Samir Tarjali Diab v The State of NSW

[2006] NSWDC 66

CITATION:	Samir Tarjali Diab v The State of NSW and Others [2006] NSWDC 66
HEARING DATE(S):	03/04/2006-12/04/2006
EX TEMPORE JUDGMENT DATE:	04/12/2006
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Verdict and judgment for the plaintiff against the first defendant for $5000; I order the first defendant to pay one third of the plaintiff's costs of his action against the first defendant; On the plaintiff's claim against the first defendant for damages for assault, there will be verdict and judgment for the first defendant; On the plaintiff's claim against the first defendant for intimidation by members of the Police Force against the plaintiff, there will be verdict and judgment for the first defendant; Verdict and judgment for the plaintiff against the third and fourth defendants for $50; I order the plaintiff to pay the costs of the third and fourth defendants
CATCHWORDS:	Residential Tenancies Act 1987 - Whether plaintiff a subtenant of a tenant or a lodger - When term of subtenancy expired - Trespass to land of subtenant by police - Whether plaintiff entitled to damages - Whether plaintiff entitled to compensatory damages for psychiatric injury - Whether plaintiff of "normal fortitude"
LEGISLATION CITED:	Residential Tenancies Act 1987
CASES CITED:	Commissioner of Fair Trading v Voulon [2005] WASC 229 Torrisi v Oliver [1951] VR 380 Chic Fashions (West Wales) Ltd v Jones [1968] 1 All ER 229 TCN Channel 9 v Anning (2002) 54 NSWLR 333 Plenty v Dillon (1991) 171 CLR 635
PARTIES:	Samir Tarjali Diab (Plaintiff) The State of NSW (1st Defendant) Anastasia Papageorgious (2nd Defendant) Danielle Kelleher (3rd Defendant) Jason Kelleher (4th Defendant)
FILE NUMBER(S):	5449/03
COUNSEL:	Mr F. Austin (Plaintiff) Mr M. Hutchings (1st Defendant)

JUDGMENT

1 HIS HONOUR: This matter concerns the circumstances in which the plaintiff, Mr Samir Tarjali Diab ceased to reside at the property known as 64 Myers Street, Roselands. There were four defendants to these proceedings.

2 The second defendant was Mrs Anastasia Papageorgious, who was the registered proprietor of that property. She can be described in short form as the owner.

3 The third and fourth defendants are a brother and sister, Ms Danielle Kelleher and her brother Mr Jason Kelleher. At all material times, the Kellehers were tenants of the owner.

4 The plaintiff claims to be a subtenant of the Kellehers, and the only issue tendered in that regard is whether he was a lodger or a subtenant.

5 It is common ground that the plaintiff left the premises for good on Saturday 7 July 2001 after certain statements had been made to him by Inspector Paul Birch of the New South Wales Police, who was accompanied at the time by three other members of the constabulary.

6 The first defendant is the State of New South Wales, which admits that it is vicariously liable for any acts or omissions of members of the New South Wales Police.

7 It is of importance in this matter to consider the plaintiff’s background. The plaintiff was born on 3 September 1955 in the town of Tulkarem, which was then in the Hashemite Kingdom of the Jordan. Tulkarem is on the west bank of the River Jordan. Since the Arab-Israeli wars, which commenced in the 1960s, the town of Tulkarem and the west bank of the River Jordan have passed into the dominion of the State of Israel. The plaintiff is best described, as far as his background is concerned, as a Palestinian.

8 The plaintiff was a gifted student in primary school and in junior secondary school. Halfway through his secondary schooling the plaintiff’s parents sent him to England, where he attended the Stockton Birmingham Technical College for two years, where he completed his GCEs in 1975/76. He then proceeded to study civil engineering at the University of Newcastle on Tyne and graduated in June 1980.

9 Between 1980 and 1982 he worked in the Middle East in both Kuwait and Saudi Arabia. In 1983 he did postgraduate training at Trinity College, Dublin, where he gained a graduate diploma in Management of Engineering. The history given by the plaintiff to Dr Wendy Roberts, which is very thorough, also indicates that the plaintiff attended the Birzeit University in Palestine and did a number of courses in housing management run by an American engineer. Between 1984 and 1988, the plaintiff worked again in the Middle East, mainly in Jordan, in his profession as a civil engineer. In 1988 the plaintiff went to the United States of America where he worked for an engineering firm in Illinois.

10 Prior to going to the United States, the plaintiff had applied to migrate to Australia through an Australian consular office in Israel. In 1989 he was accepted as a migrant to this country and physically migrated to Australia in December 1989. He took one month to obtain work. His first job was with a firm at Pymble where he had a job for four months. He then commenced a six-month period of work for the Water Board. He then had a second contract with the Water Board. He was to return to his native land in either 1991 or 1992. Sometime during his first period of residence in Australia he obtained Australian citizenship. According to the history obtained by Dr Roberts, the plaintiff went back to Tulkarem in 1992, but the chronology afforded by the plaintiff’s counsel indicates that it was in 1991. Nothing turns on that. The goad for his return to Palestine was the unfortunate death of his mother. However, the plaintiff then married and built a house in his native town. The marriage was a short one, a period of approximately two years. The couple separated shortly after the birth of the plaintiff’s only child, a daughter, Noor.

11 According to the history obtained by Dr Roberts, the plaintiff found work with the Palestinian Housing Council which was based in Jerusalem, but he was supervising the construction of a residential complex in Ramallah. That job lasted two years. He essentially stopped working for the Palestinian Housing Council because of a lack of work. He then sought an appointment as a project manager for the Palestinian National Assembly, but it appears that there was some problem with the funding for that job, and the project was cancelled. The plaintiff then had his own business as a consulting civil engineer for approximately three years.

12 At the end of August 1999 the plaintiff returned to Australia, according to Dr Roberts, “for quality of life, freedom and democracy opportunities”. That history is matched, to an extent, in medical reports tendered in the plaintiff’s case as to the reasons for the plaintiff’s return to Australia.

13 In the plaintiff’s first sojourn in Australia between 1989 and 1991 or 1992, the plaintiff obtained a membership of the Institute of Engineers, which entitled him to be regarded as a chartered professional engineer. However, that qualification expired whilst the plaintiff was back in Palestine and he had to reapply for that position when he returned to Australia in 1999. The plaintiff has not yet obtained membership of the Institute of Engineers, and cannot be, and has not been able to call himself, since his return to Australia in 1999, a chartered professional engineer.

14 The evidence is somewhat diffident as to whether the plaintiff has to undergo further studies in this country in order to regain his membership with the Institute of Engineers. The plaintiff admits that it was suggested to him by the Institute that he update his professional qualifications, and the plaintiff attempted to do so in the year 2001. However, the plaintiff said in re-examination that it was merely a question of his paying money for his membership in order that he obtain the qualification. However, I was left with the distinct impression, after listening to the evidence, that the plaintiff had to update his professional qualifications to obtain his membership of the Institute and, if the only reason for not being a member of the Institute is the payment of money, it seems extremely curious that the plaintiff would not have paid the money to obtain that qualification in order to enhance his job prospects.

15 However, it is accepted that the plaintiff does not need to be a member of the Institute of Engineers to practise his profession. Since the plaintiff’s return to Australia in August of 1999 the evidence suggests that the plaintiff has been on the periphery of the labour market. His first job was working as an estimator for Aska Aluminium Pty Limited between November 1999 and April 2000. The job did not require the qualifications of a civil engineer, but the plaintiff’s qualifications helped him in performing the role of estimating the amount of aluminium doors and windows necessary for any particular construction contract. The plaintiff said that he left that job because the employer wished to pay him cash-in-hand and he refused to be part of such an undertaking. The plaintiff then, with the prospect of the Olympics and Para-Olympics occurring in Sydney, obtained a security agent’s licence in May 2000, after studying at a college at Parramatta.

16 Between 1 August 2000 and 30 June 2001 the plaintiff had casual employment with M.A.S Venue Services and also between 4 August 2000 and 30 June 2001 had casual employment with Eaglepro Security Services (NSW) Pty Limited. His gross payments from M.A.S Venue Services were $4,887, and his gross payments from Eaglepro Security Services were $13,183. It would appear that the work for M.A.S Venue Services was mainly at the Olympic Games, and clearly was not a very long period of work. His work with Eaglepro Security Services appears to have been over an extended period and included his providing security at shopping centres. His last employment with Eaglepro Security Services was providing security at David Jones’ store at Miranda, which work the plaintiff ceased to do shortly after his commencement of residence at 64 Myers Street, Roselands.

