Hemelaar & Red v Walsh, Gough & State of Queensland

The appellants, Hemelaar and Red, sought review of a decision by a Magistrate that dismissed their claims against police officers and the State of Queensland for false imprisonment, assault, and malicious arrest. The incident arose when the appellants were arrested for failure to comply with a move on direction issued by the police, despite the appellants being participants in a public assembly deemed to be authorised under the Peaceful Assembly Act 1992. The appellants argued that the police lacked the authority to issue the move on direction and thus their arrest was unlawful. They further contended that the Magistrate erred in dismissing their claims of assault and malicious arrest and that the damages awarded for battery and false imprisonment were inadequate.

The court held that the police officers did not have the power to issue a move on direction in the circumstances and thus the arrests were unlawful. The court found that the Magistrate erred in dismissing the appellants' claims for assault and malicious arrest as the police officers lacked the legal authority to make the arrests. The court found that the damages awarded for battery and false imprisonment were inadequate and granted the appellants aggravated damages. The court allowed the appeal and set aside the orders made by the Magistrate, substituting them with new orders for judgment against the police officers and the State of Queensland for damages, along with interest.

The court directed the parties to provide a proposed form of order within 7 days, including as to costs, if agreed. If not agreed, the parties were directed to provide submissions in relation to the order as to costs sought, with the matter to be decided on the papers.