District Court New South Wales Medium Neutral Citation: Lechowski v Anstee [2022] NSWDC 81 Hearing dates: 14, 15, 16, 17 and 18 March 2022 Date of orders: 25 March 2022 Decision date: 25 March 2022 Jurisdiction: Civil Before: J Smith SC DCJ Decision: (1) Judgment and verdict for each of the defendants. (2) The plaintiff is to pay the defendants' costs. (3) If any party seeks a variation of order (2): (a) That party must file and serve written submissions of no more than 5 pages together with any affidavit within 14 days of these orders; (b) Any party opposing any variation sought in accordance with order 3(a) must file and serve submissions of no more than 5 pages and any affidavit in support within 28 days of these orders; and (c) Any application for variation will be heard on the papers. Catchwords: TORTS – Intentional torts – unlawful arrest, imprisonment, assault and battery – negligence – causation – no medical evidence Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5D, 5E Crimes Act 1900 (NSW), s 545B Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) Evidence Act 1995 (NSW), s 140 Cases Cited: Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1 Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1 at 57 Barton v Armstrong [1969] 2 NSWLR 451 Bird v Jones (1845) 7 QB 742 Blacket v Barnett [2017] NSWSC 1032 Brighten v Traino [2019] NSWCA 168 Briginshaw v Briginshaw (1938) 60 CLR 336 Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 Croucher v Cachia [2016] NSWCA 132 Gulic v Boral Transport Ltd [2016] NSWCA 269 Hutchinson Construction Services Pty Ltd v Fogg; Fog v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135 In the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liq) (No 2) [2011] FCA 1123 In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 McDonald v Coles Myer Limited (1995) Aust Torts Reports 81-361 Nevin v B & R Enclosures [2004] NSWCA 339 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 Sangha v Baxter [2009] NSWCA 78 State of New South Wales v McMaster [2015] NSWCA 228 Tame v New South Wales (2002) 211 CLR 317 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Wallace v Kam (2013) 250 CLR 375 Warner v Hung Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78 Category: Principal judgment Parties: Lisa Lechowski – Plaintiff Hugh Anstee – Defendant 1 Matthew Hall – Defendant 2 Dural Rugby Club – Defendant 3 Sydney West Rugby Referees' Association – Defendant 4 NSW Rugby Union – Defendant 5 Rugby Australia – Defendant 6 State of New South Wales – Defendant 7 Representation: Plaintiff (self-represented) Counsel: Ms J Tat – Defendants 1 to 6 Ms J Chapman – Defendant 7 Solicitors: Moray & Agnew – Defendants 1 to 6 Norton Rose Fulbright – Defendant 7 File Number(s): 2020/98498 Publication restriction: Nil Judgment Introduction 1. The plaintiff seeks damages in relation to events that commenced at a junior Rugby Union open day in March 2014, where she was engaged to act as a referee in two trial games. There are three components to her claims. First, she claims that she was assaulted and falsely imprisoned by a police officer, who later stalked and intimidated her over a number of years. Secondly, she claims that she was wrongfully arrested by another police officer in November 2016; and thirdly, she claims that officials involved with the Rugby Union organisation and those organisations themselves ('Rugby Union Defendants'), failed in their duty of care to her. 2. There are a number of difficulties with both the plaintiff's pleaded case and the evidence adduced to support it. 3. First, her primary case against some of the Rugby Union Defendants (the first, second, fourth and fifth defendants) is based on bare assertions that each is "liable for" his or its "acts or omissions" (although only omissions are particularised). This indicates that the plaintiff bases her claim against these defendants on negligence and, indeed, that was how these defendants understood, and responded to the case brought against them. However, she did not plead any material fact needed to meet the requirements of s 5B(1) of the Civil Liability Act 2002 (NSW) (CLA). 4. Secondly, her primary case against the remaining Rugby Union Defendants (third and sixth defendants) is based on an assertion of vicarious liability, but there are no facts pleaded to support that assertion. 5. Thirdly, the plaintiff's secondary case against the Rugby Union Defendants (at [87] of the Amended Statement of Claim) is based on the assertion that each is vicariously liable for causing the plaintiff to experience a severely traumatic event and suffer severe emotional distress. However, it is not clear what is meant here by "vicarious liability". Nor is it clear precisely what the event was or how any of the acts or omissions by any of the Rugby Union Defendants caused the plaintiff to experience that event and to suffer emotional distress. 6. Fourthly, the plaintiff adduced no evidence that she suffered severe emotional distress, that she underwent early onset menopause, as pleaded, or, if she did, that it was caused by an act or omission by any of the defendants, let alone the Rugby Union Defendants. 7. Fifthly, there are factual difficulties with the plaintiff's case. First, her version of events is implausible; secondly, the plaintiff was, in any event, an unsatisfactory witness; and thirdly, her evidence was inconsistent in material respects with the evidence of the other witnesses. 8. The result is that, leaving aside the pleading issues, the plaintiff has not satisfied me that she was assaulted, arrested, detained, abused or stalked and intimidated as she alleges. Those allegations are critical to her case against the seventh defendant, the State of New South Wales (the State), and, in turn, against the Rugby Union Defendants. For that reason, her claims must be dismissed, and a verdict entered for the defendants. 9. Although it is necessary to consider the evidence in some detail in order to explain my conclusions, the case against the Rugby Union Defendants fails for another reason which may be explained briefly. It is convenient to deal with that before turning to the factual issues. The case against the Rugby Union Defendants 1. The claim against the Rugby Union Defendants is founded in negligence. In order to succeed in any claim in negligence, leaving aside the requirements of s 5B CLA, it is necessary for a plaintiff to establish that she suffered harm and that the harm would not have occurred but for the negligence of the defendant; s 5D(1)(a) CLA; Wallace v Kam (2013) 250 CLR 375 at [16]. At all times the onus lay with the plaintiff to prove a fact relevant to the issue of causation; s 5E CLA. 2. The harm which the plaintiff relied on in her amended statement of claim to support her case was early onset menopause. However, there was no evidence that she suffered from that condition. At its highest, her evidence established only that she suffered emotional distress as a result of either or both of the actions of the police officer and the negligence of the Rugby Union Defendants. Even if accepted, such distress does not qualify as actionable damage. 3. In Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1 the High Court said, at [8]: "The law is clear that actual damage or injury is an essential element of a cause of action in negligence for personal injury…What may qualify as actionable damage is, however, a question of fact and degree and ultimately of policy. Kiefel J observed in Tabet v Gett that the "damage necessary to found an action in negligence...is the injury itself and its foreseeable consequences". As Hayne and Bell JJ said in the same case, damage refers to "some difference to the plaintiff [which] must be detrimental"" 1. In Tame v New South Wales (2002) 211 CLR 317 at [7], Gleeson CJ said that "…save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness." 2. Further, even if it were accepted that the plaintiff had suffered early onset menopause there is no evidence that that condition would not have occurred but for the conduct or omissions of the Rugby Union Defendants. 3. For those reasons, the plaintiff has failed to establish any cause of action in negligence and her claim against the Rugby Union defendants must be dismissed with costs. 