Charara v New South Wales

[2009] NSWDC 263

CITATION:	Charara v New South Wales [2009] NSWDC 263
HEARING DATE(S):	2, 3, 6 and 7 July 2009
JUDGMENT DATE:	21 August 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	(1) Verdict and judgment for the first defendant against the plaintiff on the action. (2) Plaintiff to pay the first defendant's costs of the action up to 25 June 2009 on the ordinary basis and thereafter from 26 June 2009 on an indemnity basis. (3) Direct that the exhibits remain with the file to be returned after 28 days on application to the Registrar. (4) Note the order made on 2 July 2009 that the statement of claim against the second and third defendants be dismissed
CATCHWORDS:	TORTS - Police tort claims - Vicarious liability of the Crown (State of New South Wales) - Wrongful arrest, assault, false imprisonment and malicious prosecution - Arising out of charges for offences of failure to comply with a noise abatement direction, assault police and resist arrest - Plaintiff convicted by Magistrate at first instance - On appeal convictions quashed - Elements necessary for each count - Onus to establish rests on plaintiff - Damages
LEGISLATION CITED:	Civil Procedure Act 2005, s 64 Crimes Act 1900, ss 58, 59(1) and 61 Law Enforcement (Powers and Responsibilities) Act 2002, ss 99, 114 and 230 Law Reform (Vicarious Liability) Act 1983, ss 8(1), 9B(2) and (3) and 9D(1)(b) Protection of the Environment Operations Act 1997, ss 222, 224, 276(a), 277(1)(a), 277(4) and 283 Protection of the Environment Operations (Penalty Notices) Regulation 2004, Sch 1
CASES CITED:	A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 Attorney-General for State of New South Wales v Bar-Mordecai [2009] NSWSC 396 Director of Public Prosecutions v Carr (2002) 127 A Crim R 151 Fleet v District Court of New South Wales [1999] NSWCA 363 Hathaway v State of New South Wales [2009] NSWSC 116 Jones v Dunkel (1959) 101 CLR 298 Wilson v Director of Public Prosecutions [2002] NSWSC 935
PARTIES:	Jamal Charara - Plaintiff State of New South Wales - First Defendant Edward John Taylor - Second Defendant Allan Duque - Third Defendant
FILE NUMBER(S):	24 of 2009
COUNSEL:	Mr J Charara (in person) for Plaintiff Mr TJ Ryan for First Defendant No appearance for Second and Third Defendants
SOLICITORS:	Makinson & d'Apice Lawyers for First Defendant

JUDGMENT

1 In this action the plaintiff, Jamal Charara, sought damages against the State of New South Wales for its vicarious liability in relation to alleged wrongful acts committed by two members of the New South Wales Police Force against him during the early morning hours of Thursday, 19 February 2004. The causes of action pleaded were wrongful arrest, assault, false imprisonment and malicious prosecution.

Factual Context

2 The circumstances in which the claims arose occurred in and outside the garage used by the plaintiff at his then residence in Unit 9 at 5-9 Trafalgar Street, Brighton-le-Sands where he lived with Rona Hamieh, his de facto wife. The two police officers concerned, Constable Edward Taylor and Constable Allen Duque, attended the home unit complex in response to a complaint made at about 1.33am on 19 February by a resident in the complex of loud music being played. The specific complaint, made by a Mrs Doshen in Unit 16 on Level 3 of the complex, was of “noise” being “loud African music and voices from garage. People constantly coming and going.” The two officers arrived at about 2.27am and proceeded to the garage area at the rear of the complex at ground level. What then occurred is central to the present action and very much in dispute.

3 Eventually, the officers arrested the plaintiff by taking him into custody and, at 2.53am according to the police radio log, conveyed him in a caged police truck to St George Police Station at Kogarah. Charges were then laid against the plaintiff by Constable Taylor under s 58 of the Crimes Act 1900 of assault officer while in the execution of his duty and resist officer while in the execution of his duty and under s 277(1)(a) of the Protection of the Environment Operations Act 1997 of fail to cause emission to cease in accordance with a noise abatement direction. At about 1.30pm on 19 February 2004, after detention in the police cells, the plaintiff appeared before a magistrate and was granted bail to appear in the Sutherland Local Court on 25 March 2004. On 26 August 2004, after a contested hearing on 31 May and 5 July 2004 with a finding on 5 August 2004 that the offences had been proven, the plaintiff at Sutherland Local Court was convicted by Magistrate Brydon of the three offences charged - as to assault officer and resist officer in execution of duty he was given a bond to be of good behaviour for 12 months; as to the not cease noise emission offence he was fined $350; and court costs of $63 were ordered against him.

4 The plaintiff lodged an appeal on all grounds which was duly heard and determined on 15 November 2004 in this Court before the Chief Judge, Blanch J. His Honour upheld the appeal, quashed the convictions and set aside the orders of Magistrate Brydon. No party in the present proceedings referred to or sought to rely upon the Chief Judge’s reasons for so deciding.

The Claim and the Defence

5 It was not until 7 January 2009, over four years since the successful appeal, that the plaintiff filed the present action. Be that as it may, the statement of claim named the State of New South Wales as first defendant for its vicarious liability under s 8(1) of the Law Reform (Vicarious Liability) Act 1983 for the conduct of the two police officers concerned and also named the officers as respectively the second defendant (Constable Taylor) and the third defendant (Constable Duque). However, on the first day of the hearing before this Court on 2 July 2009 counsel for the first defendant sought an order that the statement of claim against the second and third defendants be dismissed because of a concession by it as the Crown that it would be vicariously liable for the alleged torts if it were established they were committed by the two officers concerned. The plaintiff resisted that application. For reasons then given, I acceded to the application and made an order pursuant to s 9D(1)(b) of the Law Reform (Vicarious Liability) Act that the statement of claim as against the second and third defendants be dismissed. It is sufficient here to simply repeat that under s 9B(2) of that statute that a claim in tort against a police officer may not be made but instead may be made against, as here, the Crown; sub-s (3) of the section makes the only exception where the Crown denies it would be vicariously liable. Section 9D(1) requires the Court to ensure by order that a claim for damages in tort against a police officer is struck out or dismissed if the Crown conceded, as it did here, vicarious liability for the alleged torts of the two officers. The proceedings thus continued against the first defendant alone.

