Michael Bar-Mordecai v The State of New South Wales [2014] NSWDC 84

District Court New South Wales

Medium Neutral Citation: Michael Bar-Mordecai v The State of New South Wales [2014] NSWDC 84 Hearing dates: 24, 25 March 2014 Decision date: 25 March 2014 Jurisdiction: Civil Before: Judge MJ Finnane QC Decision: See Paragraphs [29] to [33] Catchwords: TORT - assault - battery - conduct constituting assault and battery LIABILITY - vicarious liability Category: Principal judgment Parties: Michael Bar-Mordecai (Plaintiff) State of New South Wales (Defendant) Representation: Plaintiff (Self-represented) Mr G Bateman (Defendant)

IV Knight, Crown Solicitor for the State of New South Wales (Defendant) File Number(s): 2013/279481

Judgment 1. The plaintiff sues the State of New South Wales which is vicariously liable for any torts that may have been committed by a police officer. His claim is that on 12 July he attended the Waverley Police Station and that there in the reception area Senior Constable Chris Vallis assaulted and battered him. 2. Assault is a tort that consists in intentionally creating in another person an apprehension of imminent, harmful or offensive contact. If the threat is actually carried out and the other person is struck in some way, that can be described correctly as an assault and a battery. On occasions a battery is committed without the person who is battered being aware that the assailant is about to assault him. However, in this case the claim of the plaintiff is that Senior Constable Vallis by his conduct and words, put him in fear of being imminently harmed and then followed that up by battering him. The battering, according to the plaintiff, was the deliberate pushing of two plastic folders containing documents into the plaintiff's midriff area, and I am not being anatomically correct when I put it in that fashion, but that is roughly what he was talking about. 3. The plaintiff gave evidence and ran his own case. From what I can understand he is an experienced litigant. Indeed the Supreme Court of New South Wales has to be moved before he can commence litigation in any court because he has been declared to be a vexatious litigant. This was mentioned a number of times in the hearing and particularly by him. 4. During the course of the hearing when giving evidence himself he rather curiously referred to himself in the third person as "the plaintiff" rather than saying "I did this" or "I did that" or "Did you see me do this or that". He said "The plaintiff did this, the plaintiff did that" or "Did you see this happen to the plaintiff, did you see the plaintiff do this, that or the other". It was an unusual way of conducting things essentially when standing at the bar table treating himself as if he were separate from himself. 5. He seeks general damages, exemplary damages and aggravated general damages. No medical evidence was given to show any specific injury and I have seen nothing to suggest any bruising or anything of that nature. 6. The plaintiff's claim was that he went into the police station on that day at about 5.30pm and he had with him a number of documents, one of which was an application to vary or revoke an apprehended violence order; and the other was a police report form. These exhibits were marked and tendered. They were tendered and received by me not because I was concerned with the substance of what they allege, but because it is said they were documents that were taken into the police station on the night concerned. One was an application to vary an apprehended violence order and the other was what was called a fraud report form. 7. The plaintiff said that he went into the police station and his intention was to leave two folders with the desk clerk or with an officer there and to get some information about filing an application for fraud against a police officer, Senior Constable Tom Sands. 8. He said that first of all Probationary Constable Burke attended him and he asked Probationary Constable Burke to place a folder that he gave him in Senior Constable Sands' pigeonhole. He produced to the court an empty white folder to indicate the type of folder that he had asked be placed in Senior Constable Sands' pigeonhole. The contents of the folder were not relevant. The fact was that he had asked that that folder be placed, or a folder of that type be placed in a pigeonhole. He then observed Probationary Constable Burke put this folder with some difficulty in a pigeonhole and it had to be placed on a slope in order to fit. There was then another folder left on the counter. When Probationary Constable Burke came back he asked Probationary Constable Burke to review the second folder with regard to Senior Constable Sands. Exhibit B he said were the two documents being what he described as a fraudulent form signed by Constable Sands, and then an application to vary a domestic violence order. 9. He then claimed that Senior Constable Vallis approached and became enraged with this. That is his face became angry with contorted facial features; he flushed and started shouting with words to the following effect, "This is an AVO, it has nothing to do with the police. Police officers don't commit fraud. Get out of here and take these things with you and get out of here", and he said Senior Constable Vallis was standing opposite him and commenced to scream in a belligerent overbearing and aggressive and loudmouthed in a confrontational manner and that he could not deal with things impartial and stayed attached. This caused him, the plaintiff, to feel embarrassed, intimidated, anxious, fearful, harassed and scared for his wellbeing. 10. He claimed that Senior Constable Vallis was 110 centimetres from him when he felt this fear. He said the counter was eight-one centimetres and he had in fact earlier tendered a diagram which indicated that he had been to the police station - this is exhibit A - and had measured the width and length of the reception counter, the length being 179 centimetres and the width eighty-one centimetres. He made measurements about other matters in the police station and they were included in the diagram. 