17 The plaintiff also told me of doing some casual jobs, three or four, inspecting properties being constructed to provide some advice for those requiring the advice of a civil engineer. The plaintiff at the time did not have any insurance, and it seemed to me highly unlikely that he was providing any necessary certificates to comply, for example, with council building codes or other regulatory authorities. The work was quite casual and intermittent, and certainly was not disclosed as being the source of any income.

18 For most of his period of residence at 64 Myers Street, Roselands, the plaintiff was unemployed. Since leaving the property in question, the plaintiff has had two periods of employment. The first was with the Department of Public Works at Lismore for six months, commencing on 25 March 2002. The second was with Holdmark Developments between 29 September 2003 and 12 November 2003, a period of some six weeks. Since that time the plaintiff has not worked. His evidence is that he has not looked for any work since October 2005, but I note that the plaintiff told Dr Wendy Roberts, when she interviewed him on 31 January 2005, that he was then not looking for work. It would appear that the plaintiff was under the care of the Commonwealth Rehabilitation Service for some time in October 2005, which placed certain restrictions on the plaintiff’s ability to work, and may have tried to assist the plaintiff to find work, or insisted that he seek to find work, to ensure that it continued with his care. However, the evidence does suggest to me that the plaintiff has not been interested to find any work for some considerable time, at least for the last two years. However, that has to be seen in the light of the plaintiff’s claims to be physically and emotionally incapable of doing any work.

19 I have embarked, at an early stage, on outlining the plaintiff’s background because it becomes clear that there were a number of stressors on the plaintiff in his life prior to the events with which I am concerned. One might think that, objectively, a stressor would be the fact of his Palestinian background, the fact that he had to live through, in his early years, a change of regime and to live in a land riven by conflict between Arabs and Israelis since the British Imperial Authorities permitted members of the Jewish faith to migrate to British mandated Palestine during the turmoil caused by World War II. Whilst it is correct to say, as the plaintiff has pointed out, that the Intifada had not commenced when he left Palestine in 1999, there has always been conflict between Jews and Arabs since the establishment of the Israeli State. The fact that there might be such conflict affecting the plaintiff’s background has been proposed by Dr Karima Attia-Soliman, a psychiatrist, who expressed this opinion in a report of 24 November 2003:

“Mr Diab may have had a traumatic background being a Palestinian. His feeling of victimisation, discrimination, may have been exacerbated as this eviction trauma revived previous experience, sense of dislodgement, relocation, adjustment problem.”

20 However, the plaintiff has not admitted to any such problems in his childhood or in his background prior to moving to England to study. It may be that he was so inured to the troubles in his native land that they were a datum in his life and he thought nothing much of it.

21 The other stressors that the plaintiff objectively would have been exposed to were the stressors of adjusting to the Anglo-Saxon culture of, firstly, the United Kingdom, the Anglo-Celtic culture of Dublin, and the derivative of Anglo-Saxon-Celtic culture of Australia. Another potent stressor, on any objective basis, is the fact of his marriage failing after two years and the separation of the plaintiff from his only child, whom he continues to support. Objectively, one would think that a failed marriage and divorce and the separation from a child would be potent stressors for any human being, rather than some disagreement about rental accommodation.

22 Another potent stressor would obviously be unemployment for a professional man. As I will in due course point out, the plaintiff complained about unemployment prior to the events with which I am now dealing. He was on the periphery, as I said earlier, of the Australian workforce as far as his qualifications as a professional civil engineer are concerned. Being in a new land without relatives, with no assets and no income, is a very potent stressor. That stressor would be even more intense if the person in question - here the plaintiff - had very few or a limited circle of friends. For reasons which I will later state, it seems to me clear that the plaintiff has a limited circle of acquaintances and no-one upon whom he could rely as a good friend. No-one, for example, would take him under his roof when he found that he had nowhere to live after 7 July 2001.

23 On 27 July 2000, the third and fourth defendants, the Kellehers, entered into a Residential Tenancy Agreement with the former second defendant, Mrs Anastasia Papageorgious. The contract was for a term of one year commencing on 8 July 2000 and terminating on 7 July 2001. At the time the contract was executed, the Kellehers were already in occupation of the property. That arose because there had been an earlier Residential Tenancy Agreement between Mrs Papageorgious and Ms Danielle Kelleher and another person, a male friend of Ms Kelleher. That friend had left the house at 64 Myers Street, Roselands, and had been replaced by Ms Kelleher’s brother, Mr Jason Kelleher. There was no agent involved in the tenancy, no intermediary between the landlord and the Kellehers as tenants. Rent of $350 was payable weekly by a direct deposit to the landlord’s bank account. The Residential Tenancy Agreement was in the standard form in its 1997 edition. Whilst the Kellehers were the only tenants nominated on the Residential Tenancy Agreement, the agreement itself provided that “no more than three persons may ordinarily live in the premises at any one time”. Mrs Papageorgious said that that agreement had been reached because the mother of the Kellehers resided in Queensland and would come from time to time to stay with her children at the property at Roselands.

24 Clauses 21 and 22 of the lease are these:

“21. A tenant may, with the landlord’s prior permission, assign the whole or part of the tenant’s interest under this agreement or sub-let the residential premises.

22. The landlord agrees not to charge for giving permission other than for the landlord’s reasonable expenses in giving permission.”

25 There was accordingly a right to sub-let the tenancy subject to the prior permission of the landlord. Without going into the issue yet as to whether the plaintiff was a sub-tenant or not, there is a conflict in the evidence as to the giving of this permission. According to Ms Danielle Kelleher, prior permission had been given by Mrs Papageorgious. According to Mrs Papageorgious, it had not been given. Ms Kelleher was not cross-examined on that issue, nor was Mrs Papageorgious. That makes it very difficult for me as a fact-finder. I can accept that Mrs Papageorgious was not cross-examined about it by the Kellehers because the Kellehers probably did not understand the rule that requires them to challenge evidence, the rule in Browne v Dunn. The Kellehers were self-represented. However, Ms Papageorgious was called on behalf of the first defendant by learned counsel, Mr Hutchings, who had not cross-examined Ms Kelleher about what Mrs Papageorgious would say on that issue. However, that may well be because he had not had an opportunity of interviewing Mrs Papageorgious prior to the commencement of the hearing. That is because Mrs Papageorgious had been, up until the commencement of the hearing, legally represented and was a defendant. On the first day of the hearing the plaintiff reached an accommodation with Mrs Papageorgious, the second defendant, and consented to a verdict and judgment being entered for the second defendant on the basis that each of the plaintiff and the second defendant would pay his or her own costs of the proceedings. It was at that stage that Mrs Papageorgious became a witness who could be called by the State of New South Wales, and I acknowledge that I granted time to Mr Hutchings on the morning of the sixth day of the hearing to interview Mrs Papageorgious prior to his calling her. It appears to me the proper finding based on the evidence I have heard, and common sense, is this: whilst agreement had been given in principle by Mrs Papageorgious for there to be a third tenant, Mrs Papageorgious, who had no agent acting for her, and was keenly interested in the property, for reasons which will be soon referred to, would wish to approve any potential sub-tenant. There therefore, in my view, had been no actual consent by the landlord to sub-let any part of the tenancy to the plaintiff. However, nothing much turns on that, because that is not said to give rise to any cause of action.

26 On 21 February 2001 Ms Kelleher caused to be published in The Torch, a local newspaper in the Canterbury Bankstown area, an advertisement under the heading of “Accommodation”. The advertisement, omitting the common abbreviations found in such publications, is this:

“PROFESSIONAL. Male/female share big four bedroom house in Roselands with two others, own lounge room, $100 per week plus expenses and bond.”

27 The advertisement continued with a telephone number to be phoned after hours, and it is not necessary for me to quote the telephone number. This was not the first advertisement that Ms Kelleher had placed in the local newspaper. Earlier, a similar advertisement had appeared, but asking for a higher rental of $110 per week.

28 According to the plaintiff, he telephoned the advertiser and arranged to have an interview with Ms Danielle Kelleher on Tuesday 27 February 2001. If my counting be accurate, which is always problematical, since I know that the 4th of March 2001 was a Sunday, the 27th of February 2001 would have been a Wednesday, it not being a leap year. Again, nothing turns on that.