4. The case against the State is brought on the basis of intentional torts and requires no proof of actual injury or damage. The State accepts that it is liable for any tort committed by the police officers in question and that, if the plaintiff's version of events is accepted, various deliberate torts were committed and there should be an award of damages to the plaintiff. However, it disputes the plaintiff's version of the relevant events. 5. In these circumstances, it is convenient to commence with that version of events. However, before doing so, it is worthwhile recalling some of the principles governing the approach to fact finding. 6. Facts must be proved on the balance of probabilities to the actual persuasion of the Court: Evidence Act 1995 (NSW), s 140; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] HCA 34; Warner v Hung; In the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liq) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 at [48] per Emmett J. 7. Findings on credit should not necessarily be made "globally". It should be noted that a witness may reliably recount some matters and not others: Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492 at [155]-[156] per Basten JA (Handley AJA agreeing); as applied in Hutchinson Construction Services Pty Ltd v Fogg; Fog v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135 at [11] per Leeming JA (Beazley P and Meagher JA agreeing). 8. A witness' credibility and truthfulness can be tested by reference to objective facts particularly "the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities": Blacket v Barnett [2017] NSWSC 1032 at [225] per Hallen J citing Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1 at 57 per Robert Goff LJ and In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] per Black J. Plaintiff's Evidence 1. In 2014, the plaintiff was a referee of junior Rugby Union matches. On 23 March 2014, she was engaged to referee two games in the under 13 trials taking place in Dural, a suburb in the northwest of Sydney. 2. The plaintiff says that she entered the car park of Dural Park where the games were to take place. As she began turning into a vacant parking spot, she says she stopped to avoid a collision with a speeding Volkswagen (VW). The VW suddenly stopped across the parking spot, blocking the plaintiff's entry, and a child exited the vehicle. The plaintiff says the driver then switched off the engine and reclined the seat. The plaintiff says that the driver soon noticed that she hadn't moved on and made a phone call. She says she then saw another man coming from the direction of the field, looking around the amenities block while on the phone. The man saw the incident in the car park and then walked back to the field area. The driver then ended their phone call. The plaintiff asserts that the man who came from the direction of the field was Brant James, a Detective Sergeant in the New South Wales Police Force (DS James). He was off duty at the time and dressed in plain clothes. 3. She says that DS James reappeared from the field area a short time later and had a civil conversation with the driver of the VW. He then approached her car and immediately began yelling and repeatedly told her "I'm a police officer. Move your car." The plaintiff asserts that there was no traffic in the car park at the time. She says she asked DS James to show his police ID and that he pulled out a wallet and waved it around while closed. She said she told DS James that she did not see anything and asked his name. DS James left, while the plaintiff and the driver remained where they were. 4. When DS James returned, the plaintiff claims that cars were arriving and leaving the parking area. She says he approached her car and began yelling for her to move her car as she was blocking a public road. The plaintiff says she asked DS James to show his ID and he yelled "Do you want an infringement notice? Do you want to go to gaol?" She told him that she did not have to show him anything. The plaintiff says that DS James returned to the field area again, and that all other drivers had found parking spots. She said she reversed and found a parking spot on the grassed area. 5. The plaintiff asserts that DS James never produced any form of ID and did not provide his name. She did not believe him to be a police officer. 6. The plaintiff says she then walked to the canteen to find the president of the club. While speaking to a young lady, she felt something in her back. She said she turned around to see DS James who was yelling "I wanna speak to you". She says that the canteen lady advised her that the president was Matthew Hall (the second defendant) and that he was in the marshalling area. She attempted to walk towards the marshalling area, but DS James was blocking her path. She says that he repeatedly yelled "I'm a police officer, show me your ID." She continued her attempt to walk away. 7. The plaintiff claims that DS James then grabbed her arm and threw her up onto the concrete. He said "I'm going to arrest you now so I can see your ID." She says he read in a "fast ramble" a special caution and said "you are now under arrest." The plaintiff says she told DS James that she didn't understand and attempted to leave again. DS James obstructed her movements and continued grabbing her arm. She claims that DS James then began physically moving her away from the crowded canteen to an isolated area. The plaintiff says that Hugh Anstee (the first defendant) appeared and asked what was going on. She tried to explain but was interrupted by DS James yelling and that Mr Anstee then joined in. 8. The plaintiff claims that DS James had her by the arm and was throwing her towards the car park. At that point, she says that she agreed to show him her ID and he released her arm. Instead of following DS James to her car, the plaintiff said she walked to the sausage sizzle person and asked for them to get Matthew Hall. She claims that DS James then grabbed her arm and vigorously shook her from side to side. He then flung her towards the car park. 9. The plaintiff says she walked with DS James to her car, with Mr Anstee following behind. She took out her drivers' licence and asked again to see DS James' ID. She says DS James threw his wallet onto the bonnet of the car. She picked it up and he snatched it away. He showed her again and she tried to copy the details and asked for his badge number. DS James and Mr Anstee walked back to the field and the plaintiff proceeded to referee two games. 10. The plaintiff says that Matthew Hall later approached her as she was packing up after the games and stood "inappropriately close" to her. She claims Mr Hall said he was told about an incident and that the person who was involved would not issue an infringement notice if she didn't make a report. He told her that he did not want to get involved and that DS James was a coach for Lindfield. 11. The plaintiff says that she then went home and spoke to Ron Mancell from NSW Rugby Union who told her to report the incident to the police and fill out an incident report. She then called Fairfield police station. 12. The plaintiff says she attended Fairfield police station on 24 March 2014 to make a report and provided notes she made about the incident. She also submitted an incident report to Rugby Union Australia and called NSW Rugby Union to confirm if it had been received. Alex Richards confirmed receipt of the report and explained that it would be discussed at a bi-weekly meeting. 13. The plaintiff says she started to see cars parked across the street from her home on several occasions. On 9 April 2014, she saw a parked car and believed that the driver was DS James. On 16 May 2014, the plaintiff provided a witness statement at Eastwood police station. 14. On 22 May 2014, all referees were informed by Rugby Union Australia that clubs were advised about referee abuse. The plaintiff says she felt isolated from everyone involved in rugby union. 15. The plaintiff says that, in mid-December 2014, she saw a dark blue holden commodore parked across from her house. She says she recognised the driver as a father from the Linfield rugby union team. She saw the same commodore parked across the street in January 2015. She believed DS James was providing her address to other people. 