Benecke v Wall
[2016] NSWDC 118
•29 April 2016
District Court
New South Wales
Medium Neutral Citation: Benecke v Wall [2016] NSWDC 118 Hearing dates: 29 April 2016 Date of orders: 29 April 2016 Decision date: 29 April 2016 Jurisdiction: Civil Before: Neilson DCJ Decision: Leave to the plaintiff to amend the statement of claim by adding the proposed pars 16, 17, 18 and 19 of the proposed amended statement of claim annexed to the affidavit of Mr Krstic of 29 March 2016 refused
Leave to the plaintiff to amend the relief sought to include the claims for aggravated and exemplary damages granted
Plaintiff to supply to the defendant within 42 days any matter referred to in the defendant's solicitor's letters of 16 February 2016 and 29 February 2016 which has not been already supplied by the plaintiff's solicitors
The costs of this notice of motion be the defendant's costs in the causeCatchwords: CIVIL – Practice and procedure – Application to amend statement of claim to add a further cause of action: trespass to the person – False imprisonment occurred during a fight between plaintiff and defendant – Plaintiff’s primary cause of action in trespass to the person (assault and battery) – Defendant cross-claimed, alleging he was assaulted and battered – Fight occurred 19 November 2011 – Proceedings commenced 18 November 2014 – Matter already been listed for hearing on 2 December 2015 – If false imprisonment occurred, would have been for less than 1 minute on 2 occasions – Cause of action arguable, but damages would be miniscule – Plaintiff dilatory is complying with orders and the Rules – Relief claimed discretionary – Further cause of action would lead to further hearing time for very little in damages – Relief refused – Other relief (to claim aggravated and exemplary damages) allowed. Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: McDonald v Coles Myer Limited (trading as K Mart Chatswood) (1995) Aust Torts Reports 81 361 Texts Cited: Bullen & Leake: Precedent of Pleadings 13th ed (1990) Category: Procedural and other rulings Parties: Mitchell Benecke (Plaintiff)
Leonard Wall (Defendant)Representation: Ms Campbell (Plaintiff)
Mr Russoniello (Defendant)
File Number(s): 2014/339339 Publication restriction: No
Judgment
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HIS HONOUR: There is before me a notice of motion filed on 30 March 2016. That notice of motion was filed by the plaintiff. The notice of motion was returnable on 15 April 2016 when it was, on the plaintiff's application, stood over until today. I have been told from the Bar table, without objection, that the plaintiff's then counsel believed that further evidence was required to support the notice of motion, and hence the adjournment of the notice of motion on 15 April 2016 until today.
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The principal proceedings arise out of interaction between the plaintiff and the defendant on 19 November 2011. The second paragraph of the affidavit of Mr Lazar Krstic, sworn on 29 March 2016, is this:
"By statement of claim filed on 18 November 2014, the Plaintiff brought personal injury proceedings against the Defendant for injuries sustained to his left forearm and hand, bruises and abrasions to head and shock as a result of an altercation that took place at the Minto TAB at 3 Minto Road, Minto, NSW on 19 November 2011."
The defendant initially filed a defence on 13 March 2015. He filed an amended defence on 21 October 2015 and was granted leave to file and serve a further amended defence which was, in fact, filed on 20 November 2015. The amendments essentially raise defences under the Civil Liability Act 2002. They elucidate an earlier pleaded defence of self-defence, and raise certain other statutory defences and limitations of the plaintiff's claim.
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The plaintiff filed a reply on 11 March 2016. The reply is in these terms:
"Insofar as the Defendant alleges the Plaintiff assaulted the Defendant in any way, including striking, kneeing, pushing, punching, grabbing, applying force to, throwing as alleged in the amended defence in paras 11, 14, 17, 19, the plaintiff says such conduct, if it occurred, was in self defence."
The proceedings also involve a cross-claim brought by the defendant against the plaintiff, in which the defendant claims personal injury damages for an assault upon him by the plaintiff.
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The notice of motion before me seeks leave to file and serve an amended statement of claim which adds to the relief claimed claims for aggravated damages and exemplary damages. Mr Russoniello, who appears for the defendant today, very properly concedes that he cannot object to those heads of damages being raised - as they are matters for the plaintiff to establish to the satisfaction of the trial judge.
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The matter to which objection is taken by the defendant is pars 16 to 19 of the proposed amended statement of claim. Those paragraphs are these:
"16 Further, and the alternative, by reason of the defendant hanging onto the plaintiff, which is admitted in para 19 of the further amended defence filed 20 November 2015, the defendant restrained the plaintiff and wrongfully held the plaintiff preventing his liberty of movements and thereby wrongfully imprisoned the plaintiff and deprived him of his liberty.
