Hunter v State of New South Wales [2017] NSWCA 57

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hunter v State of New South Wales [2017] NSWCA 57 Hearing dates: 21 February 2017 Decision date: 28 March 2017 Before: Leeming JA at [1]; Simpson JA at [2]; Emmett AJA at [3] Decision: 1. Application for leave refused.

2. Applicant pay the respondent's costs of the application. Catchwords: APPEAL – application for leave - where applicant sought damages for wrongful arrest and false imprisonment – where respondent asserted arrest lawful by reason of s 50 of Bail Act 1978 (NSW) – where applicant sought to rely on new point of unlawful apprehension after evidence had been led alleging that respondent failed to satisfy onus to prove "effectual" exercise of discretion conferred by s 50 – where issue of discretion first raised in applicant's supplementary submission – whether primary judge erred in holding that applicant not permitted to rely on submission – Uniform Civil Procedure Rules 2005 (NSW) r 14.14 – party's obligation to plead any matter which may take other party by surprise – Civil Procedure Act 2010 (NSW), s 56(3) Legislation Cited: Bail Act 1978 (NSW), s 50 Civil Procedure Act 2010 (NSW), s 56(3) Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8 Uniform Civil Procedure Rules 2005, r 14.4 Cases Cited: Benn v State of New South Wales [2016] NSWCA 314 Hyder v Commonwealth of Australia [2012] NSWCA 336 Category: Principal judgment Parties: Terrence Geoffrey Hunter (Applicant) State of New South Wales (Respondent) Representation: Counsel: M Neil QC with A C Canceri (Applicant) M Windsor SC with N N Newton (Respondent)