16. On 6 August 2015, she saw a white 4-wheel drive parked in the street. She believed the driver was DS James and reported the incident to the police on 12 October 2015. 17. On 7 October 2016, Stuart Cadden, a Chief Inspector with the NSW Police Force (DCI Cadden), and another police officer attended the plaintiff's home. The plaintiff claims that DCI Cadden said "I want to arrest you, but I would prefer you gave a recorded interview first and then I can arrest you after that" and asked if she was free to attend Fairfield police station. She responded that she was not free, and DCI Cadden told her to call him in two weeks' time. 18. On 19 November 2016, DCI Cadden and another officer attended the plaintiff's home again. The plaintiff claims that DCI Cadden immediately told her that he was going to be arrest her, read the special caution and said the words "You are now under arrest." She told him that she did not understand and says that he continually spoke over her as she tried to explain that she had written a letter to the police commissioner. DCI Cadden told her that he was going to make a recording of the conversation. The plaintiff says that once the recording was on, the conversation was completely different. 19. She claims she saw a person taking a photo of her home with an iPad in March 2020. She believed the person was "someone known to the first defendant" and says they returned in April 2020 and took a photo of a visitor's car. 20. During December 2020 and January 2021, the plaintiff says she saw DS James' son parked in the street on several occasions. On one occasion in January 2021, she says he took a photo of the number plate of the car owned by the person who lived with her (affidavit [127]-[129]). 21. The plaintiff was not an impressive witness. When she answered questions by stating what she said had happened, her evidence was consistent with her affidavit (see for example, T95.10-15 and [27]–[30] of her affidavit). However, when tested in cross-examination, she became argumentative, non-responsive and evasive; seeming to deliberately avoid giving a positive response to obvious questions. There are many examples of this. It suffices to give only a few of them. One obvious one was when it was suggested to her that she wanted the car spot she was turning into (T95.45-T96.15): Q. But this spot that you wanted and that the-- A. No. The spot I was turning into. Q. Yes, the spot you wanted? A. The spot I was turning into. Q. That's also called the spot you wanted, isn't it? A. No. Q. Why not? A. I was turning into the car park, into that car space. And this— … Q. So do you agree that that was the car space you wanted? A. No. I was turning into that car space. Q. So you didn't want that car space? A. When you turn into a car space, that is the car space you are parking in. Q. That's right. That's where you wanted to park your car, wasn't it? A. That's where I was in the process of parking my car. 1. The next example concerned [37] of her affidavit which reads: "If there is one thing that I have learnt from participating in children's activities or programs is that some people who are off kilter are attracted to children's activities to gain access to children for inappropriate encounters. After my encounter with Brant James in the car park I believed he was one of these types of persons and went to the canteen to make them aware of what happened in the car park." 1. The obvious inference from this scandalous paragraph is that the plaintiff wanted to report DS James because she thought he was a paedophile. Of course, she had no basis for that belief and never mentioned it in any of her dealings with any of the defendants or the police. Nevertheless, her answers to the questions about it, reveal two important matters: First, she harbours vindicative, irrational thoughts about DS James and secondly, she was unwilling to give truthful evidence if she thought that might harm her case. 2. It is worth setting out the whole of the passage of evidence concerning this paragraph (T83.35–T86.5): Q. I'm not being critical of you. But have a look at paragraph 37. A. Yes. Q. In that paragraph, you're suggesting that Brant James is "off kilter", aren't you? A. What I'm suggesting is that Brant James interfered in a situation he had no business interfering in. He completely overreacted and he was yelling at me he's a, he's a police officer. He never produced his identification. What was I supposed to think? Q. Read paragraph 37, please, to yourself in its entirety, and I'm going to ask you again. A. Mm. Q. In that paragraph, in the first sentence, you are implying, are you not, that Brant James is off kilter? A. I'm suggesting that there are some people who are attracted to children's activities for inappropriate reasons. Now, when James interfered in something that was none of his business, he yelled at me at the top of his voice, he was yelling he was a police officer, he never produced his identification, what was I supposed to think? So I was going to the canteen to report it. Q. You say in paragraph 37, and you're agreeing with me, are you, that you're referring to Brant James in this paragraph? First of all, are you agreeing to that? A. I am agreeing that there are some people who are attracted to children's activities for the inappropriate reasons. Q. Are you agreeing that you are referring to Brant James when you say that in paragraph 37? A. No. Q. So this just relates to anyone but Brant James? A. No, as I've said, Brant James was acting completely irrationally. He interfered in something that was none of his business. He was yelling he's a police officer and he never produced his ID. I was concerned. Q. What on earth did that have to do with gaining access to children for inappropriate encounters? A. Mm. Q. They're the words at paragraph 37. A. Yep. Q. What do you mean by that? A. Like I've said, there are some people who are attracted to children's activities for inappropriate reasons. Q. Have a look at the words "to gain access to children". A. Mm. Q. You know exactly what you're implying in that paragraph, don't you? A. I've just said. Q. And you're not telling the truth, again. A. No, I'm telling the truth. Like if he's standing there, yelling at the top of his lungs, he didn't say anything to the other driver of the other car, he's yelling he's a police officer, never showed his ID and he kept leaving and coming back and what was I supposed to think? Q. So what did that have to do with Brant James gaining access to children for inappropriate encounters? A. Because it was a children's sports day. Q. What, and he needed to gain access to children to have that interaction with you? A. That's not what I'm saying. Q. What are you saying? A. What I'm saying is he interfered in a situation that was none of his business. He was yelling "I am a police officer, show me your ID". He yelled it and he never, ever, ever produced it until right at the end when we, when we came back to the car. And what was I supposed to think? And it was a children's activities day. Q. You-- A. And he just left. Q. You included paragraph 37 to try and poison the Court against Brant James. A. No, I included that 'cause that was from my perspective, that's how I saw it. Q. "Access to children for inappropriate encounters" has absolutely nothing to do with what transpired this day at the rugby fields. A. I didn't foresee that when I got out of the car and went to the canteen, he was going to assault me. I didn't foresee that. My concern was he's approached me in the car park, 'cause his friend called him out. He's approached me in the car park, he's yelled he's a police officer and he never showed his ID. Q. And-- A. And I was concerned. Q. We've heard your version and I understand all of that, but I have asked you five, six, seven times what the possible relevance could be of you suggesting that off kilter people such as Brant James are attracted to children's activities to "gain access to children for inappropriate encounters"? Do you see the "gain access to children" part? A. As I've explained, it was a children's sports day. It wasn't, seniors weren't