District Court New South Wales Medium Neutral Citation: Baranov v Morton [2020] NSWDC 384 Hearing dates: 13-15 May 2020 Date of orders: 19 May 2020 Decision date: 18 May 2020 Jurisdiction: Civil Before: Neilson DCJ Decision: Verdict and judgment for the plaintiff against the defendant for $95,916. Catchwords: TORTS – FALSE IMPRISONMENT. P arrested on two occasions, 7 January 2016 and 8 March 2016, on complaints made by D to police, which complaints were false. Whether D liable for the imprisonments. Whether D active in promoting and causing the arrests of P. DAMAGES – Costs of defending charges laid by police not natural and probable consequence of the false imprisonments. Costs incurred in goading police to charge and prosecute D not natural and probable consequence of the false imprisonments. Claim for aggravated compensatory damages not pleaded or particularised. Claim for exemplary damages not particularised. Neither aggravated nor exemplary damages awarded. Legislation Cited: Crimes Act 1900 Migration Act 1958 Passenger Transport Regulation 2007 Cases Cited: Aitken v Bedwell (1827) 173 ER 1084 Lassanah v State of NSW (No 3) [2010] NSWDC 241 Myers Ltd v Soo [1991] 2 VR 597 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 Ruddock et ors v Taylor [2005] HCA 48; (2005) 222 CLR 612 State of NSW v Cuthbertson [2018] NSWCA 320 State of NSW v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353 Williams v Spautz (1992) 174 CLR 509 Texts Cited: Trinidade et al., Law of Torts in Australia, Oxford University Press, 4th Ed. (2007) Category: Principal judgment Parties: Plaintiff – Edward Baranov Defendant – Anastasia Morton Representation: Plaintiff – R. Chen (Counsel) T. Stack (SS Lawyers) Defendant – In person File Number(s): 2019/00318642 Publication restriction: Nil. Judgment 1. HIS HONOUR: As I approach the 26th anniversary of my appointment to the Bench, I must observe that this is perhaps the most painfully contentious matter that I have been called upon to determine. The case has been marked by antagonism and bitterness between the plaintiff and the defendant, and the desire of each to denigrate the other. It has also been complicated by the fact that the defendant is unrepresented. Whether the defendant can be liable for imprisonment by the police 1. The plaintiff's causes of action are in the tort of false imprisonment. The plaintiff was imprisoned on 7 January 2016 and also on 8 March 2016 as a result of complaints made by the defendant to the NSW Police. The actual detention of the plaintiff was by the NSW Police, not the defendant. It is accordingly necessary to consider how the defendant might be liable to the plaintiff for the two false imprisonments alleged. 2. This takes me to the course of the litigation in Taylor v Ruddock. Graham Ernest Taylor was born in the United Kingdom in 1956. He came to Australia with his family in 1966 at the age of nine. He had never applied under the Australian Citizenship Act 1948 to become an Australian citizen, but was granted a permanent transitional visa on 1 September 1994. In 1996, he pleaded guilty to eight sexual offences against children under the Crimes Act 1900 and was sentenced to a term of imprisonment. Section 501(2) of the Migration Act 1958 authorised the Minister for Immigration and Multicultural Affairs to cancel a visa granted to a person if the Minister reasonably suspected that the person did not pass the "character test" referred to in s 501(6) of the Migration Act 1958. Section 501(6) provided that a person did not pass the character test if that person had a substantial criminal record. Section 501(7) provided that a person had a substantial criminal record if sentenced to a term of imprisonment of 12 months or more. 3. On 1 September 1999, the Minister for Immigration and Multicultural Affairs purported to cancel Taylor's visa under s 501(2). He was then arrested by an officer of the Department of Immigration and Multicultural Affairs and detained for 161 days. The purported cancellation of the visa was quashed by order of Callinan J, made by consent, in April 2000. Subsequently, on 30 June 2000, the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs purported to cancel Taylor's visa again. Taylor was again arrested by an officer of the Department of Immigration and Multicultural Affairs and detained for 155 days. On 7 December 2000, the second purported visa cancellation was quashed by order of the High Court of Australia: Re Patterson; Ex parte Taylor (2001) 207 CLR 391. 4. Taylor then commenced proceedings for false imprisonment in this Court against the Minister and the Parliamentary Secretary and the Commonwealth, but not his arresting officers. Murrell DCJ (as her Honour then was) gave judgment for Taylor and awarded $116,000 in damages. There was an appeal to the Court of Appeal: Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269. Commencing at [29], Spigelman CJ said: "29. In Myers Stores Limited v Soo [1991] 2 VR 597 at 629, referred to with approval in Spautz v Butterworth (1996) 41 NSWLR 1 (at 26) and Cubillo v The Commonwealth (2001) 112 FCR 455 at 519, McDonald J said: 'To be liable for false imprisonment, it must be the act of the defendant or his agent that imprisons the plaintiff, or the defendant must be active in promoting and causing the imprisonment: Aitken v Bedwell (1827) 173 ER 1084; Warner v Riddiford (1858) 140 ER 105 and Halsbury, 4th ed, vol 46, paras 1326, 1327. The act of imprisoning a person either personally or by an agent or being active in promoting and causing the imprisonment thereby is the proximate cause of the imprisonment and is distinguished from the mere giving of information to the police officer or the mere signing of a charge sheet.' 30. The terminology of 'proximate cause' is sometimes used in other areas of the law, for example insurance, to mean the 'dominant' or 'effective' or 'direct' cause. (See, for example, Halsbury's Laws of England, 4th ed, vol 25, par 175.) The applicable terminology with respect to the tort of false imprisonment is 'direct cause'. (The Australian texts are unanimous on the need for directness....). There must be 'direct violation of the protection which the law throws around the person' (Williams v Milotin (1957) 97 CLR 465 at 474). 31. In Aitken v Bedwell...which McDonald J applied in Myer Stores Ltd v Soo, a captain of a merchant ship in a foreign port had a seaman flogged and imprisoned by the port authorities. Lord Tenterden CJ's full charge to the jury was (at 68): 'The plaintiff contends that what was done on shore was the act of the captain, the defendant says it was the act of the Russian authorities only. The question for you is, Whether the punishment inflicted on shore was done by the constituted authorities, or on the mere complaint of the defendant, or whether the defendant was the actor and immediate promoter of it? If you think the defendant merely preferred his complaint and left the constituted authorities to act as they thought fit, the defendant is entitled to your verdict; if, on the other hand, you think that he did more and was active in promoting and causing the punishment to be inflicted, then he is answerable in this form of action'. (Emphasis added) 32. The italicised words indicate that the Lord Chief Justice's concluding reference to 'promoting and causing' should be understood in terms of whether the trespass by way of battery and imprisonment was, as a matter of substance, the act of the captain. In Myers Stores v Soo, O'Bryan J (at 616), referred to the formulation 'actor and immediate promoter' from Aitken v Bedwell and posed the issue in terms of whether 'an act of [the instigator] caused the unlawful imprisonment'. In the event his Honour concluded that on the facts of that case the instigator participated with certain police officers in 'a common design to detain' the plaintiff. 33. It is not the case that an act indicating a wish or expectation that another should be imprisoned establishes liability for the tort. There will be such liability if the person who ultimately confines the plaintiff would not have acted at all but for the urging on the part of the other. (See, for example, Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 at 595-596;...Pike v Waldrum and P&O Steam Navigation Co [1951] 1 Lloyd's Rep 431 at 454-455.) It is otherwise if the ultimate actor exercises an independent discretion. (See, for example, Davidson v Chief Constable of North Wales [1994] 2 All ER 597.) See generally Clerk & Lindsell on Torts, 17th ed, (1995) London, Sweet & Maxwell, pars [12-23] to [12-32]. On the distinction between direct and consequential injury, see Hutchins v Maughan [1947] VLR 131 at 133; Platt v Nutt (1988) 12 NSWLR 231 at 244-246. 34. The element of directness - the sufficiency of the nexus between the defendant's act and the imprisonment - is satisfied, in the present case. The detention was, as her Honour found, 'an inevitable consequence'. The issue is whether the element of intention has been satisfied. 35. In this line of case law, the person who instigated the sequence of events which culminates in an imprisonment, has generally actively sought that result. In that way, the person manifested an intention that there be an imprisonment. In the present case, her Honour's finding that detention was the 'inevitable consequence' of the Ministerial decision - or at least its 'communication' to the relevant officer - does not encompass a finding that the Minister intended the particular result of imprisonment. 36. The tort of trespass requires a wilful or negligent act. (Stanley v Powell [1891] 1 QB 86; Williams v Milotin (at 474); McHale v Watson (1964) 111 CLR 384 at 388.) The relevant intention for false imprisonment is the intention to detain. (Cowell v Corrective Services Commission (1988) 13 NSWLR 714 at 743E.) 37. There can be no doubt that each Minister had an intention that the respondent be removed from Australia. That was the very point of the decision to cancel the visa and whether or not that should occur was the substance of the departmental paper before each Minister. Detention was an inevitable step brought about by the self-executing operation of the statute, of which the Ministers must have been aware. 38. American case law has developed a 'doctrine of substantial certainty' to the effect that knowledge of a high level of certainty is sufficient to amount to intent for the purposes of the tort of trespass....In the present case the question of degree that may arise in applying a doctrine of substantial certainty are not present. Here, the detention was certain. 