Burns v State of New South Wales [2024] NSWDC 372

District Court New South Wales

Medium Neutral Citation: Burns v State of New South Wales [2024] NSWDC 372 Hearing dates: 12 June 2024 Date of orders: 30 August 2024 Decision date: 30 August 2024 Jurisdiction: Civil Before: Cole DCJ Decision: (1) The plaintiff's claim is dismissed. Catchwords: TORTS — Trespass to the person — False imprisonment - proof Legislation Cited: Road Transport Act 2013 (NSW) Cases Cited: Hannam v State of New South Wales (No 9) [2022] NSWSC 648 Jones v Dunkel (1959) 101 CLR 298 State of New South Wales v Le [2017] NSWCA 290 Category: Principal judgment Parties: Jamie Burns (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Mr A Canceri (Plaintiff) Mr M Hutchings (Defendant)

Solicitors: Aussie Lawyers (Plaintiff) Wotton + Kearney (Defendant) File Number(s): 2023/00278740

JUDGMENt 1. Ms Jamie Burns claims, in her statement of claim, that she was falsely imprisoned by two police officers for several minutes "on or about January 2022". There is no contest that the relevant date is 31 January 2022. False imprisonment is a tort. 2. Ms Burns seeks damages, aggravated damages and exemplary damages with respect to the alleged false imprisonment. 3. The defendant denies that Ms Burns was falsely imprisoned.

False Imprisonment 1. The Court of Appeal considered the tort of false imprisonment in State of New South Wales v Le [2017] NSWCA 290 ('Le'), a decision of Basten JA, Leeming JA and Payne JA. The Court said, at [3] – [7]: 3. The primary judge … made no finding of assault, but upheld the claim for "false imprisonment". Although that label is conventional, both elements are, as noted by Peel and Goudkamp, misleading. There is no reason why such language should continue to be used in circumstances where it is inapt. What was involved in this case was a brief interruption of the respondent's intended progress which might be described as a temporary detention. Detention is a concept with a range of meanings, but can be used in a sense distinct from arrest, which in turn is distinct from imprisonment and holding in custody. Detention, in that limited sense, involves a temporary deprivation of liberty. 4. Use of appropriate language is important to the proper application of legal principle. To characterise a particular course of conduct as involving some form of imprisonment tends to focus attention on the justification for the conduct, whereas the first question in this case is to identify the nature of the alleged detention. 5. A person is not detained in the relevant sense if his or her departure from a planned course is voluntary or, if at the request or direction of another person, consensual. Nor will a person be detained in a relevant sense because prevented or delayed in carrying out his or her intended course by the exigencies of everyday events, such as being caught up in a crowd. As explained in Collins v Wilcock. 5 "Furthermore, the word 'detaining' can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be 'stopping and detaining' the latter. There is nothing unlawful in such an act. If a police officer so 'stops and detains' another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat, actual or implicit, to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful." 6. There are two aspects of this passage which require clarification. First, read in context, it is clear that the characterisation of the conduct in the final sentence as "unlawful" means it was conduct requiring justification. Secondly, there may be no clear dividing line between the effect of the officer's uniform on the one hand, and an implicit threat to use force in the event of non-compliance, on the other. 7. This latter point is often an important issue in particular circumstances. The test, however, is objective in the sense that the court must assess what a reasonable person in the particular circumstances of the complainant would have inferred from the conduct of the officer. The subjective state of mind of the complainant will not be determinative. In the present case, which involved a face-to-face confrontation in a public place, it is not necessary to consider whether there may be detention or imprisonment in circumstances where the complainant is unaware of the restraint on his or her liberty, as occurred in Meering v Grahame-White Aviation Co Ltd. [Footnotes omitted] 1. The first step in considering the present matter is to ascertain whether, as a matter of fact, Ms Burns was detained by the police on 31 January 2022, in the sense necessary to establish the commission of the tort of false imprisonment. The test is objective. I must assess whether a reasonable person in the particular circumstances of the complainant would have inferred that they were not free to leave the interaction with the police. I must bear in mind that the subjective state of mind of the complainant, Ms Burns, is not determinative.