CITATION: Pringle & Ors v Everingham [2006] NSWCA 195
FILE NUMBER(S): 40204/2004
HEARING DATE(S): 11 and 12 April 2006
DECISION DATE: 27/09/2006
PARTIES: Owen Peter Pringle - First Appellant Ian Hutchinson - Second Appellant State of New South Wales - Third Appellant Geoffrey James Everingham - Respondent
JUDGMENT OF: Mason P Santow JA Hunt AJA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 144/2002
LOWER COURT JUDICIAL OFFICER: Puckeridge QC DCJ
COUNSEL: ID Temby QC / PR Sternberg - Appellants JJ Garnsey QC / BE Kinsella - Respondent
SOLICITORS: I V Knight, State Crown Solicitor - Appellants James Fuggle, Lismore - Respondent
CATCHWORDS: Incidents in hotel car park – police officers breath testing driver of car parked there – ordered to leave – hotel licensee sues police officers for trespass, three assaults and false imprisonment – succeeds in relation to one assault – verdict for defendants on other claims based on special defences not pleaded – defendants decline to amend pleadings at trial – judge erred — Application to amend on appeal – plaintiff alleges defendants estopped by conduct at trial - estoppel irrelevant to amendment – new trial – defendants ordered to pay plaintiff whole of his costs of the first trial on indemnity basis. –– Verdict entered against one police officer for “individual and separate” tort committed by another police officer – judge erred. –– Implied licence to enter hotel car park – police officers entitled to remain to complete breath test notwithstanding direction of licensee to leave.
DECISION: 1. The amendments sought by the defendants to their Grounds of Defence are allowed. 2. The defendants' appeal is allowed and the plaintiff's cross-appeal is dismissed. 3. The verdicts are set aside, and there is to be a new trial of the action. 4. The defendants are to pay the plaintiff his costs of the whole of the frist trial assessed on an indemnity basis. 5. The plaintiff is to pay 60% of the defendants' costs of the appeal and cross-appeal assessed on a party and party basis and, if eligible, he is to have a certificate under the Suitors' Fund Act 1951.
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
40204 of 2004
MASON P SANTOW JA HUNT AJA
Wednesday 27 September 2006
PRINGLE & ORS v EVERINGHAM
Headnote
The plaintiff, a hotel licensee, saw three police officers breath-testing the driver of a vehicle parked in the hotel car park. He accused the police officers of harassing him, and he ordered them to leave the car park.
The plaintiff sued the three police officers for trespass, assault and false imprisonment. One of the police officers died before trial and the proceedings…
Grounds of appeal
[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
Pringle v Everingham [2006] NSWCA 195
Case
[2006] NSWCA 195
Decision Date
CaseChat Overview and Summary
The case of *Pringle v Everingham* concerned a hotel licensee who sued two police officers for trespass, three assaults, and false imprisonment arising from an incident in the hotel's car park where the officers were conducting breath tests. The trial judge found in favour of the licensee on one assault claim but found for the police officers on the other claims, relying on special defences that had not been pleaded. The police officers declined to amend their pleadings at trial. The licensee appealed, alleging the officers were estopped by their conduct at trial from amending their pleadings.
The legal issues before the court included whether the trial judge erred in entering a verdict against one police officer for a tort committed by the other, whether the police officers had an implied licence to enter the hotel car park, and whether they were entitled to remain to complete the breath test despite the licensee's direction to leave. The court also considered the plaintiff's contention that the defendants were estopped from amending their pleadings and the appropriateness of allowing amendments on appeal.
The Court of Appeal held that the police officers possessed an implied licence to enter the hotel car park and were entitled to remain to complete the breath test, notwithstanding the licensee's direction to leave. The court found that the trial judge had erred in entering a verdict against one officer for the actions of another. Furthermore, the court determined that the plaintiff's argument regarding estoppel was irrelevant to the question of whether to allow amendments to the pleadings on appeal. Consequently, the court allowed the defendants' application to amend their grounds of defence.
The Court of Appeal allowed the defendants' appeal, set aside the verdicts, and ordered a new trial of the action. The defendants were ordered to pay the plaintiff's costs of the first trial on an indemnity basis. The plaintiff was ordered to pay 60% of the defendants' costs of the appeal and cross-appeal on a party and party basis, with eligibility for a certificate under the Suitors' Fund Act 1951.
Orders
Orders of the court
1. The amendments sought by the defendants to their Grounds of Defence are allowed.; 2. The defendants' appeal is allowed and the plaintiff's cross-appeal is dismissed.; 3. The verdicts are set aside, and there is to be a new trial of the action.; 4. The defendants are to pay the plaintiff his costs of the whole of the frist trial assessed on an indemnity basis.; 5. The plaintiff is to pay 60% of the defendants' costs of the appeal and cross-appeal assessed on a party and party basis and, if eligible, he is to have a certificate under the Suitors' Fund Act 1951.