Photi v Target Australia Pty Ltd
[2007] NSWDC 265
•11 December 2007
CITATION: Photi v Target Australia Pty Ltd [2007] NSWDC 265 HEARING DATE(S): 25/6/07-27/6/07 (hearing), 9/8/07, 24/8/07, 18/9/07, 4/10/07, 9/11/07, 23/11/07
JUDGMENT DATE:
11 December 2007JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Judgment for the plaintiff in relation to the claim for wrongful arrest, false imprisonment and defamation in the sum of $50,000; (2) Judgment for the plaintiff in relation to the claim for assault in the sum of $10,000; (3) Punitive damages of $25,000 (for causes of action other than defamation) awarded to the plaintiff; (4) Parties have leave to bring in Short Minutes of Order in relation to interest for the claims for general and aggravated compensatory damages; (5) Liberty to restore re costs and interest; (6) Exhibits retained for 28 days. CATCHWORDS: Tort - assault - plaintiff arrested by store security officer - wrongful arrest - false imprisonment - defamation - justification - late plea of qualified privilege - damages - aggravated compensatory damages - punitive damages claim for causes of action other than defamation LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Crimes Act 1900 (NSW), ss.352 and 195
Defamation Act 1974 (NSW), ss.7A, 13, 15, 16 and 46A
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss.99 and 100CASES CITED: Adam v Ward [1917] AC 309
Ainsworth v Burden [2005] NSWCA 174
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Bellino v Australian Broadcasting Commission (1996) 185 CLR 183
Bennett v Norban 151A.2d 476 (Pa.1959)
Beoco Ltd v Alfa Laval Co Ltd [1994] 4 All ER 464
Chamberlain v R (No 2) (1984) 153 CLR 521
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Crampton v Nugawela (1996) 41 NSWLR 176
Cretazzo v Lombardi (1975) 13 SASR 4
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186
Guise v Kouvelis (1946) SR (NSW) 419
Howe and McCullough v Lees (1910) 11 CLR 361
John Lewis & Co v Tims [1952] AC 676
Marsden v Amalgamated Television Services Pty Ltd [2003] NSWCA 186
McDonald v Coles Myer Ltd (1995) Aust Tort Rep 81-361
Myer Stores v Soo [1991] 2 VR 597
Roberts v Bass (2002) 212 CLR 1
Rogers v Nationwide News Pty Ltd (2003-2004) 216 CLR 327
Shepherd v R (1990) 170 CLR 573
Skalkos v Assaf [2002] NSWCA 14
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
State of New South Wales and Anor v Coleman [2000] NSWCA 183
State of New South Wales v Ibbett [2005] NSWCA 445
State of New South Wales v Ibbett (2006) 231 ALR 485
TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682
Trantum v McDowell [2007] NSWCA 138
Zaravinos v State of New South Wales (2004) 62 NSWLR 58
Zaravinos v State of New South Wales [2004] NSWCA 320
Zarth v Williamson and Ors [2006] NSWCA 246PARTIES: Plaintiff: Julia Photi
Defendant: Target Australia Pty LtdFILE NUMBER(S): 3364 of 2006 COUNSEL: Plaintiff: C A Evatt / L Evans
Defendant: M BarkoSOLICITORS: Plaintiff: Stephen Spinak Solicitor
Defendant: McCabe Terrill
Introduction
1. The plaintiff by way of statement of claim filed on 27 July 2006 seeks:
- (a) damages for wrongful arrest and false imprisonment, including aggravated damages and punitive damages;
(b) damages for assault; and,
(c) damages for defamation, including aggravated compensatory damages.
2. The circumstances giving rise to the claim relate to an incident which occurred on 30 August 2005 at the Target store at Westfield Shopping Centre, Burwood.
3. In relation to the claim for wrongful arrest and false imprisonment, the defendant has admitted (paragraph 75, defendant’s submissions) that the plaintiff was arrested and imprisoned and that it is vicariously liable for the acts of the security guard Mr Geoffrey Parker. The issue in this part of the proceedings is a determination of the plaintiff’s claim that the said arrest was unlawful. The assault claim arises from the circumstances in which Mr Parker restrained her, allegations that he punched and hit her, and the circumstances in which he took her mobile phone forcibly from her hand.
4. The defamation claim arises from words, gestures and conduct of Mr Geoffrey Parker in the course of making this arrest. I have dealt with this issue first.
The defamation claim – the section 7A hearing
5. These are proceedings brought pursuant to the Defamation Act 1974 (NSW) and the first issue for determination pursuant to s.7A Defamation Act 1974 is whether or not the words were spoken (which was denied in the pleadings and by Mr Parker), whether the imputations were conveyed and whether the imputations were defamatory.
6. The parties agreed to my hearing this part of the proceeding without a jury at the same time as conducting the trial on liability and quantum. They provided me with the questions similar to those given to juries in s.7A proceedings. Both the plaintiff and her sister, who was present at the time, were cross-examined in some detail about whether these words were said. The defence filed on 22 December 2006 contained a defence for the purpose of s.7A proceedings and in addition defences of unlikelihood of harm pursuant to s.13 Defamation Act 1974 and a defence of truth pursuant to s.15 Defamation Act 1974, as well as a defence to the claims for assault, wrongful arrest and false imprisonment. However, a later amendment to the defence meant that the defendant ultimately admitted that each of the imputations was conveyed and was defamatory.
The hearing – a late application to amend the defence
7. The defences relied upon by the defendant were justification (section 15) and unlikelihood of harm (section 13). The hearing commenced on 24 June 2007 and was completed on 27 June 2007. By reason of the nature of the defences pleaded, the plaintiff did not file a Reply, as malice is not an ingredient of the defences of justification and unlikelihood of harm. Counsel for the defendant addressed first. In the course of his address, he sought leave to amend the defence to plead a defence of qualified privilege at common law, notwithstanding the fact that the evidence had all been heard and both parties had closed their case.
8. This application necessitated the adjournment of the proceedings while the defendant considered its position as to whether or not to proceed with its application to amend in this very substantial matter at such a late time in the trial. The defendant was directed to file submissions by 16 July 2007 and the matter was stood over to Friday, 24 August.
9. Unfortunately, the defendant did not comply with the timetable and it was necessary to relist the matter on 9 August.
10. When the matter next came before the Court on 24 August 2007, the defendant did provide written submissions but it became clear from these submissions that the defendant had now also abandoned its s.13 defence and its s.7A defence. Accordingly, I directed the defendant to serve a draft amended defence pleading the new defence of common law qualified privilege and deleting the s.13 defence.
11. The matter was relisted on 18 September and 9 November and the plaintiff’s counsel advised that an application would be brought for costs in relation to these late amendments. It was not until 23 November 2007 that I was able to reserve my judgment after receiving submissions concerning costs.
