State of New South Wales v Zreika [2012] NSWCA 37

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Zreika [2012] NSWCA 37 Hearing dates: 8 February 2012 Decision date: 14 March 2012 Before: Macfarlan JA at 1; Whealy JA at 2; Sackville AJA at 3. Decision: 1. Appeal allowed in relation to the award of exemplary damages, but otherwise dismissed. 2. Order 1 made on 15 July 2011 set aside. 3. The parties file agreed short minutes of order within 14 days, substituting for the judgment in the sum of $340,105, judgment for a sum consistent with the reasoning in this judgment (including adjustments to the calculations of interest). 4. If the parties cannot agree, the State file its short minutes of order within 14 days, together with brief written submissions in support. 5. The respondent file its short minutes within a further 14 days, together with brief written submissions in support. 6. The State pay 75 per cent of the respondent's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - unlawful arrest - whether finding of unlawful arrest justified - whether arresting officer had reasonable grounds for suspicions DAMAGES - malicious prosecution - exemplary damages - whether award of exemplary damages justified - need to take into account award of compensatory and aggravated damages - quantum of exemplary damages Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 Law Reform (Vicarious Liability) Act 1983 Cases Cited: A v State of New South Wales [2007] HCA 10; 230 CLR 500 Adams v Kennedy (2000) 49 NSWLR 78 George v Rockett [1990] HCA 26; 170 CLR 104 Grey v Motor Accidents Commission [1998] HCA 70; 196 CLR 1 Hussien v Chong Fook Kam [1970] AC 942 Lamb v Cotogno [1987] HCA 47; 164 CLR 1 New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 New South Wales v Landini [2010] NSWCA 157 New South Wales v Radford [2010] NSWCA 276 TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9; 71 NSWLR 323 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 Warren v Coombes [1979] HCA 9; 142 CLR 531 Woodley v Boyd [2001] NSWCA 35 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448 Category: Principal judgment Parties: State of New South Wales (Appellant) Haysam Zreika (Respondent) Representation: Counsel: M.J Neil RFD QC and M. Hutchings (Appellant) D.T Kennedy SC and T.J Boyd (Respondent) Solicitors: State Crown Solicitor (Appellant) Kheir Lawyers (Respondent) File Number(s): 2008/319779 Decision under appeal Jurisdiction: 9101 Citation: [2011] NSWDC 67 Date of Decision: 2011-07-15 00:00:00 Before: Walmsley DCJ File Number(s): 2008/319779