6 As has been stated above, the plaintiff’s action pleaded four counts in tort. The wrongful arrest count pleaded a lack of reasonable and probable cause to do so without proper investigation whereby the cease noise emission charge was “made up...with the knowledge that the plaintiff was innocent” and where the constables knew they “should not and/or could not arrest the plaintiff”.

7 The assault count was pleaded in a situation where at about 2.30am on 19 February 2004 the constables “took hold very tightly of the Plaintiff’s person without his consent and rested their body against the plaintiff’s in the vicinity of his home and physically knocking him hard to the ground and squeezed the handcuff hard on his wrists causing injuries and bleeding to the plaintiff”.

8 The false imprisonment count related to the period of detention on 19 February 2004 until about 12.30pm that day when the magistrate granted bail whereby during that period the plaintiff was “totally deprived of his liberty” due to the “voluntary acts of the Constable”.

9 In relation to the malicious prosecution count, the plaintiff alleged the constables instituted the proceedings against him “without reasonable and probable cause and in very bad faith”; “charges should not have been laid”; “activated by malice”; and “kept in police custody unreasonably until released by the Court”.

10 The plaintiff claimed damages in the form of general damages, aggravated damages and exemplary damages; costs in respect of the plaintiff’s action in defending the criminal charges were sought also, together with the costs of these proceedings.

11 It is to be noted that the original statement of claim did not, certainly not expressly, make any claim for personal injury damages. By notice of motion filed on 2 April 2009, amended on 8 April 2009, the plaintiff sought leave pursuant to s 64 of the Civil Procedure Act 2005 to file an amended statement of claim in respect of personal injury damages for assault. On 4 May 2009, however, the Judicial Registrar by consent dismissed the plaintiff’s motion with costs. In the proceedings now before the Court, the plaintiff confirmed he was not pursuing any personal injury damages claim. The hearing so continued.

12 The first defendant, as indicated, conceded that if the two officers had committed the torts as alleged then it, as the Crown, was vicariously liable to the plaintiff. However, the case otherwise pleaded for the plaintiff was strenuously resisted by the first defendant with key facts either denied or not admitted. Specifically as to the power of the officers to arrest the plaintiff, s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 was relied upon and s 114 was pleaded as authorising the detention in custody of the plaintiff as a consequence of the charges against him having been laid. Section 230 of the statute was called in aid to support the use by the officers of such force as was reasonably necessary to exercise the power of arrest. As to the claim of malicious prosecution, it was pleaded for the first defendant that the officers had reasonable and probable cause to bring the charges. The damages claimed by the plaintiff were not admitted.

13 The plaintiff’s case was presented by Mr Charara himself who appeared in person. The first defendant was represented by Mr TJ Ryan of counsel.

Plaintiff’s Background

14 The plaintiff at the time of the subject incident was 38 years of age having been born in Sierra Leone and who then practised law in Liberia before migrating to Australia more than 10 years ago. Although not qualified in Australia for legal practice, he said he was experienced here in legal matters appearing for himself in cases before Local Courts, District Court, Supreme Court, Court of Appeal and the High Court; he maintained his legal expertise was equivalent to that of a Queen’s counsel. As such, he was respectful towards police officers, some of whom he trusted, but depending how they treated him, he could be unco-operative.

15 The plaintiff admitted he had had prior contact with the law in Australia and on a number of occasions had been found guilty of assault of and resist arrest by police officers in the execution of their duty. Although denying any enjoyment of conflict, especially with police officers, the plaintiff said they were jealous of him owning a BMW motor car and of his lifestyle; he honestly believed all of his movements were within the knowledge of the police. Even so, he emphasised shame for his convictions, of which he said he was “not proud”, and those convictions did not mean each time police engaged him he was the guilty party. Indeed, he was at pains to state in effect that “the laws of this beautiful country do not subrogate nor discriminate. This case requires a careful approach because it involves the civil liberty of a citizen of this State, especially if one looks at the police evidence and the manner they used their power.”

16 At the present time the plaintiff is a businessman engaged in the computer industry as the principal and owner of a computer supply company, previously known as Media Press Pty Limited. At the time of the incident he lived in Unit 9 of the Trafalgar Street residential complex with Ms Hamieh with whom he had had a de facto relationship since 1999 and before that for a few years when they saw each other daily. They have since moved residence to Mascot with their young child.

Circumstances of the Incident - Plaintiff’s Case

17 Plaintiff’s Version: The plaintiff’s evidence of what occurred in the early morning hours of 19 February 2004 was disarmingly simple and quite straightforward. Late in the evening the day before, he said he, Ms Hamieh and a very good friend of over 10 years’ standing and also from Liberia, Lyndon Konneh, had been in the garage; his BMW motor car had its rear end halfway into the garage leaving space for the three persons to sit on chairs at a table behind the car where two of them at a time played a game called “Checkup” on a checkerboard. There was a radio cassette player on the table. During that period he had drunk only one beer, a Corona, and had just opened a second bottle around 2 to 2.30am on 19 February with the radio on the table tuned to 2 DayFM playing music at a low level.

18 At that time, the plaintiff saw two police officers, who he later learned to be Constable Taylor and Constable Duque, approach the open garage. He said the following conversation then occurred:

CONSTABLE TAYLOR: “Have you been playing your music loudly?”
PLAINTIFF: “No. There is no music being played here loudly. As you can see there is no music playing loud.”

CONSTABLE TAYLOR: “Whose motor vehicle is this?”
PLAINTIFF: “Belongs to me.”

The plaintiff said Constable Taylor then contacted VKG on his police radio and from the radio he heard “Owner Media Press Computer Supplies Pty Limited. Location Alexandria NSW. Contact person Rona Hamieh”. The plaintiff said the following conversation was held:

CONSTABLE TAYLOR: “Rona Hamieh, you are under arrest for suspicion of playing loud music.”
PLAINTIFF: “I did not play loud music.”

CONSTABLE TAYLOR: “You are coming with us.”

19 The plaintiff said he then walked out of the garage towards Constable Taylor and, with his arms outstretched, offered both hands with wrists together to the constable who applied handcuffs behind his back. The then sequence of events as the plaintiff narrated was:

. Ms Hamieh exclaimed “What’s he under arrest for?”

. Constable Taylor responded “For suspicion of playing loud music.”