The impact of late amendments in defamation proceedings
12. The problem of late amendment in defamation proceedings has long been recognised as causing serious difficulties in defamation cases. In Aspects of the Law of Defamation in New South Wales (Law Society of NSW, Sydney 1990), Mr Tobin QC (at page 49) noted that as a result of “a spate of adjournments at trial usually resulting from later amendments to the defence, but also caused by a plaintiff’s application to amend the imputations sued upon”, new listing procedures were set up in the Supreme Court. This is a reference to the Announcement of 14 October 1988. The text of that announcement (set out at pages 50-51) notes that where a plaintiff cannot meet a proposed new defence at a trial, leave to amend will not usually be granted.
13. Following upon the implementation of this Announcement in the Supreme Court in 1988, applications to amend defences in the weeks prior to a trial were generally refused. However, the practice of permitting late amendments gradually crept back. In TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 the appellant successfully appealed the trial judge’s refusal during the trial to permit defences of contextual truth to be pleaded. Despite noting that the case had “a most unfortunate history” including two prior jury discharges, the Court sent the matter back for a fourth trial, noting that this was “an unsatisfactory, indeed an appalling, state of affairs but this is only one of a number of libel actions in the last 10 or 15 years with a history of multiple trials” (at 704).
14. In Ainsworth v Burden [2005] NSWCA 174 the Court held that principles of case management should not prevail over the injustice caused by shutting the plaintiff out of litigating issues which were clearly arguable and already raised in the pleadings, albeit in other form, referring to State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. The trial judge had taken the view that a case commenced in 1996 concerning a 1993 publication where the relevant pleadings had been filed in 1999 and subject to numerous interlocutory applications, he considered it was too late for such an amendment to be made in 2004. Hunt AJA noted (at [58]) that the delay in making the application created a heavy onus on the moving party to demonstrate that his opponent was not prejudiced by the additional issues being raised at that stage.
15. The impact of these amendments upon the issues in the defamation claim is profound. The case was conducted by both parties on the basis that the plaintiff’s account of what Mr Parker said was challenged. No evidence was led on malice. A defence of qualified privilege at common law is inconsistent with a denial of publication and more importantly, issues of malice (of the kind which would have been particularised in any Reply pleaded to any such defence) were not able to be put to Mr Parker.
16. The plaintiff has consented to the late amendment and has filed a Reply particularising malice. Mr Evatt made it clear to the Court that his client feared the expense of a loss at appellate level if such consent was not given.
17. No explanation is forthcoming for the late plea of qualified privilege at common law. It may be that the plea was a response to Mr Parker not coming up to his proof of evidence, in that another witness called by the defendant effectively conceded that the words the plaintiff and her sister said had been spoken were indeed spoken.
18. Whatever the reason for such a late amendment, it has not only created problems for the plaintiff, but also for the Court. The defendant’s failure to file written submissions by the due date created further delays. Time in court is a precious commodity, especially in a busy court such as the District Court, and instead of a judgment being able to be handed down promptly after the hearing in June 2007, there have been applications for amendment and costs which have delayed the handing down of judgment to December 2007 when, by reason of the heavy work load this Court has in the last week of term and the long delay since the hearing, there could well be inadvertent oversights in my judgment.
19. Having noted the unfortunate circumstances of the late application to amend, I now turn to a consideration of the evidence in the case.
The plaintiff is arrested as a shoplifter
20. I shall first set out the plaintiff’s version of the circumstances in which she was apprehended by a security employee of Target stores, Burwood, Mr Geoffrey Parker.
21. The plaintiff, Julia Photi, is a Dictaphone typist for a radiology centre. On the afternoon of 30 August 2005 the plaintiff, her one year old daughter Mary and her sister, Doula Photi, went to the Target department store at Burwood to purchase some clothing for the baby. The plaintiff and her sister went to the cash register with $150.00 worth of goods which they paid for by cash and by using some vouchers for items previously returned to Target. The plaintiff’s sister was carrying the baby and the plaintiff was carrying the goods to be purchased.
22. The plaintiff and her sister passed through the cash register a few minutes before closing time; an announcement had been made that the store would shortly be closing. As they approached the exit door a large and well-built gentleman wearing navy blue shorts, a navy blue polo neck top with a badge and a navy blue baseball cap stopped the plaintiff. As it was close to closing time, there were a number of people in the vicinity. Both the plaintiff and her sister said that when this man, who was later identified as a security officer named Geoffrey Parker, spoke to the Plaintiff, he did so in a loud voice, and people were looking at them.
23. The first thing Mr Parker said, according to the plaintiff, was “Give me back my razors”. He then said, “I work here and I saw you steal some razors” (T-15). In response to denials by the plaintiff he said “The cops will be here soon, give me back the razors you’ve stolen”; “The police will be here soon, give me back my razors you stole” and “Look, give me back the razor. You stole the razors”. This is the publication relied upon for the claim for defamation, including repetitions of these statements by Mr Parker inside the store shortly afterwards.
24. Mr Parker then grabbed the plaintiff by the arm, the plaintiff sad in her evidence. He dragged her to the front of the store next to the registers where the trolleys were. She told him again “Look I haven’t taken anything, you can check my bag”. Mr Parker replied, “There is no need, the cops will be here soon”. She then said “Look you can check my bag, I haven’t done anything. You can either check my bag or I am leaving” but he did not do so. She started to walk off. Mr Parker then grabbed her by the back of her pants and her shirt and dragged her further into the store (T-16). He dragged her from the left side of the cash registers towards the right hand side and towards the office administration centre. The plaintiff said, “Let me go, I haven’t done anything”.
25. There were a number of people coming towards them from the Target staff. The plaintiff felt embarrassed because she wanted to prove that she had stolen nothing but Mr Parker “just wouldn’t listen to me” (T-16 Line 41). At this stage her baby started to cry.
26. When the plaintiff and her sister arrived at the Manchester section of the department store, she said once again, “Look, I haven’t taken anything” and opened her bag upside down and emptied everything onto a display bed in the Manchester part of the store. No razors could be seen in the contents of her handbag. Mr Parker said “No I don’t want to touch your bag, I don’t want to look at your bag” and the plaintiff replied “Well, it’s ok for you to grab me and push me around and you don’t want to touch my bag”. She then said “You can get a female staff member to come and search me if you like, I haven’t got any razors”. Mr Parker then said, “Well it might have been someone else then”. The plaintiff said, “What do you mean it may have been someone else? See you don’t even – you are just accusing me and you don’t have evidence that it is even me?” Mr Parker replied, “The cops will be here soon and they will deal with it”.