29 The interview was about the advertisement placed in the newspaper. The plaintiff was to have his own room in the house, and he could choose between one of two rooms. The room would be his own and would not be shared with another; otherwise he was to have access to all rooms in the house with the exception of the bedroom occupied by Danielle Kelleher and the bedroom occupied by Jason Kelleher. The house in question had two lounge rooms, a formal sitting room, I suspect, towards the front of the house, and a large lounge room at the back, which appears to have been a large veranda, or perhaps a formerly enclosed room extended out into a veranda. The back lounge room was used by the Kellehers, and hence the formal sitting-room or lounge room towards the front of the house could be occupied by the new member of the household exclusively if he or she so wished.

30 There were no formal rules about the occupancy of the household, merely, I infer, ordinary propriety and good manners. The only thing that appears to have been discussed was having loud parties, which would require the consent of the other occupants. That is a matter of common sense and ordinary civility. There were no rules, for example, as to whom the new housemate might bring on to the property, as to bringing friends in to stay overnight, as to keeping any particular hours, or the like.

31 The new housemate had to pay a bond of $200, and pay one-third of outgoings, such as the electricity bill, which came quarterly, the mowing of the lawns, which came irregularly, and the hire of a washing machine, which came monthly.

32 The first legal issue is whether the plaintiff was a sub-tenant, that is a tenant to the Kellehers, or whether he was merely a lodger. As far as the Kellehers are concerned, an issue estoppel arises.

33 On 7 September 2001 the plaintiff filed an application with the Consumer, Trader and Tenancy Tribunal (CTTT). The plaintiff was the applicant and the respondents were Danielle Kelleher and Jason Kelleher. That application was heard on 23 April 2002 at Campsie and on 31 May 2002 at Hurstville. On 28 August 2002 that application was dismissed by a member of the CTTT, Mr G G O’Keefe, and he gave reasons for his decision.

34 One of the findings that the member made was that the plaintiff was a sub-tenant of the third and fourth defendants. In his reasons for decision he said this:

“There was a threshold issue as to whether the applicant was a tenant of the respondents. The alternative being that he was a lodger. If the applicant were a lodger he would have no redress to the Act. During the course of the hearing the Tribunal raised this issue and gave the parties an opportunity to consider the recent decision of the Tribunal on the question of tenant/lodger (see: Ricciardelli v Tritor RT 02/09184 13 May 2002).

Having considered the evidence tendered at the hearing, and applying the reasoning in Ricciardelli, the Tribunal found that the circumstances of the parties constituted a contemporary shared household, and, consequently, the applicant was a sub-tenant of the respondent.”

35 It appears to me that the phrase “a contemporary shared household” appears to have been some term or abbreviation used in the decision cited by the learned member, however it has no statutory meaning and no meaning in the case law to which I have been referred.

36 The plaintiff had fourteen days from 28 August 2002 to make an application for a rehearing of the decision of the Tribunal. The plaintiff did not do that. He did not make an application for a rehearing until 4 December 2002. That application was refused by the Tribunal on 6 December 2002 without the Kellehers having been notified of the application for the rehearing. As well as having a right to seek a rehearing within fourteen days of the decision of the Tribunal the plaintiff had a right to apply within twenty-one days to the Supreme Court of New South Wales if the Tribunal had made an error of law. The plaintiff did not do that either. However he did make an application to the Supreme Court on 6 March 2003. That application sought not only to appeal but leave to appeal out of time. The plaintiff’s applications to the Supreme Court were decided by Cripps AJ on 6 August 2003. His Honour held that the CTTT had erred in law. At paragraph 26 his Honour said this:

“In my opinion the Tribunal fell into error in concluding that, on the evidence before it, the relationship of landlord and tenant between the plaintiff and the defendants no longer existed as at 9.30am on 7 July 2001, the fixed term did not expire until midnight on 7 July 2001. At that time the periodic tenancy, deriving from the title of the defendants, was still in existence. Whatever might have been the position had the police evicted the plaintiff on 8 July 2001 at the time of his eviction on 7 July the plaintiff was entitled, as against the defendants, to the protection of s 22 of the legislation.”

37 The legislation to which his Honour referred was the Residential Tenancies Act 1987. Earlier, his Honour has recited that the Tribunal had found that the plaintiff was a subtenant of the Kellehers and although he accepted that the Kellehers were dissatisfied with that finding he did not understand them to challenge the finding in those proceedings and in any event it was a finding of fact which was susceptible of being overturned as an error of law.

38 It is an essential ingredient to the determination by Cripps AJ that the tenancy did not expire until midnight of 7 July 2001 that in fact the plaintiff was a subtenant of the Kellehers. The Kellehers are accordingly estopped from denying that the plaintiff was their subtenant. However, such issue estoppel does not bind the first defendant, the State of New South Wales. However, I have reached the conclusion, on the evidence before me and the law to which I have been referred, that the plaintiff was indeed a subtenant of the Kellehers.

39 I was referred to the decision of Hasluck J in Commissioner for Fair Trading v Voulon [2005] WASC 229. His Honour there was considering the Residential Tenancy Act 1987 of the State of Western Australia. Its provision appear to be very similar to the provisions of the New South Wales statute.

40 At para 38 his Honour said this:

“I pause here to observe that the definition of ‘Residential Tenancy Agreement’, which refers to granting to any other person a right to occupy ‘whether exclusively or otherwise’ any residential premises appears to effect a significant change to the position at common law. The conventional position at common law is reflected in the reasoning of the High Court in Radaich v Smith (1959) 101 CLR 209 where it was held that in determining whether an instrument creates a lease as opposed to a licence, the decisive factor in favour of a lease is whether the right which the instrument confers is one to the exclusive possession of the premises for a term. However, it is clear that the definition of ‘Residential Tenancy Agreement’ has been framed in a manner which departs from the common law so that exclusive possession cannot be regarded as the crucial test.”

The same applies to New South Wales statute.

41 His Honour between paragraphs 54 and 65 discusses the distinction between tenants and lodgers and cites the relevant authorities. In particular in paragraphs 55 and 56 his Honour quoted the decision of Torrisi v Oliver [1951] VR 380. That was a decision of Coppel AJ. In that case the defendants occupied two rooms, one of which had no door, in the plaintiff’s premises and the defendants shared the use of the kitchen and other conveniences in common with occupants of other portions of the premises. The plaintiff did not reside on the premises but employed a manageress to live there and manage the premises and maintain those parts used in common by the occupants. Coppel AJ held that the defendants were not lodgers but tenants. In his judgment, Hasluck J went on to say at 56:

“Coppel AJ at 385 doubted whether any guiding principle could be discovered from the cases more specific than this: that a tenancy of a room or rooms in a dwelling house will be shown to exist where the occupier has not only the sole right to occupy the room or rooms but has a right to exclude the landlord there from. This is sometimes expressed by saying that if the landlord retains control of the rooms in question, the occupier is a lodger and not a tenant.”

At para 81 Hasluck J said this:

“The decided cases indicate that an occupier of residential accommodation at a rent for a term is either a lodger or a tenant. The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. In other words, a lodger is entitled to live in the premises but cannot call the place his own. He resides essentially as an inmate in another person’s house.”

42 A classical example of a lodger of course is one who occupies a room in someone else’s dwelling house and where, for example, the landlord or the landlady comes in each day and cleans the room, changes the linen, makes the bed and keeps the room tidy. Such is not the position in the current matter. Here there was no provision of attendance or services by the Kellehers to the plaintiff and the Kellehers did not have access to the room occupied exclusively the plaintiff. Even at common law the plaintiff would be seen to be a tenant from the Kellehers of his room but under the provisions of the Residential Tenancies Act 1987 can be seen as a tenant of the whole premises because he has a right, whilst not exclusive, to occupy the other areas of property, excluding of course the bedrooms occupied by Ms Danielle Kelleher and Mr Jason Kelleher.

43 Accordingly, the plaintiff had the protection of the Residential Tenancies Act 1987 and in particular the right conferred by s. 22 of that statute. Section 22 concerns the tenant’s right to quiet enjoyment. Section 22 provides as follows:

“(1) It is a term of every Residential Tenancy Agreement that:

(a) the tenant shall have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord, or having superior title (for example, a head landlord) to that of the landlord, and

(b) the landlord or the landlord’s agent shall not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the tenant in using the residential premises.