11. He saw another four officers enter and stay in the reception area but no one said anything to him. He then observed Probationary Constable Burke go over to Senior Constable Sands' pigeonhole, collect the white folder and hand it to Constable Vallis who accepted it with his left hand. Probationary Constable Burke then approached Senior Constable Vallis and said "I have another folder here from this gentleman for Constable Sands". Senior Constable Vallis he said with his left hand took the first folder from Probationary Constable Burke and the second folder from the reception counter, bundled them together and proceeded to batter the plaintiff's anterior abdominal wall with the two folders simultaneously and he aggregated the two folders together he said, and he started pushing it against him and he said, "Get out of the police station or I'll throw you bodily" or "bodily throw you out". He then said to Constable Vallis, "You just assaulted me with two folders". He then said that as a result of all this he felt harassed and unsafe, took the two folders, left the Waverley Police Station in an agitated and tremulous state, and was agitated for the next three days and unable to study medicine. He said he did not raise his hand to Senior Constable Vallis prior to or following his assault and that in substance was the claim of assault. 12. The assault is said to be the shouting and yelling and threatening and saying he would throw him out of the police station, and the battery is said to be pushing the two folders together against the plaintiff's anterior abdominal wall while uttering these threats to injure him. That is the substance of the case. No medical evidence was called. As I have said no photographs of any injuries were produced and substantially the claim is that he was psychologically affected, I suppose in a broad sense, for a number of days. 13. The plaintiff is a man who was on the roll of medical practitioners and was removed from the roll of medical practitioners and is anxious to get back to the roll of medical practitioners, hence he said he was studying medicine. 14. In the statement of claim the plaintiff refers to the fact that the violation was captured by an operational CCTV camera. However in this court he has said, he having looked at the CCTV footage, that someone has tampered with it and it does not really reflect what happened. I have examined the CCTV footage, which is exhibit 1. There are, in fact, two separate films on the disc, both taken of the same area in the police station but from different angles. 15. It is observable to me that at the top left hand side of both of these films there was a time bar which measures by the time of the day it was taken, the hour, minutes and the seconds. I have looked at these two films. I looked at one of them in court. I looked at two of them in my chambers. I have looked at them a number of times because of this controversy as to whether they could have been tampered with and because counsel for the defendant pointed to the presence of the time bar at the top left hand corner, and I have concluded there is no evidence whatsoever of tampering. Each second of someone who is in the sight of the particular camera, and there are obviously two cameras placed in different places, is counted. There are no jumps, there are no gaps, there are no unexplained pauses in the film and then the film starting up again. Everything runs perfectly seamlessly second by second. 16. The film itself, without going to the evidence of Senior Constable Vallis, refutes the entire case put by the plaintiff. Senior Constable Vallis denied in evidence shouting or screaming at the plaintiff. The CCTV footage certainly has no sound but looking at his face on the CCTV footage, on the camera vision that shows him full on, he does not appear to be contorting his face in any way whatsoever, nor does his body show any degree of agitation. 17. The plaintiff claimed in evidence that he stood 10 centimetres back from this counter, that Senior Constable Vallis was 10 centimetres back on the other side. The significance of that was, particularly, in part of the defence, where, it was said, that Senior Constable Vallis pushed the plaintiff's hand away from his face by way of self-defence when the plaintiff raised his hand towards his face in a threatening manner. Mr Bar-Mordecai said, because of the distance he was standing back from the table, and because the distance Senior Constable Vallis was standing back, there is no possible way that his hand could have come anywhere near the hand, or the face or body, of Senior Constable Vallis. Therefore Senior Constable Vallis' claim was completely untrue. He also put, in cross‑examination of Senior Constable Vallis, if he raised his hand it would have been his right hand because he was a right handed person. Senior Constable Vallis said what he saw was a left hand being raised towards his face and he instinctively put his arm up to ward it off. Whether he touched it, he doesn't know. 18. I have looked at the CCTV footage and, in my opinion, it is absolutely clear that the plaintiff, at the times he was talking to Senior Constable Vallis, was leaning over this bench, or table, with his body, and it is clear to me that at one point shortly before he left the police station he raised his left hand in a sharp upwards movement and Senior Constable Vallis put what appeared to be his right hand up close to that. It is clear to me it was the left hand that was raised, not the right hand, and it is clear to me that the plaintiff was well over the table and close enough to touch Senior Constable Vallis. I do not accept that at any relevant time in that incident that he was ten centimetres away from the table. 