27. By this stage the plaintiff’s daughter was crying loudly and watching what was happening and that the plaintiff decided the best thing to do was to pack everything back up and proceed back to the administration section. As she packed up her bag she said, “I haven’t got anything, I showed you my bag” (T-17). She was surrounded at this stage by several staff members and some security men from Westfield. Mr Parker kept holding onto her shirt the whole time. She struggled and tried to escape his hold, but unsuccessfully. By the time she reached the administration section there were three security men from Westfield, the store manager and another female employee (T-17-18) surrounding the plaintiff and her sister. The plaintiff attempted to explain to the manager that she did not have anything, saying “Look I’ve emptied my bag, I don’t have anything. You’ve seen there is nothing in my bag”. The store manager did not reply.
28. The plaintiff said she was then dragged about eight metres to the office door and that throughout this time Mr Parker kept saying “Give me back the razors, I saw you steal the razors” (T-20).
29. When she reached the office administration section, the door was opened and the plaintiff’s sister, who was standing about a metre behind her, tried to come in with her. However, Mr Parker closed the door in her face and would not let her in. The plaintiff said, “I want my sister to be with in. I am not going in there by myself”. The plaintiff said she was petrified and did not want to be in there by herself with him. (T-20). However, Mr Parker said “No she is not coming in” and closed the door on the plaintiff’s sister, who was carrying the plaintiff’s baby. The plaintiff attempted to resist going into a room but Mr Parker grabbed her saying, “look I don’t care if you are a woman, I’ll hit you anyway” (T-20).
30. The plaintiff, by now shaking and scared according to her version of the incident, was pushed into a room and onto a chair, which she attempted to get out of. Mr Parker’s hands were flying around as he attempted to grab her. He punched her at least three times and twisted her arm back. The Target manager was also present. He had his arm across the door and his leg across the door so that the plaintiff could not get out. The store staff kept saying, “The cops will be here soon”.
31. The plaintiff’s sister called the plaintiff on her mobile phone and said, “Are you alright?” The plaintiff said “Look, just get my solicitor on the phone”.
32. A few minutes later, the plaintiff’s telephone rang. The person on the phone was Brett William Galloway, a solicitor. He told her to put the security guard onto the phone. The security guard refused to accept the call, so the solicitor told her to put the phone on loudspeaker.
33. Mr Galloway, who was called to give evidence, told the court that the words he spoke were words to the effect that the plaintiff’s detention was unlawful, that the security staff should release her immediately, that they could take her particulars and if there were any problems she would be made available at some other stage and that there would be legal proceedings if he did not take that course (T-78). Mr Galloway was not cross-examined on the accuracy of this statement, which I note is consistent with the plaintiff’s account of what he said (T-21).
34. The plaintiff’s mobile phone rang a third time but this time Mr Parker grabbed her hand so she could not answer the phone, took the phone from her and passed it to the Target manager. The plaintiff then said to the Target manager, “Look, if you want to get involved too, please give me back my phone before I sue you as well”. The Target manager passed the phone straight back to the plaintiff and Mr Parker then became angry with her and started “telling her off” (T-22) for returning the plaintiff’s mobile phone to her. Mr Parker then left the room where the plaintiff is being held but the store manager remained and had his arm and leg across the door to prevent the plaintiff from getting out of the room.
35. The plaintiff said in her evidence that the police arrived at approximately 7:00pm. She thought she had been there for about two hours by this stage. She said the police officers said to her “Just shut up and sit down”, to which she replied, “Look at me, I am all bruised and I have got scratches” and she showed the officers the marks. She said the two male police officers who attended asked her if she was on drugs and asked her whether if they searched her bag they would likely to stab themselves with anything and then they searched her bag.
36. At this stage the plaintiff observed a female Target employee watching a surveillance tape at a desk in the room (T-23). The plaintiff was then strip searched by the female police officer (T-23). She was forced to strip down to her underwear. The plaintiff said all of a sudden the Target staff member got up and whispered something to one of the officers who walked over to her and had a look at the television screen. Then he called her over to say “Well who is that then?” The plaintiff looked at the television screen and saw a girl who was “very skinny, had curly long hair and looked nothing like me” (T-25). The plaintiff said, “Well that’s not me, first of all I am not that skinny. Secondly I don’t have curly long brown hair” (T-25-26). The officer then asked if that was her sister and the plaintiff said that it was not and the officer was then sent out to speak to her and have a look at her to make sure it was not her (T-26 Line 30-32). The plaintiff’s sister had long braids of blonde hair. It was a very noticeable hairstyle and very different to the hairstyle of the person on the videotape.
37. After the police had strip searched the plaintiff, searched her handbag and checked to see what the plaintiff’s sister looked like, the plaintiff was told that she was not to be arrested (T-26) and was permitted to leave the store. By this stage, the shop door was closed and the shopping centre was in darkness. The front doors of Target were opened for her. Her sister was sitting outside with her daughter. One of the Westfield security men approached her and said, “What happened?” The plaintiff did not know how to get out of the building after hours. The Westfield security officer gave her directions as to which exit to use to get to her car in the car park. The plaintiff thought it was approximately 7:30-7:45pm by this time.
38. The plaintiff went home for the evening and the next day went to see her doctor. The doctor checked her bruises and scratches and told her to have some photographs taken. Those photographs were tendered (Exhibit A).
39. In cross-examination, it was put to the plaintiff that the police arrived at approximately 5:30pm and that she left the store at the latest at 6:30pm. Since the plaintiff was in a very distressed state for much of the time, I would regard any inaccuracy by the plaintiff about the length of time that she was kept in the department store as being a minor matter.
40. The plaintiff adhered to her description of events in cross-examination. She agreed that she swore and used bad language, as she had in chief, and said she was frightened and upset.
41. The plaintiff’s sister gave evidence (T-55-63). Her description of events was consistent with the plaintiff’s description. Her preoccupation, apart from being worried about her sister, was that she had her sister’s baby in her arms and the baby was crying and needed to be calmed down (T-62). The only inconsistency counsel for the defendant could point to between her evidence and the plaintiff’s evidence was that her evidence was Mr Parker dragged the plaintiff by the top of her arm and thereafter by the shirt, which is a minor discrepancy at best.
The defendant’s version of events
42. The principal witness for the defendant was the security officer, Mr Parker. Mr Parker was something of a reluctant witness. He did not attend the hearing at all in February 2007, with the result that the case had to be adjourned. The explanation given for this was that medical evidence that he was having treatment for depression.
43. Mr Parker failed to attend again on the first day of the hearing, although a subpoena had been issued. His failure to attend on the first day of the trial resulted in an application to me on behalf of the defendant to issue a warrant for his arrest on the basis that he had failed to comply with the subpoena. When Mr Parker did finally give evidence, it was clear that he was, if not a reluctant witness, certainly an unhappy one.