there. It was all minors. Q. Brant James didn't gain access to any children, nor did he have inappropriate encounter with any children-- A. I didn't say that. Q. Well, why did you include paragraph 37? A. That's how I saw things. I just thought, and because the thing is, even on the train sometimes you see people yelling they're a police officer and they're not, they're just, I don't know what their story is but, and I just thought it was one of those situations. I had no idea who he is. He never showed me his ID despite yelling at the top of his lungs he's a police officer and it was really just a precautionary measure to let the canteen know that there could be a problem, like. Q. That answer's completely unresponsive again, for the eighth or ninth time, isn't it? A. It might not be what you want to hear, but you're asking me for the truth. I am telling you the truth. Q. You're not engaging with the words that you have used. You are all but suggesting that he's a paedophile, are you not? A. Definitely not. 1. The next critical aspect of the plaintiff's evidence concerned the allegation at [78] of the amended statement of claim, namely, that DCI Cadden wrongfully, unlawfully and arbitrarily arrested the plaintiff at around 12:20pm on 29 November 2016. In her affidavit, the plaintiff corrected this date to 19 November 2016 (see [115] of her affidavit). The date has its own importance to which I will return. 2. In her affidavit, the plaintiff described the incident as follows ([117]-[120]): "[117] When I answered the door on 19 November 2016 Stuart immediately asked, "Are you Lisa Lechowski?" I replied, "yes." Stuart said, "I am now going to arrest you." In a fast ramble he read the special caution and said, "You are now under arrest." I was in shock. Stuart said, "Do you understand?" I replied, "No, I don't understand." [118] Stuart asked, "What don't you understand?" When I tried to reply he continually spoke over me and did not give me any chance to explain. Stuart said, "I have spoken to Detective Sergeant James and he wants me to arrest you." I told Stuart that I had written a letter to the police commissioner and it was when I said this, he told me he is going to record the conversation. [119] When Stuart started recording, it was like a new and completely different conversation from the previous conversation we had just had. It was completely unrelated to me not understanding why he arrested me. [120] Stuart started his recording with, "I am here because Brant James wants to conclude the matter relating to a false complaint…" and "I declined to investigate the matter relating to Brant James being parking in the street in August last year."" 1. The plaintiff did not mention in her affidavit that she too had recorded the conversation. She did, however, record it, and the recording was produced and played in court when called for by counsel for the State (T77.30). When asked why she had not produced it earlier in response to either the notice to produce or subpoena address to her (T78.45), she replied that she thought she was only asked to provide documents relating to 7 October and 29 November (T79.1). I find that that answer was untruthful and deliberately so. While I do not give such weight to her failure, of itself, to produce a recording in response to a notice to produce or subpoena, her response adds to the other factors that suggest she is an entirely unreliable witness. 2. I consider that the plaintiff's stated understanding of the scope of the subpoena and notice to produce was false for the following reasons. The subpoena, relevantly required production of all recordings related to the events alleged to have occurred on "e. 29 November 2016, being the alleged unlawful arrest of the plaintiff as pleaded at paragraph 77 and 78 of the amended statement of claim." Paragraph 78 of the amended statement of claim refers to a wrongful arrest on 29 November 2016. The original version of the statement of claim had pleaded the date as 19 November 2016 (see [33]). Paragraph 86 of the amended statement of claim, refers to a wrongful, unlawful and arbitrary arrest on 19 November 2016. 3. The State's solicitors sought further and better particulars of the amended statement of claim by a letter dated 26 June 2020 (Court Book, tab 2). While the request in respect of [78] did not refer to a date, the plaintiff, in response, gave particulars under the heading "False imprisonment on 19 November 2016". In it, she gave details of the only alleged arrest by DCI Cadden. 4. In its defence, the State of New South Wales denied the allegations in [78] of the amended statement of claim and further answered by giving its version of what occurred on 19 November 2016 (see [43]). In her reply at [8], the plaintiff did not take issue with the date asserted by the State. 5. As I have mentioned, the plaintiff corrected the date of the alleged arrest in her affidavit at [115]. However, she was aware, at the very least by September 2020 when she filed her reply, that the only arrest concerning DCI Cadden in issue was said to have occurred on 19 November 2016. Thus, when she received the subpoena and saw that it referred to 29 November 2016, she must have understood it to have been a reference to that incident. That is not only because that was the only arrest alleged in November, but it was qualified by reference of her own pleadings which makes the necessary connection between the arrest and the date. 6. Perhaps even more importantly, the recording was the same as the one by DCI Cadden and is inconsistent with her version of events. The plaintiff must have known this, because the only mention of arrest in the recording is towards the end where DCI Cadden is recorded as saying: "…So basically, I am offering you the chance to come down to Fairfield. Meet me there. You're not under arrest, and you won't be arrested. Um, to take part in an interview where we can fully explore the allegation and any, any reasons that you may or may not have to give for the letter. Is that something you wish to take part in?" [emphasis added] 1. The plaintiff sought to deal with this in two ways. First, in both her affidavit ([117]-[118]) and her cross-examination (T73.20), she said that the arrest happened immediately upon her opening the door and, thus, before the recording commenced. Secondly, in cross-examination the plaintiff explained the passage set out above by saying (at T75.20): "But he only said those words because he knew he arrested me earlier. When police come to the door or speak to you, they never say, "You're not under arrest." That's not relevant." 1. She could not, however, give a coherent answer to the question of how she could possibly know that. Her evidence in this respect was no more than a vain attempt to overcome objective evidence that was clearly inconsistent with her case. The obvious reason for a police officer to tell a person that she is not, and will not be put under arrest, is to encourage them to attend at the police station to be interviewed. 2. There are other aspects of the recording that are inconsistent with the plaintiff's sworn evidence. In the first passage DCI Cadden is recorded as saying: "As I told you earlier you are not obliged to say or do anything unless you want to, as anything that you say will be recorded and may be given as evidence. Do you understand that?" 1. Although that is consistent to some extent with the plaintiff's evidence, insofar as she said that she received the warning, DCI Cadden later explains that the reason he had called and then attended her residence was to offer her "the chance to take part in an electronic interview." If the plaintiff has earlier been told that she had been arrested, there would have been no need to say this and, further, she had the opportunity to ask why she was being arrested when she was recording the conversation, but she did not. 2. The plaintiff was asked why she did not include in her affidavit the part from the conversation when DCI Cadden told her she was not under arrest. She replied that she did not know she had to put the whole transcript in her affidavit and, in any event, that she had put it in her reply to the seventh defendant's solicitors. Even accepting the first part of this response, the second part of the response was incorrect on the basis that the reference to "reply" was to either the response to request for particulars or the pleaded Reply. 