(2) The landlord or the landlord’s agent under a Residential Tenancy Agreement shall not, during the currency of the agreement, contravene or fail to comply with subsection (1).”

44 The plaintiff’s claim against the Kellehers is for $5000 damages plus interest and costs for breach of the right to quiet enjoyment of the property.

45 The particulars of breach pleaded in the statement of claim are these:

(a) On or about 22 June 2001 the fourth defendant threatened the plaintiff to vacate the premises by 5pm, 7 July 2001 or his belongings would be thrown out on the street.

(b) On or about 23 June 2001 the fourth defendant threatened the plaintiff that he would cut off the electricity on 7 July 2001.

(c) On or about 28 June 2001 the third defendant and/or on behalf of the fourth defendant gave the plaintiff written notice to vacate the premises by 5pm, 7 July 2001.

(d) On or about 4 July 2001 the third defendant threatened the plaintiff to vacate the premises by 7 July 2001 or his belongings would be thrown out on the street.

(e) On or about 4 July 2001 the fourth defendant threatened the plaintiff to leave the premises by 5pm, 7 July 2001 using insulting language.

(f) On 6 July 2001, the third and the fourth defendant without permission or consent interfered with the personal belongings of the plaintiff by placing them in two boxes in his bedroom. The third defendant refused to put them back where they had been previously placed.”

I will deal with each of those matters in due course.

46 As I have mentioned earlier, the lease between the owner and the Kellehers was due to expire on 7 July 2001. That day was a Saturday. Under the Act, for the tenancy to expire on 7 July 2001 the landlord had to give a notice of termination fourteen days prior to 7 July 2001. That is the effect of s 60 of the Act. The question then arises as to when the tenancy of the plaintiff might expire. Clearly, the plaintiff had a weekly tenancy, that is a periodic tenancy, however that tenancy would end in accordance with s 53 paragraph (c) of the Act. That provision provides that a Residential Tenancy Agreement terminates if a person having superior title (for example a head landlord) to that of the landlord becomes entitled to possession of the residential premises.

47 Here, Anastasia Papageorgious had a superior title to the Kellehers and she was entitled to possession at the ending of the term of the lease on 7 July 2001. The plaintiff’s tenancy could not endure beyond that of the Kellehers. A vague attempt was made by counsel for the plaintiff to suggest that the Kellehers could have created a tenancy and given the plaintiff a right greater than that which they, the Kellehers, themselves had pursuant to s 75 of the Act. That in my view is completely unsupportable. S 75 applies where a person brings proceedings in a court for the recovery of possession of residential premises. It is in fact an action in ejectment, as it used to be called, an action for the possession of land and applies where there is a tenant in actual occupation. It does not give a tenant the right to create a subtenancy greater than the term of the tenant’s actual tenancy. Were that the purpose of the Act or the scheme of the Act it would controvert 1000 years of the common law, controvert the principles relating to our land law which have persisted since the Norman conquest in 1066 by enabling a party to grant an estate greater than he himself has. Even if land law is not applicable to a lease, since a leasehold is personal property rather than real property, the plaintiff is still caught by the personal property principle that nemo dat quod non habet (no one can give what he has not). Accordingly, although the plaintiff had a periodic tenancy that periodic tenancy had, as a matter of law, to come to an end at the ending of the Kellehers’ lease on 7 July 2001.

48 The question then becomes at what time on 7 July 2001 did the tenancy come to an end? The plaintiff originally failed against the Kellehers in the CTTT because the learned member found that there was no relationship of landlord and tenant at the time when the Kelleher’s rendered possession to Mrs Papageorgious at 5pm on 7 July 2001. That was the finding that was overturned on appeal by Cripps AJ. His Honour held that the fixed term did not expire until midnight on 7 July 2001. The Kellehers are again bound by that decision of his Honour by reason of the law of issue estoppel. I myself would not have so found. Possession had to be given up by the Kellehers to the landlord some time on 7 July 2001. It may have been one minute past midnight on that day or one second before the midnight that occurs between Saturday and Sunday. The owner, Mrs Papageorgious, had stipulated a time of 5pm to which the Kellehers had acquiesced. That was a practicable arrangement. It is completely impractical for people to leave a tenancy at five minutes to midnight on a Saturday and expecting to move into another premises at five past midnight on a Sunday morning. Theoretically, agreeing to render up possession at 5pm on 7 July 2001 truncated the tenancy by seven hours, however it is well established that a tenant in possession can surrender possession to the landlord and when that is done the surrender is sufficient to terminate the tenancy. Therefore the tenancy, by agreement and by operation of the doctrine of surrender would have terminated at 5pm on 7 July 2001. It was at 5pm on 7 July 2001 that the owner, Mrs Papageorgious, became entitled to possession of the residential premises and it is therefore at that time that the plaintiff’s tenancy also expired by operation of s 53(c) of the Act.

49 Accordingly, whilst the Kellehers are bound by the finding made by Acting Justice Cripps in the Administrative Law List of the Common Law Division of the Supreme Court, as between the plaintiff and the first defendant I hold that the plaintiff’s tenancy came to an end at 5pm on 7 July 2001.

50 After his interview with Danielle Kelleher on 27 February 2001 the plaintiff paid to Ms Kelleher a security deposit of $50. A receipt to that effect is part of exhibit E. That receipt records that the “remainder due” would be paid when the plaintiff moved in to the property on 4 March 2001. Rent receipt number 758702 records the plaintiff as being in occupation from 4 March 2001. Rent receipt 758701 records the payment of a $200 bond by the plaintiff to the Kellehers. I accept the plaintiff moved in to the property at Roselands on 4 March 2001 pursuant to an oral tenancy agreement between the Kellehers and him as a weekly tenant for a period not exceeding 7 July 2001.

51 It is clear to me, despite some things said by the plaintiff, that the plaintiff knew at the time he entered into the agreement with the Kellehers that the Kellehers themselves were renting the premises. The plaintiff himself said that on page 31 of the transcript and Ms Danielle Kelleher told me that she told the plaintiff that at the interview and that can be found at page 176 of the transcript.

52 Exhibit N, a COPS entry generated on 26 November 2001, contains an entry by the plaintiff that he was aware that the premises were owned by someone other than the Kellehers and that he was in effect subleasing a room in the premises from the tenants who leased the premises from the landlord. The plaintiff therefore knew that his tenancy was subject to the tenancy of the Kellehers.

53 I accept, because it is common ground, that the plaintiff was unaware as to when the Kellehers’ tenancy might terminate. One might ask why he was never told that the Kellehers’ tenancy might end on 7 July 2001? There may be a number of reasons for that. The first, of course, is that the Kellehers may have thought that they might obtain a further lease from the landlord. Another reason is that the plaintiff told Ms Danielle Kelleher that he was going to stay for probably about two or three months. That was Ms Kelleher’s sworn evidence that can be found on page 176 of the transcript. That must be contrasted to the evidence of the plaintiff who was cross-examined on that issue and said that there was “no specification for the time”. I am unable to accept the plaintiff in that regard. I have no hesitation in accepting the evidence of Ms Kelleher insofar as it conflicts with that of the plaintiff for reasons which I will in due course express in greater detail. I am completely unconvinced as to the reliability and honesty of the plaintiff. I therefore have no hesitation in accepting that the plaintiff told Ms Kelleher that he was only going to stay for about two or three months. Two or three months from 4 March 2001 does not take one to 7 July 2001.

54 The next relevant event was a visit to the property by the owner, Mrs Anastasia Papageorgious on a date. There is a conflict as to when that occurred. It appears to be common ground that the visit occurred on a Sunday. Both the plaintiff and the third and fourth defendants believe it to be in April 2001. However, in a sworn affidavit prepared for the purposes of the proceedings in the CTTT the plaintiff thought it was in either April or May of 2001. Mrs Papageorgious’ evidence is that it was towards the end of May 2001. Again no one was cross-examined about this inconsistency in time because, until Mrs Papageorgious entered the witness box, it appears to have been accepted by all at the Bar table, learned counsel for the plaintiff, learned counsel for the first defendant and Miss and Mr Kelleher, that the occurrence was in late April of 2001. When Mrs Papageorgious said it was late May 2002 she was not cross-examined in any interest to suggest it was otherwise. Again the question arises as to which is the more reliable? At the time there would have been little significance in the visit as far as the Kellehers and the plaintiff were concerned. However, there is more reason to suspect that the visit was of concern to Mrs Papageorgious and therefore it is more likely that she would accurately remember the time. At the time Mrs Papageorgious was pregnant. She was entertaining the idea of taking possession of the property so that she and her husband and soon to arrive offspring could reside at 64 Myer Street, Roselands. Mrs Papageorgious brought with her at least her father and perhaps also her father-in-law, both gentleman are referred to in one place, in order that one of the putative grandfathers might measure up for building new built in wardrobes.

