Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Elleray v Rail Corporation NSW [2017] NSWCA 23 Hearing dates: 17 February 2017 Date of orders: 17 February 2017 Decision date: 21 February 2017 Before: Ward JA; Payne JA Decision: Leave to appeal is refused with costs. Catchwords: PROCEDURE - application for leave to appeal – findings of trial judge based on credit – claim below statutory threshold – whether leave to appeal should be granted Legislation Cited: Civil Procedure Act 2005 (NSW), s 60 District Court Act 1973 (NSW), s 127 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 231, 100 Cases Cited: Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 State of New South Wales v Ibbett (2006) 229 CLR 638 The Age Company Ltd v Liu [2013] NSWCA 26 Category: Principal judgment Parties: David John Elleray (Applicant) Rail Corporation New South Wales (Respondent) Representation: Counsel: L D Robison (Applicant) Mrs M Hamdan (Respondent) Solicitors: John Stonham & Co Lawyers (Applicant) Hicksons (Respondent) File Number(s): CA 2016/00280634; 2016/00016610 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Date of Decision: 18 December 2015 Before: Scotting DCJ File Number(s): 2013/343924 [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.] Judgment 1. THE COURT: This is an application for leave to appeal brought by Mr Elleray against the Rail Corporation of New South Wales (Railcorp) from the judgement of Scotting DCJ of 18 December 2015. Overview 1. Mr Elleray sued Railcorp for damages for trespass and false imprisonment arising from an incident on a train on 14 November 2010. At about 12:45am on that day Mr Elleray was a passenger on a train between Ingleburn and Campbelltown. He was approached by two Transit Officers and an altercation took place. Mr Elleray alleged that he was wrongfully arrested by the Transit Officers and falsely imprisoned. 2. Railcorp admitted vicarious liability for the actions of the Transit Officers. Railcorp's case was that when Mr Elleray was approached by the Transit Officers, he refused to produce a ticket or a pass and verbally abused the Transit Officers and then assaulted them. Accordingly, it was submitted that the Transit Officers lawfully arrested Mr Elleray and delivered him into police custody at Campbelltown police station. The decision of the primary judge 1. It was common ground before the primary judge that the Transit Officers used force against Mr Elleray to effect an arrest and detained him for about an hour before surrendering him into the custody of the police. Those actions, unless lawfully excused, amounted to battery and false imprisonment. The torts of battery and false imprisonment are actionable per se and Mr Elleray did not have to prove damage. 2. Section 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provides a defence to battery as follows: a police officer or other person who exercises power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest. 1. Section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provides a defence to false imprisonment as follows: (1) A person (other than a police officer) may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law. 1. The primary judge was faced with a stark contrast in the accounts of what took place. 2. It was common ground that Mr Elleray had visited a friend's place for a barbecue at Ingleburn on 13 November 2010 and that he left the barbecue alone in the early hours of 14 November 2010 carrying a plastic bag containing five premixed bourbon and cola drinks. 3. The circumstances of the altercation were hotly contested. Mr Elleray was an employee of Railcorp and thus not required to have a valid ticket for travel on trains. Rather, he was entitled to use a "travel pass". 4. Shortly after Mr Elleray sat down on the train he states he was approached by two Transit Officers. It was Mr Elleray's evidence that he was polite whereas the Transit Officers were aggressive. Whilst standing up to reach into his back pocket to retrieve his wallet to show his "travel pass" he was tackled by the Transit Officer standing on his right and experienced a great deal of pain. It was his evidence that he was pulled off the seat onto the floor by the Transit Officers and he was turned so that he was facing the direction the train was travelling in. He says that he said repeatedly "I'm not resisting, I'm not resisting". 5. Railcorp called evidence before the primary judge from five Transit Officers who had contact with Mr Elleray on 14 November 2010. 6. The primary judge correctly identified that the case turned on findings of fact he made about the initial interaction between Mr Elleray and the Transit Officers McKenna and Jones. 7. His Honour found that the third relevant Transit Officer, Officer Ogden did not see or hear the initial interaction. His evidence was that he came through the interconnecting doors and executed the "harness takedown" after seeing Mr Elleray with his fist raised towards Officer McKenna and believing that Mr Elleray was about to strike Officer McKenna. 