3. In her letter providing further and better particulars she did not include the relevant part of the conversation but only wrote "at the end of the conversation the plaintiff was no longer under arrest." 4. The plaintiff's version of the recorded part of the conversation in the Reply at [8] was: "…the recorded conversation was Stuart (Cadden) trying to explain to the plaintiff why she was arrested because she could not understand why she was arrested." 1. The plaintiff's evidence about people stalking her home was also problematic. The first incident involved a dark blue Holden Commodore with a man eating an apple (affidavit at [97]). The plaintiff explained only that she "thought [she] recognised this man to be one of the fathers from Lindfield Rugby". The second incident (affidavit at [98]) involved the same car but the plaintiff said she saw nothing more than the car's "window going up, down, up, down, up, down, up." From this she inferred that the driver was trying to get her number plate. This made her think that DS James was stalking her. However, there appears to be no rational basis for thinking that DS James had organised for the father of one of the members of the Lindfield Rugby Club to obtain her registration plate. It is not clear why a police officer who has a person's address would need to take such steps to find the registration number of the person's vehicle. 2. The third incident occurred when the plaintiff was "driving down the street" (affidavit [101]). She says that she saw a person in a white 4-wheel drive wearing a police cap and "it looked like it was" DS James. She does not explain where that occurred. 3. The fourth incident (affidavit [122]) was in March 2020 when the plaintiff says she saw a person take a photo outside her house with an iPad and then hurriedly drove off. She explained (at [123]): "I believe this person to be someone known to the First Defendant like say, his brother." Again, there is no rational basis for that statement. The plaintiff does not say that she knows the first defendant beyond the incident in March 2014 or that she knows any of his family. Further, it is entirely unclear why anyone related to the first defendant would want to take a photograph outside the plaintiff's house. 4. The fifth occasion is supposed to have involved the same person who was now taking a photo of a visitor to the plaintiff's house (affidavit [125]). Again, there is no rational basis for this. 5. It is a very serious matter to accuse somebody of stalking. That conduct could amount to an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) which carries a maximum penalty of 5 years imprisonment1. The fact that the plaintiff raises so many allegations of stalking against different people, with so little to support those allegations, raises serious questions about her motivation to bring these proceedings and her willingness to fabricate her evidence. 6. In addition to these matters, I would add my observations of the plaintiff's demeanour. Although she remained calm during her evidence, the plaintiff largely sat hunched forward with her arms crossed in a very defensive attitude. That attitude was, as I have outlined above, reflected in her answers to questions. While I would not take the plaintiff's demeanour, alone, as indicative of unreliability, it confirmed the view I took of her as a witness as her evidence came out in cross-examination. Defendants' witnesses Doug Clare 1. Doug Clare was a member of the general committee of the Dural Rugby Club in 2014. On 23 March 2014, he was at Dural Rugby Park watching his son play when he heard some yelling between a male and female. This was at about the halfway mark between the two football fields at the park. He turned around and went over to see what was happening. He said that the woman was yelling "I need to see Matthew Hall". Matthew Hall was then the President of the Dural Rugby Club and the coach of Mr Clare's son's team. Mr Clare told the woman that Mr Hall was busy coaching, and he would go and get the ground marshal to sort out any issues (T178.20). Mr Clare said that he recognised the woman as she had been a referee of rugby games but didn't know the male. 2. I found Doug Clare to be a straightforward witness who gave his honest recollection of events and I accept his evidence of what occurred. Ron Mancell 1. In 2014, Ron Mancell was employed by Australian Rugby Union as the referee manager for New South Wales. 2. He said that he recalled the incident report filed by the plaintiff in March 2014 and phoned her on a number of occasions about it. He said that he spoke to her for the first time probably on the Monday following the incident (25 March 2014) and discussed the matter with her and told her his conclusion that it was a matter for the police. On the second occasion he told her again that this was his conclusion (T158.45) and that she should contact the police and start the complaint process. He explained the reason of this conclusion as follows (T159.35): "If it hadn't been a policeman I would have considered straight up that it was something that needed to be investigated. The problem that I have and still have is that whether a policeman is on duty or off duty if he sees or perceives that somebody's doing something wrong and he deals with it, he's doing his job and I, I made the decision that I wasn't going to - or not I, but New South Wales Rugby wasn't going to bring a policeman into a judiciary for an incident where a policeman had made a decision that something had - something untoward had occurred and he was dealing with it as a policeman." 1. Mr Mancell gave evidence about the document "Procedure to deal with and report abuse before, during or after a match" (Exhibit 3). He explained (T162.25) that it had been created in 2013, was a document readily available for people to see and that there was an education program based on it to ensure that all referees knew the process they had to go through to deal with abuse, specifically on field abuse. 2. Mr Mancell was tested on his recollection of events by the plaintiff in cross-examination. While he had admitted some difficultly with precise recall, given the passage of 8 years, he said he did have a clear recollection of one of the telephone calls with the plaintiff and denied that he did nothing to support her. 3. Mr Mancell was an honest witness who readily accepted the limitations of his recollection and made every attempt to give truthful evidence to the questions asked of him. Kerry Brady 1. In 2014, Kerry Brady was the Sydney Junior Rugby Competitions Manager. In that capacity, she received the plaintiff's incident report and read it, although she had already been told of the incident by Matthew Hall. Ms Brady discussed the report with Ron Mancell and they both agreed that it was a matter for the police. That was because the incident did not arise in respect of someone acting as a referee or as a ground manager. In cross-examination, she further explained that the matter did not happen as part of a game or on the sideline either. 2. I found Ms Brady to be an honest and reliable witness and I accept her evidence. Ian Mooney 1. In 2014, Ian Mooney was the President of Sydney West Rugby Referees' Association and an active referee and coach with that organisation. 2. He gave evidence that he was notified of the plaintiff's complaint by Ron Mancell. He acknowledged frankly that he could not recall the precise timing of that notification. He said that he was provided a copy of the plaintiff's incident report and then contacted the plaintiff to talk with her about it. He explained that he encouraged her to lodge a complaint with the police because it was outside the bounds of what the association normally encountered, as it commenced in the car park and was in the nature of a policing matter rather than a rugby incident. He said that he had three conversations with the plaintiff about the incident but did not recall hearing back from her after that. 3. Mr Mooney maintained his evidence under cross-examination and was a straightforward and honest witness doing his best to give truthful evidence of an event 8 years ago. Hugh Anstee 1. In March 2014, Hugh Anstee was a ground marshal for Dural Rugby Club. This essentially entailed controlling the game and organising the field beforehand, including setting up the grounds. He also ensured that the home and away teams had completed their signing on duties and he officiated the games. 