39. The position is similar to the well-known case (Scott v Shepherd (1773) 96 ER 525) where a person threw a lighted squib into a market, where it was tossed from one stall to another in an automatic reflex action by two stallholders, Messrs Willis and Ryal. The leading judgment said (at 894; 526): 'That the natural and probable consequence of the act done by the defendant was injury to somebody and therefore the act was illegal at common law...Being therefore unlawful, the defendant was liable to answer for the consequences, be the injury mediate or immediate...I do not think it necessary, to maintain trespass, that the defendant should personally touch the plaintiff; if he does it by a mean it is sufficient...He is the person who, in the present case, gave the mischievous faculty to the squib. That mischievous faculty remained in it till the explosion. No new power of doing mischief was communicated to it by Willis or Ryal.' 40. In the present case the 'mischievous quality' of the cancellation of the visa was supplied by the Minister. 'No new power of doing mischief was communicated' by the departmental officers. The equivalent of the reflex reaction from the stallholders is the automatic operation of the legislative regime. For the purpose of the law of trespass, each Minister must be taken to have intended that the respondent be detained." 1. The appeal to the Court of Appeal was dismissed. The defendants appealed to the High Court of Australia: Ruddock and Others v Taylor [2005] HCA 48; (2005) 222 CLR 612. The appeal was successful. The plurality did not disagree with what was said in the Court of Appeal concerning the tort of false imprisonment, but because of a distinction which is not relevant in this case. That distinction is this; taken from the judgment of the plurality (Gleeson CJ, Gummow, Hayne and Heydon JJ): "24. The third step in the respondent's argument was that because the decision to cancel the visa pursuant to s 501 was unlawful, the detention was unlawful. This conflates two separate inquiries - one about the lawfulness of the decision to cancel; the other about the lawfulness of the detention. It treats the former inquiry as determinative of the latter. 25. The first inquiry, about the lawfulness of the decision to cancel the respondent's visa, turned upon identifying valid legislative power to do so, and upon whether that power had been lawfully exercised. That directed attention, principally, to s 501 of the Act. By contrast, the lawfulness of the respondent's detention turned upon whether there was statutory or other authority to detain him. That required consideration of s 189. 26. It may be accepted that in so far as s 189 required, and thus authorised, the detention of those who are unlawful non-citizens, a want of power to cancel a visa, or a failure in the lawful exercise of that power, would lead to the quashing of the decision to cancel. It would then be apparent that the person was not an unlawful non citizen and not within that aspect of the operation of s 189. 27. But that does not exhaust the operation of s 189. Section 189 is directed not only to cases where an officer knows that a person is an unlawful non-citizen, it extends to cases where the officer reasonably suspects that a person has that status. It follows that demonstrating that a person is not an unlawful non-citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers." In the same case, Kirby J (dissenting) said this: "152. Similar conclusions are also demonstrated by the long line of 'police informant' cases. These concern the circumstances in which a person, who gives information to police that leads to a wrongful arrest, will be liable to the person falsely imprisoned for false imprisonment...The liability of the informant remains open although the police officers concerned may be immune from liability under statutory provisions authorising them to arrest persons on the basis of reasonable suspicion. 153. A clear example of this differentiation is Davidson v Chief Constable of North Wales...The plaintiff in that case was arrested by police on suspicion of theft after police received information from a store 'detective'. The plaintiff had not committed any offence. She subsequently brought an action for false imprisonment against the police and the employers of the store detective. The English Court of Appeal held that the police involved in the arrest and imprisonment were not liable. They were protected by s 24(6) of the Police and Criminal Evidence Act 1984 (UK)...However, the Court considered separately the liability of the store detective. The outcome ultimately turned on factual questions concerning causation. However, the Court of Appeal was not in doubt that it was necessary to consider the distinct liability of those who initiated the steps leading to imprisonment and those who effected it. This approach is obviously correct in principle. The submission of the appellants, that there is a general principle of law that whoever causes imprisonment cannot be liable if the conduct of the detaining officer is authorised by statute, must be rejected as inconsistent with authority and legal principle." 1. These authorities were considered by my colleague Gibson DCJ in Lassanah v State of New South Wales (No 3) [2010] NSWDC 241, although her Honour mistakenly attributed to McHugh J what in fact fell from Kirby J in the High Court. Accordingly, there are circumstances in which although the arrest may be effected by the NSW Police who then detain the plaintiff, the person who laid the information with the police might be liable if the defendant was the actor and immediate promoter of the detention. That is how the plaintiff brings these proceedings. LUNCHEON ADJOURNMENT Background 1. To understand the nature of these proceedings it is necessary to consider matters antecedent to the arrest of the plaintiff on 7 January 2016. In exhibit D, an affidavit sworn by the plaintiff on 12 November 2019, the plaintiff said this: "5 I first met the defendant in 2011. At the time the defendant was married to Graham Morton. Shortly after I met the defendant, she said to me words to the effect, 'I married Graham [Morton] to obtain Australian citizenship.' 6 In about 2011 the defendant divorced Graham Morton. 7 During 2011 and 2012, the defendant made allegations against Graham Morton alleging that he sexually harassed her. To the best of my knowledge, Graham Morton was not convicted." The defendant disagreed with some of that evidence. The disagreements were of no great significance. She thought that the divorce from Mr Morton may have been later than 2011. She was also unsure as to whether the allegation of harassment that she made against Mr Morton was of sexual harassment as distinct to other forms of harassment. 1. The relationship of the plaintiff to the defendant was sexual in nature. In her affidavit, the defendant described herself as being in a "de facto relationship" with the plaintiff but it is in fact common ground that the plaintiff and the defendant never lived together. The term "de facto relationship" means a marriage de facto not a marriage de jure. Marriage is a state in which a man and a woman, until relatively recent times, lived together as man and wife, A de facto marriage is one in which the parties to the relationship behave as if they are married but they are not legally married. I assume that the defendant wished me to understand the words "de facto relationship" as meaning a sexual relationship. In short, blunt, and perhaps dated terms, the defendant was the plaintiff's mistress or paramour. 2. They have a son. That child was born on 10 October 2014. His name is Benjamin Baranov. He has resided at all times with his mother. The defendant went overseas on 5 August 2015. She took Benjamin with her. She returned to her native Russia. She returned to Australia on 22 October 2015. On her return to Australia the relationship between the plaintiff and the defendant ended in acrimonious circumstances. That acrimony continues to this time. There is currently a dispute between the parties as to the payment of maintenance by the plaintiff to the defendant for the benefit of Benjamin and as I understand there is also a dispute about residence of and access to Benjamin brought by the plaintiff against the defendant. I am told that the proceedings in the Family Court of Australia are listed for hearing on 1 June next. This Court is not concerned with the circumstances in which the relationship between the plaintiff and the defendant broke down other than to make the observation I have about the acrimonious nature of that breakdown. 3. One of the things complained of is that the defendant using a power of attorney granted to him by the defendant sold a motor vehicle which he had given to the defendant on the day after she left Australia and forwarded the proceeds of that sale, $6,000 to the defendant electronically. On her return to Australia she realised that her car had been sold and her possessions put into storage by the defendant. Antecedent to the defendant's going to Russia she and her child had been supported by the plaintiff who had provided not only living allowances for the defendant and Benjamin but also provided a car, and as I understand it, a place in which to live. Plaintiff arrested on 7 January 2016 1. On 6 January 2016, the defendant attended Redfern Police Station and was interviewed by Leading Senior Constable Tim Giblett. A copy of the relevant part of the Leading Senior Constable's notebook is before me. It contains a statement made by the defendant to the police. At the time the defendant was living with Benjamin in a building in Potter Street, Waterloo. The statement which she made to the leading senior constable is this: "This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true. I am 32 years of age. 2 [sic] I was in a domestic relationship with Edward Baranov for four years starting in February 2011 and I ended the relationship in October 2015. 3 As a result of the relationship we had a little boy, Benjamin Baranov who is now 14 months old. 4 On Monday 4 January 2016 I drove to Kogarah Shopping Centre with my son Benjamin and with my mother Marina. The car I was using Edward had lent to me. 5 While inside the shopping centre we dropped Benjamin at day care and walked around the shops. At 11am I received a message from Edward saying, 'My guys took the car, you don't have it any more'. I can only assume he knew I was there because he used the Find my iPhone after and called Edward straightaway and asked him why he took the car. 6 I met up with Edward in the food court and he said, 'I can do whatever I want. I gave you the car.' I was very upset and was crying. After the conversation Edward agreed to take us home to Waterloo. He took us home and we continued to shout at each other. 7 He was repeating to me that I would not be receiving money for our son. 8 On Tuesday, 5 January 2016 at 12pm I received a phone call from Edward about Benjamin. I told Edward I didn't want money for Benjamin. I just want a car to help drive Benjamin around. Edward then said to me that he will give me money to support me and Benjamin if I start to sleep with him whenever he wants. 