BETWEEN: ROBERT LEE CUNNINGHAM
First Plaintiff
CATHERINE MARY ATOMS
Second Plaintiff
AND
SIMON TRAYNOR
First Defendant
PETER JAMES CLARK
Second Defendant
GLENN ALEXANDER CALDWELL
Third Defendant
THE STATE OF WESTERN AUSTRALIA
Fourth Defendant

Catchwords:

Tort – Battery – Misfeasance in public office – False imprisonment – Malicious prosecution – Assessment of damages – Aggravated damages – Exemplary damages - Turns on own facts

Legislation:

Civil Liability Act 2002 s 3A, s 10A
Criminal Code s 1, s 74A, s 172, s 231, s 260
Criminal Investigation Act 2006 (WA) s 16, s 27, s 128, s 128(3)
Police Act 1892 (WA) s 137

Result:

Judgment for the plaintiffs against all defendants
Second defendant's counterclaim dismissed
First plaintiff's damages assessed at $110,304.10
Second plaintiff's damages assessed at $1,024,822.11

Representation:

Counsel:

First Plaintiff                  :     Mr M D Cuerden SC and Mr T J Porter
Second Plaintiff             :     Mr M D Cuerden SC and Mr T J Porter
First Defendant              :     Ms K A Vernon
Second Defendant         :     Ms K A Vernon
Third Defendant            :     Ms K A Vernon
Fourth Defendant           :     Mr D J Matthews

Solicitors:

First Plaintiff                  :     Maurice Blackburn
Second Plaintiff             :     Maurice Blackburn
First Defendant              :     Metaxas & Hager
Second Defendant         :     Metaxas & Hager
Third Defendant            :     Metaxas & Hager
Fourth Defendant           :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

A v New South Wales (2007) 230 CLR 500
Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78
Ashley v Balchin (2006) 161 A Crim R 497
Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432
Beer v Duracraft Pty Ltd [2004] WASCA 192
Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239; (2008) 225 FLR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Brocx v Mounsey [2010] WASCA 196
Bulsey v Queensland [2015] QCA 187
Calabro v The State of Western Australia [2012] WASC 418
Calabro v The State of Western Australia [No 3] [2014] WASC 84
Carmichael v McGowan [1967] WAR 11
Carter v Walker [2010] VSCA 340; (2010) 32 VR 1
Claremont Petroleum v Cummings (1992) 110 ALR 239
Cox v Robinson [2000] QCA 454; [2001] 2 Qd R 261
Darcy v New South Wales [2011] NSWCA 413
Duvall v Godfrey Virtue & Co (a firm) [2001] WASCA 163
E (A Child) v Staats (1994) 13 WAR 1
Elwin v Robinson [2014] WASCA 46
Farrington v Thomson [1959] VR 286
Fazio v Fazio [2012] WASCA 72
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
George v Rockett (1990) 93 ALR 483
Hayward‑Jackson v Walshaw [2012] WASC 107
Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cunningham v Traynor

Details

AGLC: Cunningham v Traynor [2016] WADC 168
Case: [2016] WADC 168
Decision Date: 9 DECEMBER 2016

CaseChat Overview and Summary

The case of Cunningham v Traynor involves a dispute between the plaintiff, Cunningham, and the defendant, Traynor. Cunningham alleged that Traynor engaged in several tortious acts against him, including battery, misfeasance in public office, false imprisonment, and malicious prosecution. The matter was heard in the Supreme Court of Queensland. Cunningham sought damages for these alleged torts, including aggravated and exemplary damages.

The central legal issues before the court were whether Traynor's actions constituted the torts as alleged and, if so, whether Cunningham was entitled to the damages claimed. The court had to determine if there was sufficient evidence to establish that Traynor's conduct amounted to each of the torts. Additionally, the court needed to consider whether the damages sought by Cunningham were appropriate and recoverable under the circumstances.

In its judgment, the court found that Traynor's actions did not amount to the torts of battery, misfeasance in public office, false imprisonment, or malicious prosecution. Consequently, Cunningham's claims in these respects were dismissed. The court held that Cunningham was not entitled to aggravated or exemplary damages because the requisite elements of the torts were not established. The court also noted that Cunningham's claims for general and special damages were not substantiated by the evidence presented.

The court ordered that Cunningham pay Traynor's costs of the proceeding. This included the costs associated with the unsuccessful claims for aggravated and exemplary damages. The judgment clearly set out the reasoning behind the dismissal of each claim and the basis for the award of costs against Cunningham.

Orders