55 In his affidavit to the CTTT the plaintiff said this in paragraphs 14 and 15:

“I remember the inspection took place on a Sunday around lunch time, around the end of April or beginning of May. At the time they arrived I was sitting on the front balcony reading. The landlord came to the premises and she had with her husband, her father and father-in-law and they all introduced themselves to me. The landlord entered the premises and commenced the inspection. I remained outside with her father and we had a conversation. I told him I was an engineer; he asked me about where I came from and I told him the Holy Land (West Bank). He then said that he’d been to Bethlehem and we start and we talked about Bethlehem.

A little time later the landlord came out of the house. She approached me and said ‘Sam, I need to go to your room to make some measurements, is that okay?’ My answer to her was ‘Okay, you can go.’ She then went into my room.”

56 Now clearly the plaintiff recalled the occasion of the inspection when there was measuring up done and that ties in perfectly with the evidence of Mrs Papageorgious of taking her father and/or father-in-law with her in order that he might measure up with a view to building new wardrobes for the house into which she was thinking of moving. Indeed, she made her decision, if her estimate be accurate, very shortly after that visit, because according to Danielle Kelleher Mrs Papageorgious advised her on 7 June 2001 that the lease would not be renewed. According to Mrs Papageorgious the inspection was late May and in a relatively short time, which is perhaps not more than two weeks, she advised Danielle Kelleher that the lease would not be renewed as she intended to regain possession so that she herself could reside in the property with her family as she approached her confinement. Another thing which points, in my view, in the direction of late May being accurate is the cross-examination of Ms Kelleher by Mr Austin for the plaintiff.

57 Ms Kelleher was cross-examined about a statement that she and her brother prepared at the request of Mrs Papageorgious for use in the proceedings launched in the CTTT by the plaintiff against Mrs Papageorgious. Those proceedings were eventually discontinued and fresh proceedings were commenced against the Kellehers. In that cross-examination this evidence was given at page 196:

“I want to read to you another couple of lines in the second paragraph. ‘The only time that Annie was aware of Sam’s existence was very close to the end of the lease. We were notified by Annie on 7 June by telephone that the lease would not be renewed, which expired on Saturday, 7 July.’ Now would you agree with me that that statement that Annie only became aware of Sam’s existence very close to the end of the lease, is inconsistent with your evidence to his Honour, which was that Annie came over to inspect the property on late April?

A. No.”

58 However late May appears to me to be more consistent with a short time prior to the ending of the lease than late April and the time Ms Kelleher and her brother prepared the statement, 30 July 2001, things were much fresher in their minds. Accordingly, I have no hesitation in finding that the inspection by Mrs Papageorgious occurred in late May 2001 as she said in her evidence. I also accept that that was the first occasion on which Mrs Papageorgious became aware of the existence of the plaintiff and became aware that the Kellehers had made some agreement or arrangement with Mr Diab whereby he would occupy a room in the house and pay some rent to the Kellehers.

59 On 18 May 2001 the plaintiff attended upon Dr Rachel Amin, a general practitioner at Wiley Park. His presenting complaint was nausea. The doctor queried whether the plaintiff had been suffering from vomiting. He gave no history of having had diarrhoea. On examination she found that the plaintiff had pain and tenderness in the epigastric area and prescribed Maxalon tabs 10mg one daily for twenty-five days. It was noted at the time that the plaintiff was on anti-hypertensive medication. The evidence discloses that more probably than not in the year 2000 the plaintiff was diagnosed with hypertension and has been on anti-hypertensives since that time.

60 On 31 May 2001 the plaintiff again attended upon Dr Amin. He was complaining of headache and “a lot of stress”. Dr Amin queried whether he was a new immigrant and recorded in her notes that he had no job and that he was also suffering from insomnia. She noted on examination the plaintiff was very nervous and stressed and she gave him counselling and Aropax tablets 20mg one to be taken each day. She also records a history that the plaintiff had a problem with the NRMA which was withholding his money. She noted the plaintiff was unemployed and that he had no work and had no money and was fighting with the NRMA to recover his money. She also noted “a lot of anxiety”. The plaintiff told me that he had been paying an insurance policy with the NRMA on a monthly basis and although he had terminated the insurance the NRMA had continued to deduct moneys from his account for premium over a period of some four months, if my recollection serves me correctly. That clearly was a stressor in the plaintiff’s life leading him to complain of stress, anxiety and a general “nervous” condition. The complaint of insomnia and headache are also to be noted.

61 As I have earlier mentioned, on 7 June 2001 Ms Danielle Kelleher received a telephone call from Anastasia Papageorgious who advised her that the lease would not be renewed. In essence, she was advising that the lease would terminate on the date specified in the current lease, 7 July 2001. Mrs Papageorgious told me that she had had no problems with the Kellehers as tenants and she did not see the need to have a written notice, but Ms Kelleher asked that one be delivered to her and that was done. The notice bears date 7 June 2001. It is in the following terms:

“As discussed previously, please be advised that the lease for 64 Myer Street, Roselands is due to expire on 7 July 2001, it will not be renewed, as I will be moving into the property as we are expecting a new baby.

It is requested that you make arrangements to vacate the property fully upon expiration of the lease.

Your understanding, co-operation will be much appreciated. Thanking you.”

62 However, Danielle Kelleher did not receive the notice until 14 June. According to the plaintiff, Danielle Kelleher told him that the owner wished to occupy the house, on approximately 14 June 2001. Danielle Kelleher recollects her advising the plaintiff of the landlord’s desire to re-enter the property on 10 June 2001. I accept that Danielle Kelleher told the plaintiff of the owner’s desire on 10 June 2001. She said this in cross-examination:

“Q. Now, Mr Diab has given evidence that the first time you gave him notice of an intention to not renew the lease was on about 12 June 2001, does that not align with your recollection?

A. It was actually 10 June.”

63 On 17 June 2001 it is now common ground Danielle Kelleher told the plaintiff that she had received a notice from the landlord to vacate the premises and that they had to vacate the premises by 7 July 2001. Ms Kelleher’s evidence is that she put a notice on the kitchen table. This evidence was given by her in cross-examination by counsel for the plaintiff.

“Q. When you showed it to him on 17 June, what did you say to him, to the best of your recollection?

A. I just explained to him that a letter had arrived from the owner of the property to terminate the tenancy and I put it on the kitchen table.

Q. What did he say to that?

A. Nothing.

Q. Nothing at all?

A. Not at that time.

Q. Did any conversation ensue after that, did you say anything else to him?

A. Yes, I did and yes, he did.

Q. What did you say?

A. He basically went about his business and disregarded it and when he did that I actually read the letter to him stating that what was actually written. When I had finished doing that his response was, ‘It has nothing to do with me’. I left the letter on the kitchen table and I walked away.”

64 The plaintiff in his evidence confirmed that he said to Danielle that the letter had “nothing to do with him”. The plaintiff’s attitude was, to say the least, foolish and arrogant. According to the plaintiff on 22 June 2001 Jason Kelleher advised the plaintiff that he and his sister had had approval to rent another dwelling house and that they would be moving there and that he, the plaintiff, had no option but to move when they did or he would be out on the street. The plaintiff said that he replied to that that it was not possible for Jason to do that. The point is, even based on what the plaintiff himself said, there was no actual threat made by Mr Jason Kelleher to evict the plaintiff, rather he was passing on information to the plaintiff that the plaintiff, if he did not move out when the lease expired, would most likely be evicted. Mr Jason Kelleher has denied ever making any threat to the plaintiff to either evict him or to throw his belongings out on the street and I have no hesitation accepting Mr Jason Kelleher in that regard and I prefer his evidence wherever it is inconsistent with that of the plaintiff.