19. As to the assault alleged, everything happened in a short space of time. At 5:34:36 Probationary Constable Burke took a folder away from the counter, towards the pigeonholes and put the folder in a pigeonhole. At 5:35:40 he can be seen with the plaintiff, examining the apparent contents of a second folder. The plaintiff can be seen leaning over the counter and pointing to features of this folder. Probationary Constable Burke can also be seen getting some other bunch of papers, bringing them over and turning them with his hand. Whether they were police instructions of some kind, I don't know, but they were separate altogether from what was in the folder shown by Mr Bar‑Mordecai. There appeared to be discussions between the two of them. 20. Then, at 5:36:51, Mr Bar‑Mordecai is shown leaning over the counter and pointing to someone behind the counter. That someone appears to be Senior Constable Vallis. Before Senior Constable Vallis comes onto the scene, there is another police officer shown, standing beside Probationary Constable Burke to his right, doing something apparently unconnected with this. He doesn't raise his eyes in any way towards Mr Bar‑Mordecai. He takes no interest in anything that is going on there. To the extent that he raises his head, he is turning towards a door to his right, through which eventually Senior Constable Vallis comes. 21. Senior Constable Vallis actually turned up at 5:36:30 and Mr Bar‑Mordecai left a little after 5:38. So the actual discussions between them took place in less than three minutes. Not five minutes, as Mr Bar‑Mordecai seemed to think. 22. What is shown from the film is Probationary Constable Burke going away to the area where the pigeonhole boxes are, bringing back a folder, putting it on the counter. The other folder is still on the counter. Then Mr Bar‑Mordecai is shown getting the two folders together. Then he is shown raising his hand. Just before that Senior Constable Vallis is pointing out towards the doorway. Then Mr Bar‑Mordecai raises his hand and Senior Constable Vallis raises his hand. Mr Bar‑Mordecai's hand was his left hand. Senior Constable Vallis raises his right hand, close to where Mr Bar‑Mordecai's hand is thrust across the table. Then Mr Bar‑Mordecai gets the folders and walks out, and as he walks out he turns around. Now, it may be that he said further words, but it is clear to me that at no point was he struck with the folders and, indeed, he grabbed the folders and walked out. His claims that somebody doctored the tapes do not make any sense. They are contradicted by what is shown on the tapes. The way he gets them into possession is he gets them into possession using his own hands and walks out. 23. Senior Constable Vallis, apart from the video, denied any assault and substantially gave an account that is consistent enough with the CCTV footage to be able to say it is obviously correct. 24. Probationary Constable Burke gave evidence. He could not remember all of it, but he was able to say that he witnessed no assault, no thrusting into the body of Mr Bar‑Mordecai of any folders. The film also, I might add, shows Probationary Constable Burke coming and placing the folders back on the table, not putting them into the left hand of Senior Constable Vallis. Probationary Constable Burke did not thrust folders into the hands of Senior Constable Vallis. He merely put them on the table. In no sense did Senior Constable Vallis aggregate the files, to use the rather curious word the plaintiff used. He may have touched the folders a little, but he was not putting them together. In fact, as I have said before, Mr Bar‑Mordecai put them together himself and took them out. 25. There was clearly no assault at any point. There was no battery, the expression used by the plaintiff. Was there an assault? That is, did Senior Constable Vallis, by his words and conduct, so threaten Mr Bar‑Mordecai that he felt an apprehension that he might be struck? He has said he did not, Constable Burke has said he did not. I accept their evidence as truthful evidence. The CCTV footage also shows that he did not do this. There is no instance in which he is shown to be pushing his body towards the plaintiff. 26. His pointing to the door was in a direction away from the plaintiff. His body language does not exhibit any signs of somebody enraged and he did not appear to me to move from where he was standing behind the counter. The only time he moved was to move his body backwards slightly when Mr Bar‑Mordecai's left hand came towards his face. He moved back slightly and moved his right hand forward to ward off this apparent blow. 27. The only person who appeared to be agitated in the film was 28. Mr Bar‑Mordecai. I am of the opinion that the plaintiff has brought a case which is based on no fact whatsoever, he has no doubt caused a lot of distress to Senior Constable Vallis and no doubt caused a lot of upset generally by making these allegations. They are baseless and I intend to direct that a copy of my judgment be sent to the Commissioner of Police so that he can see that in my opinion as a judge there is no cause whatsoever for thinking that Senior Constable Vallis was involved in any way in threatening behaviour. 29. So I dismiss the action. I enter a verdict for the defendant. 30. BATEMAN: Your Honour, on the question of costs, an offer of compromise was sent to the plaintiff on Friday 21 March offering to settle the matter for a verdict for the defendant, each party to pay their own costs. Could I hand this up to your Honour? The significance of it is that by Friday the plaintiff had had plenty of time to view the CCTV footage, the DVD had been sent to him and the defence case was well known at that stage. If that is accepted as an offer of compromise then I would ask that the plaintiff be ordered to pay costs on the normal solicitor/client basis up until Friday, but as from yesterday and today, yesterday being the morning after the service of the offer of compromise, the work day morning after, the indemnity costs. The practical effect of it is another matter, of course, your Honour. 31. HIS HONOUR: Well, I have considered these sorts of so called offers before. I'm not, of course, criticising you, Mr Bateman, I'm not suggesting you run around making these offers, but I have in other litigation had to consider costs applications made where similar offers were made, a verdict for the defendant, no order as to the costs, and it was said an order for an indemnity cost should follow. I don't agree. I see no reason to change the ordinary order for costs. 32. BATEMAN: Yes, I'm aware of other decisions, your Honour. 33. HIS HONOUR: So all I will do is order the defendant to pay the costs. The plaintiff to pay the costs of the defendant on the ordinary basis. The costs should be as agreed or as assessed.