. The two officers took hold of the plaintiff’s arms and walked him along the driveway to their police car parked on the street in front of the block of units and leaned him against the boot.

. Ms Hamieh said, “Turn around so I can record you.”

. The plaintiff went to move but Constable Taylor said “Stop resisting.”

. The plaintiff said “I’m not resisting. You’ve already arrested and handcuffed me.”

. Constable Taylor kept saying “Stop resisting.”

. Suddenly, Constable Taylor knocked the plaintiff to the ground so that his head struck a piece of concrete and the handcuffs cut his hand and forearm; the plaintiff said “I’m bleeding. I’m bleeding.”

. Both constables rested with their knees on the plaintiff’s back as he lay on the ground.

. Constable Taylor said “Just for the record, this man is very intoxicated.”

. The plaintiff said “I’m not drunk, I’ve only had one bottle.”

. Constable Taylor said “That’s assault police you just got there.”

20 As the plaintiff said, a caged police truck then arrived in which he was placed and conveyed to the police station in Kogarah where the custody manager, who was told by Constable Taylor “this detainee is very drunk”, locked him in a cell. Up to that point, he said the police never asked for his name. He said he was still bleeding from the cuts to his hands and his arms but another officer gave him some Dettol, cream and cotton to clean himself. He remained locked in the police cell until appearing before a magistrate at 1.30pm on 19 February 2004 when he was released on bail. A copy of the charge sheet with the three alleged offences stated of assault police, resist arrest and failure to cease noise was given to him.

21 In the plaintiff’s case, a number of photographs were provided of the unit complex, garage and adjacent area, the BMW car and its position and inside the garage so as to make the evidence better understandable.

22 Also tendered by the plaintiff was the police COPS record of a complaint made by a “DM Meredith” concerning “A/A Block of unit DOM on the 3rd floor. Lots of shouting. Keep informant awake.” It seemed to be suggested by the plaintiff that this was the real complaint which led to the attendance by Constable Taylor and Constable Duque but concerned a domestic disturbance on L3 of the complex and not any alleged loud music in the garage. However, the record was created of the complaint being made at 2.54am on 19 February and showed the two constables attended at 2.27am and left the scene at 2.53am. Nevertheless, a COPS record, as stated earlier, was created at 1.33am on the day concerning the noise complaint to which the constables responded. As Constable Taylor said in evidence, he acknowledged receipt of both complaints and linked them on the basis that the later complaint related to the loud yelling of the plaintiff and Ms Hamieh; the period from 2.27 to 2.53am covered the total time the constables were present at this address and on dealing with the noise issue he considered their task had been completed. Viewing both COPS records in light of the evidence, particularly as to times, supports the explanation given by Constable Taylor and I see no reason to even suggest, but as the plaintiff did, that Constable Taylor lied. In any event, the COPS record created at 1.33am clearly shows the noise complaint as to loud African music from the garage was made at that time by Mrs Doshen and it was that complaint to which the constables attended at 2.27 am.

23 In cross-examination the plaintiff was closely tested on his evidence as to the events. He maintained the music was not playing loudly, indeed African type music was not played that night, and people were not coming and going with loud voices - he said the only persons present in the garage were the three identified as a friend came earlier but left before 8pm on 18 February. In the garage over this period of a few hours, the plaintiff said they ate a meal but from 8.30pm on 18 February to 2am on 19 February he had had only one drink; Ms Hamieh and Mr Konneh drank soft drink. The only addition to his evidence about the conversation after the constables arrived was that the plaintiff said Constable Taylor asked “Whose motor vehicle is this” to which he replied “Obviously it belongs to me”.

24 A telling feature of the plaintiff’s evidence was that he firmly maintained, despite a suggestion to him to the contrary, that he had never discussed with either Ms Hamieh or Mr Konneh the subject events which occurred on 19 February. In fact, he went so far as to say he had no idea what evidence Ms Hamieh would give in this case when called and said he had not discussed the evidence Mr Konneh might give even, as he put ,“If I call him”. With Ms Hamieh as his de facto wife and Mr Konneh a close and long-standing friend, and particularly as the plaintiff was appearing in person to present his own case, I have to say I find his denials in this respect not believable. That he persisted in this approach, in my view, adversely impacted on the credibility otherwise of his case. It was not suggested to him that he discussed with Ms Hamieh and Mr Konneh what evidence they should give, only the events which occurred.

25 The version of events as alleged by the two constables was put in detail to the plaintiff who described it variously as “lies”, “not true”, “no”, “absolutely incorrect” and “not correct”. He maintained his version was not a fabrication but was correct.

26 Rona Hamieh: The evidence of Rona Hamieh confirmed that given by the plaintiff. She said she and Mr Konneh were in the garage with the plaintiff when the police arrived and at which time the level of noise from the radio player was “where you could just hear music playing at a low level” - it was not, she said, African music but from a radio station.

27 Ms Hamieh said at no stage did the plaintiff struggle with the officers. After he was arrested at the garage she described in words to this effect what then occurred:

“I followed them. As the police officers were walking the plaintiff out I went to the BMW, opened the door and took out a video camera and walked to the front of the units. I was trying to start the camera. At the front, the officers had the plaintiff over the boot of the police vehicle. I then started to film. Police had him against the vehicle leaning onto him and as he turned to look they pushed him to the ground. Their knees were in the back of the plaintiff’s neck. One of the officers said ‘That’s an assault you just got there. Stop resisting’.”

28 Ms Hamieh filmed the events at the police car from about one metre away. She said the officers used force to put the plaintiff to ground. She added that one of them said “He is intoxicated” to which the plaintiff replied “No, I only had one beer to drink”; she then said “Bullshit, you’re the ones whose assaulting him”. Ms Hamieh maintained the plaintiff beforehand had drunk only one bottle of Corona beer; she and Mr Konneh had soft drink.

29 The video camera of the events at the police car filmed for about two or three minutes. Little could be discerned from the views, other than that the plaintiff was clearly being held on the ground on his stomach with an officer’s knee or leg across the upper part of his body. The video had an audio facility which recorded what was then said to this effect:

MS HAMIEH: “He’s not resisting, there’s no reason for you to hold him.”

CONSTABLE: “Stop resisting”.
PLAINTIFF: “I’m bleeding, I’m bleeding. Record it, record it.”

CONSTABLE: “That’s an assault police”.
MS HAMIEH: “You’re the ones whose assaulting him. What kind of bullshit is that”.