44. His evidence was that he first saw the plaintiff at least an hour before the incident (T-104). The description of what he saw was very general:
“ Q: Do you recall where she was in the store when you first observed her?
A: Not exactly sure, no, she was all over the store.Q: When you first saw, can you recall the description of her, what did she look like?
A: No I could not actually describe her. Just stocky, stocky build.Q: Do you remember what she was wearing?
A: No, not at all.Q: When you first saw her, what part of her person did you see, back, front, face, what?Q: Do you remember the nature of her hair?
A: No, no, sorry.
A: No I can’t recall.”
45. After this unpromising description, Mr Parker went on to say that, while hidden behind a shelf behind the plaintiff, he observed her removed a packet of some sort from a shelf and that she then moved to another aisle where she ripped the packet open and removed the contents. He said, “I was watching her hands and her hands were actually facing me because I was behind the shelf that she was facing. She was not thinking anybody was there. I was behind that shelf, she was facing that shelf”. He could only see her whole body and her face by moving (T-104).
46. Mr Parker said that he did not lose sight of the plaintiff as she moved to the other aisle (although he apparently did not move from his position behind the shelf referred to earlier) and that after she ripped the packet open and discarded the empty packet, she was met by another female and they then made their way to the front of the store. Mr Parker’s description of this other person was as follows:
Q: Tall, fat, thin, fair, dark?“Q: Can you describe this other female for us?
A: No, sorry, your Honour I can’t.
A: Slimmer than the other person.”
47. When prompted with a reference to the other witness having a particular hairstyle, he remembered she had braided hair (T-106). He was also unsure whether there were two ladies or three. He initially said there were “two ladies there, two other ladies at the time” and when asked if there was a third person said, “there was [sic] three ladies, but there was two other ladies besides the person we are dealing with”. It was then put to him, in leading fashion:
Q: One of them, I take it, didn’t have braided hair?“Q: And you mentioned one of them had braided hair?
A: Yes.
A: Yes.”
48. One of the features of this case that it was never clear to me when the defendant’s witnesses were going to assert that there were two or three ladies in the group of person under observation.
49. Mr Parker said he grabbed the discarded empty packet and observed this woman moved to the front of the store. He said “I could see she had the razor blades in her hand, the packet, they were actually packets”. She had “other groceries and things” but he could see her holding the razors in her hand (T-107). When asked if she would be able to hold anything else in her hand which was holding the razors, he noted that she had a bag of some sort. He was then asked:
“Q: Are you sure that she had any other groceries?
A: I’m not sure, no.” (T-108)
50. In other words, what Mr Parker said he saw was a person whom he identified as the plaintiff go to the cash registers holding only the razors in one hand, along with her handbag, and have a transaction at the cash register (T-108 Line 56-57), while the razors remained in her hand (T-109 Line 2). She then left the store with “the other friend” “to meet the third person”. He went outside and confronted three ladies and a baby (T-109 Line 41).
51. Mr Parker denied the plaintiff’s version of the conversation. He claimed he said “I’m from Target Security and have you left the store without paying for anything?” He said that these words were spoken in a soft-spoken voice (T-110). He said that the plaintiff hold him to “fuck off” and said “I haven’t got any razor blades”, a surprising statement from someone to whom such a general claim of not paying “for anything” had been made. Mr Parker said he then showed her the empty packet, which he removed from his back pocket and said “Just give me the razor blades back and you can go”. He said the plaintiff was abusive and swearing and told him to “fuck off”. He said “Please come back into the store with me back to the security office”. He said the only other persons in the vicinity were the manager, a couple of staff member from the store and a couple of security guards from Westfield (T-110-111). He was asked whether there were other people outside the store and he said, “there may have been, I didn’t really pay much attention to anyone else” (T-111).
52. Despite the plaintiff’s reluctance to return to the store, it was Mr Parker’s evidence that in response to his request she accompanied him back into the store and started to walk towards the office. He said he did not in any way physically touch the plaintiff but that when they came to the Manchester section that the plaintiff “erupted and became abusive again” and said “fuck off I am not going anywhere, I haven’t got any razor blades” and she grabbed her handbag and tipped it upside down onto a display bed. He said that the plaintiff was swearing, carrying on and yelling but that he continued to speak to her in a polite voice and asked her to calm down. He could not recall who put the plaintiff’s items into her handbag.
53. After this incident, he and the plaintiff continued to walk towards the office. He was asked whether at any stage he had any physical contact with the plaintiff and he said “I may have placed by left hand onto the lower part of her back” which he then agreed meant that he did put his left hand at her lower back. He denied that this was to exert any force and said it was “just to let her know that I was there, please walk this way” (T-114-115). When they reached the office door, he said she became abusive once again and he said, “please calm down and walk into the office”. He said she walked into the office section without any physical force being exerted. He said that the plaintiff continued to yell and scream and say she did not have the razor blades. He said that he stood in the door way because the plaintiff kept trying to leave (T-117). He said she was using her hands and body weight to try and get pass him. Mr Parker weighed between 90 to 95kgs and was reasonable muscular and fit (T-118). He claimed that he received a number of blows but he denied that he had any time struck the plaintiff. He recalled the plaintiff receiving a telephone call in which she had spoken in the Greek language and said that she “kept on making phone calls, one or two or three” and that at one stage she said that she had a solicitor on the phone and she was going to sue everyone and put this person on the loudspeaker. Mr Parker could not recall what this person said (T-121). Although he agreed that his person appeared to be giving legal advice. He agreed that he had taken the plaintiff’s phone from her and that he gave it to the store manager (T-121-122). He denied threatening to hit the plaintiff and said that she said to him “Go on, hit me” (T-122 Line 39). He was asked if he remembered seeing the child again in the store after the first meeting outside the front and he said “No, not at all” (T-123 Line 7).
54. Mr Parker showed the razor blade packet to the police and subsequently retained it. He kept it for several months before his wife threw it away (T-123). His estimate was that the plaintiff had purchased goods at 5:00pm, she would have left the store after about an hour or an hour and a half after he first stopped her.
Mr Parker’s cross-examination
55. In cross-examination, Mr Parker was again asked to describe the plaintiff and her companions:
“Q. You say there was [sic] three women and a baby, is that right?
A. Yes, sir.Q. Can you recall what any of them were wearing?Q. Were they all in black?
A. I can’t recall.
A. No, sir.” (T-126)
56. When asked when the plaintiff stopped holding the razor blades in her hand Mr Parker said he did not know (T-127.28).