9 I refused this because I don't want to do it and he is also seeing another woman. The phone conversation then ended. About 5pm I sent Edward a message to ask if he can get me a car. He responded that he will pick one up and bring it over at 7.30pm. 10 Edward arrived at my home in Waterloo around 8.20pm. When Edward arrived I walked downstairs. I was holding Benjamin and my mother came down too holding the baby seat to put in the car. Edward had parked next to my building. I walked up to him holding Benjamin and I asked Edward to help us install the baby seat in the car, Edward agreed and began installing the car seat. 11 Edward began asking me if I was going to sleep with him for money. I didn't reply to him. When he finished installing the car seat I said, 'Thank you goodbye'. I began to walk back to my building holding Benjamin. While I was walking away I could hear Edward yelling at me to stop. I think I was about 5 metres away from Edward when I suddenly felt someone push me from behind. I immediately fell to the ground holding Benjamin. Benjamin's head hit the ground. I grazed my knees. I was trying to get Benjamin back into my arms to comfort him as he was crying. Edward then disappeared without saying anything or trying to help us. 12. We all walked back inside to the unit and I tried to calm Benjamin down I was so scared he would return and assault me again. I gave Benjamin some Panadol and he calmed down. He woke up about four times throughout the night and I could see Benjamin's left eye start bleeding and became purple. 13 When we got up in the morning on Wednesday I could see Benjamin's eye was worse. I kept Benjamin at home and stayed with him all day. I attended Redfern Police Station at 5.45pm to report it. I am scared of Edward that he will assault me again and Benjamin. I am worried he will try and manipulate me with bribing me. I am scared he will keep getting angry with me. I give permission to police to take photos of injuries that happened to me and Benjamin." 1. There was a photograph taken of Benjamin by the police. A black and white copy, which is quite poor, of the child's photograph is contained on p 258 of the court book. It does not show, because of the poorness of the quality of the reproduction, the damage to Benjamin's eye but clearly it was shown in the original photograph otherwise the police would not have taken the photograph. The defendant also alleged that she had received injuries as is stated in the statement which I have quoted. 2. A number of the allegations made in this statement are false. The first two paragraphs of the statement of claim are these: "1 On 6 January 2016, the defendant made a false statement to the NSW Police at Redfern Police Station alleging that on 5 January 2016, the plaintiff assaulted the defendant and the defendant's son, Benjamin Baranov, born 10 November 2014 (the "Son") occasioning each of them actual bodily harm. 2 The statement referred to in para 1 above was known to the defendant at the time of making to be false (the "First False Statement")." Both those plaints are admitted in the defence. Any bruising or the like suffered by the defendant was not caused by the plaintiff. Any damage to the child's eye or orbital area was not caused by anything done by the plaintiff. The plaintiff did not push the defendant to the ground. Indeed, at the time of the interlude between the plaintiff and the defendant the defendant was not holding Benjamin. In fact, Benjamin was not present at all. The defendant was not accompanied by her mother at all. When the plaintiff went to the Redfern Police Station she was accompanied by her mother who also made a statement to the police which corroborated the statement which the defendant had made to the police. 1. The court book contains documents produced on subpoena by Meriton Property Services Pty Ltd which acted for another member of the Meriton Group, Karimbla Properties (No. 15) Pty Ltd. Inter alia the subpoena for production issued in criminal proceedings required the production of this: "A copy of all closed-circuit television (CCTV) footage; taken at, on, or of, the premises of Strata Plan 73082 at Waterloo in the Local Government Area of Sydney (Also known as the Coronet Apartments - Crown Square, Potter Street Waterloo, NSW 2017); between the hours of 7pm (1900 hours) and 10pm (2200 hours), on Tuesday 5 January 2016." The court book then contains still photographs taken from the closed circuit television. It shows the defendant carrying a child restraint seat towards a car in photographs timed 20:14:09 and 20:14:12 and the defendant returning from a garage into which she had walked at 20:52:46 holding not a child restraint seat but a shopping bag or bags timed at 20:52:46 and two dated 20:52:47. Again, they do not show Benjamin, they do not show the defendant's mother, they do not show the plaintiff behind the defendant nor do they show the plaintiff pushing the defendant over. 1. The allegations of assault by the plaintiff on the defendant and on their son are fabrications. They cannot be seen in any other light. These fabrications were not made in the heat of the moment. The interaction shown on the CCTV footage occurred between 8.30 and 9pm on 5 January 2016. The defendant did not go to Redfern Police Station until 5.45pm on the following day, an interlude of some 20 hours. During that time the defendant must have considered fabricating the story which she eventually gave to the police identifying something wrong with her body which she could identify to the police as a result of her being assaulted; identifying pathology in one of Benjamin's eyes or orbits which could be said to be the result of his being pushed to the ground with her; and of inducing her mother to accompany her to the police station to make a statement to the police corroborating hers, which statement was in itself false. 2. The defendant was pressed in cross-examination as to why she went to the police but more importantly what she wanted the police to do. In her native country the plaintiff was trained in the law. She told me in addresses that she was not a qualified lawyer. She is certainly not a qualified lawyer in New South Wales or I take it any other part of Australia and I am prepared to accept that she is probably not qualified to practise law in Russia. However, the fact that she had some training in the law is indicative of intelligence and insight and her ability with English is very good considering she appears to have been living in Australia only since 2011, or perhaps a little bit earlier than that. 3. Whatever the system of law might be that to which the defendant is used, most police agencies or authorities that perform a role similar to the police in this State have a power to arrest. They also have a power to investigate. In New South Wales, a member of the community is not required to answer questions directed to him or her by the police except in very limited circumstances. A person is not required to attend upon a police station unless he or she wishes to do so voluntarily. In some places and some countries police can arrest and detain a person merely to interrogate him or her. That is not the position in New South Wales. Police can arrest somebody only if they intend to charge a person and once arrested a person must be taken before a Court as soon as possible. In this State, a person can agree to be interviewed and such an interview can be recorded electronically. However, a person is not obliged to answer any question which might incriminate him or her and certainly a person is not obliged to give an interview to the police whether he or she is arrested or not. 4. When pressed about what she expected the police to do the defendant failed to answer the question satisfactorily. Indeed, she attempted to avoid answering the question at all. She said that she was very upset at the time. She wanted me to believe that she was still very upset about what happened on the evening of 5 January 2016, some 20 hours later. What appears to have occurred is that the plaintiff dropped off to the defendant a motor vehicle. The defendant said that she really did not know what the police would do but as I said she is an intelligent woman. The police would want to interrogate at least the plaintiff to obtain his version but considering that the defendant had made a signed statement to the police, that her mother had provided a signed statement to the police corroborating what she said, that the defendant had provided photographic evidence to the police of injuries suffered by Benjamin and made allegations to the police of injuries suffered by her, one could only expect, even if the allegations were denied by the plaintiff, that the police would arrest him and charge him. It was inevitable in the circumstances. 5. Importantly, by going to the police station some 20 hours after the event the defendant denied Leading Senior Constable Giblett the opportunity of himself making inquiries at the place where the alleged assaults were said to have occurred, seeing that there was closed-circuit television footage and seeking to have access to that closed-circuit television to see if there was any corroboration by that medium of the defendant's allegations. He also denied the police the opportunity of canvassing any persons in the residential building who may have been in the carport or nearby and who may have seen or heard the altercation alleged between the defendant and the plaintiff. 6. This makes the inevitability of the police doing what they did even more certain. To use the words of Lord Tenterden CJ's charge to the jury in Aitken v Bedwell the defendant was active in promoting and causing the arrest of the plaintiff. To use the dictum of McDonald J in Myers Stores Ltd v Soo the defendant was the actor and immediate promoter of the police action of arresting and detaining and charging the plaintiff. As I said, the actions of the defendant made the arrest and detention of the plaintiff inevitable. In my view, the defendant must be made liable for the unlawful detention of the plaintiff by the police. 7. The plaintiff's affidavit of 23 February 2020, exhibit A, contains this evidence: "6 On or about 7 January 2016 at about 1am, the police came to my house and knocked on my door. At that time, I was in bed with my wife sound asleep. I had my two children in the house sleeping in their separate rooms. 7 I woke up first, having heard a very loud sound from someone banging on the front door. My wife and children also woke up. I heard someone screaming words to the effect of: 'Police! Open the door!' 8 I went downstairs. My wife and children followed looking shocked. 