17 Further, and in the alternative, by reason of the defendant blocking the path of the plaintiff when the plaintiff left the TAB premises, the defendant prevented the plaintiff's liberty of movement and thereby wrongfully imprisoned the plaintiff and deprived him of his liberty.
18 Further, and in the alternative, contrary to para 25(a)(i) of the defendant's amended defence, the defendant blocked the plaintiff's access to his car so that the plaintiff was not able to leave, thus the defendant prevented the plaintiff's liberty of movements and thereby wrongfully imprisoned the plaintiff and deprived him of his liberty.
19 By reason of the matters in paras 16, 17 and 18 above, the plaintiff sustained personal injuries and has suffered and will continue to suffer severe injury, loss and damage and further has suffered severe shock, mental anguish, loss of liberty, harm to reputation, great anxiety and distress."
In short, the plaintiff wishes to add to the statement of claim a cause of action for the tort of false imprisonment.
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The parties have put before me CCTV footage captured by the security system of the Minto TAB which contains angles from a number of different cameras. There are, in fact, 10 cameras to be viewed, although the ones most necessary to view are cameras 1, 3, 4 and 5. I have viewed them repeatedly, as have counsel. However, I must make the point that I am not the trial judge. It is not up to me to make any final conclusion as to what the CCTV establishes, and there are a number of things that the CCTV does not establish, for example, words said and other provocative acts which are obscured to some extent when the plaintiff and the defendant were both within the TAB.
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Their interaction commence within the TAB, and on my viewing of the CCTV, it appeared to me that the defendant instigated the interaction. The two men then left the TAB and confronted each other outside the main entrance to the TAB and a further altercation occurred. On my viewing of the CCTV, it appeared to me that the plaintiff was the aggressor on that occasion. When viewing the CCTV footage of what occurred outside the TAB, it became clear that there were differences of interpretation of the action by me, by counsel for the plaintiff, and by counsel for the defendant. It is not up to any of us three to make any final conclusion because that is a matter for the ultimate tribunal of fact, a judge, and if there be a jury, a jury. However, it is not proposed that there be a jury trial. However, all I can say is that there is an argument available to the plaintiff that some of the plaintiff's actions outside the TAB may be interpreted as showing the defendant for a short period of time restraining the plaintiff by holding onto him.
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However, it is important to bear in mind the fact that the plaintiff and the defendant leave the TAB through its front doors at 12.46.15, and at 12.46.36, the manager of the TAB leaves through the front doors of the TAB to assist the plaintiff who had fallen through a glass window and sustained a serious injury to his left arm. The interaction, according to the counters that had been produced to me, the entire altercation outside the TAB, occurred over a period of some 21 seconds, at the most it would be 30 seconds, half a minute. Any restraint of the plaintiff by the defendant within the TAB would have been equally very brief, of fleeting time, matters of seconds rather than a matter of a minute or more.
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I inquired of learned counsel for the plaintiff whether in a case of this nature the old adage that de minimis lex non curat ought be applied which led to some consideration of the authorities. My edition of Bullen & Leake: Precedent of Pleadings 13th ed (1990) commences its discussion of the right of action for false imprisonment thus:
"An imprisonment consists in the restraint of the liberty of a person, as by confining him in a prison, or within walls, or by forcibly detaining in an open place; see the definition adopted in Meering v Graham White Aviation Co (1920) 122 LT 44 at 51: a person can be imprisoned, although not conscious of the fact... The imprisonment must amount to a total restraint of his liberty for some period of time, however short."
The learned authors do not cite any authority for the last proposition. However, in McDonald v Coles Myer Limited(trading as K Mart Chatswood) (1995) Aust Torts Reports 81 361, a decision of the New South Wales Court of Appeal, Powell JA said commencing at p 62, 689:
"The tort of false imprisonment consists in the act of arresting, or imprisoning, any person without lawful justification, or otherwise preventing him, without lawful justification, from exercising his right of leaving the place in which he is. To constitute the tort there need be no imprisonment in the sense of incarceration, it being sufficient that the person in question has been deprived of his, or her, personal liberty for any time however short."