CONSTABLE: “Just for the record, the gentleman here is intoxicated”.
PLAINTIFF: “I’m not. I’ve only had one bottle. Record it, record it. Everything is being recorded”.

CONSTABLE: “I’d like a copy of that too”.
PLAINTIFF: “No, you’re not having one”.

30 Ms Hamieh denied she knew what evidence the plaintiff had given in this case and denied also any discussion with him about the events in question because there was no opportunity to do so as she had to look after a small child. However, interestingly in light of the plaintiff’s evidence, she said the plaintiff gave her an affidavit to sign with the transcript of the Local Court proceedings attached, which she then read for the first time, and signed the affidavit before a justice of the peace. Another departure from the plaintiff’s evidence was that Ms Hamieh said there was no other person who went to their garage that evening - she said she, Mr Konneh and the plaintiff were the only persons present. Also, she was not aware of any prior incidents the plaintiff had with the police officers concerned here, and she added he was not an aggressive type of person who swore or refused information; rather, she said he was “completely co-operative.” For herself, however, she said she did not trust the police and thought the police “give the plaintiff a hard time” and, for that reason, used the video camera to record the events. Although unaware the plaintiff had before failed to comply with directions from police, Ms Hamieh was aware of his prior convictions for assault police and resist arrest but said he never did those things. In explanation of the plaintiff’s relations with police, Ms Hamieh said “they (police) just pull us over (in the car) for the fun of it. No reason. Just look at licence, check and let us go. Just seems they do because they can.”

31 Lyndon Konneh: Mr Konneh, although present during the first day of the hearing of this case, did not give evidence. No explanation for this omission, other than that the plaintiff said he did not wish Mr Konneh to lose more time from his work, was given. I think, and as counsel for the first defendant suggested, in a case where the competing evidence of the parties was so conflicting, the failure to call evidence from Mr Konneh was a serious omission. It properly enables the inference to be drawn, which I do, that Mr Konneh’s evidence would not have assisted the plaintiff and any evidence to the contrary of that for the plaintiff may more confidently be drawn: see Jones v Dunkel (1959) 101 CLR 298.

Circumstances of the Incident - First Defendant’s Case

32 The evidence given by Constable Taylor and Constable Duque was complementary. Apart from the events themselves and the conversations which occurred, there were three main aspects of difference between their evidence and that of the plaintiff and Ms Hamieh: first, in the garage on arrival the police officers saw only the plaintiff and neither Ms Hamieh nor Mr Konneh were present; second, the music sound level was loud and came from a stereo system at the rear of the garage and not from a radio cassette player; and, third, they attended initially and issued a direction to the plaintiff to cease the loud noise and then left, but, outside the premises as they were preparing to leave the loud music commenced again and they returned to the garage.

33 Constable Taylor: Edward John Taylor, now a sergeant of police in NSW with 10 years’ service, at the time of the subject incident in February 2004 was a constable. He was the driver of a police car on patrol with then Constable Duque and responded to the complaint by Mrs Doshen about loud music from the garage of the subject unit complex in Trafalgar Street at Brighton-le-Sands. He said the police car at about 2.27am on 19 February was parked about 200 metres from the units at the intersection of Trafalgar Street and Kings Road because then they were not sure of the exact location in the street of the unit block. As the two constables walked along the street, Constable Taylor first heard loud music when about 100 metres from the unit complex - the music was constant, like African drums beating and increased as they neared the units. The music sound was followed by them and they were thereby led to the garage area where a silver BMW was seen partly in the doorway of an open garage. Constable Taylor said nobody was in the garage except a person later known to be the plaintiff, and he noticed the music was coming from a large square stereo system with blue lights on the front located on the back wall of the garage.

34 Constable Taylor recited a conversation with the plaintiff to the following effect then took place:

CONSTABLE TAYLOR: “Have you been playing your music loudly tonight?”
PLAINTIFF: “You don’t have a warrant. I don’t have to talk to you.”

(Constable Taylor said he repeated the question, but the plaintiff kept talking about a warrant).

PLAINTIFF: “I can play my music loudly if I want to. You don’t have a warrant to stop me.”

(The plaintiff then turned up the volume of the music. Constable Taylor saw a power point and unplugged the cord so that the music ceased).

CONSTABLE TAYLOR: “If you continue to play your music loudly I will have to issue you with a noise abatement direction.”
PLAINTIFF: Get the fuck out of my garage. You don’t have a warrant. You can’t stop me.”

CONSTABLE TAYLOR: “Sir, can you tell me your name?”
PLAINTIFF: “I don’t have to tell you anything. You don’t have a warrant. I’m a barrister. I know my rights. You don’t have a warrant.”

CONSTABLE TAYLOR: “If you give us your name and address we will leave.”
PLAINTIFF: “I don’t have to talk to you if you don’t have a warrant.”

(The plaintiff then plugged the stereo back into the power point and the loud music again began to play.)

(The plaintiff said they were being recorded by the video system.)

(Constable Taylor then stepped aside and did a radio check of the BMW registration number and was told it was registered in the name of Rona Hamieh).

CONSTABLE TAYLOR: “Do you know Rona Hamieh?”
PLAINTIFF: “I don’t have to talk to you, you don’t have a warrant.”

CONSTABLE TAYLOR: “I am issuing you with a noise abatement direction. If we have to return, you will be issued with an infringement notice.”
PLAINTIFF: “Fine, give me the notice.”

CONSTABLE TAYLOR: “If we have to come back I will give you a notice.”

(The plaintiff then lowered the volume of the music).

(Constable Taylor and Constable Duque then proceeded to return to their police car).

35 The COPS record of the incident showed arrival of the two officers at the unit block at 2.27am on 19 February and, from the radio log, it recorded at 2.40am - “Noise abatement issued to Mr Hamieh, call us if any further jobs”. It would therefore seem from that record that as the two officers left the unit complex after the initial contact with the plaintiff in the garage area there was an expectation that the matter was at an end once the noise abatement direction had been issued and the music volume lowered. This was about 13 minutes after the officers’ arrival and was consistent with the time required to walk from their parked vehicle to the unit block, enter, talk to the plaintiff and then proceed to return to their vehicle.