9 I thought the door would be broken in by the police from the way they were banging on the door. 10 When I opened the door, the police asked my name and when I gave it, they arrested me in front of my family and took me away in a police caged vehicle to Maroubra Police Station. 11 The police gave me a warning, which I now cannot fully recall, to the effect that anything I said will be taken against me. Thereafter, Constable Timothy Giblett and I had a conversation in words to the following effect: I said: 'I have no idea what is going on. Why have I been arrested?' He said: 'We have a statement from Ms Morton that you assaulted her and your son causing them actual bodily harm.' I said: 'I don't know anything about that.' He said: 'Have you got a lawyer?' I said: 'No I don't.' He said: 'You can get legal advice if you like.'" 1. I accept that this conversation or something of a similar nature occurred but it was not with Leading Senior Constable Timothy Giblett. The arresting police were Constable Tiffany Janus and Constable Nicholas Bampton. Considering the sex of those officers it is likely that the conversation was with Constable Nicholas Bampton. 2. From the custody management records the following can be ascertained. The plaintiff was arrested at 1.20am on 7 January 2016. At 1.25am the arresting police started driving the plaintiff who was in the back of a police caged truck to Maroubra Police Station. Whilst the custody management records say that they arrived there at 1.30am there is a property docket signed at Maroubra Police Station at 1.27am. I assume therefore the plaintiff arrived at the Maroubra Police Station at 1.27am. A medical questionnaire was completed at 1.50am. At 1.51am the plaintiff was given something to drink. At 1.54am he was cautioned. At 1.55am he made a telephone call to a friend but that call was not answered. The friend is referred to as a "support person". At 1.57am the plaintiff made a telephone call to Bedy Redlich, a lawyer; that call was not answered. He made another call at 2am to Mr Darren Emery of Astute Legal and he left a message there. He completed another questionnaire at 2.06am. At 2.17am he was confined in cell number 1. At 2.25am he received a telephone call from Mr Darren Emery who no doubt gave the plaintiff certain legal advice. The plaintiff signed a bail undertaking at 3.55am. His being photographed and fingerprinted was completed at 3.58am as was the service of an interim ADVO (Apprehended Domestic Violence Order) and a "mini brief" of evidence. The court attendance notice was served at 3.59pm. I am therefore happy to accept that the plaintiff was arrested at about 1.20am and kept in custody until approximately 4am, period of two hours and 40 minutes. The plaintiff is charged 1. The plaintiff was charged with three offences. Unfortunately, none of the court attendance notices is before me. The first charge was of assault occasioning actual bodily harm contrary to the provisions of s 59(1) of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for five years. He was also charged with two offences of common assault, each of those offences is contrary to s 61 of the Crimes Act 1900, and carry a maximum penalty of two years' imprisonment. I assume - and it is a major assumption - that one of the charges of common assault was in the alternative to the charge of assault occasioning actual bodily harm, and since there was photographic evidence of the actual bodily harm alleged to have been done to Benjamin, it appears to me that the first charge of assault occasioning actual bodily harm was in respect of Benjamin rather than the defendant. The plaintiff was required to appear before the Local Court at Waverley on 14 January 2016. In [16] of his affidavit of 23 February 2020, the plaintiff recalled attending Waverley Court and entering a plea of not guilty to each charge. He could also recall that his case was then transferred to the Downing Centre Local Court here in Sydney. The matter was before Magistrate Grogin on 19 January 2016, when his Honour set the matter down for hearing on 4 May 2016. The matter was also before the Court on 22 January 2016 and 9 February 2016 for return of subpoenas. On 4 May 2016, the matter came on for hearing before Magistrate Skinner when the charges were withdrawn and dismissed. The application for an ADVO was also dismissed. 2. On 23 May 2016, the Local Court heard a costs application concerning subpoenas which had been issued, but material before me does not enable me to ascertain what happened on that day. As I understand it, there was an application for costs of the entire proceedings made on 4 May 2016, but that was dismissed. In proceedings in the criminal jurisdiction, costs do not follow the event, but if costs are sought against the Crown, the applicant for costs must do more than merely prove that the charges were ill founded. He must prove, in essence, that they were brought without proper justification. Here, the justification for bringing the charges was the statements of the defendant and her mother, and the photographic evidence of Benjamin's alleged injury. The second arrest 1. The second cause of action is alleged to have arisen on 8 March 2016. However, there was other interaction between the defendant and the police prior to that time. On 18 January 2016, the defendant attended Redfern Police Station again. She spoke to police at the front counter of the police station. The COPS event number E60140526 continues thus: "The victim [the defendant] stated to police that she was having issues with her ex-partner (above PN) [Edward Baranov] involving the sale of her vehicle [Lexus silver sedan COJ O3G]. The victim was of poor English speaking ability, however stated to police that the PN had purchased her the above vehicle as a gift. The PN had gone with the victim to get the car registration to be changed in her name. The victim had left her car at the PN's address when she went overseas to Russia [on 5 August 2015]. She returned from overseas [on 22 October 2015] the same year. The victim and the PN were still separated at this time, but were still in contact with each other. The PN informed the victim that he had sold the car while she had been overseas, however that he would give her a Mustang [sic, scil. Mazda] to drive instead. The victim had been suspicious as to this as she believed the vehicle was in her name, however has accepted the [Mazda] and has continued with this arrangement with the PN for some time. In late December, the victim has received a call from the PN who informed her that the [Mazda] was going to be out of registration soon. The victim has then decided she did not want to drive the Mazda anymore, and on 18 January 2016, has gone to the RTA to try and figure out how the PN managed to sell the vehicle. The RTA has allegedly informed the victim that the vehicle was sold in her name, although they did not show her any documents to that effect. The victim has then attended Redfern Police Station to report the incident." The police then advised the defendant that this was a civil matter rather than a criminal matter. 1. However, the defendant returned to Redfern Police Station on 21 January 2016 at 6pm and reported the Lexus motor vehicle as having been stolen. The COPS event number then says this: "Police asked why the victim was only just reporting it to police even though she's known it's been missing months ago. The victim said, 'I've been having issues with separation. I'm a single parent and didn't have the time to report it to police'". The defendant wanted the police to record the vehicle as having been stolen even though she now says she knew that the plaintiff had sold the vehicle to a work colleague of his. This appears to have been merely the defendant's seeking to further denigrate the plaintiff. 1. I go now to the events of 8 March 2016. Initially on that day, the defendant rang Redfern Police Station to make a complaint that the defendant had contacted her when he was prohibited from doing so by the interim ADVO. The defendant was advised by someone at Redfern Police Station that she needed to go to a police station to make a formal report. Later, the defendant attended the Bondi Police Station. The statement which she made to the police is exhibit 3. The statement bears date 8 March 2016. After reciting her age and her relationship with the plaintiff, the statement continues thus: "4. In January 2016, there was an incident between Edward and I, as a result of this there is now an Apprehended Domestic Violence Order in place. This became enforceable on 14 January 2016, I am the protected person in this order. I am aware that one of the conditions is that Edward is not allowed to contact me. 5. At about 12.37pm on Tuesday the eighth, I received a phone call from a private number, I missed this phone call. At 12.38pm I received another phone call from a private number. I answered this phone call. I said, 'Hello', and a male voice answered and said, 'Privet' which means 'hello' in Russian. I immediately recognised the male's voice to be my ex partner Edward's voice. Straightaway I said, 'Why are you calling me?' He started to speak. I heard him say, 'How's Benj', and I hung up the phone because I was scared and didn't want to talk to him. I did not receive any more phone calls after that. I know that Edward speaks fluent Russian; I know that it was his voice on the phone." There is a further paragraph of the statement. Besides mentioning matters that I have referred to earlier, it provides her then mobile telephone number which she said she had for three years at the time. 1. The plaintiff denies making any such telephone call. The question is whom should I believe? The plaintiff did make admissions contrary to his interest. His evidence was somewhat exasperating in that he took every opportunity to denigrate the defendant. For example, he volunteered at the end of one answer, unresponsively, that the defendant had been in receipt of social security benefits since her arrival in Australia despite the fact that she was working at times and receiving moneys from him to maintain her lifestyle and, for example, provided with accommodation and transportation, and living expenses by the defendant. However, he was otherwise candid and I am prepared to accept him. 2. The defendant, however, whilst making the most of her opportunity to denigrate the plaintiff, said things which were untrue or implausible, or merely unacceptable. I was discussing earlier her response to the question what she expected the police to do when she went to the Redfern Police Station and made her complaint on 6 January 2016. Whilst trying to avoid answering that question, she recited every vicissitude of life which has adversely affected her and which was allegedly weighing on her mind at the time she made the allegation at Redfern Police Station, which was false, and then decided that some tears ought accompany this exercise in firstly avoiding answering the question; secondly, exciting everyone's sympathy for her and attempting to throw the cross examiner off his line of inquiry. This was merely manipulative behaviour. 