Pollak spoke to the plaintiff in manner which was not only failed to make clear the source of his authority to provide security for the function but which, in the particular circumstances, served to aggravate and not defuse what was described in the course of final submissions by the plaintiff as "the fateful confrontation". 115Even if the evidence supported a finding that by telling the plaintiff to "Go" or to "Get Out" Mr Pollak spoke offensively or even aggressively (a matter I am not able to resolve on the evidence) this does not of itself ground an action in damages for assault however discourteous or ill mannered it may have appeared to the plaintiff . Even accepting, for the sake of the analysis, that Mr Pollack was armed with a baton and that he was waving it above his head when he told the plaintiff to leave such that he might fairly be described as behaving "with a threatening demeanour" (as the plaintiff said in his evidence) the plaintiff did not give evidence that he feared he would be struck if he did not comply with Mr Pollak's direction. This is a necessary element to ground liability for a civil assault which is recognised in the way the assault was particularised. Although the plaintiff said he felt "bamboozled and surprised" by Mr Pollak's attitude, he said he stood his ground, countered the direction to leave by polite defiance and pressed on into the school grounds. On the plaintiff's own case the second defendant's liability for assault in the first encounter with the security guards is not made out. 116The words used by Mr Pollak at that time (or even later when on Mr Narunsky's evidence he was heard to scream at the plaintiff to "Back off") have even less relevance to the plaintiff's claim for damages in negligence. The plaintiff did not seek to amend his pleaded case that the failure on the part of security officers to speak to him in a courteous manner was a breach of the duty of care they owed him such as to entitle him to an award of damages. Irrespective of what I accept was his wounded dignity at being spoken to dismissively, and irrespective of whether his feelings of rage, humiliation, anger and frustration are genuine or exaggerated, Paliguard's officers did not owe the plaintiff a duty of politeness. Paliguard owed no duty of care to ensure its security staff spoke to the plaintiff in any particular way and, even if they spoke rudely or behaved rudely, that is not compensable in damages. For the same reason, no claim for damages in negligence is available for the asserted failure on the part of any of the security personnel to answer what the plaintiff claims was his reasonable request for information about the use to which the school was being put, despite the fact that I am satisfied no information was volunteered by any of the security guards at any time. 117While the initial confrontation does not sustain a claim for assault or in negligence, because questions of reliability and credibility as to what happened in the physical confrontation on the landing are raised in the evidence, even those factual disputes that do not bear directly upon the proof of the remaining causes of action pleaded may be relevant to the question whether the plaintiff has discharged the onus of proving that his version of events as to what occurred before he was eventually physically restrained and detained against his will is the more probable. 118The police officers the plaintiff called as witnesses in his case did not support his claim that he was restrained (in handcuffs) face down on the ground and under the physical restraint for 25 minutes or that he suffered significant injury. In fact, their evidence contradicts his version in every material respect. So far as the COPS report is concerned, the police narrative supports the case against him in that Constable Kuljanin reported his observations that the plaintiff was resistant to reason and uncooperative. On the other hand the account Mr Pollak gave to police does not accord with his evidence in the proceedings or in the incident report. In particular, he did say that when he first spoke to the plaintiff he explained that there was an important function in progress and that it was necessary that he leave the school as he was trespassing on Department of Education grounds. In addition, he did not give evidence (and the other witnesses did not give evidence) that the plaintiff actually attempted to open the door to the hall and/or that force was used to prevent him from succeeding in opening the door and entering the function. These are not simply irrelevant matters of detail. They are suggestive of Mr Pollak overstating the plaintiff's conduct and justifying his own. Mr Pollak was not asked to explain the inconsistencies between what he told police and his evidence and no submissions were directed to the issue. 119I am conscious that the plaintiff was unrepresented in the proceedings. Although his evidence challenges most (if not all) of the evidence led against him as to how he behaved on the landing, in determining whether he has discharged the onus of proof in what remains of his claim for damages, I do not propose to take into account the fact that he did not test the defendant's evidence in cross-examination or direct submissions as to why I should reject it as false. 