57. Mr Parker said there were no video film surveillance facilities, and he did not see any video on the night in question (T-128). This evidence was not only in contradiction of the plaintiff, but in contradiction of other witnesses who described the playing of videotape from cameras, although not of the incident in question. He also had no recollection of telling his supervisor Ms Malten “I just can’t believe I’ve done this” (T-129.9) or telling her that he was in trouble (T-129.18-.19), although he agreed that he resigned that night and had never returned to work at Target. He could not remember Ms Malten telling him to calm down (T-134.46).
58. Although Mr Parker walked away from his job that night, telling his employers “I won’t be back” (T-141.2), he denied that this was because of this incident (T-141.5) and said that this incident had “no role at all” in resigning from a job that he had held for several years.
59. A problem which emerged during cross-examination was that whereas the plaintiff was cross-examined only about the barcode on the razor blade packet, and the police constable who attended was asked similar questions, Mr Parker volunteered in cross-examination (but not examination in chief) that there was a security device attached to the packet of razors. He was, however, unable to describe it, adding that “I didn’t really pay attention to the security [device]”. Mr Evatt asked:
“Q. You don’t know whether it had a security device on it or not, do you?
A. I didn’t really think it mattered actually.”
60. Although he suspected that if the plaintiff did not have the razors, her sister must have had them, he could offer no explanation for not requiring the plaintiff’s sister to be searched other than “I never saw her do anything” (T-152.20).
61. Mr Parker denied telling the plaintiff that the police would be here soon and that they could deal with the matter (T-153.10, T-154.16-.25). He said “I didn’t say anything”. He denied having used any kind of force or restraint on her and said that she had gone with him voluntarily, although she had been yelling and shouting all the time. He agreed he took away her mobile phone because “She just kept on ringing people” (T-156.4) and that if people were under arrest they were not allowed to ring up.
The defendant’s other witnesses
62. Other store employees were called on behalf of the defendant. Karen Anne Frazer, the store manager of Target Bondi, said she heard yelling at the other end of the store. She thought two customers were fighting so she went up to see what she could do to help and asked the register supervisor to hit the duress button as she knew something was wrong. When she arrived she saw Mr Parker and the merchandising manager, Mr Abudy Harb. She saw two women there who were yelling and shouting. She saw one of the women tip her bag out onto the bed and then put the contents back into her bag and go to the office area. She then went to phone police and on the way encountered the Westfield security staff, who were on their way to the incident.
63. Ms Frazer went into the office where she saw Ms Photi “pushing” into Mr Parker. She said Mr Parker then put his arms under her and lifted her up and moved her around into the office. The plaintiff then got her phone out and said she was ringing her solicitor. Ms Frazer had to be present so she remained at the doorway, observing what was going on. When Mr Parker took the plaintiff’s mobile phone she returned it to the plaintiff after the plaintiff complained. She noted the arrival of the police and she heard the police speak to the plaintiff. She left the store at 6.30pm, by which time the plaintiff had already left.
64. Ms Frazer said that she did check the CCTV footage. There were thirteen active cameras in the store, but only two were working, and these were the two for the store in the back dock area. Consequently there was no film of the incident. When she realised that only two of the cameras were working she did not bother to look at the other cameras because “it was of no relevance” (T-171.46-.47). She had checked each of the cameras from the loss prevention room, which was the room where the plaintiff was held. I note that this was the procedure that the plaintiff described seeing.
65. Although Ms Frazer had a confident manner, there were a number of omissions from her evidence. She was quite sure that the police officer threatened to spray the plaintiff with capsicum spray, but neither the plaintiff nor the police officer said this, nor were they asked about it. The description of the plaintiff and her sister omitted the plaintiff’s baby, which the plaintiff’s sister was carrying. Since the baby was screaming and crying at the time, according to the evidence of other witnesses present, this tends to suggest that by the time Ms Frazer walked the fifty metres from the other end of the store, the plaintiff was already inside the office, in which case she would have seen little, if any, of the events prior to the plaintiff going into the store office. If so, this part of her evidence is reconstructed; if not, her recollection is deficient in this respect.
66. Ms Jacqueline Bet, the night field manager, also gave evidence. She said she had first seen the plaintiff in the toy department with two other people and “a little boy in a pram” (T-185.3). She saw her there for approximately half an hour. She later heard yelling and screaming in the office and saw the plaintiff with Mr Geoff Parker and Mr Abudy Harb. She did not hear Mr Parker accusing the plaintiff of stealing razors and did not see him holding her, although she said the plaintiff was struggling. She just saw him asking the plaintiff to settle down. Ms Bet had trouble describing how it was that the plaintiff was “struggling” if Mr Parker was not holding her in some way, but she insisted that “they weren’t holding and touching her when I saw” (T-190.58). She was asked:
Q. A verbal struggle, is that right?“Q. How could they struggle if they didn’t hold or touch her?
A. I said they were struggling with – like they were asking her to settle down…
A. Yes.” (T-191)
67. The plaintiff’s one year old baby daughter was never in a pram according to any other witness. Nor were they in the toy department for about half an hour.
68. Ms Bet’s description of the plaintiff “struggling” in circumstances where she was not being touched by any of the defendant’s employees is implausible. She stated quite clearly at T-186 “She was fighting, she was like kicking and raising her arms, like she was fighting” and she saw Mr Parker “trying to hold her arms down because she was kicking and like raising her arms” (T-186-187). This is not a verbal struggle.
69. Ms Zena Fox also gave evidence for the defendant. She said she had seen the plaintiff in the nursery department earlier in the afternoon and that she saw the plaintiff going towards the office past the registers accompanied by Mr Parker and Ms Frazer. She was standing about four to five metres away and she heard the plaintiff yelling, screaming and swearing but said Mr Parker was not speaking. She said Mr Parker and the plaintiff walked side by side towards the office. She said Mr Parker was not touching the plaintiff but that the plaintiff was “yelling and screaming” (T-195).
70. However, Ms Fox said that from where she was she could not really see very much:
“Q. Could you see him touch her at all?
A. No, I couldn’t see from where I was. I didn’t take any notice to be honest, there wasn’t a rumpus or they weren’t fighting so I didn’t take any notice, I just seen [sic] them walking.”
71. In cross-examination Ms Fox said she was just being a “stickybeak” because she heard some noise being made by a woman. She did not see the incident where the plaintiff emptied out her handbag in the manchester department, nor did she notice the baby, although other witnesses described the baby crying at the time (T-197). She drew on a map where her location was, which showed her vision would have been restricted by the shelves of goods.
72. Mr Abudy Harb was also called to give evidence. He first became involved with the matter when he was at the front of the store and he heard a noise from outside the store, namely “some loud voices outside” (T-201). He looked outside and he saw Mr Parker and the plaintiff. He said the loud voices he heard were both male and female (T-201.17). He said he heard Mr Parker say to the plaintiff “I’m from Target security and you’ve actually got something on you and I need to take you back into the store” to which the lady said “No, I’m not coming in” following which she “forcefully” walked into the store (T-201-202).