3. I am prepared to accept the plaintiff's denial that he made the phone calls alleged. True it is that the defendant put to the police at the time, and to me, some telephone records which show calls being made to her at 12.37pm and 12.38pm on Tuesday 8 March 2016, but there is no way of ascertaining from what telephone service the calls were made. Importantly, there was no evidence that they were made from any service available to the defendant. In making that finding, I have to bear in mind the fact that the defendant previously made allegations against the plaintiff which were patently false. Furthermore, the defendant wants me to believe that when the plaintiff said, "How's Benj?" that she felt scared and needed to hang up straightaway. There is evidence which indicates that prior to the dissolution of the ADVO on 4 May 2016, that there was contact between the plaintiff and the defendant which the defendant made no complaint about. 4. In her affidavit of 24 February 2020 which is exhibit 2, the third paragraph is this: "After our relationships were ended, Mr Baranov became abusive toward me. Annexed hereto and marked as 'B' (witness statement Svetlana Plashchik)". That is an affidavit sworn by Ms Plashchik before a justice of the peace on 22 February 2020. Ms Plashchick was required for cross examination. She gave evidence via audio visual link. She gave evidence that she was interviewed by the defendant who typed up her statement, and she later swore the affidavit which is annexed to the plaintiff's affidavit. The affidavit is dated, as I said, 22 February 2020. The statement is, however, in the form of an affidavit, but unsigned, and bears date 19 February 2020. Paragraph 3 of the affidavit of 22 February 2020 is this: "About end of May 2016 I had an appointment with my dentist, Dr M Levitt. That day, I arrived earlier than scheduled and wanted to have some tea with Dr Levitt's wife, Olga (we have been family friends since 2006)." Paragraph 3 of the typed but unsigned statement 19 February 2020 is this: "On or about 04/13/16 I had an appointment with my dentist, Dr M Levitt. That day, I arrived earlier than scheduled and wanted to have some tea with Dr Levitt's wife, Olga (we have been family friends since 2006)." When giving oral evidence, Ms Plashchik maintained that this event occurred not at the end of May 2016, but in April 2016, and that led to the discovery by the plaintiff's barrister of the statement of 19 February 2020 which the witness was using to refresh her memory. A copy of it was then sent to the Court and the statement of 19 February 2020 became exhibit M. 1. Ms Plashchik was adamant that the interaction which she recorded with the plaintiff and the defendant happened in April 2016. She initially thought it was 13 April 2016, but was not sure of the actual date in April, but she was adamant that it was in April. According to exhibit M, the following is the interaction that Ms Plashchik observed between the plaintiff and the defendant. "4. I came to the office and heard a very loud conversation; I knocked and opened the door. I saw Olga Levitt in the room with Edward Baranov and Anastasia Morton. The conversation was very tense. Edward was very aggressive, his face was red and he shouted at Anastasia. He was screaming [repeatedly] all the time: 'His is not my son!' 5. I apologised for opening the door, said hello and jokingly looked into Edward's eyes and said: 'Why are you talking like that? Please behave yourself properly, you are not at home' and laughed. Olga told me she is busy and she apologised that she is not able to give me some time now and if I can wait, I said 'Do not worry, I will wait'. Edward, with aggression, said: 'Yes, we are busy here, we need to deal with someone', and looked towards Anastasia. I said, 'Good luck', and I closed the door. 6. I sat down opposite this door, picked up my phone and decided to read. It was impossible to read, because the screams from the office were really loud. Anastasia cried and said, 'You promised that you would help me, I need your help, I don't have anyone in Australia', but Edward coldly answered, 'Yesterday I said that I would help, and today - I don't want to help, I have the rights and I will say whatever I want. While you were my mistress and Alla knew nothing, everything suited me, now she knows everything and demands that I should get rid of you!' 7. Anastasia cried and said 'I believed you, I signed general power of attorney to you as you asked, and you sold my car without my consent, threw all my belongings out from home. How can I live now?' Edward said, 'You'll do what I say, you will live, but if you will not do what I say, I will destroy you.' 8. Anastasia, all in tears, jumped out of the office, came around the corner in the corridor and was crying bitterly..." 1. There is more, but the flavour of the allegation is clear. Why did the defendant change the statement from 13 April 2016 to "about end of May 2016"? The only answer can be that there was still the ADVO in place until it was dissolved on 4 May. This appears, on the defendant's version of events, to be an attempt at reconciliation between the plaintiff and the defendant. Again, it speaks of a conversation between the plaintiff and the defendant, a conversation which must have taken place on an earlier day in April 2016. 2. The plaintiff says that this conversation happened in 2015 before the defendant made the false allegation against him. Leaving that issue to one side, Ms Plashchik was called in the defendant's case. Ms Plashchik maintained that there was communication between the plaintiff and the defendant in April 2016 when the ADVO was in place. In other words, the defendant was not frightened to deal with the plaintiff when it suited her. She changed the date in Ms Plashchik's statement in order to fit in the fact that there was an ADVO in place until 4 May 2016. Again, I cannot accept the defendant as an honest or reliable witness. I therefore accept the plaintiff's version of events as to 8 January 2016. 3. What damage flows from this? There is no custody management record put before me as there was for the arrest of 7 January 2016. All there is is what the plaintiff deposed to in his affidavit. What he stated in his affidavit of 23 February 2020 is this: "38. On about 8 March 2016, I was arrested by the police for the second time. The police attended my home at about 10pm on that day. They again handcuffed me in front of the members of family and put me in a caged police car. 39. I could not believe it was happening again. I was extremely distressed at the time. 40. The police officer who was arresting me whose name I presently do not recall said to me words to the effect that: 'Ms Morton alleged two breaches of the AVO protecting her'. This was another fabrication by the defendant. 41. Eventually, the case of AVO breaches was not pursued by the police and I was released without further charge." The plaintiff said that he was taken from his home at Maroubra to Waverley Police Station. Such a journey would take about 15 minutes. It is hard to know for how long the plaintiff was at the Waverley Police Station. In evidence is a letter from the plaintiff's criminal lawyers, Astute Legal, to the plaintiff bearing date 16 May 2016. That contains this matter, amongst others: "I now refer you to your arrest by police attached to Eastern Suburbs Local Area Command, on the evening of 8 March 2016, for two contraventions of the AVO alleged by Ms Morton to have occurred earlier that same day. Following receipt of your telephone instructions to me from custody at Waverley Police Station, I confirm that I have intervened on your behalf with investigating officers, and note police released you a short time later, without charge. It is my understand that prior to your arrest in relation to this event, Ms Morton had attended Bondi Police Station on 8 March 2016 and made a statement to police, which I understand followed an earlier attempt by her on the same day, to do likewise at Redfern Police Station before being turned away by Redfern Police. I confirm that I have had not heard anything further from police in relation to this event. As two months have now passed without further contact, it appears likely the police have concluded their investigation into this event, and aren't pursuing further action against you." Whilst the lawyer appears to have been aware that an approach was made by the defendant to Redfern Police Station, there is no evidence that she was "turned away" by police at that station, merely that she was told to report to a police station, hence her attending Bondi Police Station. The important point to note from all of this is that when he arrived at Waverley Police Station, the plaintiff was permitted to make a telephone call to his lawyer, that his lawyer intervened and that "a short time later", he was released without charge. 1. I could not find that the plaintiff was detained by the police on this occasion for any longer than an hour. However, there is again his arrest in front of the members of his family, his being handcuffed, his being placed in the back of a caged police truck and taken away from his home to a police station, and there to go through the normal processes before being discharged without charge. 2. Again, I must inquire as to whether the plaintiff did more than merely make a complaint to the police, whether she, by her action, made the police action inevitable. The first thing to note is that there was an ADVO in place at the time. There was an interim ADVO made by the police at Maroubra Police Station on 7 January, a more enduring ADVO was made by the Local Court at Waverley on 14 January and that remained in place until it was dissolved by the Downing Centre Local Court on 4 May 2016. A breach of an ADVO is taken seriously. It shows contumelious disregard for the law, a person disobeying an order made by a court. The police must take such things seriously. This was a case of domestic violence, and domestic violence is something that is rightly deplored by every right thinking member of our society, whether they be female or male. One would expect that a lady whose complaints have previously been accepted by the police leading to the arrest and charging of a person to be again taken seriously by police, albeit stationed at a different police station. 