26 June – 30 June, 3 July – 7 July, 10 July, 12 July 2023
Last submissions:
16 November 2023
Decision Date:
1 December 2023
Before:
Mossop J
Decision:
See [411]-[413].
Catchwords:
TORTS – TRESPASS, BATTERY AND WRONGFUL IMPRISONMENT – Police forced entry into residence – plaintiff arrested for obstructing police – where plaintiff resisted arrest and violent melee occurred – plaintiff injured during course of struggle – no unreasonable use of force – actions of police rendered tortious due to unlawful entry onto premises
POLICE POWERS – ENTRY – Police forced entry into residence while responding to report of suspected family violence – police claimed to be exercising powers of emergency entry – consideration of ss 188 and 190 of the Crimes Act 1900 (ACT) –whether there were reasonable grounds for belief held by police – reasonable grounds for belief not established – entry unlawful
CIVIL PRACTICE AND PROCEDURE – LIMITATION PERIODS – Limitation period of six months under s 435 of the Crimes Act 1900 (ACT) – whether entry done, or reasonably supposed to have been done, under the Act – meaning of “reasonably supposed to have been done” – s 435 requires subjective enquiry into what person supposed they were doing and objective qualification of reasonableness of the supposition – must accommodate circumstances of mistake of fact or law in the purported exercise of statutory powers – police believed they were acting lawfully – defence applies – judgment for defendants
POLICE POWERS – ARREST – Reasonable force – ss 212 and 222 of the Crimes Act 1900 (ACT) – plaintiff claims police used excessive force during violent melee – police exercised a degree of restraint consistent with training – use of force not unreasonable
TORTS – NERVOUS SHOCK – whether s 36 of the Civil Law (Wrongs) Act 2002 (ACT) applies to Commonwealth officers in proceedings in the ACT Supreme Court – not appropriate to determine basis upon which it applies where parties agree that it does and no proper contradictor for Commonwealth submissions
[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.
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AGLC
Glavinic v Commonwealth [2023] ACTSC 361
Case
[2023] ACTSC 361
Decision Date
CaseChat Overview and Summary
In the Supreme Court of the Australian Capital Territory, three plaintiffs, Justin Glavinic, Carol Glavinic, and Heather Williams, filed claims against the Commonwealth and five police officers for damages arising from an alleged unlawful entry and violent altercation. The plaintiffs alleged trespass, battery, unlawful imprisonment, and psychiatric harm due to witnessing the incident. The defendants argued the entry was lawful under emergency powers, and the force used was reasonable and necessary. The court considered the legal issues of the lawfulness of the entry, the reasonableness of the force used, and whether the claims were statute-barred. The court found that the police entry was unlawful as the officers did not have reasonable grounds to believe an emergency existed. Despite this, the claims were dismissed because they were brought outside the six-month limitation period under s 435 of the Crimes Act. The court also found that the police officers exercised reasonable force in response to the violent resistance from Justin Glavinic. Judgment was entered for the defendants, and costs were awarded to the defendants on a solicitor-client basis, pending further submissions if any party wished to contest the costs order.