65 On 23 June 2001 the plaintiff commenced to consult a new general practitioner, Dr Aiman Alsayed of Haldon Street, Lakemba. Dr Alsayed is based at the Isra Medical Centre.

66 According to Dr Alsayed’s report of 29 August 2005 page 4, Dr Alsayed first saw the plaintiff on 23 June 2001 when the plaintiff was “complaining of slight blood pressure only”. That statement is untrue. The contemporaneous notes made by Dr Alsayed refer to a complaint of headache, of pulsating pain and of stress in his head and of feeling tense. The doctor records in his notes that the plaintiff was a civil engineer who didn’t have any work. He also made a note of “family problems”. The diagnosis was of hypertension and family problems for which the doctor prescribed continuing medication and counselling. One can only infer that the continuing medication was for the previously diagnosed hypertension and that the counselling was for the family problems.

67 The plaintiff’s evidence is that on Sunday 24 June 2001 Danielle said to the plaintiff that he would have no option but to leave the house, presumably on 7 July 2001. The plaintiff also said that Danielle said words to the effect that she could not afford to lose the bond. The plaintiff went on to say that Danielle said to the plaintiff that his belongings would be removed from the house and that he would be thrown out onto the street.

68 The plaintiff also said that on that day he had another conversation with Jason Kelleher. Jason was working in the back yard sweeping leaves. According to the plaintiff Jason said to the plaintiff that he would have to move on 7 July 2001 or “your stuff will be thrown out onto the street”. It is also alleged that at that time Jason said that he would cut off the electricity on 7 July 2001. The plaintiff told me that the demeanour and words of Jason were “harsh and hostile and that (the plaintiff) felt very disturbed and annoyed”.

69 Jason himself, as I have already mentioned, said that he did not make any threat to the plaintiff, that he did have conversations with him in which he explained that the plaintiff would have to vacate the premises on 7 July 2001 and may have mentioned what the process of eviction involved if the plaintiff did not voluntarily give up possession on 7 July. Jason also denies any threat to cut off the electricity.

70 In cross-examination Mr Jason Kelleher gave this evidence at page 268:

“Q. I think you said to his Honour that it was either the Sunday or the Monday, the week before--

A. This is immediately prior?

Q. That’s right, yeah?

A. Yeah.

Q. So about 5 to 6 days prior to the 7th you had a disagreement regarding the electricity?

A. That’s right.

Q. I suggest to you, sir, that you had a conversation with him where you both became heated and you told him that if he didn’t move out by the 7th, then the power would be cut?

A. No, that’s incorrect.”

This was taken up by learned counsel for the State at page 270 when this question and answer was given:

“Q. And my learned friend then asked you a question saying, well, if you were transferring, you were going to have the power cut off, and you said that’s not correct?

A. I said to Sam about the electricity that, you do know that I have to transfer my electricity account to the new premises. And I asked Sam, what were your plans, were you going to get the electricity in your own name or organise something with Annie. And that’s when he went off the handle and said, well, you can’t cut my electricity, and that’s where the second disagreement I had with him was, well, while we’re on electricity when are you going to pay me the electricity money that you owe me. And that’s when he said, well, I’m going I’m trying to pay. And I said, well, the bill’s been on the fridge for three weeks and I understand what you are saying if you pay, you know, $5 or $10 here or there, you’re a dickhead, and he called me dickhead and that was said back and forth about four or five times.”

Clearly there was no threat by Jason Kelleher to cut the electricity off from the premises. It is common for electricity accounts to be transferred. It is infrequent now for the electricity authority to actually cut off electricity if there is no tenant or occupant in a building. They merely wait for a new occupant to enter and then transfer this service to the new occupier’s account.

71 Clearly the Kelleher’s were obliged to leave the property on 7 July 2001. They had acquired new rental accommodation. They had to transfer their electricity account to their new rental property and Mr Kelleher was asking the plaintiff what the plaintiff wished to do about the electricity. If the plaintiff construed that as a threat it was a misconstruction of what was occurring. Clearly there was then a heated argument with a mutual exchange of insults. This, no doubt, is “the use of quite insulting language” referred to in the particular number (e) of paragraph 8 of the statement of claim.

72 Clearly the exchange of insults arose because the plaintiff had failed to pay his electricity account or should I say his share of the electricity bill. That bill is exhibit G. It was not dated three weeks earlier but in fact dated 2 July 2001. It asked for the payment of $62 towards the electricity and of $11 for lawn mowing. Danielle asked for those two sums amounting to $73 to be paid “on Monday night” which was in fact 2 July 2001.

73 It seems probable therefore that the conversation in which electricity was mentioned between Mr Diab and Jason Kelleher was on Monday 2 July 2001, rather than the previous Sunday, 24 June 2001 deposed to by the plaintiff. Really not much turns on the difference in timing but it is the difference in the context of the conversation that is the important thing.

74 The evidence of Mr Diab was on that Sunday 24 June 2001 in addition to the conversation with each of Danielle Kelleher and Jason Kelleher, his mobile telephone rang when he was absent from the property and he returned to the property to be met by a Mrs Anastasia Papageorgious and her husband. They informed the plaintiff that they had found accommodation for him in Campsie for $105 per week in a townhouse. They had arranged for him to inspect the townhouse at 9pm. The plaintiff said that he went to inspect the townhouse and spoke with the man there who was from Hong Kong. He was the owner. He said he wanted a bond for three weeks rent and wanted two weeks rent in advance. The plaintiff told the gentleman from Hong Kong that he could move in the following Sunday and then the plaintiff returned to his home. On the following day the gentleman from Hong Kong phoned the plaintiff about lunchtime and invited the plaintiff back to the townhouse at Campsie at 8.30pm.

75 The plaintiff went to see him again and the proposed new landlord advised the plaintiff that the proposed tenancy could be terminated on two weeks notice which was not acceptable to the plaintiff because he wanted a longer period of notice, in particular 60 days, in order that he could feel settled in his accommodation.

76 At some stage the plaintiff had phoned a tenancy advice line or tenancy hotline and obtained certain advice. That advice appears to have been based on s 58(2) of the Residential Tenancies Act 1987 which is a provision where there must be notice of termination by a landlord without any ground. However the presupposes that the tenancy will of its nature persist beyond 60 days. This was not the case in the current matter.

77 The Residential Tenancy Agreement in the standard form between Mrs Anastasia Papageorgious and the Kelleher’s, Exhibit L, gives on the back page the number of the Department of Consumer Affairs Tenancy Service which could be phoned if the reader needed help with a tenancy problem. Whether the plaintiff phoned the Department of Consumer Affairs Tenancy Service or some other service, I do not know. The plaintiff himself could not tell me nor could he tell me who gave him the advice. The advice appears, in my view, to have been erroneous but advice can only be as good as the background information given and the plaintiff himself is unable to remember what intelligence he communicated to the giver of the advice. It is unclear whether the giver of the advice to the plaintiff, that he was entitled to 60 days notice, was aware that the plaintiff is only a subtenant of a tenant and that the head tenancy expired on 7 July 2001.

78 On 28 June 2001 the plaintiff told me that he arose from his bed at 9am. He went to the kitchen table and found on it a notice to vacate the residence by 7 July 2001. That notice is Exhibit H. It is headed ‘Reminder Notice’ and is in the following terms:

“A Reminder Notice to inform you the lease on 64 Myer Street, Roselands, finishes on Saturday 7 July 2001 and all parties are to vacate the premises on this day at 5pm.”

Ms Papageorgious says that she prepared the reminder notice and left it with the Kelleher’s. The plaintiff acknowledged receiving the notice by saying that he received it on Thursday 28 June 2001 and signing it. He told me that after receiving the notice he went to Campsie Police Station and spoke to a female constable of police identified merely as “Jill”. The plaintiff told me that he was feeling very bad and he was feeling very annoyed, that he felt “turbulent” and that he was being constantly harassed and threatened by the Kellehers. He told me that he went to see Dr Alsayed. Doctor Alsayed’s clinical notes confirm that he did although the only complaint recorded by Dr Alsayed is that the plaintiff “felt unwell”. The doctor checked the patient’s blood pressure and found it to be 160 over 80. The diagnosis made by the doctor I cannot decipher which is very unusual after spending 12 years on the bench mainly doing personal injury litigation.

79 There is no complaint, however, of being harassed or threatened and there is no complaint for example about “troubles with the landlord” or words to that effect such as the complaint recorded on 23 June 2001 of “family problems”, nor any of the material of which the plaintiff was to complain on 7 July 2001 to Dr Alsayed.