3. Again, the defendant's attempts to avoid answering what she expected to result from her making the complaint to the police were completely unacceptable. I accept that the defendant knew it was most likely that the plaintiff would be again detained and probably charged by the police because of the complaint she made at Bondi Police Station on 8 March 2016. I find therefore that the defendant was more than a complainant; she was an actor and immediate promoter of the plaintiff's arrest and detention. She promoted and caused the action eventually taken by the police with the ADVO in place and, as far as the police were concerned, a history of domestic violence in the past was inevitable that the plaintiff would be detained again. That is exactly what occurred. I therefore have no hesitation in holding that the defendant is liable for this false imprisonment of the plaintiff. Abuse of process? 1. The defence filed by the defendant contains this plea: "14. In answer to the whole statement of claim, the defendant says that the proceedings are an abuse of process and have been commenced for an improper purpose. (a) The plaintiff threatened to commence these proceedings if the defendant did not enter into a binding child support agreement ('the Agreement'); (b) The plaintiff owes $47,000 in arrears of child support payments for the child of the plaintiff and the defendant; (c) The proposed agreement ought to significantly reduce the plaintiff's ongoing child support liability. The plaintiff commenced the proceedings after the defendant refused to enter into the Agreement; (d) The plaintiff would not have commenced these proceedings if the defendant entered into the Agreement." 1. Proceedings are brought for an improper purpose and thus constitutes an abuse of process where the purpose of bringing them is not to prosecute them to a conclusion, but to use them as a means of obtaining some advantage which they are not designed, or some collateral advantage beyond what the law offers. An improper act by the party instituting the proceedings is not an essential ingredient in the concept of an abuse of process. So much can be found in the decision of the High Court of Australia in Williams v Spautz (1992) 174 CLR 509. In the judgment of Brennan J, this was said (at 537): "an abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage or other benefit, to impose a burden or to create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding." 1. Here, the plaintiff merely seeks to receive compensatory damages for two false imprisonments. It is irrelevant what he may or may not do with the money. He may use the proceeds of a judgment debt to reduce his liability to pay maintenance, or for any other matter. He may have forgone commencing proceedings if some monetary advantage was held out to him. However, no monetary advantage was held out to him. He is not in any way seeking to misuse these proceedings for an ulterior purposes. He is not seeking to abuse the process of this Court in any way. The defence is without any justification whatever. Accordingly, the plaintiff is entitled to recover damages for the two false imprisonment to which he was subjected, and the defendant is liable to pay those damages to him. Damages 1. Yesterday I dealt with liability in the current matter. I shall now turn my attention to assessing damages. In canvassing the evidence on this issue I may advert to evidence concerning liability and should I do so that is to be taken into account on the question of liability as I shall endeavour to show. 2. The plaintiff was born in the Ukraine in January 1966. At the time of the first false imprisonment he was almost 50 years old. At the time of the second forced imprisonment he was 50 years old. He is now 54 years old. The Ukraine in which the plaintiff was born was then part of the USSR. The plaintiff finished eight years of formal schooling and then attended a technical college where he studied for a further four years. At the end of that four year's study, he was qualified as a "motor builder". That was in 1986. He was in the Red Army from 1987 to 1989. Six months after he discharge from the army he came to Australia. 3. In essence the plaintiff has been a driver since he came to Australia. He drove taxis for some six years and in 1999 he commenced driving buses and limousines. These "buses" were in fact tourist coaches. He had his own business known as Airbus Shuttle Pty Ltd. That company was incorporated on 27 March 2012. The plaintiff was a director of that company from 27 March 2012 until 28 July 2015. On that date the defendant was appointed a director of the company. She ceased to be a director of the company on 23 October 2015 when the plaintiff assumed the role of director but on the following day he ceased to be a director and his partner Alla Tretiak was appointed as a director. She remained the director until 5 January 2018 when it appears that the company was sold to Andrei Kolmogorov, who in turn appears to have sold the company on 24 April 2016 to a gentleman in Victoria. That company was used to run the plaintiff's bus or coach and limousine driving business. 4. The plaintiff was married early in his life. However, he was divorced and that marriage was dissolved. As a result of that relationship, the plaintiff had a daughter who in October 2018 was 27 years old. She may now be 28 or 29 years old. After the ending of that relationship the plaintiff formed a relationship with Alla Tretiak. That was a true de facto marriage and that relationship is still on foot. As a result of the plaintiff's relationship with Alla, he has two children, a daughter born in October 1999 and a son born in January 2001. At the time that Benjamin was born, this daughter was aged 14 and the plaintiff's elder son was aged 13. The children would now appear to be 20 and 19 years of age respectively. 5. The first time that Alla Tretiak became aware of the plaintiff's relationship with the defendant was when the defendant became pregnant to the plaintiff. The plaintiff made it clear that the fact that the defendant was pregnant was drawn to his wife's attention and the attention of other members of his wider family by either the defendant or other members of the Russian community in which the plaintiff moved. The plaintiff referred to this community as the Russian Jewish community here in Sydney. Bearing in mind what was said by Svetlana Plashchik which I quoted yesterday. I thought that the first time that Alla may have become aware of the plaintiff's relationship with the defendant and the existence of Benjamin was after the plaintiff's arrest. However, the plaintiff made it quite clear that his wife Alla was made aware of the fact that the defendant was pregnant to him after that pregnancy was discovered. 6. However, the plaintiff made it quite clear that his relationship with Alla was endangered by the fact of the plaintiff's being arrested on 7 January 2016 and Alla demanded that he stop his relationship with the defendant. The plaintiff deposed to being very upset by his arrest and being very upset and preoccupied by the trouble in which he found himself up until the time at least of his acquittal, if not later. In his primary affidavit, that of 24 February 2020 which is exhibit A, the plaintiff said this: "25. I was unable to attend to any work or business commitments for about three weeks after the first arrest. I was in shock and could not understand what was going on. It took me a few days to start working on collecting information and contacting people who could assist in my defence. 26. I am a bus accredited operator. Attached and marked 'I' are copies of my certificate of coach management, my authorised bus driver card issued by the New South Wales Government, my tradesman certificate motor mechanic, and a copy of the certificate of accreditation under the Passenger Transport Act 1990 issued to Airbus Shuttle Pty Ltd. Any criminal convictions would have affected the business I was involved in and I would not have been able to run it as a manager as I would not be deemed as a 'fit and proper person' under the Passenger Transport Regulation 2007. 27. From the time of the first arrest to the date of the dismissal of my matter I was unable to participate in any commercial activity properly. I cancelled meetings with my clients and stopped controlling the businesses I was involved in, essentially having to rely on other people to get involved in running the businesses. This was because my mind was focussed only on clearing my name, avoiding unfair criminal conviction and proving my innocence and minimising the stress to my family. 28. Further, I suffered from mental stress and depression at this time and was required to attend numerous meetings with my solicitor...people chased me up for payments and roster placements." 1. The Passenger Transport Regulation 2007 as in force between 18 December 2015 and 29 February 2016 provided in cl 19 criteria for authorisation to drive public passenger vehicles. Clause 29(2)(e)(ii) provided that, "The driver must be of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned". Clause 44(1) of the Regulation required, "The driver of a public passenger vehicle to furnish to the relevant government authority written details of any alleged offence other than a parking offence with which the driver is charged by a police officer". Under cl 44(3), "The details are to be furnished within seven days of the laying of the charge or the issue of a relevant penalty notice". In other words, the mere fact that the plaintiff was charged with an offence by the police required him to notify the RMS, as it then was, of the charge and while the charges were pending he was not of "good repute" and could not attend to his work as essentially a bus or coach driver or the provider of other public transport services. 2. Accordingly, during the period from his arrest to the dismissal of the charges the plaintiff was in essence unable to attend to his major business personally. Clearly from what he deposed to there was mental anguish and distress resulting directly from the fact that he was imprisoned but also of course from the fact that he was charged. 3. On 7 January 2016 at 2pm the plaintiff sent an email to Olga Loyal in Russian. Olga Lyal or Olya Loyal, is another name used by the lady I described yesterday as Olga Levitt. She has an office next door to her husband's dental surgery. She would appear to be some form of "go between" in the Russian Jewish community. The plaintiff described her as a lady who read cards (I assume he meant tarot cards) and dealt with the "occult" and was some form of go between. Olga was present in court during the first two days of the hearing. When this pointed out to me on the first day, I advised the defendant that Olga was a potential witness and if she were to be called as a witness she should stay out of the Courtroom. The plaintiff that she was not to be called as a witness. I had reason to speak directly to Olga when she interfered from the gallery in the proceedings by saying something. I did not hear whether it was in Russian or in English and I did not know to whom the comment was addressed, whether it was to the plaintiff or the defendant. However, she ought not have said anything from the gallery to anyone and I advised accordingly. 