36 However, as they did so about 80 to 90 metres from the units, Constable Taylor said he again heard loud music of “heavy African drums”. On reaching the police car he called on the radio for a supervisor to attend the scene with a caged police truck because of the way in which the plaintiff had behaved and in case there was a need to arrest him. It is to be noted at this point that the plaintiff had refused to disclose his name or to give his address and, at most, all that the constables knew was that the BMW motor vehicle was registered in the name of “Media Press Computer Supplies” at Alexandria with the contact name of Rona Hamieh - whether the plaintiff as the person concerned was indeed Rona Hamieh and where he lived was not known with any confidence by the officers - Constable Taylor, understandably, said a penalty notice could not therefore be sent to the plaintiff. Also, he had the view it was obvious that the loud music would continue.

37 The two constables then returned to the unit complex in their police car and parked in front of the building. They then walked back to the garage where the plaintiff was seen standing outside the garage with a bottle of beer. Constable Taylor detailed events in this way -

. The plaintiff was informed he was under arrest for disobeying a police direction.

. The plaintiff may have said “You can’t arrest me without a warrant.”

. The constables each held the plaintiff’s arms and led him from the garage.

. Although initially compliant, the plaintiff suddenly started to thrash around.

. Constable Taylor performed, as called in police parlance, a “leg sweep” which resulted in the plaintiff and both constables falling to the ground; the plaintiff was handcuffed with his hands behind him and led to the police car where he was placed against the boot.

. A female, it transpired to be Ms Hamieh who said she was the plaintiff’s wife, was then seen on the footpath about two metres away with a video camera.

. The plaintiff was trying, as he was being held, to look towards the camera and was described as “playing up” to the camera.

. The plaintiff kicked Constable Taylor in the right shin as he was held against the vehicle.

. The plaintiff then struck Constable Taylor’s leg causing him to scream out from the blow.

. The plaintiff was then put onto the ground on the grass footpath and told he was under arrest for assaulting police.

. Constable Duque was heard to tell the plaintiff to “stop resisting” as Constable Taylor held him with his knees between the shoulder blades and Constable Duque tried to control his legs and lower back.

. The plaintiff was placed in the caged police truck and taken to the police station at Kogarah where Constable Taylor charged him with the three offences concerned, created a COPS event and fact sheet and handed control of the plaintiff to the custody manager.

38 The COPS record so created showed that the caged truck and a supervisor were called for at 2.42am, the plaintiff was in custody at 2.45am, the plaintiff was becoming violent at 2.49am and return to the police station was at 2.53am. Those times, it is to be observed, are entirely consistent with the events as stated by Constable Taylor but wholly inconsistent with the plaintiff’s evidence.

39 The plaintiff pressed Constable Taylor in cross-examination about his failure to issue an infringement notice by proceeding to arrest him but the constable relied on the refusal by the plaintiff to give his name and address to enable service. The only reason for the address was accepted by Constable Taylor as being the plaintiff’s failure to comply with the direction to abate the loud music. Otherwise, it was suggested to Constable Taylor that he was arrested because he “didn’t like” the plaintiff’s attitude, the decision to arrest was made when the officers first attended the garage, the constable told lies to the Court and both he and Constable Duque had simply “made up” their evidence - Constable Taylor denied those suggestions and repeated that there was no option but to arrest and an infringement notice would have been issued if the plaintiff’s identity had been known.

40 Constable Duque: Allen Duque, now a senior constable in the Queensland Police Service, at the time of the subject incident was a constable of five years’ experience in the NSW Police Force. He confirmed attendance at the unit complex in Trafalgar Street was in response to the noise complaint and that both he and Constable Taylor arrived at about 2.30am on 19 February, 2004. On approaching the unit complex after the police car was parked about 200 metres away, loud music was heard which increased in intensity as they neared the units. Constable Duque said he and Constable Taylor went straight to the basement garage area to garage Number 9 where the plaintiff was seen near a motor vehicle in the open doorway of the garage; no other person was present.

41 Conversations which then occurred were recited in the following way by Constable Duque -

CONSTABLE TAYLOR: “We’re here because of a noise complaint, have you been playing music loudly?”
PLAINTIFF: “You can’t talk to me without a warrant.”

CONSTABLE TAYLOR: “You have to keep noise down. We’re here because of a noise complaint.”
PLAINTIFF: “You can’t talk to me without a warrant.”

(Constable Duque was then only about two metres from the plaintiff and a smell of alcohol was noted).

(Plaintiff then went into the garage and increased the volume of the music which was coming from a stereo at the back of the garage on a shelf.)

(Constable Taylor then turned off the music by disconnecting a plug in a power point.)

CONSTABLE TAYLOR: “You’re playing music to an offensive level. If you keep doing it we will have to give you a noise abatement direction. What is your name?”
PLAINTIFF: “I don’t have to give my name without a warrant. Get the fuck out of my garage. I’m a barrister and I know my rights.”

CONSTABLE TAYLOR: “If you keep playing to that level we will have to give you a noise abatement direction.”

(Plaintiff kept demanding the officers leave and referred to a warrant.)

(Plaintiff turned on the stereo and the music returned.)

(Constable Taylor proceeded to check over the police radio the registration details of the motor vehicle.)

CONSTABLE DUQUE: “It doesn’t have to come to this. We’re here because your neighbours are complaining. All you have to do is keep the noise down.”
PLAINTIFF: “Shut up, shut up. You don’t have to talk to me.”

CONSTABLE TAYLOR: “Who is Rona...?”
PLAINTIFF: “I don’t have to tell you anything without a warrant.”

CONSTABLE TAYLOR: “I’m giving you a noise abatement direction. If you don’t comply we will issue an infringement notice.”
PLAINTIFF: “Give me the ticket.”

CONSTABLE TAYLOR: “We will give you the ticket if we have to come back.”

(The music was then at a lower level and the officers left the scene.)

(Constable Taylor then reported on the police radio that the job had terminated and the officers were back on call.)

42 As he and Constable Taylor were walking back to the police car, Constable Duque said the music volume increased. They proceeded to the car and Constable Taylor drove it to the front of the unit block and parked; they returned to the garage. Constable Duque said he thought the plaintiff needed to be arrested because it was not considered he would comply with the noise abatement direction and, in any case, they did not have the plaintiff’s name and address to issue an infringement notice. What then occurred, as narrated by Constable Duque, may be summarised in this way -

. Constable Taylor said: “You are under arrest for contravening a noise abatement direction.”