73. Mr Parker walked back into the store beside her. He said there was no physical contact between them. When they reached the manchester area “it broke out again” (T-202.55). By this he meant that there was yelling and swearing coming from the female customer (T-203). Mr Harb said that it was when this occurred that he “came onto the scene” and said “Look, can we put our voices down” (T-203) because “it was quite loud and at that stage there was [sic] customers everywhere and I tried, like you know, to quieten then [sic] all down so we can at least take them to an area, like in the office area, and discuss the problem” (T-203). He saw the plaintiff empty her handbag onto the bed beside her “to show that she had nothing, or that there was nothing in her handbag”. The plaintiff said, “Check what’s in there, … I’ve effin’ got nothing” (T-204). He said the plaintiff’s sister was also swearing very loudly. He said that although the plaintiff did not want to go in the office and was “shoving” and “trying not like to get into the office area” (T-205) Mr Parker was not touching her. He said the plaintiff said “I’m not going in there, I’ve done nothing, I don’t want to go in there”. He said Mr Parker replied “Let’s go into the office and discuss this” (T-206). At this stage he said the plaintiff was shoving and punching Mr Parker.
74. Mr Harb, like the other witnesses called by the defendant, had some difficulty describing how it was that the plaintiff, if she did not want to go into the office, did not just turn around and walk away. He claimed this was because Mr Parker was telling her that he wanted her to go into the loss prevention office, though clearly this was not something which would stop the plaintiff from turning around and walking away if she did not want to go in. Eventually he said at T-206:
“He [Mr Parker] was standing in her way, like he was showing her the way to go into the office and she didn’t want to go into that office and she was like “no I’ve done nothing wrong, I want to go” and he’s saying to her “no I want you to go into the office so we can see where”.” (T-207)
75. When asked by me what it was that would physically stop the plaintiff from just walking away he said “Well, obviously we’re standing there, we’re not going to allow her to leave”. He said he was standing in the way for this purpose (T-207).
76. He then conceded that Mr Parker “physically put his hands under her and actually got her into the office” (T-207). He initially said “dragged her into the office” (T-208) but then attempted to withdraw this admission. He portrayed Mr Parker as asking very reasonably “all I need, you know, from you is where are those razors, you know, that you actually had on you” but the plaintiff, to Mr Harb’s displeasure, insisted that “I’ve got nothing, I’ve told you, like I’ve already shown you in manchester” and then Mr Harb noted, “she actually tried to leave the office again” (T-208). Mr Parker stood in the doorway. He said Mr Parker did not do anything while she hit and punched him and just stood there to stop her going out of the office (T-209). Mr Harb said he left when the police arrived. He did, however, see the incident where the plaintiff’s telephone was taken from her by Mr Parker.
77. In cross-examination Mr Harb denied that outside the store Mr Parker and the plaintiff had the conversation which the plaintiff described (T-212). However, it transpired that Mr Harb had actually reconstructed this conversation, in that his attention had been drawn by loud voices, and that he had assumed that “it must’ve happened like before … all this could have – like when I heard, as soon as I heard all the noise, noises, like all I heard Geoff was “I’m actually from Target loss prevention, I need you to come into the office”. So obviously that all happened before me”.
78. He conceded that any opening statement by the plaintiff about being from Target was obviously made “before I actually got there”. He agreed that he did not know how long they had been out there with loud voices before he came onto the scene (T-213.26). He went on to say “Well, I didn’t hear [Mr Parker] say anything, but obviously that all happened prior to me being there”. He said, “That’s something that he would say if he apprehended someone, yes” (T-213.42-.43).
79. There is clearly an element of reconstruction by Mr Harb in what he claims was said, in that his attention was drawn by the plaintiff’s loud voice when she refuted whatever it was that Mr Parker said to her, and this was what drew his attention. He went on to concede that any denial by the plaintiff of taking anything would also have been said before he came onto the scene (T-214.27). He was quite sure that Mr Parker did not touch her, saying “He persuaded her obviously to come into the office”.
80. It was put to Mr Harb that he was trying to cover up for Mr Parker because he knew that if a security officer touches or grabs or manhandles a customer then that would lead to his dismissal. Mr Harb said that Mr Parker had been “mistreated by the superiors of Target and loss prevention” (T-215.57-.58) and that the problem was that “by the time [the plaintiff] actually hit the office she had no razors on her and obviously that’s a lot, like if she didn’t have the things on her, you know that’s – like he arrested her for no reason”. He said that Mr Parker had been “told off about that” (T-216).
81. In the course of cross-examination Mr Harb said that the following statements had been made at the manchester section:
“Give me back my razors”;
“Look, give me back my razors, you stole my razors”;
“I work here I saw you steal some razors”;
“Where are the razors?”;
“Give me the razors you stole”;
“The police will be here soon”;
“The cops will be here soon”. (T-217)“Give me back the razors you have stolen”;
82. In other words, Mr Harb was able to hear the publication of the statements in the matter complained of, although he placed this publication as occurring in the Manchester section and not outside the store.
83. He said that Mr Parker was speaking to her in a quiet voice, perhaps a little bit louder than normal, but nevertheless a one-on-one conversation. He said that Mr Parker had a high-pitched voice (T-218). He said that there were shoppers around and “obviously they would have heard” (T-218) but that “they would have heard [the plaintiff’s] voice more than what they would have heard what Geoff was actually trying to say” (T-218), particularly those shoppers who were milling around closely. He agreed that shoppers were looking at the plaintiff and Mr Parker because “everyone, you know, obviously when you hear noises you look, like you know, there’s nosy people to look around, so obviously, yeah, they would have seen”.
84. Mr Harb noticed the plaintiff’s sister, but did not notice that she was carrying a small child (T-218-219). He was quite sure there were only two women present.
85. Although even Mr Parker conceded that he had put a directional hand on the plaintiff’s back to guide her into the office, Mr Harb denied that this had occurred (T-219-220). This must cast serious doubt on the evidence of Mr Harb, as must his inconsistent evidence about the circumstances in which the plaintiff was picked up by Mr Harb. He claimed she was punching and shoving, but not struggling (T-221.54) and that all Mr Parker was doing was just trying to keep her “in that position” (T-222).
86. Mr Harb did, however, confirm that there were surveillance camera monitors in the room where the plaintiff was kept and that these films can be played back. However, he was quite sure that no one looked at the films while he was there, because he was outside the office until 6.00pm (T-226). He said “I know for a fact that not all the cameras were working. There was probably about two or three working at that time”. He was sure that a no point would anyone watch the video in the presence of the plaintiff. He was, however, sure that the cameras were not playing at all.