4. Exhibit J is a translation of the Russian text sent by the plaintiff to Olga Loyal. At 2:23:25pm on 7 January, Olga Loyal sent the message from the defendant directly to the plaintiff. The certified translation of the Russian is this: "I want Edik [Edward} to give me back a Lexus similar to the one I had or a better one with registration and insurance for the next year, and everything should be in my name. Child maintenance of $72,000 for Benjamin for five years in advance. I want him to stop being rude to me and stop creating difficulties and playing dirty tricks on me. [I want him] to pay $80 a week for child care. It is his right to spend time with Benjamin and be a good father to him. Not standing in the way of my private life and not saying bad and nasty things about me. Stay away from my phone and stop calling my friends and, in general I want him to leave me alone." There was no protestation from the defendant that she did not want Olga to pass on that message to the plaintiff. This was on the afternoon of the morning in which the plaintiff was falsely imprisoned at the defendant's behest. It clearly shows her motivation in making the false allegation against the plaintiff was to obtain money and other advantage from the defendant. It shows malice. 1. The plaintiff had three businesses. I have already mentioned Airbus Shuttle Pty Ltd. The other was a business run through a company called Airporter Pty Ltd. This business was not affected by the plaintiff's problems caused by his two arrests. Airporter Pty Ltd is the holder of a real estate and the plaintiff draws an income from Airporter Pty Ltd by way of director's fees. The plaintiff admitted that. The other business was conducted by a company known as MPact Services Pty Ltd. That company was incorporated on 17 July 2014 and was deregistered on 10 July 2017. There were three shareholders and three directors. They were the plaintiff, Iskandar Shakirov who has now changed his name to Alex Iskandar and Alexey Volvach. Company records indicate that Alex Iskandar is from Uzbekistan, that Mr Volvach is from the Russian Federation. Each of these gentlemen owned 30 fully paid up $1 shares in the company from the beginning to its deregistration. Each was a director of the company from its inception and the plaintiff and Mr Iskandar remained directors until its deregistration but Mr Volvach ceased to be a director and secretary of the company on 29 February 2016. 2. The nature of the business and the circumstances of the failure of the business are attested to by Mr Iskandar in his affidavit affirmed on 21 April 2020 which is exhibit L. I have no hesitation at all accepting that to which Mr Iskandar attested. The affidavit contains this matter. "5. The business of the company was operating kiosks which sold tickets to various tourist attractions in Sydney. The company had contracts to sell the tickets of Taronga Zoo, Speed Jet, Captain Cook Cruises, et cetera. These kiosks were placed in various hotels around Sydney. 6. There were only three directors of the company and no other employees. 7. My role in the company was to approach other businesses in the tourist industry and obtain contracts to sell their tickets. 8. Edward Baranov's role in the company was to the [sic] market the business by contacting hotels and arranging for the kiosks to be placed in their premises. 9. The company ceased business operations in 2016. 10. The company ceased business operations due to the business failing to secure sufficient hotels in which to place the kiosks. This part of the business was the responsibility of Mr Baranov. 11. From about early 2016, I noticed that Edward Baranov was not fulfilling his role in the company properly. In particular he: (a) stopped answering my phone calls; and; (b) stopped contacting hotels to place our kiosks. 12. In my interactions with Edward Baranov at this time, I noted that he was not focussed on the business but was focussed on personal issues. I saw him repeatedly ignoring work to take and place personal phone calls. I observed that he could not focus on our discussions for more than a minute or two. 13. The company owned 30 kiosks. Edward Baranov only managed to find spaces for a few of these kiosks. Mr Baranov was also responsible for the renewal of the agreements with hotels. There were a number of times where hotels rang inquiring as to whether we wanted to keep the kiosks in place as they had not heard from Mr Baranov. 14. On or about 25 January 2016, I had a conversation with Edward Baranov in words to the effect I said 'Edward, what is the matter with you? You are not doing your job properly', he said 'I have a personal family matter to deal with'. 15. Edward Baranov never told me what issues exactly he was dealing with. 16. On or about 30 January 2016, a number of hotels began to ask us to remove the kiosks and the business began to fail. 17. The company was beginning to operate at a significant loss as a result of which the company ceased business operations." 1. The defendant cross examined the plaintiff about the role of Victor Lukashchuk. The plaintiff admitted that Mr Lukashchuk did some work for MPact Services Pty Ltd. Like Mr Volvach, he was an "IT person". He was not an employee of the company nor was he a director or shareholder of the company. According to the plaintiff, Mr Lukashchuk invested money in the company but had a falling out with Mr Volvach. The plaintiff admitted that Mr Lukashchuk sued the company and as a result he obtained an order for the return of his investment and according to the plaintiff, the money was paid back. The defendant asked me to infer that the company failed not because of the reasons offered to me by Mr Iskandar but because of the interaction of Mr Lukashchuk with this business and his argument or disagreement with Mr Volvach. However, Mr Iskandar was not cross examined about any of these matters at all and I accept the evidence of Mr Iskandar. There may have been a disagreement between Mr Lukashchuk and Mr Volvach as to IT issues or problems but that does not appear on the evidence of Mr Iskandar to be the reason the business failed. The reasons offered by Mr Iskandar for the failure of the business are the reasons in fact given by the plaintiff. 2. Besides the $30 in shares that the plaintiff invested in this company, he also made a loan to it of $37,193 shown by a profit and loss account for the period between 1 June 2014 and 30 June 2015 which is annexure O to the plaintiff's affidavit which is exhibit A and to be found on p 314 of the Court Book. Accordingly the total investment by the plaintiff in the company was $37,223. That money essentially was lost to the plaintiff because of the failure of the business. However, a problem with the recovery of that sum of money arises from this issue. The defendant is liable for the false imprisonments. The defendant is not liable for the prosecution of the plaintiff. The immediate factual cause of this loss was the fact that the prosecution was hanging over the plaintiff's head and he needed to prepare his defence and repair the damage done to his family. 3. However, the damage done to his family was done by the fact of his arrest and the reaction of his wife Alla Tretiak. This was the direct consequence of the false imprisonment. When I formed a tentative view that the plaintiff's anguish after his arrest was due not so much to the arrest but the fact that it disclosed to Alla that he had been having an affair with the defendant and this had jeopardised his marriage, I thought that the proximate cause of the distress was his being found out as being an unfaithful husband. However, bearing in mind how the evidence eventually came out, the defendant was just as much aware of the plaintiff's relationship with Alla as was the plaintiff. She must have known that interfering with the plaintiff's relationship with his wife and children by causing his arrest would cause a major upheaval in his relationship with Alla and his children and would cause him distress. This loss has two causes: firstly the fact that the plaintiff was falsely imprisoned leading to the problems with his family, and, secondly, the fact that there was the prosecution pending. In the circumstances, I believe the appropriate relief is to award the plaintiff half of this loss. 4. The evidence is clear from the defendant that to run the Airbus Shuttle business the plaintiff had to employ somebody to do the job. Proof of the loss was far from satisfactory. One would think that the wages that the plaintiff paid to him who was employed to take his place would be the measure of his damage. However, the amount of those wages was never established in evidence. Another way of proving the same loss will be to prove what the plaintiff's average net weekly earnings were in the financial year ending 30 June 2015 and awarding him that for the 17 week period between his arrest on 7 January 2016 and his acquittal on 4 May 2016. However that was not attended to either, despite the fact that such financial recalls were available because they were given to another firm of solicitors who are acting for the plaintiff in his dispute with the child maintenance authority. 