Majindi v Northern Territory

Majindi v The Northern Territory of Australia, Miller and Fitzell [2012] NTSC 25

PARTIES:   MAJINDI, Marcellus

v

THE NORTHERN TERRITORY OF AUSTRALIA

and

MILLER, Wayne

and

FITZELL, Adam

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:   62 of 2010 (21020110)

DELIVERED:   12 April 2012

HEARING DATES:   27, 28 and 29 February and 1 March 2012

JUDGMENT OF:   MILDREN J

CATCHWORDS:

EVIDENCE — Estoppel – whether evidence of previous acquittal is admissible

POLICE — Excessive force — Assault and battery — Damages — Aggravated and exemplary — Relevant considerations

PRACTICE AND PROCEDURE – Pleading rules – Whether reliance on s 19 of Personal Injuries (Liabilities and Damages) Act needed to be pleaded

TORT – Trespass to the person – False imprisonment, unlawful arrest and assault and battery — Damages — Aggravated and exemplary — Relevant considerations

TORT – Trespass to the person—False imprisonment, unlawful arrest and assault and battery —Police Administration Act s 128 – Protective custody – Reasonable grounds

Personal Injuries (Liabilities and Damages) Act, s19

Police Administration Act, s128

Supreme Court Rules O13.02 and 13.07

Blatch v Archer (1774) 1 Cowp. 63; Briginshaw v Briginshaw (1938) 60 CLR 336; George v Rockett (1990) 170 CLR 104; Lackersteen v Jones(1988) 92 FLR 6; Majindi v Balchin [2011] NTSC 40; New South Wales v Koumdjiev [2005] 63 NSWLR 353; applied.

Cameron v James [1945] VLR 113; Carter v Walker [2010] VSCA 340;

distinguished.

De La Espriella-Velasco v The Queen (2006) 197 FLR 125; Helsham v Blackwood (1851) 138 ER 412; Helton v Allen (1940) 63 CLR 691; Re application of Hanratty (1984) 14A Crim R 36; followed.

Adams v Kennedy & Ors (2000) 49 NSWLR 78; State of New South Wales v Williamson [2011] NSWCA 183; referred.

REPRESENTATION:

Counsel:

Plaintiff:   Mr G. Newton

Defendant:   Mr S. McLeod

Solicitors:

Plaintiff:   North Australian Aboriginal Justice Agency

Defendant:   Solicitor for the Northern Territory

Judgment category classification:    B

Number of pages:   42

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Majindi v The Northern Territory of Australia, Miller and Fitzell [2012] NTSC 25

No. 62 of 2011 (21020110)

BETWEEN:

MARCELLUS MAJINDI

Plaintiff

AND:

THE NORTHERN TERRITORY OF AUSTRALIA

First Defendant

AND:

WAYNE MILLER

Second Defendant

AND:

ADAM FITZELL
Third Defendant

CORAM:     MILDREN J

REASONS FOR JUDGMENT

(Delivered 12 April 2012)

1. This is an action for damages for assault and battery, unlawful arrest and false imprisonment brought by the plaintiff against the defendants Miller and Fitzell who are and were at all relevant times members of the Northern Territory Police Force. The claim against the Northern Territory is based upon a claim that it is vicariously liable for the torts allegedly committed by Messrs Miller and Fitzell pursuant to s 148C of the Police Administration Act.

2. The plaintiff is an Aboriginal man, born on 29 September 1978, and therefore 31 years of age at the…