State of NSW v Delly [2007] NSWCA 303

Reported Decision: (2007) Aust Torts Reports 81-920 Appeal Outcome: Special leave refused with costs by the High Court - 13 June 2008

New South Wales Court of Appeal

CITATION: State of NSW v Delly [2007] NSWCA 303

HEARING DATE(S): 28 September 2007

JUDGMENT DATE: 6 November 2007

JUDGMENT OF: Ipp JA at 1; Tobias JA at 28; Basten JA at 100

DECISION: (a) Appeal allowed in part; (b) Set aside the award of damages in favour of the respondent made by her Honour Judge Balla on 5 December 2005 and in lieu thereof enter a verdict for the respondent in the sum of $35,000 to date from 5 December 2005; (c) The appellant to pay the respondent's costs of the appeal and of the summons for leave to appeal; (d) Grant leave to the parties to make such written submissions as they may be advised with respect to the following; (i) the addition of pre-judgment interest to the damages of $35,000, and/or; (ii) the effect of any relevant Calderbank offer on the costs of the trial or of the appeal; such submissions to be filed within 14 days of the date of these orders.

CATCHWORDS: CRIMINAL LAW – Unlawful arrest – Person not informed that they were under arrest or the reasons for it – Exceptions to the requirement that a person should be informed of the reason why they are being arrested – Correct test for whether person had knowledge of the general nature of the alleged offence - TORTS – Particular torts – Unlawful arrest – Person not informed that they were under arrest or the reasons for it – Exceptions to the requirement that a person should be informed of the reason why they are being arrested – Correct test for whether person had knowledge of the general nature of the alleged offence - DAMAGES – Aggravated damages – Exemplary and punitive damages – Unlawful arrest by police officers