5. By use of the Furzer Crestani tables it appears to me that average weekly earnings for that 17 week period in the transport industry were $1,600 gross. That gives a net figure of $1,200 per week. $1,200 per week for 17 weeks is the sum of $20,570. That ties in with the plaintiff's general observation that he thought the loss was between $20,000 and $30,000. This loss is directly attributable to the fact that the plaintiff was imprisoned and charged. Whilst he was charged he was not a fit and proper person to run the business. The fact that he was also imprisoned would go to his general repute. Like the other loss of income or capital claimed this loss has effectively two causes, the false imprisonment and the charge. In the circumstances I am prepared to allow half of this loss. 6. The plaintiff also claimed monies paid to Astute Legal for representing him in the Local Court. Those bills amounted to $21,171.81. The accounts can be found in exhibit E p 466 to 483 of the Court Book and there is a summary MFI 4 on p 484 of the Court Book which gives the total as being $21,171.81. However, the fees paid by the plaintiff to defend the criminal charges are not recoverable in an action for damages for false imprisonment. The authority for that is The State of New South Wales v Cuthbertson [2018] NSWCA 320 overruling the earlier decision of the Court of Appeal in State of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353. The effective decision of the Court was made by Beazley P (as Her Excellency then was) where her Honour said this: "44. It cannot be said that legal costs incurred in defending a charge of resisting an officer in the course of duty are the 'natural and probable consequence' of the tortious conduct of wrongful arrest. Although harm suffered in resisting arrest, such as physical injury or property damage, is a natural and probable consequence of the wrong, the resistance being directly related or connected to wrongful arrest, the costs incurred in what ultimately turns out to be failed prosecution are not. 45. The bringing and maintenance of a prosecution, albeit a possible outcome of an arrest, is not a natural and probable consequence of the wrongful arrest. The bringing of the prosecution which leads to a party incurring costs involves a separate decision making process, often by a different person to the wrongdoer. In this case, although Senior Constable McArthur was the named prosecutor on the CAN, the CAN was accepted by a senior officer." Here the only way in which the plaintiff could recover the fees paid to Astute Legal would be in an action for damages for malicious prosecution which is not the action currently before me. 1. The plaintiff also claims another set of legal fees, namely $17,810 paid to Blair Criminal Lawyers. Those fees were paid by the plaintiff to that firm for advising him on steps which he took to have the plaintiff prosecuted for the false statements which she made. Leading Senior Constable Timothy Giblett of the Redfern Police Station, whom I mentioned yesterday, was the prosecutor of three charges laid against the defendant. The first charge was an offence contrary to s 253(b)(iii) of the Crimes Act 1900. The allegation in the Court Attendance Notice was that on 6 January 2016 at Redfern, the defendant made a false statement, namely, an official police statement, intending it to be used to induced some person to accept it as genuine, and, because it is being accepted as genuine, to influence the exercise of a public duty to wit that of a police officer. That is an offence carrying a maximum penalty of ten years imprisonment. 2. There was an alternative charge under s 307B(1) of the Crimes Act 1900 of knowingly making a false or misleading statement at Redfern on 6 January 2016. The maximum penalty for that offence is imprisonment for two years. The third charge was pursuant to s 314 of the Crimes Act 1900, the allegation being that on 6 January 2016 at Redfern the defendant did make an accusation intending Edward Baranov to be the subject of an investigation of an offence knowing the said Edward Baranov to be innocent of the offence. That carries a maximum penalty of seven years imprisonment. 3. The matter came on before the Local Court and the defendant pleaded guilty to the second charge and the other two charges were withdrawn. The defendant was given a Conditional Release Order for a period of 12 months. I dare say that, were she not the mother of a young child, the penalty may have been greater. However, this goading of the police to prosecute the defendant, for which purpose the plaintiff engaged Blair Criminal Lawyers, is in my view, not recoverable in an action for damages for false imprisonment, the fees payable to Astute Legal. They are not the natural and probable consequence of an action of a false imprisonment. Rather they speak of an intention to obtain retributive justice by the plaintiff. 4. The plaintiff sought to establish that there were a number of heads of damages including a different award of damages for injury to his reputation. However, that is not the law. In Trinidade et al. Law of Torts in Australia, Oxford University Press, 4th edition, the following can be found commencing on p 124. "In many cases of false imprisonment, there will usually be no personal injury, although if there is the damages will be calculated on the same basis as that for battery and assault. If there is any deleterious effect on the plaintiff's health, that will also be compensable. The damages claimed in an action for false imprisonment are for the deprivation of the liberty of the plaintiff. The damages are to be assessed for the period that the plaintiff has been deprived of his or her liberty the injury to liberty. In addition, damages for the 'hurt' or injury to the plaintiff's feelings such as indignity, mental suffering, disgrace and humiliation suffered as a result of a false imprisonment by the plaintiff should also be taken into account in assessing ordinary compensatory damages. In both McDonald v Coles Myer Limited (trading as Kmart Chatswood) (1995) Australian Torts Reports 81 361 and Spautz v Butterworth [which I cited yesterday] Clark JA...indicated that it is proper to take into account in assessing the ordinary compensatory damages, any conduct of the defendant that has the effect of increasing the injury to plaintiff's feelings including the anxiety and uncertainty undergone in the litigation, the absence of apology and the reaffirmation of the truth of the matters complained of. This conduct can be engaged in during the period of the false imprisonment or at any time to the date of judgment. Even conduct during the course of the legal proceedings can be taken into account in the assessment of ordinary compensatory damages. If the circumstances warrant it the Court can take into account the effect that the false imprisonment might have upon the plaintiff's reputation in the assessment of ordinary compensatory damages." I accept, as the plaintiff deposed, that he was bought into disrepute in the Russian Jewish Community here in Sydney. That, no doubt, added to his anguish and mental distress. That I shall take into account in assessing the damages. 1. Before turning to that exercise I should point out this, par 12 of the statement of claim is this: "As a result of the matters pleaded above, the plaintiff has suffered loss and damage. Particulars (a) Special damages in the sum of $17,810 paid to Blair Criminal Lawyers; (b) Special damages in the sum of $20,000 paid to Astute Legal; (c) Damaged reputation; (d) Exemplary damages." Mr Chen pressed the Court to award both aggravated damages and exemplary damages. However, the statement of claim does not contain the necessary averments. UCPR 15.7 provides this: "The particulars to be given by a pleading that claims exemplary damages must state the facts and circumstances on which the party pleading relies to establish that claim." UCPR 15.8 provides this: "The particulars to be given by a pleading that claims aggravated compensatory damages must state the facts and circumstances on which the pleading on which the party pleading relies to establish that claim." I should point out that there is no claim made for aggravated compensatory damages in this statement of claim. Furthermore, no particulars as required by the rules of either the claim for aggravated compensatory damages or exemplary damages are given. 1. Towards the end of his address, when urging me to award aggravated damages and exemplary damages, I drew the lack of pleading to the plaintiff's counsel's attention. He then sought leave to amend the statement of claim but I refused such leave being only at the end of his address and after the evidence was closed and without any notice being given to the defendant who as I mentioned yesterday, was unrepresented. To have allowed such a late amendment would have been completely unfair to the defendant. 2. For those reasons the claim for exemplary damages made in the statement of claim must be rejected. SHORT ADJOURNMENT 1. I turn now to quantify the damages for the first false imprisonment. Whilst there was no averment by the plaintiff that he was a man of prior good character, there is no evidence that he was not. Indeed, had he been of prior bad character in his native land he would hardly have been permitted to migrate to Australia. There is hard evidence that he was of prior good character at least in this State: firstly the grant to him of his bus operator licences and secondly, the fact that during his arrest on 7 January 2016, the police found it necessary to take his photograph and his fingerprints which would be held in their records had he been previously arrested. I have no hesitation therefore in finding that the plaintiff was a man of prior good character. 2. I accept that being woken up by police knocking loudly at the door which loud knocking aroused not only him but his wife and children and he was arrested in their presence and handcuffed and then led to a police caged truck and placed in the back thereof and taken to Maroubra Police Station where he was processed in a normal fashion and placed in a cell and kept in custody for two hours and 40 minutes. Detention would have been, for a man of prior good character, a harrowing, confusing, upsetting and belittling experience. I accept that this has led to a loss of repute and standing in his community and lead to mental anguish which he suffered between that time and his acquittal of the charges which were laid against him. The length of the detention is not as important as the fact of his arrest on a false charge made maliciously. Bearing in mind all the evidence which I have sought to canvass, I believe the appropriate compensatory damages toward the plaintiff for this false imprisonment are $40,000. 3. Counsel and/or his solicitors for the plaintiff were kind enough to prepare a schedule of interest which is MFI 10. The relevant amount of interest for $1 was calculated as being $0.2385616, I will round that off to 0.24. That gives me a rounded figure of $9,600 but clearly damage continued after 7 January 2016 resulting directly from the false imprisonment. I allow $9,000 in interest on that sum. I have mentioned in respect of this false imprisonment that the plaintiff was handcuffed. Whilst he does not say so specifically about this arrest, he does say that in the second arrest he was again handcuffed so I infer that he was handcuffed the first time as well. 4. On the second occasion it was very much, as the plaintiff himself accepted, "déjà vu". The period of detention was as I sought to point out yesterday, probably no more than an hour and in the grand scheme of things did not add much to the already existing problems that the plaintiff was experiencing. For this false imprisonment I allow $10,000. Again, I have rounded out the interest component and it comes out to be $2,300. For the loss he sustained because of his business Airbus Shuttle Pty Ltd half the damages claimed are $10,285. Interest on that sum rounded out is $2,354. For the loss of money invested in MPact Services Pty Ltd, I allow half the amount claimed, namely $18,612. Again, rounded off, interest on that sum is $3,365. 5. For those reasons I give verdict and judgment for the plaintiff against the defendant for $95,916. ********** 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: 24 July 2020