Cowan v State of NSW

[2021] NSWDC 31

District Court

New South Wales

Medium Neutral Citation:

Cowan v State of NSW [2021] NSWDC 31

Hearing dates:

23 February 2021

Date of orders:

23 February 2021

Decision date:

23 February 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [12] for orders

Catchwords:

PRACTICE & PROCEDURE – approval of settlement of a claim brought on behalf of a minor

Legislation Cited:

Civil Procedure Act 2005 (NSW), Div 4, s 76(4), s 77(3)

Law Enforcement (Powers and Responsibilities) Regulation 2005, reg 24

Police Act 1990 (NSW), s 6

Category:

Principal judgment

Parties:

Craig Cowan bht Rebecca Cowan (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr J Fahey, Solicitor (Plaintiff)
Ms A Kmetyk, Solicitor (Defendant)

Solicitors:
Foott Law & Co (Plaintiff)
McCabe Curwood (Defendant)

File Number(s):

2020/185537

Publication restriction:

None

EX-TEMPORE Judgment

1. These reasons concern an application made in the Court’s supervisory jurisdiction concerning claims by persons under legal incapacity: Div 4 of the Civil Procedure Act 2005 (NSW).

2. The proceedings are in the current sittings of the court in Lismore. The parties have reached a settlement, subject to the requirement of court approval.

3. The plaintiff, Craig Cowan, is a 13 year old Aboriginal boy of the Bundjalung people. On 13 April 2016, he was aged eight years. At that time, he was deemed to be a vulnerable person within the meaning of reg 24 of the Law Enforcement (Powers and Responsibilities) Regulation 2005.

4. At about 1.30pm, on that date, he was outside his aunt’s premises in the company of friends and family, in Coraki, New South Wales, when he found himself in the company of two police officers, shortly after which he found himself in the caged module at the back of a police vehicle. In those events, for a time he was detained and deprived of his liberty whilst he was driven to another address in the same street in Coraki, where he was released into the care of his mother.

5. The police officers involved in the incident claimed they were acting in good faith in accordance with s 6 of the Police Act 1990 (NSW).

6. Although the circumstances of the placement of the plaintiff into the caged vehicle and the duration of the plaintiff's presence in the vehicle are in dispute, the defendant, the State of New South Wales, admits that for a relatively short time, the plaintiff was falsely imprisoned within the vehicle. The plaintiff claims the false imprisonment was for a period of about ten minutes. The police officers concede the period was about two minutes.

7. Those events have led to the plaintiff’s mother, on his behalf as tutor, to claim damages, including compensatory, aggravated and exemplary damages for battery, wrongful arrest and false imprisonment. The plaintiff claims he was humiliatingly arrested and detained in the presence of friends and family, with a loss of his dignity.

8. Consequently, damages are claimed alleging the described actions of the two police officers, for which the State of New South Wales is vicariously liable, had deliberately targeted the plaintiff because of his Aboriginality. On behalf of the plaintiff it is also alleged that the actions of those police officers involved a high handed display which constituted a contumelious disregard of the plaintiff’s rights. Those allegations have been denied. No apology has been made in respect of those events.   

9. The stated basis of the plaintiff’s claim is to seek the Court’s salutary condemnation and society’s disapprobation of the conduct alleged. Sensibly, the parties have reached a settlement in which the disputed issues in the litigation have been compromised, subject to the approval of the Court. The plaintiff’s mother and tutor seeks the Court’s approval of the proposed settlement.

10. In this approval hearing, I have considered the affidavit of the plaintiff’s solicitor, Mr J Fahey. That affidavit makes reference to the advice of counsel, to the effect that the proposed settlement represents a fair and reasonable resolution of the plaintiff’s claim. There are no past or ongoing out-of-pocket expenses. I have read the confidential advice of counsel. That advice will remain in the court papers in a sealed envelope, marked “Not to be opened unless by order of a judge of the Court”.

11. I unreservedly approve of the proposed settlement as being fair, reasonable, and appropriate to the described circumstances. I conclude that the proposed settlement is in the plaintiff’s best interests.

12. In accordance with the agreed terms of settlement and in conformity with the principles of open justice, I make the following orders:

1. Pursuant to s 76(4) of the Civil Procedure Act 2005, I approve the settlement;

2. There will be judgment for the plaintiff against the defendant, in the sum of $38,000;

3. No interest will run on that judgment if it is paid within 28 days;

4. The defendant is to pay the plaintiff’s legal costs as have been agreed between the parties;

5. Pursuant to s 77(3)(a) of the Civil Procedure Act 2005, the judgment entered, in favour of the plaintiff is to be satisfied by the defendant paying the whole of the judgment amount, to the New South Wales Trustee and Guardian, to be held on account of the plaintiff, Craig Cowan, until he reaches the age of his legal majority.

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Decision last updated: 25 February 2021