. The plaintiff said: “You can’t arrest me without a warrant.”

. Constable Taylor unplugged the stereo from the wall socket and the music ceased.

. The officers took hold of the plaintiff’s arms and escorted him to the police car.

. As they were walking the plaintiff began to resist by struggling and moving his arms.

. Constable Taylor did a “leg sweep” on the plaintiff and all three persons fell to the ground.

. Constable Taylor used the police radio.

. The plaintiff was handcuffed and taken to the police car but he was non compliant, lashing out and moving around; he was placed across the bonnet of the police vehicle where he continued to be aggressive by lashing out with his legs and he kicked Constable Taylor.

. The plaintiff was put on the ground and held down.

. The plaintiff was heard to say something about “recording” and, on looking around, Constable Duque saw a female using a video camera.

. As the plaintiff was held down on a patch of grass on the footpath he continued to struggle.

. A caged police truck arrived and the plaintiff was conveyed in it to the police station at Kogarah. That was the end of Constable Duque’s involvement.

43 Constable Duque in cross-examination said he had no knowledge of the domestic violence complaint, only of the noise complaint.

44 Constable Duque denied the plaintiff was arrested because the officers “did not like him” and because he had “a nice BMW”. Indeed, Constable Duque said such factors did “not at all” play a part in the arrest.

Assessment of the Evidence

45 The plaintiff presented as a most determined and forceful witness whose narration of what occurred in those early morning hours of 19 February 2004 was clearly and crisply stated. However, one got the feeling, particularly since it was nearly five and a half years ago, that it was all too rehearsed. Indeed, the repetition during the plaintiff’s evidence of events and conversations involved use of the very same words so that the feeling emerged of circumstances created to suit the sole interests of the plaintiff. He had no difficulty with recall. I did not at all feel comfortable with the tenor of the plaintiff’s evidence - he was all too glib.

46 A significant feature of the plaintiff’s case, as put in his oral evidence, was that there was no objective material to support it. Indeed, the COPS record of events was directly inconsistent with his version of events in that it clearly supported two attendances by the officers to the garage area, not one as the plaintiff said, and the timescale of 26 minutes the officers were at the scene was too long to be consistent with the plaintiff’s version of events. Further, the absence of any evidence from Mr Konneh, whom the plaintiff said was present in the garage area at all relevant times, seriously puts in doubt the plaintiff’s version of events.

47 A very telling aspect against the plaintiff of what really occurred was his evidence as to the manner of his arrest. He said it occurred almost immediately after the two constables arrived at the garage and only after Constable Taylor asked whether he had been playing loud music and had checked the registration of the BMW car. The plaintiff, on then being told he was under arrest, said he walked out of the garage and (as demonstrated in the witness box) with arms outstretched, offered his hands with wrists together to be handcuffed by Constable Taylor. And that was after Constable Taylor referred to him as “Rona Hamieh” from the radio check. In my view, the apparently meek submission by the plaintiff in the manner demonstrated is simply not credible - in the timescale, and in light of what was said up to that point, one may reasonably expect the plaintiff to have remained motionless, but, at the least, to have inquired further of Constable Taylor. He did neither.

48 Another troubling aspect of the plaintiff’s version of events was that it was not until he was taken to the police car and Ms Hamieh said she was recording the scene on the video that Constable Taylor raised the question he was “resisting” and then knocked the plaintiff to the ground. If that be true, I think it passing strange for Constable Taylor to have waited until then to comment and to take such physical action when he must have seen Ms Hamieh with the video camera recording the scene.

49 The only corroboration for the plaintiff was from his wife, Ms Hamieh. I think her evidence is to be treated with great caution having in mind her volunteered view about not trusting police. Perhaps more significantly, however, was her statement she had not discussed with the plaintiff the subject events because there was no opportunity to do so as she looked after a young child. I do not accept the truth of that evidence. That the plaintiff would not discuss with Ms Hamieh, let alone she was his wife, the evidence she might give in these proceedings when he was preparing for a trial of his claims defies belief, particularly when he was acting for himself and as experienced as he claimed to be in legal matters.

50 At the end of the day the onus in making out a case rests on the plaintiff. The evidence offered, in my assessment of it, was generally not credible and overly simplistic.

51 On the other hand, and putting aside understandable variations of minor detail, the thrust of the evidence of both Constable Taylor and Constable Duque was consistent and significantly in accordance with the contemporaneous police radio log of events. The sequence of what occurred in a situation such as that here, including Constable Taylor’s efforts in having the plaintiff abate the loud music the subject of the resident’s complaint, is unremarkable and has about it the feeling of truth. I accept their evidence in preference to that led for the plaintiff.

52 Conclusions on Evidence: I make the following findings:

(1) At about 1.33am on Thursday, 19 February 2004 Mrs Doshen, a resident in the block of units at 5-9 Trafalgar Street, Brighton-le-Sands complained to the police of loud African music and voices coming from the garage area of the unit complex.

(2) At 2.27am Constable Taylor and Constable Duque attended the unit complex to deal with the source of the noise.

(3) The music noise was emanating from the garage area, specifically from a stereo system located on the back wall of the open garage used by the plaintiff to park a BMW motor car.

(4) The plaintiff was a resident of the unit complex in Unit 9 where he lived with his de facto wife, Rona Hamieh.

(5) The plaintiff was alone in the garage at the time playing the music and he was in control of its volume.

(6) The noise level of the music was so loud as to be offensive and objectionable to residents of the area.

(7) Constable Taylor on arrival advised the plaintiff they were there in response to a complaint of the noise and enquired if the plaintiff had been playing the loud music.

(8) The plaintiff conducted himself by aggressively resisting Constable Taylor’s enquiry and refused to give his name and address when asked.

(9) The plaintiff demanded that the two constables, in the absence of a warrant, leave the premises.

(10) Constable Taylor told the plaintiff they would leave if he provided his name and address; he refused to do so.

(11) Constable Taylor unplugged the stereo system and the music stopped but the plaintiff then turned it back on to recommence the music.

(12) A radio check showed the BMW car was registered in the name of “Media Press Computer Supplies Pty Limited” at Alexandria and with the contact person being Rona Hamieh.

(13) Constable Taylor asked the plaintiff if he was Rona Hamieh but he declined to answer in the absence of a warrant.