A matter of a few seconds could constitute a short deprivation of liberty. On that view of it, the cause of action of false imprisonment is arguable. Presumably the reason for adding an allegation of false imprisonment is to increase the quantum of damages that the plaintiff might recover. However, the quantum of damages recoverable in these proceedings for false imprisonment would be, if anything, minuscule. In the same case, Powell JA said this:
"Further, as the tort of false imprisonment is derived from trespass, a plaintiff need not prove actual damage, although any pecuniary loss which is not too remote is recoverable (see, for example, Childs v Lewis ((1924) 40 TLR 870). The principal heads of damage to which, in the past, regard appears to have been paid are, the injury to liberty, the injury to the plaintiff s feelings, ie the indignity, mental suffering, disgrace and humiliation, with any attended loss of social status, and, where it can be demonstrated that the imprisonment has had a deleterious effect on the plaintiff's health, any resultant physical injury, illness or discomfort..."
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Here there is no doubt that the plaintiff has sustained an injury to his left lower upper limb when he fell through the plate glass window of the TAB. Whether that was caused by his being assaulted by the defendant is very much in issue. However, any restraint of his person would have been transient and did not in itself cause any personal injury and the amount "indignity, mental suffering, disgrace and humiliation" and "loss of social status" which he would have experienced during this minor period of time would be of no moment whatever. The important thing that happened to the plaintiff is that he sustained a very nasty injury to his left lower upper limb. In other words, when one considers the heads of damages, one would think that this would add perhaps, if at all, a few cents to the assessment of the plaintiff's damages.
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The plaintiff in the originating process, the statement of claim filed on 18 November 2014, alludes to what it is now sought to be alleged. For example, par 6 of the originating process is in these terms:
"The plaintiff then attempted to leave the premises but was prevented from so doing by the defendant restraining him by putting his hand on the plaintiff's shoulder with significant force."
Paragraph 12 of the originating process says this:
"A further struggle then ensued during which struggle the defendant grasped the plaintiff's arm and would not let it go."
Nevertheless, the originating process did not plead a case of false imprisonment, and, in essence, what are now alleged to be the facts to be relied upon to establish the cause of action for false imprisonment are exactly the same facts originally pleaded. One wonders how it comes about that the plaintiff now seeks to add the new cause of action. It appears to have been brought about by a viewing of the CCTV film by the lawyers involved and not from any original instructions given by the plaintiff to his lawyers.
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It is now more than four years since the acts in question occurred. On 17 June 2015 this Court set the matter down for hearing for three days commencing on 2 December 2015. However, those hearing dates were vacated on 13 November 2015. In essence, although there was sparring about the pleadings at that time, neither party was ready with his evidence on the question of damages. On 13 November 2015, this Court fixed five days for hearing commencing on 17 October 2016. It should be clear that the delay in the middle of 2015 between a call-over or mention at which a hearing date was fixed, and the hearing date was some six months. By the end of last year it became almost 12 months.
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However, the plaintiff has been tardy in complying with his obligations under the rules. Paragraphs 7, 8 and 10 of the affidavit of Mr Walsh sworn on 27 April 2016 indicate a failure of the plaintiff to comply with the plaintiff's obligations under UCPR 15.12. This failure has been accepted by Ms Campbell who appears for the plaintiff today. This must be rectified. I, again, draw to the attention of those appearing in this Court the court's and the parties' obligations. Under s 56(1) of the Civil Procedure Act 2005, the overriding purpose of that Act and the rules of court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Under subs (4), members of the legal profession, as well as their clients are, by their conduct required to assist the Court to further the overriding purpose of the Act and rules, and to that effect they are to participate in the process of the Court and to comply with directions and orders of the Court. Those directions and orders, of course, include the rules.
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As has been submitted by learned counsel for the defendant, the plaintiff's claim in respect of false imprisonment is weak and the application to raise the further cause of action is late. The raising of the new cause of action will only lengthen the trial as the progress of today's notice of motion shows, and would probably not advance the quantum of the plaintiff's damages to any extent. Furthermore, an application to amend is an application which the Court may or may not grant in the exercise of its discretion. The plaintiff has been in breach of his obligations under the rules, yet seeks the indulgence from the Court to add a cause of action which, as I said, is weak and probably will not result in the increasing of his damages to any extent.
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In those circumstances, I refuse leave to the plaintiff to amend the statement of claim by adding the proposed pars 16, 17, 18 and 19 of the proposed amended statement of claim annexed to the affidavit of Mr Krstic of 29 March 2016. However, I grant the plaintiff leave to amend the relief sought to include the claims for aggravated and exemplary damages. I order the plaintiff to supply to the defendant within 42 days any matter referred to in the defendant's solicitor's letters of 16 February 2016 and 29 February 2016 which has not been already supplied by the plaintiff's solicitors. It appears to me that the defendant has been largely successful on this notice of motion. I, accordingly, order that the costs of this notice of motion be the defendant's costs in the cause.
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Decision last updated: 05 July 2016
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