Pringle & Ors v Everingham [2006] NSWCA 195

New South Wales Court of Appeal

CITATION: Pringle & Ors v Everingham [2006] NSWCA 195 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11 and 12 April 2006

JUDGMENT DATE: 27 September 2006

JUDGMENT OF: Mason P at [1]; Santow JA at [2]; Hunt AJA at [3]

DECISION: 1. The amendments sought by the defendants to their Grounds of Defence are allowed.; 2. The defendants' appeal is allowed and the plaintiff's cross-appeal is dismissed.; 3. The verdicts are set aside, and there is to be a new trial of the action.; 4. The defendants are to pay the plaintiff his costs of the whole of the frist trial assessed on an indemnity basis.; 5. The plaintiff is to pay 60% of the defendants' costs of the appeal and cross-appeal assessed on a party and party basis and, if eligible, he is to have a certificate under the Suitors' Fund Act 1951.

CATCHWORDS: Incidents in hotel car park – police officers breath testing driver of car parked there – ordered to leave – hotel licensee sues police officers for trespass, three assaults and false imprisonment – succeeds in relation to one assault – verdict for defendants on other claims based on special defences not pleaded – defendants decline to amend pleadings at trial – judge erred — Application to amend on appeal – plaintiff alleges defendants estopped by conduct at trial - estoppel irrelevant to amendment – new trial – defendants ordered to pay plaintiff whole of his costs of the first trial on indemnity basis. –– Verdict entered against one police officer for "individual and separate" tort committed by another police officer – judge erred. –– Implied licence to enter hotel car park – police officers entitled to remain to complete breath test notwithstanding direction of licensee to leave.