(14) Constable Taylor issued the plaintiff with a noise abatement direction in relation to the music noise and, with the music sound reduced, the constables left the scene but with the expressed intention an infringement notice would be issued if they were caused to return.

(15) During the course of going to their police car the officers heard the volume of the music again increased to a loud level.

(16) On returning to the garage area the officers arrested the plaintiff for disobeying a police direction, namely the noise abatement direction.

(17) The plaintiff complained he could not be arrested without a warrant.

(18) On being taken into custody the plaintiff was compliant but then suddenly started to resist and so was handcuffed after being held.

(19) Constable Taylor called for a supervisor and a caged police truck.

(20) he plaintiff was placed against the police car where he continued to struggle and then kicked Constable Taylor on the right shin and leg.

(21) The officers had to physically restrain the plaintiff in keeping him in custody.

(22) At about 2.53am on 19 February 2004 the plaintiff was placed in the caged police truck and taken to St George Police Station at Kogarah where he was charged with assault police, resist arrest and failure to cease noise emission.

(23) At 1.30pm that day a magistrate granted the plaintiff bail and remanded him to appear in Sutherland Local Court on 25 March 2004.

(24) On 26 August 2004 the plaintiff was convicted by Magistrate Brydon of the three offences and sentenced.

(25) On 15 November 2004 Blanch J in the District Court upheld the plaintiff’s appeal, quashed the convictions and set aside the orders made by the magistrate.

Liability for the Alleged Torts

53 It is necessary on the basis of the facts as found to determine the liability of the first defendant for the four torts allegedly committed by Constable Taylor and Constable Duque.

54 Wrongful Arrest: In considering this count it is appropriate to have in mind what was said by Smart AJ in Director of Public Prosecutions v Carr (2002) 127 A Crim R 151 at 157 in [35], as follows:

“This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences or where the defendant’s name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded.”

55 Constable Taylor here in arresting the plaintiff did so because of the failure to obey a noise abatement direction. Section 276(a) of the Protection of the Environment Operations Act empowers an authorised person, including a police officer, if it appears to that person an offensive noise is being emitted from any premises to direct the person believed to be the occupier of the premises to cause the emission to cease. Where such a noise abatement direction has been given, s 277(1)(a) of the statute provides that the recipient of the direction “must not, without reasonable excuse,...(a) fail to cause the emission of the offensive noise from the premises to cease promptly.” Section 277(4) provides for a maximum penalty of 30 penalty units for a person found guilty of contravening the section.

56 The alleged offence here by the plaintiff was, in my view, clearly of a minor nature and where it could have been dealt with by way of a penalty notice served on the plaintiff: see Protection of the Environment Operations Act, ss 222 and 224 and Protection of the Environment Operations (Penalty Notices) Regulation 2004, Sch 1. However, s 283 of the statute provides that nothing therein limits any other power a police officer may have under the statute or any other Act or at common law to enter or remain at any premises.

57 The Law Enforcement (Powers and Responsibilities) Act in s 99(1) empowers a police officer, without a warrant, to arrest a person if “(a) the person is in the act of committing an offence under any Act...or (b) the person has just committed any such offence...” The section in sub-s (3), so far as presently relevant provides that a police officer must not so arrest a person unless the officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of a number of purposes, namely, “(a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence...”

58 In Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396 at [28] - [30], Smart AJ again had occasion to consider the power of arrest allowed to police officers. His Honour agreed with the comments made by the Attorney-General on 17 September 2002 in moving the second reading of the bill introducing the enactment of s 99 to the effect that it substantially re-enacted the provisions of the Crimes Act and codified the common law so that “arrest is a measure that is to be exercised only when necessary...only be used as a last resort as it is the strongest measure that maybe taken to secure an accused person’s attendance at court.” To a similar effect, reference may be made to Fleet v District Court of NSW [1999] NSWCA 363 and Wilson v Director of Public Prosecutions [2002] NSWSC 935.

59 In the circumstances of the findings made in the present case, my view is that the police officers’ decision to arrest the plaintiff rather than to proceed by way of penalty notice, or even by summons, was wholly unsurprising and to be expected. It is true, as I have said, that the subject offence was of a minor nature and could have been dealt with by way of a penalty notice. However, I think such a course, in the situation as it occurred would have been impracticable to effect. The officers were clearly entitled to issue the noise abatement direction to cause the emission of the offensive loud music noise to cease in those early morning hours and the failure by the plaintiff to comply was an offence.

60 Even so, the plaintiff’s behaviour was more than such a failure as he immediately and persistently adopted an attitude of non-cooperation with the officers and declined to provide his name and address; they reasonably may have suspected he was Rona Hamieh but the car’s registration location was recorded as Alexandria whereas the unit block was at Brighton-le-Sands; and the plaintiff declined to identify himself or to clarify the position in the absence, as he said, of a warrant and where he claimed as a barrister knowledge of his rights. Indeed, the plaintiff demanded the officers leave his garage and then proceeded to increase the volume of the music before Constable Taylor unplugged the stereo. That the officers left the scene at that point after issuing the direction and seeking compliance by the plaintiff without further action speaks well for their balanced and reasonable approach. The renewal of the loud music a minute or so later demonstrated that the plaintiff was determined to ignore the direction and to continue the offence.

61 I am satisfied that the plaintiff was subject to arrest as a proper course in that he refused to give his name and address when asked and after the direction was given again increased the loud music noise. The statutory requirements for an arrest were met. The count of wrongful arrest must fail.

62 False Imprisonment: That the arrest was lawful leads, in my view, to a conclusion that the plaintiff was not wrongly detained in custody. Section 114 of the Law Enforcement (Powers and Responsibilities) Act deals with the detention of a person after arrest for the purposes of investigation. That is what occurred here until he was charged at St George Police Station and then held in custody pending appearance later that day before a magistrate in accordance with s 99(4).

63 The count of false imprisonment must fail.

64 Assault: Section 61 of the Crimes Act provides the offence of common assault not occasioning actual bodily harm and s 59(1) deals with the offence of assault where actual bodily harm is sustained. It was not made clear the particular section relied upon by the plaintiff but as he abandoned any claim for personal injury it may be assumed s 61 was the relevant provision.