2. Mr Anstee recalled that, on 23 March 2014, he was heading to the canteen when Doug Clare told him that there was an incident occurring between a referee and a male. Mr Anstee then walked over to the incident which was on the grassed area in front of the canteen. He saw a heated discussion going on and told the two people to move out of the area so he could find out what it was about. They all then went over to the carpark area and DS James spoke first. He said that he was a police officer and that on his way into Dural Park a vehicle was blocking the access and he waited a while. After a while, he got out of the car and approached the person that was blocking the road and asked her to move her vehicle. 3. At this point, the plaintiff was talking over DS James so it was difficult to hear him. Mr Anstee then asked DS James for his identification and he provided his police badge. The plaintiff then gave her side of the story and, in order to resolve the issue, he asked her to show her licence. Mr Anstee raised his voice in order to be heard. 4. After this, Mr Anstee went back to his ground marshal duties and saw nothing further. He did not see any interaction between the plaintiff and DS James when they walked to the car park and no physical interaction between them at all. Later, Mr Anstee told Mr Hall about the incident, and they went over to DS James and he introduced Mr Hall to him. 5. In cross-examination, Mr Anstee said that he did not see DS James grab the plaintiff by the arm and throw her (T215.15). He denied that he had no control over the situation and that he had never seen DS James' ID (T214.10-15). 6. Mr Anstee impressed me as an honest witness, again willing to acknowledge any shortcomings in his recollection, but always giving direct and responsive answers without reaching to justify any of them. Matthew Hall 1. In 2014, Matthew Hall was the President of the Dural Rugby Club. On 23 March 2014, he was at Dural Park for a day of trial matches. His evidence was that Doug Clare told him of an incident concerning people involved with the club and that Hugh Anstee also told him. Mr Hall says that he went to speak to one of those involved, an off-duty police officer, and then waited for the other person to come to speak to him. 2. Mr Hall recalled that he was told that the incident involved somebody blocking traffic in the car park and the off-duty officer asking them to move their car. The person refused and a heated discussion followed. 3. Mr Hall said that he approached the plaintiff after she had packed her things and told her what he had been told about the carpark incident and that he thought it was not a rugby related matter because it happened in the carpark and the police were involved. He said that he did not witness any of the interaction between the plaintiff and DS James. 4. In cross-examination, Mr Hall explained that when he approached the plaintiff he was some way from her but agreed, when the plaintiff started to give her version of events, it was possible that he said he didn't want to know and was just passing a message on (T204.10). However, he did not recall Mr Anstee telling him that DS James grabbed the plaintiff by the arm (T205.10) 5. He explained that there was a lot going on that day and he had been busy with 35 under 11 boys and their families. Mr Hall also said that Mr Clare had told him that there had been a bit of an argument on the field and that Mr Anstee suggested talking to the "copper" because the plaintiff was still refereeing. 6. I found Mr Hall to be an honest witness. He answered questions directly and acknowledged when he could not recall certain details. DCI Cadden 1. Stuart Cadden is a Chief Inspector with the New South Wales Police Force. On 20 October 2015, he was stationed as a Duty Officer at Fairfield Area Command when he received a complaint from the plaintiff stating that DS James had been stalking her at her home. 2. DCI Cadden says his duty was to triage the complaint in accordance with the NSW Police Force Complaint Handling Guidelines. DCI Cadden says that he determined from the evidence he obtained that DS James could not have possibly been near the plaintiff's residence at the time of the alleged stalking. He said he contacted the plaintiff on 26 October 2015 to inform her that the complaint had been declined. In this phone call, DCI Cadden claims that the plaintiff said words to the effect of "James needs to be punished for what he did to me in 2014." 3. DCI Cadden said he decided to commence a formal investigation into the plaintiff for making a false complaint against a police officer. On 7 October 2016, he attended the plaintiff's home accompanied by another officer where he informed her that he was investigating these allegations against her. He says he asked her if she was willing to answer some questions and the plaintiff responded that she was not. DCI Cadden says he left immediately. 4. On 19 November 2016, he attended the plaintiff's home again with the purpose of offering her the opportunity to participate in a recorded interview. DCI Cadden says that the plaintiff became argumentative, so he decided to make an audio recording of the conversation. During the recorded conversation, DCI Cadden said "You are not under arrest and you will not be arrested." He left immediately after the plaintiff told him that she would not participate in the interview. DCI Cadden asserts that the plaintiff was never under arrest and that he had no intention of arresting her on 19 November 2016. 5. On one occasion in cross-examination, DCI Cadden became a little combative (see, for example, T228.50). However, in general he answered questions directly and calmly. Bearing in mind that there was some history between DCI Cadden and the plaintiff, who was asking the questions, and she was making serious allegations of misconduct against him, those momentary lapses were understandable and do not impact negatively on his credit. DS James 1. Detective Sergeant Brant James is stationed at South Sydney Police Area Command in Redfern. On 23 March 2014, he was off duty and was driving to Dural Park to coach for the Lindfield Junior Rugby Club. DS James says upon entering the car park, he stopped behind two stationary vehicles. The cars did not move for approximately 7-8 minutes and a long line of cars developed behind him, with drivers honking their horns. The driver of the car directly in front of DS James, approached him and told him that there was a problem ahead that may require his intervention. At this point, DS James says he could see that the line of cars stretched out of the carpark and onto Quarry Road itself. He was concerned that it might be a hazard. 2. DS James went to see what was happening and saw a blue Hyundai blocking the traffic. The Hyundai was at an angle, with the front facing the door of a grey VW. The Hyundai was stationary and the engine was turned off. DS James assumed the car had broken down and approached the driver of the Hyundai to assist. He asked if everything was okay and whether she had broken down. The driver responded that she wanted the car spot and if he could make the other car move. There was conversation back and forth where DS James asked her to move her car and the plaintiff refused. 