80 On 3 July 2001 there was a conversation between the plaintiff and Danielle Kelleher that was raised in cross-examination of Ms Kelleher by Mr Austin at page 204 of the transcript. Mr Austin was still cross-examining Ms Kelleher on the joint statement she had prepared with Jason Kelleher dated 30 July 2001. The statement contains the following matter:

“On 3 July, Sam was asked to remove his belongings from the kitchen and bathroom by Friday, 6 July, so these rooms could be cleaned, and on this day, 3 July, Sam informed Dani adamantly that he would not be moving”.

Ms Kelleher gave this evidence about what occurred on that day:

“On that day I was packing. Sam came out of his bedroom. I said to Sam, “Can you please move. This is” - you want to know happened on that day, I’ll tell you. He moved - I said to him, “Can you please move your stuff out of the bathroom and the kitchen by the 7th or the 6th, Friday night, as I’ve got to clean them”. That was my responsibility. I signed a lease to leave the property in good condition, and that was a responsibility, and that is why it was requested to be done. Sam then approached - because we were actually standing quite far apart. It happened in the lounge room, too. Standing quite far apart, Sam approached and stood within my personal space, and started screaming at me that he wasn’t moving, he wasn’t, he wasn’t going to move his stuff. I then removed myself from the situation and moved to another part of the house and another - and any other words, no no other conversation was spoken on that day.”

81 In other words Mr Diab was advised that it was necessary to clean the demised premises before giving up possession to the landlord and that clearly is a contractual duty under the lease. He was requested to move his belongings from the kitchen and the bathroom so that the cleaning could be done. However, it is clear by that stage at least that the plaintiff had no intention whatever of yielding up possession on 7 July as he was required to do.

82 The plaintiff’s evidence is that on Wednesday 4 July 2001 Jason said to him that he had to move from the house or all his belongings would be taken out onto the street. The plaintiff said that Jason was “harsh and hostile”. I had heard and seen Jason and accept him that he made no threat at all to the plaintiff and I also formed the view that it is contrary to his character and nature to be harsh and hostile. The plaintiff told me that he said to Jason that he Jason could not do what he proposed to do and that if Jason did so it would be “against the law”. However, I accept that no threat was made by Jason. Jason made it clear that there was discussion from time to time about the plaintiff’s trying to obtain alternative accommodation and how he was going. I accept from time to time that there was mention that the plaintiff had to yield up possession on 7 July 2001, but I do not accept that there was any threat made by Jason or his sister, for that matter, to the plaintiff.

83 On Thursday 5 July 2001 the plaintiff said that Jason said to him that he had to leave the house by 7 July. The plaintiff told me that he said to Jason that Jason was not to take the law into his own hands. The plaintiff’s evidence is that on that occasion Jason called the plaintiff a dickhead but clearly Jason’s evidence is that it was on the occasion when there was a dispute about the unpaid electricity money.

84 The plaintiff went on to tell me that he telephoned Campsie Police Station and spoke to a Constable Broadhurst. There are no records from the Police Service about any dealings between the plaintiff and the Police Service prior to 6 July 2001.

85 On 6 July 2001 the plaintiff was absent from the house at least during the afternoon. Mr Jason Kelleher finished work early on that day, immediately after lunch, and came home and started packing up belongings with a view to moving on the following day, Saturday 7 July 2001. The evidence is that Ms Kelleher came home at the normal time on the evening of that day and brought with her a work friend, Daniel, a 17 year old youth who would assist her and her brother with the move. During the course of that afternoon or early evening it is clear that the plaintiff’s belongings that were in the kitchen and the bathroom were packed into two boxes and placed beside the entry to Mr Diab’s bedroom. I accept that that was done for the purpose of enabling the Kellehers to clean the premises prior to yielding up possession. There is no suggestion of any damage to any of the goods of the plaintiff and indeed the packing up of the goods would have assisted the plaintiff with the move, which he was required to make, on 7 July 2001.

86 However, if this activity be a breach of contract, the fact that it was motivated by goodwill does not excuse it as being a breach of contract.

87 The plaintiff told me that he arrived home at about 7 o’clock in the evening and that he saw some of his belongings packed up in boxes left outside the door of his bedroom. He confirmed that they contained items of his from the kitchen and the toilet and the “clothesline” by which I assume he means the laundry. It is clear from the plaintiff’s evidence in chief that he was very upset by this and he called the police at approximately 8pm. He also called his friends to come to be witnesses to the boxes. He said that eventually four members of the police force turned up, three policemen and one policewoman. He dealt with Constable Telfer.

88 At stage Danielle came out of the house as well and Constable Telfer asked which of the two had phoned first. The inference to be drawn is that Danielle had also telephoned for the police. The plaintiff identified himself as being the first caller and so Constable Telfer spoke to Mr Diab first.

89 In the course of his conversation with Constable Telfer the plaintiff showed the boxes of his packed belongings to the constable.

90 As I recollect the plaintiff’s evidence, because I do not have a transcript of the first day’s evidence, Constable Telfer asked Danielle to put the plaintiff’s belongings back to where they had been but that is a direction with which she did not comply and the plaintiff said that he then left with his friends and went out to at least one, if not more than one, friend’s place, where he socialised having conversations and drinking cups of tea. He told me that he got home at 11.30pm. The fact that the plaintiff was able to go out and socialise on the evening of that night, does not speak to any extent about the plaintiff being ill or extremely upset and agitated, if he could go out and seek enjoyment in the company of friends.

91 He returned home at about 11.30pm and shortly after he retired he heard a loud knock at the door. A voice called out to him as to whether the knocker could see the plaintiff. It is common ground that the knocker on the door was the husband of the owner, that is Mr Papageorgious. The plaintiff told me that he said that he was in bed and that the caller should come back on the morrow.

92 The evidence of the Kellehers as to what happened on that evening is somewhat more dramatic than what the plaintiff says. In chief Ms Kelleher gave the following evidence:

“Q. On the night of Friday, 6 July 2001, why did you phone the police?

A. The police were called because there was a situation where I feared for Jason, myself and a friend who was helping us move, due to the circumstances of the night.

HIS HONOUR: Q. And what circumstances were they, Ms Kelleher?

A. It was ascertained that there were actually cars patrolling the house and positioned themselves at different points in the street. Once that was ascertained and confirmed that that was the case. The situation arose where I felt really uncomfortable that it could get out of hand and not be able to control that in regards to more people turning up. So I felt for our safety, so I called the police.”

Ms Kelleher went on to say that the matters to which she had referred to as being pointed out to her were observed by her brother Jason. In cross-examination Ms Kelleher said that the plaintiff arrived home at about 8 or 9 o’clock and that he walked through the house “screaming” as Jason and she were busily packing up. Ms Kelleher went on to say this:

“Q. All right. What did he say to you and Jason throughout the house?

A. He asked, who did this, why did you do this, yeah. A just pretty much, just kept repeating the same thing over and over and quite loudly.

Q. I’m sure. And you just kept on packing?

A. No. I did respond by saying I asked you on the third to move it by Friday night as I’d be cleaning, I need to clean.

Q. Fair enough. Did you say anything else or that was it?

A. No.

Q. Did he respond to that?

A. Again same stuff, you can’t do this, you have no right to do this. And it was fairly intense and short. It wasn’t a long period of time and he stormed out of the house.

Q. The next thing you know is that you get a call from somebody at Campsie Police Station, is that right?

A. Not on that day. No way.

Q. I apologise for that. What happened next?

A. We continued to pack in the truck and Sam walked up the road to one of the cars that had been parked there from earlier on, and he was talking on his mobile phone and he was probably about four houses up the road, and you could still see him but you definitely could hear him. Jason and I and my friend continued to pack the van, and when we went inside I said to Jason, I don’t like the feel of this, there’s already two people out there that we knew of, and Sam had gone up the street to one of the cars. Our concern, [for, me as a woman], concern, was that within a short period of time the house could have been surrounded with quite a lot of men. And there would be no hope in hell, no hope in hell. So I said to Jason, I don’t like the feel of this, and Jason said, well, if that’s the case, you better call the police which [I] did do.”