87. I find it implausible that Mr Harb would be able to state with confidence whether or not the surveillance cameras in the store, and in particular in the area where the plaintiff was, were not working on the day. There were thirteen surveillance cameras in the store, at least some of which were working on the day. It is implausible that Mr Harb would have known definitively one way or the other whether the surveillance camera in the area where the razors are kept on the shelves was working or not.
88. Mr Harb was cross-examined about a statement he gave in which he described Mr Parker as pushing the plaintiff towards the office. He said that Mr Parker was “not pushing the plaintiff by a hand but by his body” and that he was “pushing towards, towards her” (T-227). He said that Mr Parker was not physically pushing the plaintiff but “pushing towards her” (T-228). I find this description of the manner in which the plaintiff was taken from the manchester section to the office completely fanciful. Eventually he said that Mr Parker “bumped” against the plaintiff but could not say how many times (T-230). Again, I find this whole description highly implausible.
89. Mr Harb was also cross-examined about having said in his statement that only Mr Parker was in the office with her while he and Ms Frazer were outside the office.
90. Mr Harb was clearly sympathetic to Mr Parker’s predicament and to the circumstances in which he was, in Mr Harb’s opinion, harshly treated by Target for the circumstances of his arrest of the plaintiff. He was clearly reconstructing the conversation outside the store and his description of the manner in which the plaintiff was conveyed from the manchester department to the administration office against her will is not only inconsistent with the version given by the plaintiff and indeed Mr Parker, but implausible.
91. The defendant also called Constable Justin Veitch, the police officer who came to the store. He attended with a policewoman whose job was to strip search the plaintiff.
92. Constable Veitch said that when he entered the office the plaintiff was screaming and swinging her arms. He told her to sit down and she “snapped out of her anger”. He spoke to the plaintiff about her version of events and recorded this in his police notebook. He said that the plaintiff made no complaint of being punched or beaten by Mr Parker and did not show him any injuries. The plaintiff was strip searched, no razors were found, and she was permitted to leave.
93. The version of events which he recorded in his notebook as the plaintiff’s version of what happened is (with dots for illegible portions) as follows:
“Then a security officer in plain clothes came up to me and said “You’ve taken my razors and I want them back”, he was waving a packet at me. He then said “Can you come with me”. I then came back in the store. He said, “Come with me” I said “No, I’ll wait for the police”. He said “No you are coming to the security room” and grabbed me by the pants and shirt and has pushed me along … when we got to the manchester we stopped. I offered to check my bags which he declined … the security has taken me back to the security room, they would not let my sister or child in with me … in the security room I denied having the razors, my solicitor called me and told me if there is no stolen things in my bag … I continued to struggle and try … once my bags were checked.”
94. All of the evidence points to the plaintiff being restrained and to her being taken into the administration office against her will. Mr Parker’s admission that he put his hand at her back and the description of him lifting her into the office against her will, and standing against the door to prevent her from getting out, would be sufficient evidence of assault and of restraining the plaintiff against her will.
95. However, if I accept the plaintiff’s version, it is clear that Mr Parker went much further than that. He not only dragged the plaintiff back into the store, but dragged her into the administration section even after she had emptied her handbag in order to show him she did not have the razors. He used force on her not only to get her into the room but to keep her there, and the photographs of the plaintiff’s injuries corroborate this.
96. In addition, there is clear evidence that the words complained of were spoken by Mr Parker within the hearing of customers in the store, whether at the time asserted by the plaintiff (outside the store) or at the time stated by Mr Harb, namely in the manchester section.
97. On the balance of probabilities, I accept the plaintiff’s version. It is corroborated by her sister, and the versions of what was said outside the store by Mr Harb appear to be reconstructed. On the balance of probabilities, I find that Mr Parker made these statements outside the store and repeated them again in the manchester department.
98. Having made the necessary findings in relation to the evidence, I now turn to a consideration of the causes of action for defamation, assault, wrongful arrest and false imprisonment.
Defamation
99. The plaintiff in written submissions submits that the gestures and conduct formed a “dramatic pantomime” that suggested to the assembled crowd outside the store that the plaintiff was a thief in that she had stolen something from the Target store. That gestures and conduct are actionable in the circumstances of a shoplifting case has been held to be the case in Bennett v Norban 151A.2d 476 (Pa.1959) where the Supreme Court of Pennsylvania held that “the entire incident” was slanderous of the plaintiff. The incident in question there was that a red-faced and angry assistant manager directed the plaintiff to remove her coat, then said “What about your pockets?” and reached in and, after not finding anything, then searched her purse. The Court held that this was a “dramatic pantomime”.
100. Mr Parker said in his evidence that “I confronted the lady” (T-109) and when asked by me how he introduces himself he said “I confront people and I say” (T-140).
101. Mr Harb said that there were “loud voices” outside the store (T-201) and that Mr Parker had a high-pitched voice (T-218). Mr Harb thought there were about twenty to thirty onlookers; the plaintiff thought there were approximately fifty people. It is not in dispute it was close to closing time and there were many people around the cash registry and the store exit. In addition, Mr Parker said he held up an empty packet of razors and, if he did so (the plaintiff said he did not), that would be a clear indication to passers by of what was going on.
102. Although the defendant denied speaking the words in the manner complained of, Mr Harb said he heard the defendant say these words.
103. In practical terms, since the defendant has now conceded that words were spoken conveying the imputations pleaded and that these imputations are defamatory, it is clear that the evidence points to words being spoken and gestures being made capable of conveying the imputations. This brings me to the question of the defences to be pleaded.
104. The imputations are of criminal conduct. The appropriate approach to take concerning the standard of proof to apply to an imputation of criminal conduct has been explained by Levine J in Marsden v Amalgamated Television Services Pty Ltd [2003] NSWCA 186 and endorsed by the Court of Appeal ([2002] NSWCA 419) at [61].
The defence of justification (section 15)
105. The defendant submits that each of the following imputations is a matter of substantial truth:
(a) the plaintiff is a thief;
(b) the plaintiff stole some razors;
(c) the plaintiff so misconducted herself that her behaviour warranted the police being called.
106. No defence under s.16 was pleaded. Consequently, the issue in this case is whether each of these imputations is individually true. Imputations (a) and (b) are an act and condition in very similar terms. The truth of any imputation that the plaintiff so misconducted herself that her behaviour warranted the police being called would not, even if a defence of partial justification were pleaded, be sufficient to amount to a successful plea of partial justification. Even if this imputation were true, its truth could only play a role in mitigating damages. The defendant’s submissions were entirely silent on this point.