3. DS James says that he believed the driver was acting unreasonably and irrationally and he was concerned about the building traffic. He made the decision to issue a formal direction and produced his NSW Police identification warrant card. He says that the driver became angry and attempted to grab his ID. The plaintiff still refused to move and continued arguing. He gave the plaintiff a formal move on direction and she eventually moved her car and parked in a spot that was available the entire time. 4. Approximately 10 minutes later, DS James says he approached the plaintiff at the canteen and asked to see her driver's licence. She did not acknowledge him and walked away. He followed the plaintiff for about 20 metres and made similar requests while she continued walking towards the middle of the two football fields. The plaintiff said she didn't have to give it to him and "You can't touch me, go on touch me." DS James had not touched the plaintiff at any point. He says he did pinch her right sleeve, but not longer than one or two seconds to gain her attention. At one point, the conversation became heated, but DS James did not control the plaintiff's movements. 5. DS James says that Hugh Anstee then approached and asked what was going on. He explained that he needed to obtain her details in relation to an earlier traffic incident and showed his police identification. Mr Anstee told the plaintiff that she should show her licence and she said it was in her car. DS James says he walked in the direction of the car with Mr Anstee, while the plaintiff followed behind screaming and shouting. 6. At the car, the plaintiff handed over her licence. She was angrily yelling, "I want your badge number." DS James showed his warrant card again and the plaintiff tried to grab it. He then provided her with his police business card to keep. The plaintiff said, "I will be making a formal complaint to the NSW police force." The plaintiff then left. 7. DS James was later approached by Matthew Hall who asked him what had occurred and if action was to be taken. DS James says he told Mr Hall that he would have to create a report as the plaintiff had already made false statements about what had occurred. 8. DS James asserts that he never touched the plaintiff during the incident and she was never under arrest. DS James says he never made any contact with the plaintiff following the incident and denies ever stalking her. 9. DS James was cross-examined in detail about the incident in the carpark. He explained that he spoke to the plaintiff because it was her car, and not the VW, that was blocking the traffic. He drew a diagram that explained this (Exhibit 15). He also said that he approached the plaintiff later to obtain her identification rather than ask for it in the car park because he had to park his car and organise the rugby team he was managing. 10. His evidence was, in its essence, consistent with that of the other defence witnesses, except in one aspect. He recalled that Matthew Hall came with him, the plaintiff and Hugh Anstee to the car park. His recollection was a little vague about this and he was unsure at what point Mr Hall joined them. The evidence of Mr Anstee and Mr Hall was that Mr Hall spoke to DS James while the plaintiff was not there and not that it was on the way to the carpark. 11. I accept that DS James was giving his honest recollection about events but find that his recollection of this matter was incorrect. Nevertheless, it is not uncommon to conflate two events that occurred in respect of one incident and, as this was a relatively minor detail, I do not find that DS James' general credit is affected by it. 12. DS James' demeanour showed that he was still unhappy about the accusations made against him and the consequences of that over the last 8 years. However, in spite of that, he was an impressive and honest witness and, with the exception of that one matter I have mentioned, I accept that his evidence was reliable. Findings of fact 1. There are three reasons why I reject the plaintiff's versions of events. First, important aspects of it are implausible. It is difficult to understand why DS James would have come from the field to abuse and threaten the plaintiff if, as she claimed, there was no traffic at that time, the VW had pulled up and the driver had laid back in the seat. The plaintiff's evidence inferred that the driver had called DS James who had then come from the field, but that was no more than speculation and, again, without any rational basis. From the beginning, the plaintiff's version makes little sense. In contrast, the version given by DS James does make sense. It is common experience that suburban sporting fields are busy places on weekends during school term and that this means heavy traffic that can build up quickly. It is common sense that people in that traffic can become frustrated when they have to deliver children and sporting gear to a place by a certain time. It is also a common experience that drivers become annoyed when they are denied a parking space and that annoyance can lead to heated and irrational behaviour. 2. Secondly, the plaintiff's version is inconsistent with other evidence, including that of Mr Anstee and the objective evidence of the audio recorded conversation. Mr Anstee, an impressive witness, said that he did not see any physical interaction between the plaintiff and DS James. Nor, for that matter, did anybody else. I have already explained the impact of the tape recording and why I do not accept the plaintiff's explanation for what was said by DCI Cadden. 3. Thirdly, the plaintiff was a very unimpressive witness whereas each of the other witnesses were both credible and, in all important respects, reliable. 4. The incident report submitted by the plaintiff on the day after the events in question contains a narrative which is very similar to the plaintiff's affidavit evidence. Given that it is a relatively contemporaneous account of events, it would ordinarily be expected to be more accurate than a statement made at a later time, such as the affidavit in these proceedings. However, that is not always the case because, for example, even contemporaneous statements can be contrived or unreliable, although honestly believed by their maker. There are a number of reasons why I do not accept that the incident report is, in important respects, an accurate account of events on 23 March 2014. First, a number of details differ from the plaintiff's affidavit evidence. For example, DS James is described as coming from behind the bushes rather than from the field, the alleged arrest by DS James itself is never mentioned and Mr Hall is not described as standing "inappropriately" close to the plaintiff. Other details are inconsistent with the plaintiff's affidavit, namely, in it the behaviour of DS James is initially described as "stalking" rather than as blocking her path and she says that she and DS James "nearly reached the officials area" before he grabs her arm (cf affidavit [45]). 5. In addition to those matters, the implausibility of the plaintiff's account and my impression of her as a witness outweigh any support that the incident report may otherwise have lent to her credibility. 6. For those reasons, I make the following findings of fact. 7. On 23 March 2014, the plaintiff was attempting to park at Dural Rugby Park but was blocked by another car that was stopped across her chosen spot. Her blue Hyundai was positioned on an angle on the right-hand side of the road, blocking traffic entering the car park. The line of cars was building, causing cars to be banked back onto Quarry Road. 8. DS James, then off-duty, was a driver of one of the cars stopped in the car park. He exited his vehicle and approached the Hyundai to assist, suspecting that the vehicle had broken down. After discovering that there was a dispute over a parking spot, he asked the plaintiff to move her car to allow the traffic to pass through. When she became argumentative, DS James recalled himself to duty and showed the plaintiff his NSW Police Identification. The plaintiff attempted to grab his wallet. DS James continued his requests for the plaintiff to move her car, to which the plaintiff refused. DS James then decided to give the plaintiff a formal direction to move her car and she eventually reversed into an available parking spot. 9. DS James later approached the plaintiff at the canteen and asked to see her driver's licence. The plaintiff refused and walked away towards the ground marshal's tent. DS James followed her and repeated his requests. At one point, he pinched the sleeve of her shirt to gain her attention. The conversation between the plaintiff and DS James became heated and they were arguing loudly. 