Moses v State of New South Wales

[2009] NSWDC 74

CITATION:	Moses v State of New South Wales [2009] NSWDC 74
HEARING DATE(S):	19 March 2009
JUDGMENT DATE:	24 April 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Defendant’s application for summary judgment dismissed. (2) Costs to be plaintiffs’ costs in the cause. (3) The parties have leave to bring in Short Minutes of Order for a timetable for these proceedings.
CATCHWORDS:	Tort - defamation - words spoken by police officer to a person of interest - whether published on an occasion protected by the defence of absolute privilege - summary judgment application refused
CASES CITED:	Lassanah v State of New South Wales [2009] NSWDC 73
PARTIES:	First Plaintiff: David Moses Second Plaintiff: Tangiwai Kawenga Defendant: State of New South Wales
FILE NUMBER(S):	6191 of 2008
COUNSEL:	Plaintiffs: Ms L Evans Defendant: Mr D A Caspersonn
SOLICITORS:	Plaintiffs: Friend & Co Lawyers Defendant: Henry Davis York Lawyers

Judgment

Introduction

[1] These proceedings were listed at the same time as proceedings 5370 of 2008 (Lassanah v State of New South Wales [2009] NSWDC 73) for the purpose of an application by the defendant for summary judgment on the basis that the matter complained of was published on an occasion of absolute privilege.

[2] The matter complained of in these circumstances consisted of words spoken by constables of the New South Wales Police Force at McEvoy Street, Waterloo near McDonald’s on or about 5 September 2008 when the police officer said to the first plaintiff “you’re robbing women”, “you’re a thief”, “you have stolen from women”. He was arrested and charged, although the charges were not proceeded with. At the same time, the police officer said to the second plaintiff “you’re under arrest – you’re a piece of shit – you’re fucked – you’re going to gaol”. The second plaintiff was then arrested and charged, although the charges have not been proceeded with.

[3] The factual situation in these proceedings is almost identical to that in Lassanah v State of New South Wales. Police have been called by a person who asserts that a criminal offence has been committed and in the course of carrying out their activities the police are alleged to have made these statements.

[4] For the reasons set out in my judgment in Lassanah, the application for summary judgment must be dismissed. I also consider, for the same reasons, that the same costs order should be made.

Orders

(1) Defendant’s application for summary judgment dismissed.

(2) Costs to be plaintiffs’ costs in the cause.

(3) The parties have leave to bring in Short Minutes of Order for a timetable for these proceedings.

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