65 Section 230 of the Law Enforcement (Powers and Responsibilities) Act makes it lawful for a police officer in the execution of a duty such as an arrest as relevant here, “to use such force as is reasonably necessary to exercise the function.” In the circumstances as found in this case, and particularly where the arrest was lawful, I see no ground to say that in arresting the plaintiff the officers used anything other than reasonable force. The plaintiff was resisting the officers by struggling and had to be controlled and held on the ground. The film taken by Ms Hamieh, in my view of it, does not suggest otherwise.

66 The count of assault must fail.

67 Malicious Prosecution: In A v NSW [2007] HCA10; (2007) 230 CLR 500 at [1] the Hight Court laid down the necessary elements to be established for the tort of malicious prosecution as follows:

“(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable and probable cause.”

68 The elements in (1) and (2) were, as conceded by the first defendant, satisfied here so that the real focus is to be on the elements in (3) and (4).

69 In A v NSW (at [40]), it was made plain that although there may be some overlap between (3) and (4) they are nevertheless two separate issues to be decided and the onus in proving each element lies upon the plaintiff (at [60]).

70 As to element (3) concerning malice, the High Court commented (at [55]):

“...it suffices to describe malice as acting for purposes other than a proper purpose of instituting criminal proceedings. Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word ‘malice.’ It also suffices to refer for the moment to what the prosecutor ‘made’ or ‘should have made’ of the available material without pausing to explore what is meant by those expressions...”

71 The issue of reasonable and probable cause was dealt with in A v NSW (at [44] - [87]) in an exhaustive manner. For present purposes, it is sufficient to refer to what Simpson J remarked in Hathaway v State of New South Wales [2009] NSWSC 116 (at [120]) by reference to the review by the High Court in this respect, namely, “A number of the cases...appear to impose two requirements - one, that a prosecutor have an actual, subjective belief in the guilt of the person prosecuted, and two, that there also exist, objectively, reasonable and probable cause for bringing the prosecution. The High Court restated that the onus of proof lies upon the plaintiff, and appears to have endorsed both requirements...”

72 An overall view of the evidence in this case discloses, at least to me, a lack of evidence established by the plaintiff of any malice in either Constable Taylor or Constable Duque in charging the plaintiff. This element, although suggested in some questions asked by the plaintiff of each officer, who denied, that they did not like his attitude and were jealous of him having a nice car was simply not made out. Otherwise, there was only the evidence of Ms Hamieh about her distrust of police and that they challenged the plaintiff by checking his licence while driving. The probability that those facts, even if true, constituted malice in the requisite sense does not exist.

73 For the reasons put earlier in relation to the count of wrongful arrest, I am satisfied there was reasonable and probable cause for charging the plaintiff for failure to comply with the noise abatement direction, assault police and resisted arrest. I have that satisfaction in both a subjective and an objective sense. It is true that the plaintiff was eventually acquitted of the charges on appeal but he was convicted by the magistrate at first instance. Very many cases are dealt with in this way but that in itself does not mean the charges were brought without reasonable and probable cause.

74 The count of malicious prosecution must fail.

Damages

75 In the event the plaintiff’s claim fails, one would usually proceed to quantify damages on the basis that it may be in error and an assessment of damages would then necessarily arise. In this case, however, I do not propose to do so. The credibility and strength of the plaintiff’s case have been found lacking and if an assessment of damages does later arise then I think it preferable to be done separately from me. I see no utility in me expressing any views. Suffice it to say that the plaintiff claim damages for all counts in the total sum of $200,000, whereas the first defendant suggested general damages of no more than $10,000 to $15,000 on each of the three counts of assault, wrongful arrest and false imprisonment with nothing for the malicious prosecution count; and no amount for aggravated or exemplary damages.

Conclusion and Orders

76 The plaintiff has failed to establish any of the four counts pleaded of wrongful arrest, assault, false imprisonment and malicious prosecution. The first defendant has no vicarious liability for the conduct of Constable Taylor or Constable Duque towards the plaintiff for what occurred. The first defendant is entitled to a verdict accordingly.

77 I see no reason in the circumstances why costs of the proceedings should not follow the event in the ordinary way. I will hear the parties on this before making final orders.

COUNSEL ADDRESSED ON COSTS

78 On giving my reasons for judgment in this matter, an application was made by the plaintiff that the court should exercise its discretion in the circumstances and make no order as to costs. On the other hand, an application was made by counsel for the first defendant that pursuant to an offer of compromise made on 25 June 2009 that, in accordance with the rules, the appropriate order was that costs be paid by the plaintiff to the first defendant up to 25 June 2009 (the date of the offer) on the ordinary basis and thereafter from 26 June 2009 on an indemnity basis.

79 In support of the application made by the plaintiff, Mr Charara made submissions by reference to correspondence in June and July 2009 between him and the first defendant’s solicitors in relation to the question of costs in Supreme Court proceedings against the Commissioner of Police and suggested that thereby in endeavouring to settle these proceedings that any moneys in favour of the plaintiff would be dispersed to the payment of the costs of the Commissioner of Police in the Supreme Court proceedings. Effectively, that meant there was no real intention by the first defendant to properly enter into a settlement of the present proceedings whereby they necessarily proceeded to a full hearing.

80 Nevertheless, the fact is that on 25 June 2009 the first defendant’s solicitors made an offer in accordance with the terms of the Court’s rules. Separately, and apart from any discussions between the parties regarding the Commissioner of Police and the Supreme Court proceedings, that offer was to compromise the present proceedings by the payment by the first defendant to the plaintiff of the sum of $50,000. That offer was made on 25 June 2009 and was open for acceptance until 4 pm on 30 June 2009.

81 It was available during that period for the plaintiff to simply say in a communication to the first defendant “The offer is accepted”. That seemed not to be done but as Mr Charara explained, he raised questions about it. In my view, the offer was in accordance with the rules and in plain terms. It was not accepted. Therefore, it follows, in my view of the circumstances, that the application for costs made by the first defendant should succeed.

82 In the resolution of this matter, I make the following orders:

(1) Verdict and judgment for the first defendant against the plaintiff on the action.

(2) Plaintiff to pay the first defendant’s costs of the action up to 25 June 2009 on the ordinary basis and thereafter from 26 June 2009 on an indemnity basis.

(3) I direct that the exhibits remain with the file to be returned after twenty-eight days on application to the Registrar.

(4) The Court notes the order made by it on 2 July 2009 that the statement of claim against the second and third defendants be dismissed.

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