Benn v State of New South Wales [2016] NSWCA 314

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Benn v State of New South Wales [2016] NSWCA 314 Hearing dates: 7 November 2016 Decision date: 18 November 2016 Before: Meagher JA at [1]; Gleeson JA at [2]; Johnson J at [77]. Decision: 1 Extend the time for filing the summons seeking leave to appeal to 27 May 2016. 2 Summons dismissed with costs. Catchwords: APPEAL – against Supreme Court dismissal of appeal from Local Court decision – Local Court dismissal of damages claim against State for alleged assault by police officer – whether lawful justification for police officer's use of Taser on plaintiff-applicant – ss 22 and 81 Mental Health Act 2007 (NSW) – whether reasonable force exercised in apprehension and detention of mentally ill person – where applicant sought on first-level appeal to rely on new point of unlawful apprehension or detention – whether joinder of issue on pleadings as to lawfulness of apprehension – Uniform Civil Procedure Rules 2004 (NSW) r 14.27(2) – party's obligation to plead any matter which may take other party by surprise – UCPR r 14.14 – Civil Procedure Act 2005 (NSW) s 66(3) – where compliance with common law principles of arrest (requiring provision of warning and reasons) not raised by applicant in Local Court pleadings or hearing – where issue of warnings first raised in applicant's supplementary submissions following trial's conclusion – where respondent prejudiced by denial of opportunity to make different forensic decisions

PROCEDURE – appeal – requirement of leave – Supreme Court Act 1970 (NSW) s 101(2)(r) – where relatively small amount in issue in second-level appeal – where applicant seeking remittal for assessment of damages