8. The primary judge found that Mr Elleray's version of events was inherently implausible. On his evidence he was initially faced by all three Transit Officers and he was tackled back onto the seat for no reason. His Honour was impressed with Officer Ogden as a witness of truth who gave evidence in a straightforward manner and made appropriate concessions. The primary judge found that Transit Officer Odgen came into the vestibule at about the time of the initial contact between Mr Elleray and Transit Officers McKenna and Jones. His Honour accepted his evidence that he tackled Mr Elleray after seeing his fist raised, about to strike Officer McKenna. 9. The primary judge rejected Mr Elleray's account that he was attacked by Transit Officers without provocation. His Honour reached that view in part based on his observation that Mr Elleray had made assertions in his evidence that were demonstrably incorrect. 10. The primary judge found that Mr Elleray's evidence was generally exaggerated in an effort to bolster his case. The primary judge did not accept that Mr Elleray was thrown to the ground on two occasions or that he was picked up by the handcuffs without support being provided by the Transit Officers. The primary judge found that the evidence of the alleged conversation between Mr Elleray and the Transit Officers was tailored by Mr Elleray to suit his case. 11. His Honour also had significant reservations about the credit of Transit Officer McKenna. The primary judge found that although there were three important documents prepared by Transit Officer McKenna containing crucial differences in evidence before him, he was precluded from finding that Transit Officer McKenna gave false evidence because to do so would be procedurally unfair to him as it had not been put to Transit Officer McKenna that he was giving false evidence. 12. His Honour came to the conclusion "by the barest of margins" that he should accept Transit Officer McKenna's evidence that Mr Elleray was the first person in the exchange to threaten violence. His Honour found that Transit Officer Jones's memory was poor and he was obviously affected by the fear he experienced at the time the incident took place. His contemporaneous evidence was that Mr Elleray had threatened the Transit Officers with a clenched fist early in the altercation. This provided, according to the primary judge some corroboration of Transit Officer McKenna's evidence. 13. There was a significant issue in the trial about the absence of CCTV footage of the altercation. Mr Elleray was very keen to obtain that footage. However, his Honour received evidence, which was not challenged, of a technical fault, which meant that the CCTV did not record on the evening in question. 14. His Honour was not in the circumstances prepared to draw a Jones v Dunkel inference, even if the explanation for the absence of the CCTV footage had been unsatisfactory (which his Honour did not find). His Honour rejected the submission that Mr Elleray's efforts to locate the CCTV footage should be found to have bolstered his credit. So to find would be to invite speculation. 15. Accordingly, his Honour made the following ultimate findings of fact at [132]: Taking all of those matters into account, I find that: (1) The plaintiff took exception to the conversation with TO McKenna or TO Jones and raised a clenched fist towards them; (2) In doing so he committed an assault contrary to section 61 Crimes Act 1900; (3) The Transit Officers lawfully exercised the power of arrest provided for in section 100 Law Enforcement (Powers and Responsibilities) Act 2002; (d) The plaintiff resisted that arrest and the Transit Officers, including the three that entered the carriage at Minto Station, used reasonable force to make the arrest and/or to prevent the plaintiff from escaping; (e) The plaintiff was informed by TO McKenna and TO Morgan that he was under arrest for assault after his arrest and any delay incurred in being so informed was as a result of the plaintiff's actions involved in resisting arrest. 1. So far as the evidence after the arrest was concerned, the primary judge found that he accepted the evidence of Transit Officers Ogden, Piovesan and Morgan to the effect that Mr Elleray was not mistreated by the Transit Officers. It was common ground that Mr Elleray was not mistreated at the time when the train arrived at Campbelltown station and the parties waited for the police. 2. Accordingly, his Honour concluded that Railcorp established that the Transit Officers exercised lawful power of arrest and they used no more than reasonable force in doing so. 3. His Honour assessed damages contingently as being $50,000, being $10,000 general damages for battery, $30,000 general damages for false imprisonment and $10,000 for aggravated damages. His Honour did not consider this to be an appropriate case for an award of exemplary damages by reference to the principles in State of New South Wales v Ibbett (2006) 229 CLR 638. The draft notice of appeal 1. Although initially filed as a notice of appeal, the applicant accepted that leave was required under s 127 of the District Court Act 1973 (NSW), as less than $100,000 is in issue. That concession was correctly made. For present purposes the Court will treat the notice of appeal filed on 18 March 2016 as the draft notice of appeal to be filed, should leave be granted. Grounds of appeal 1. The seven remaining grounds of appeal in the draft notice of appeal can be summarised in the following way (grounds seven, eight and nine were abandoned): 1. First, complaints about his Honour's ultimate conclusions (appeal grounds one and two). These can safely be put to one side. The conclusion in relation to the remaining grounds of appeal will dictate the answer to these grounds. 