10. Doug Clare heard this while he was watching his son's rugby match, and approached the two. He later told Hugh Anstee what he had seen. 11. Hugh Anstee then intervened and encouraged the plaintiff and DS James to move their argument to a more appropriate location away from the field. In order to resolve the issue, he walked along with them and obtained both sides of the story. He asked each party to show their identification, which they agreed to do. Mr Anstee returned to the ground marshal tent and later told Matthew Hall about the incident. Mr Hall approached DS James to hear his version of events and ascertain if there was any further action to be taken. He then spoke to the plaintiff after she had finished refereeing her games and relayed what he had heard from DS James. 12. I find that both Mr Anstee and Mr Hall did everything reasonable to end the dispute between the plaintiff and DS James and to ensure that no harm came to either of them or to any of the other people in the vicinity. 13. At no point during these events did DS James grab, shake or throw the plaintiff. DS James never told the plaintiff that she was under arrest. She was never restricted in her movements and was free to walk away, as she did. DS James did not make contact with the plaintiff after that day. 14. The plaintiff submitted an incident report to Rugby Australia the following day. Officials within the organisation assessed the report and determined that, as the incident arose in the car park and involved a police officer, it was a police matter and not related to rugby. The plaintiff was advised of this outcome by Ron Mancell. There was no foreseeable risk of any further incident between DS James and the plaintiff or any other harm and nothing further was required of the Rugby Union Defendants to protect against any harm. 15. DCI Cadden attended the plaintiff's residence on 19 November 2016 with the purpose of offering her an interview in relation to allegations of a false complaint against a police officer. The interaction was consistent with the audio recording made by DCI Cadden. At no point did he tell the plaintiff that she was under arrest, instead he specifically told her she was not under arrest and would not be arrested. Legal Principles 1. Wrongful, or false imprisonment is established where there is an intentional, total and direct constraint on a person's liberty without lawful authority to justify it. The constraint must be such as to prevent the person from exercising her right of leaving the place she is in: McDonald v Coles Myer Limited (1995) Aust Torts Reports 81-361. Thus, in Bird v Jones (1845) 7 QB 742, it was held that no imprisonment occurred when the plaintiff was prevented from travelling over the Hammersmith bridge in one particular way but was able to go over in another manner. 2. Here, the plaintiff was never constrained by DS James. Even on her own evidence she moved from one place to another without hinderance, often completely ignoring him. For that reason, there was no wrongful imprisonment. 3. There is tortious assault where the act of a person either intentionally or negligently causes another person to apprehend a threat of force or violence: Croucher v Cachia (2016) Aust Torts Reports 82-279 at [42] per Leeming JA, citing Barton v Armstrong [1969] 2 NSWLR 451 at 455 and State of New South Wales v McMaster (2015) 91 NSWLR 666 at [205]. 4. Here, there was yelling and shrieking involved in the interaction between the plaintiff and DS James. Apart from that, there was no evidence that would support the conclusion that the plaintiff was put in a position that she apprehended a threat of force or violence. She stood her ground, ignored the officer and then gave at least as good as she got. 5. Hugh Anstee was the witness that was in the best position to observe the interactions, especially at the point when the plaintiff claimed it was most aggressive. However, he said he was not afraid but was in control of the situation. I conclude that, while there were heated words, there was never any apprehension of a threat of violence or force and so no assault. 6. Battery is committed by a person who directly causes physical contact with another person and does not show that he is without fault: Croucher v Cachia [2016] Australia Torts Reports 82-279 at [21] (Leeming JA). 7. The only physical contact between the plaintiff and DS James was when he pinched her sleeve momentarily in order to get her attention. While there may be a battery when clothing is touched, I am not satisfied that there was any direct contact with the plaintiff or that there was any other battery. Further, the law does not protect against every physical contact. For the purposes of tort law, what constitutes unacceptable conduct "must be considered in the context of the incident in dispute": Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at 114 [54] (Sheller JA, Priestley JA and Heydon JA agreeing); Brighten v Traino [2019] NSWCA 168 at [43] (Barton JA, Gleeson JA agreeing at [135]). In the context here, pinching the plaintiff's sleeve did not amount to a battery. It is entirely unremarkable in everyday life that someone might seek to get someone's attention by a brief and slight touch of the sleeve. 8. I have rejected the evidence relied on by the plaintiff for her case on arrest and intimidation and need say nothing further about her claims. 9. In conclusion, the plaintiff's claims against each of the defendants must be dismissed with costs. 10. Although the proceedings must be dismissed, I will follow, to some extent, the usual course and make a determination of damages: Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 at [3] citing Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]; Nevin v B & R Enclosures [2004] NSWCA 339 at [74]-[75] and Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78 at [3]-[4] and [53]. However, I consider that it only necessary to do so to a very limited extent. 11. In my view, it would be a hollow exercise to make any findings on damages except in respect of one matter. First, there is no evidentiary basis for any findings of injury that would support an award of compensatory damages in negligence against the Rugby Union Defendants. Secondly, in respect of the claims against the State, with the exception of the claim in battery, any consideration of damages would require findings diametrically opposed to my conclusions and, in particular, would require me to ignore my view of the plaintiff's credibility as a witness. The claim in battery is different because it is at least arguable that, on the facts I have found, there was a battery. 12. In that respect, the assessment of damages must be made at common law rather than under the CLA and so may include aggravated and exemplary damages as per s 3B(1)(a). 13. I will deal first with exemplary damages. Such damages may be awarded where there has been a "conscious wrong-doing in contumelious disregard for the plaintiff's rights": Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 154. I am not satisfied that this has been established on the evidence and would make no award of this type of damages. 14. Compensatory damages include both what are called general damages and aggravated damages. There is no evidence to support an award of general damages here. However, accepting that the slight and momentary pinching of the plaintiff's sleeve was at least insulting, it would warrant a small award of damages which I asses as $500. 15. Even on this alternative basis, however, given that her claims were otherwise rejected, the plaintiff ought to pay the defendants' costs of the proceedings. Orders 1. I make the following orders: 1. Judgment and verdict for each of the defendants. 2. The plaintiff is to pay the defendants' costs. 3. If any party seeks a variation of order (2): 1. That party must file and serve written submissions of no more than 5 pages together with any affidavit within 14 days of these orders; 2. Any party opposing any variation sought in accordance with order 3(a) must file and serve submissions of no more than 5 pages and any affidavit in support within 28 days of these orders; and 3. Any application for variation will be heard on the papers. ********** 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: 25 March 2022