107. It is a requirement of the defence of truth that each imputation raised should relate to a matter of public interest. No submissions were made on this issue by the defendant and no plea of public interest is contained in the defence. The public interest identified by the defendants in submissions is that stores must deter and/or prevent there from occurring so as to keep the cost of goods sold as low as possible. This is sufficiently a matter of public interest in my view.
108. While the defendant has not given me specific submissions as to the evidence of justification for each of the imputations, there are submissions about ss.352 and 195 Crimes Act 1900. At the time of the events the subject of this case, s.352 Crimes Act provided the defendant’s employees with a statutory power of arrest (this section was subsequently repealed and ss.99 and 100 of the Law Enforcement (Powers and Responsibilities) Act 2002, which came into force on 1 December 2005, now apply. The defendant’s employees also are entitled to rely upon the common law powers of arrest. The defendant submits that its employee Mr Parker saw the plaintiff pick up a packet of razors from the cosmetic section, carry it to the next isle, rip the packet open and discard it and then carry the razors to the registers. The razors were subsequently not found in the possession of the plaintiff, whom the defendant says was in the company of two other women. It is submitted that the plaintiff has denied any dealing with the razors and, accordingly, has not provided an innocent explanation or a reasonable hypothesis consistent with innocence: Shepherd v R (1990) 170 CLR 573.
109. This submission by the plaintiff fundamentally misconceives the High Court’s explanation of Chamberlain v R (No 2) (1984) 153 CLR 521, which the High Court sought to explain in Shepherd, and also misconceives the onus in relation to a defence of truth, which in a defence of justification lies upon the defendant, not the plaintiff. Further, as counsel for the defendant points out in his helpful written submissions, it is inconsistent with the evidence. An explanation consistent with innocence would be the existence of the third female seen by Mr Parker in the vicinity. The plaintiff’s denial, and the fact she did not have the razors, is also evidence consistent with innocence.
110. In the defendant’s written submissions, the defendant has elided the imputations and treated the plea of justification as going to the publication rather than to each of the imputations. In addition, the defendant has also elided the defences of justification and qualified privilege, and included references to the publication being “reasonable” (paragraph 23 written submissions concerning justification). It is submitted, for example, that “Even if the Court does not find that the plaintiff was the actual thief it must be accepted that Mr Parker honestly, albeit mistakenly, believed she was”. Mr Parker’s belief would be irrelevant to a defence of justification, although it is of course relevant to a defence of qualified privilege.
182. It is clear from Mr Parker’s evidence that he was trained in procedures for arrest. The defendant’s witnesses agreed that grabbing hold of the plaintiff would be contrary to those procedures.
183. It is submitted that untrained security guards have a much more limited power of arrest lawfully available to them compared to police officers, and where a police officer may arrest on the basis of “reasonable suspicion”, a security guard can only make an arrest if an offence has been committed or immediately thereafter (s352). This puts the onus on security guards to exercise that discretion at a higher level.
184. The plaintiff draws my attention to the decision of State of New South Wales v Ibbett (2006) 231 ALR 485 concerning the dangers of security guards responding with what is referred to in the judgment as “goon-squad machismo”.
185. The plaintiff submits there is a clear public interest in restraining arbitrary and outrageous use of power, not only by police, but more particularly by public citizen.
186. The plaintiff denies having the razors, offered to show the contents of her bag to Mr Parker and then, in the Manchester department, upended the contents of her purse in order to show its contents. It was at that stage that Mr Parker should have realised there was a real likelihood that he had made a mistake.
187. However, not only did Mr Parker dragged the plaintiff into an office and arranged for her to be strip searched, but he ignored the advice the plaintiff’s solicitor gave him by telephone. The advice that Mr Galloway gave by telephone was sensible advice and should have been taken. His response to it was to take away the plaintiff’s mobile phone.
188. Finally, the circumstances in which the plaintiff was simply left at the front door of the store to find her way through the closed shopping centre was not an appropriate way to deal with a person who had been found not to have the razors in her possession despite a strip search.
189. It is apparent that the plaintiff’s sister was never under suspicion. No one ever thought to question her, perhaps because she was using both hands to hold the plaintiff’s baby and did not have a free hand to hold stolen property. It is against this background that the explanation of a third person is put forward. However, if there was a third person whom the razor had been passed, there would had been no purpose in bringing the plaintiff back into the store in the first place.
190. The only explanation for the circumstances in which the plaintiff was brought back into the store by Mr Parker was that there was no third person. The story of the third person, like the denial of the existence of surveillance equipment, is only one of a series of unacceptable inconsistencies in Mr Parker’s evidence.
191. I accept the submissions of the plaintiff that she should be entitled to punitive damages. However, those punitive damages should be within a reasonable framework. There should be reflection of the series of wrongdoings by Mr Parker, which was conduct which in my view falls within the scope of the behaviour described by the Court of Appeal in Ibbett as warranting punitive damages. It is my view that the amount awarded for punitive damages for the claims other than the defamation count (for which it is statutorily barred) should be $25,000, having regard to the factors set out by the Court of Appeal in Ibbett.
Application by plaintiff for costs
192. The plaintiff has submitted that in the event that by reason of the defence of common law qualify privilege succeeding, the plaintiff was unsuccessful in relation to the defamation claim, the plaintiff should nevertheless be awarded costs up until the amendment of the defamation claim, by reason of the principles set out in Beoco Ltd v Alfa Laval Co Ltd [1994] 4 All ER 464.
193. As I have found in favour of the plaintiff in relation to the qualified privilege claim, it is not necessary to deal with this submission other than to note that if I had find against the plaintiff in relation to the defamation claim, I would have made such a costs order in any event for two reasons. The first of these is that the plaintiff has succeeded in relation to the rest of the case, and it is undesirable to divide a case where causes of actions are inextricably intertwined as present by awarding costs on an issue by issue basis: Cretazzo v Lombardi (1975) 13 SASR 4. Secondly, the lateness of the plea of common law qualified privilege is a powerful argument.
194. The bringing of the late claim of common law qualified privilege has unfairly delayed the resolution of this matter in circumstances where the principal claim was for the wrongful arrest and assault. Those claims would always have succeeded. The bringing of a late claim of common law qualified privilege was unmeritorious. I shall grant leave to the parties to restore the matter to the list in relation to costs in the event of any application for indemnity costs.
Orders
(1) Judgment for the plaintiff in relation to the claim for wrongful arrest, false imprisonment and defamation in the sum of $50,000.
(2) Judgment for the plaintiff in relation to the claim for assault in the sum of $10,000.
(3) Punitive damages of $25,000 (for causes of action other than defamation) awarded to the plaintiff.
(4) Parties have leave to bring in Short Minutes of Order in relation to interest for the claims for general and aggravated compensatory damages.
(5) Liberty to restore re costs and interest.
(6) Exhibits retained for 28 days.
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