2. Secondly, complaints about his Honour's credit findings (grounds three, four, five and six). 3. Thirdly, a complaint about damages (ground ten). Principles to be applied 1. In The Age Company Ltd v Liu [2013] NSWCA 26, Bathurst CJ (at [13]), with whom Beazley and McColl JJA agreed, said that "[g]enerally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable". (See also Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164.) 2. In Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387, Bathurst CJ emphasised (at [173]) the restraints on an appellate court in reviewing findings of a trial judge based on credit and his Honour said: Such findings can only be overturned if the appellate court is satisfied that the findings are glaringly improbable or contrary to compelling inferences: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28]-[29], or if it can be shown that the judge has palpably misused his advantage or acted on facts which were inconsistent with the evidence or glaringly improbable: Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178-179. Consideration Grounds of appeal three, four, five and six – credit based findings 1. This was a case conducted over six non-consecutive days before the District Court. His Honour had the advantage of seeing Mr Elleray and the relevant Transit Officers give evidence. 2. His Honour did not palpably misuse his advantage or act on facts which were inconsistent with the evidence or glaringly improbable: Baira at [173]. In the Court's view, his Honour carefully weighed the starkly different and competing versions of events and reached findings which were open to him. 3. Although it is true that the evidence of Transit Officer McKenna was largely discounted by his Honour, Transit Officer Jones provided some corroboration for Transit Officer McKenna's evidence. Further, the primary judge concluded that Transit Officer Ogden saw enough of the altercation to support a finding by the primary judge that the applicant's version of events was "inherently implausible". His Honour found Transit Officer Ogden to be an impressive and truthful witness. It will be recalled that Transit Officer Ogden was the Officer who effected the initial tackle upon Mr Elleray as he saw him about to punch Transit Officer McKenna. 4. Ultimately, his Honour's credit based assessment of the underlying facts makes it unlikely, even if leave were granted, that this Court would interfere with his Honour's final determination. 5. Accordingly, Mr Elleray's credit based complaints do not warrant the grant of leave to appeal. Ground of appeal ten – damages 1. While aggravated damages are designed to compensate the plaintiff for injuries sustained arising from the defendant's wrongdoing, exemplary damages are awarded to punish and deter the wrongdoer: Ibbett at [31]-[34] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). 2. So far as the contingent amount of provisional damages is concerned, there is no error shown by his Honour's failure to provide additional reasons why the claim for exemplary damages was rejected. Even if leave were granted and Mr Elleray were successful on the appeal, the award of exemplary damages would still be limited to cases involving the arbitrary and extravagant use of executive power. Making every assumption favourable to Mr Elleray, his Honour did not err in finding that the present was not a case for the award of exemplary damages. Conclusion and orders 1. This is not a case where there was a clear legal error or injustice demonstrated. The conclusion in relation to the remaining grounds of appeal will determine the answer to grounds one and two. No circumstances warranting the grant of leave have been shown in relation to any of the draft grounds of appeal. This involves, at best for the applicant, $50,000. It is likely that the total costs of a six day proceeding in the District Court before the primary judge involved a sum being in excess of that now in issue and so much was conceded today. 2. Section 60 of the Civil Procedure Act 2005 (NSW) provides: 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. 1. As to the discretion in respect to granting leave for claims below the statutory threshold, Basten JA in Be Financial, to which reference has earlier been made, pointed out at [39]: Where, as in the present case, the costs of the trial are disproportionate to the amount in dispute, the incurring of additional costs, for a potentially uncertain return, will be a factor weighing heavily against a grant of leave. 1. For this additional reason, this is not a case where leave to appeal should be granted. 2. For these reasons the Court is of the view that leave to appeal should be refused with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2017