Konneh v State of NSW (No.3) [2013] NSWSC 1424

Supreme Court New South Wales

Medium Neutral Citation: Konneh v State of NSW (No.3) [2013] NSWSC 1424 Hearing dates: 02/09/2013 Decision date: 27 September 2013 Jurisdiction: Civil Before: Garling J Decision: Order that the separate questions be answered as follows: Question 1: Upon the facts identified in paragraphs 1-3 of the Agreed Statement of Facts, is s 50(1)(a) of the Bail Act 1978 capable of application so as to afford a defence to the plaintiff's claim? Answer: No Question 2: If the arrest of any group member occurred in circumstances where that group member was not subject to any grant of bail under the Bail Act, whether conditional or unconditional, is s 50(1)(a) of the Bail Act capable of application so as to afford a defence to the group member's claim? Answer: No Question 3: Upon the facts identified in paragraphs 4-7 of the Agreed Facts, is s 50(1)(a) of the Bail Act capable of application so as to afford a defence to Mr Moffitt's claim? Answer: Yes, depending upon the facts, matters and circumstances established by the evidence. Question 4: If the arrest of any group member occurred in circumstances where that group member was subject to a grant of bail under the Bail Act, but he or she was arrested on the basis of an alleged breach of a bail condition which did not exist, is s 50(1)(a) of the Bail Act capable of application so as to afford a defence to the group member's claim? Answer: Yes, depending upon the facts, matters and circumstances established by the evidence. Order that the costs of the hearing of the separate questions be costs in the cause. Catchwords: PRACTICE AND PROCEDURE - determination of separate questions - questions to be determined under r 28.2 of the Uniform Civil Procedure Rules 2005 in advance of all other questions. REPRESENTATIVE PROCEEDINGS - State of NSW vicariously liable for conduct of police officers. TORT - claim for damages against State of NSW for wrongful arrest, false imprisonment and assault. STATUTORY INTERPRETATION - whether s 50 of the Bail Act 1978 provides a complete defence to wrongful arrest, false imprisonment and assault Legislation Cited: 1 William & Mary Sess 2c Bail Act 1978 Civil Procedure Act 2005 Imperial Acts Application Act 1969 Interpretation Act 1987 Law Enforcement (Powers and Responsibilities) Act 2002 Statute of Westminster of 1275 (3 Edw 1) Uniform Civil Procedure Rules 2005 Cases Cited: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 Clelland v The Queen [1982] HCA 67; (1982) 151 CLR 1 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Director-General Department of Corrective Services v Mickelson (1992) 26 NSWLR 648 Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277Al- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 Zaravinos v State NSW [2004] NSWCA 320; (2004) 62 NSWLR 58 Texts Cited: B Donovan, The Law of Bail: Practice, Procedure and Principles (Legal Books, 1981) P B Maxwell, On the Interpretation of Statutes (Sweet & Maxwell, 4th ed, 1905) William Blackstone, Commentaries on the Laws of England (Clarendon Press, Oxford, 1765 - 1769) Category: Separate question Parties: Musah Konneh (P) State of New South Wales (D) Representation: Counsel: M B J Lee SC/ R Francois (P) M T McCulloch SC / D Villa (D) Solicitors: Maurice Blackburn (P) Crown Solicitor's Office (NSW) (D) File Number(s): 2011/187125