120That said, in addition to other concerns I have about the reliability of the plaintiff's account that he was at all times mannered and polite and did not raise his voice, I am quite unable to accept his evidence that he was held face down on the ground for 25 minutes (or anything approximating that length of time) or that it was only when the police arrived that he was lifted to his feet. The evidence of the security personnel is that the plaintiff was restrained on the ground only long enough to enable the handcuffs to be applied and that he was then lifted and sat on the ground under Mr Pollak's control to await the arrival of police. Constable Kuljanin's evidence was that the plaintiff was in that position when he arrived. I accept his evidence. In addition, there is no reason to doubt the accuracy of the COPS record as to when the 000 call was received, or Mr Lander's evidence that he placed the call at a time when the confrontation on the landing was escalating and because the plaintiff was the aggressor. Accepting, as I do, Constable Kuljanin's explanation for recording 9:15 as the arrival time in the COPS record and that he actually arrived at 8.45, it follows that the plaintiff could not have been handcuffed under Mr Pollak's control (whether face down or sitting up) for more than three or four minutes before the police arrived. I am unable to accept the plaintiff's evidence to the contrary. It is not necessary for me to make a finding as to whether his evidence was deliberately false or exaggerated or whether his estimate of time was honest but simply wrong. 121There is no claim that the plaintiff was falsely imprisoned by police. Accordingly, what remains to be determined is whether the restraint for three or four minutes by Mr Pollak was unlawful or whether it (and the force used to effect it) was a reasonable response to the plaintiff's escalating level of aggression accompanying his repeated refusal to leave the premises. The plaintiff's claim for damages for assault and battery will also involve a consideration of whether reasonable force was used and/or whether it was used in self-defence or defence of others.

The confrontation on the landing 122If I accept the plaintiff's evidence that when he arrived at the top of the landing on approach to the entry door to the hall, and without any intention to make his way into the function, he was immediately set upon by the security personnel and taken to the ground Paliguard's liability for false imprisonment, assault and battery is made out. If, on the other hand, I do not accept that evidence (in the sense that I am not persuaded that it is a truthful account) then, assuming I find that the three security guards and Mr Chait and Mr Lander have each given an honest account of the plaintiff's escalating levels of aggression after arriving on the landing and that the force used in taking the plaintiff to the ground was reasonable in those circumstances, the plaintiff's claim must fail. 123Despite the concerns I have expressed regarding Mr Pollak's evidence, I am not satisfied that they operate to undermine the reliability of his account as to what happened on the landing, and the explanation he has given for why he ultimately determined that it was necessary to physically restrain the plaintiff and to detain him until the arrival of police. Not only is his account supported by the evidence of the other security guards (in particular the evidence of Mr Wilmot and the detailed handwritten statement and drawing he made on the night) there is, as I have already observed, no basis for my concluding that the detail in the incident report (also supportive of Mr Pollak's version of events) was prepared after discussion between the witnesses, much less motivated by a collaborative approach to preparing a false account. For these reasons, I am unable to accept the plaintiff's evidence that he did not raise his voice or use physical force in any way. 124However impulsive and misdirected his pushing, kicking and punching might have been, and irrespective of whether it was as a result of frustration or rage when his request for information was summarily dismissed or ignored, I am satisfied that Mr Pollak (and Mr Narunsky) were entitled to restrain him, and that they used reasonable force to effect that restraint and maintain it until police arrived, not only for their own protection but to defuse the situation and prevent the risk of harm to the plaintiff. His injuries are not inconsistent with the application of reasonable force. 125Accordingly, Paliguard is entitled to a verdict in its favour, the plaintiff having failed to prove liability for false imprisonment, assault or battery.

Orders 1261. Verdict for the first and third to 23rd defendants. 2. Verdict for the second defendant. 3. The plaintiff is to pay the defendants' costs on an indemnity basis as and from 16 May 2011. 4. The plaintiff is to pay the balance of the defendants' costs on the ordinary basis as assessed or agreed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2011