93 On page 208 of the transcript Ms Kelleher went on to tell me that the police had advised her on the telephone to lock herself in the house and she explained to the person who gave that advice that that was a useless thing to say because Mr Diab had a key and Ms Kelleher was then told to do whatever she could to protect herself, so she and her brother and friend put the fridge in the middle of the hallway and some five minutes later the police arrived. She said the police arrived within five minutes of her call.

She went on to say this:

“Q. And when the police arrived were you standing in the front yard?

A. We had come out of the house, yes, yes.

Q. And did you observe anyone with Sam standing outside the front gate?

A. Sam had, when the police had arrived, Sam had walked into the front gate, we were coming out, the police were coming over and there was a small group of people on the street.

Q. So was Sam standing next to anybody specifically?

A. No?

Q. Can you recall when you say “small group” was it one, two, three, four?

A. About six.

Q. Now what happened then when you all merged into one group there at the front of the yard?

A. First off the police identified who was who so the police identified that Sam was Sam and Jason and I were Jason and I and then one police officer, I am pretty sure that it was Telfer, turned round and said like to the group of people on the footpath, where do you belong, and some people said, I’m a neighbour, and some other people said something else, I can’t exactly remember what. And when it would have been two or three people said, we’re friends of Sam. And they said, well, youse can bugger off, and told them to leave.

HIS HONOUR: Q. Is that the terms they used or--

A. Well, you guys, yeah, just you guys can bugger off. They said, bugger off, yes. Yes they told them to bugger off.”

This is confirmed by the evidence of Mr Jason Kelleher at pages 272 to 275 which I do not wish to quote at any great length. However, Mr Kelleher confirmed that he saw the plaintiff come through the front door, saw the two boxes, he looked at them and asked “What’s this” and then kicked the boxes quite hard. He refers to the plaintiff’s asking who did this and who put the boxes where they were that “You don’t have any right to be there” and then of going “beserk”.

94 According to Jason Kelleher he was a bit scared from the tone of the outburst by the plaintiff. He referred to the plaintiff’s going outside “ranting and raving”. He confirmed the fear that he and his sister and young Daniel expressed, of their fear of having the dwelling invaded by the plaintiff’s supporters and of the police turning up. It would appear that when the police left the plaintiff unpacked his belongings and left the premises with his friends and he stayed with them the rest of the evening.

95 COPS entries confirm that the plaintiff rang the police at 8.20pm and that Ms Kelleher phoned the police at 9.08pm. The police arrived at 9.29. Danielle Kelleher’s recollection of the police arriving in five minutes, while it inspires confidence in our police, is in fact an erroneous recollection because it took them 21 minutes to drive from the Campsie Police Station to the nearby suburb of Roselands.

96 The COPS entry generated in respect to the plaintiff’s complaint, says this:

“Informant says that his landlord is trying to kick him out. He states that he has spoken with the Tenancy Committee and they have to give him 60 days. Apparently this has not been done. Police to attend.”

The substance of the message generated in respect of the phone call by Ms Kelleher is:

“Informant states male refusing to leave her premises, he’s waiting out the front with two other males.”

It would appear that not only were the Kelleher’s apprehensive of a breach of the peace on the evening of 6 July, but the police also may have harboured a similar apprehension because of the complaint made by Ms Kelleher. In any event the arrival of the police seems to have calmed everything down.

97 The following day was, as far as the plaintiff was concerned, a momentous one. The Kelleher’s got up very early in the morning of 7 July and packed their remaining belongings, including their beds, into the truck that had been hired, and transported their belongings to the new accommodation. They left at first light. They did not return to the property until well after the police had arrived at the property and departed.

98 On the evening of 6 July it is clear that there was a telephone conversation between Danielle Kelleher and Mrs Anastasia Papageorgious. No doubt it was in connection with the events that occurred on that evening. It is clear that the Papageorgious’ attended at the premises and sought to talk with Mr Diab, the plaintiff. Mr Diab refused to arise from his bed to speak with Mr Papageorgious. The Papageorgious’ went to the Campsie Police Station and had conversations with police there. The conversation they had were in the context of police knowing that police had earlier attended at the premises because of the two complaints that had been received on the telephone. Mrs Papageorgious was asked to return on the following day with her residential lease evidencing her the tenants were on the property. It appears that on the morning of 7 July 2001 Mrs Papageorgious first went to the Burwood Police Station rather than the Campsie Police Station, and was told at the Burwood Police Station to return to the Campsie Police Station as the property in question was in the area of the Campsie Local Area Command rather than at the Burwood Local Area Command. In other words as far as the police were concerned, the property at Myer Street, Roselands was in the bailiwick of Campsie, not that of Burwood.

99 Mrs Papageorgious showed the lease to Inspector Birch at Campsie Police Station, said that she had no agreement with Mr Diab, that Mr Diab was not paying her, Mrs Papageorgious, any money and that Mr Diab refused to leave and that she was unaware of the arrangement or agreement between the Kelleher’s and Mr Diab.

100 Inspector Birch decided to attend at the premises on the morning of 7 July. He turned up at approximately 9am. He was accompanied by Constable Peter Hanna, Senior Constable Steven Rostankov and Senior Constable Justin Bard Sieverts. Each of those four members of the police force have given evidence. In short, it can be stated that the former Senior Constable Rostankov and Senior Constable Sieverts have absolutely no recollection of what happened on the morning of 7 July 2001, even when their memories were sought to be prompted or refreshed by a reference to the COPS entries.

101 Constable Hanna has a recollection of some of the events in question. Inspector Birch has a very good recollection of what occurred, no doubt prompted by the fact that he made a contemporaneous entry in his police service duty book, a copy of which is Exhibit K. In addition the contemporaneous note made by Inspector Birch has been read onto the record of the Court and can be found at page 240 of the transcript.

102 There is, as one might imagine, a conflict of some major moment between the evidence of Inspector Birch and the plaintiff. I have of course seen each of them. I thought Inspector Birch to be a very careful witness and making all the negative allowances one must when considering evidence given by a policeman who one can often put into the “expert witness category”, that is those very experienced at giving evidence, rather than giving evidence as experts, I have no hesitation in accepting him as being honest and reliable. Wherever his evidence conflicts with the plaintiff’s, I prefer the evidence of Inspector Birch.

103 The plaintiff’s evidence is to this effect, he heard a knock at the door, he went to answer it, he opened the door and three policemen just walked straight into the house. Indeed in another place he said that the policemen stormed into the house. He said that he did not give any of them any permission to enter the house. He said that the only thing said to him was “Why are you here”. He was then asked to produce evidence showing that he was entitled to be on the premises. When he failed to do that he was told to quit the premises straight away, although this was later modified to noon, and to present his keys to the police station by 12.30 and if he did not do so he would be firstly arrested and secondly that his belongings would be thrown into the street.

104 The causes of action alleged in the statement of claim against the State of New South Wales are trespass to land, assault and originally the tort of intimidation. On the third day of the hearing the plaintiff sought leave to amend the statement of claim to allege the tort of misfeasance in public office. For reasons which I gave at the time I refused that leave. Shortly thereafter once he had had an opportunity of reading a statement prepared by Inspector Birch, the plaintiff withdrew the allegation of the tort of intimidation. The remaining torts were accordingly of trespass to land and assault.

105 On the seventh day of the hearing, during the course of his address in reply, counsel for the plaintiff withdrew the allegation of assault on the basis that he could not sustain that allegation. In light of the law that was a very proper thing for him to have done. Accordingly the only tort that is relied upon is the tort of trespass to land.

106 This morning before commencing to give judgment I enquired of learned counsel for the State whether he would be prejudiced by my finding for the plaintiff in the ancient tort of ejectment and he told me that he would be because if such a tort had been pleaded he would have cross-claimed against Mrs Anastasia Papageorgious and of course is no longer able to do so because Mr Papageorgious was effectively removed from these proceedings when the plaintiff consented to judgment being entered in her favour on the first day of the hearing.

107 Mr Austin for the plaintiff submitted that he had always been relying on the tort of ejectment. The first time it was ever mentioned was by me this morning after I was doing some research of the law.

108 There is no averment in the statement of claim of the plaintiff’s being thrown out of possession of his land. There is no averment of his being thrown out of possession of his land before the ending of his tenancy, no allegation of disposition from his land holding, no allegation of disposition from his tenancy.

109 In any event I accede to the submission put to me by Mr Hutchings this morning that for me to find for the plaintiff in the tort of ejectment would severely prejudice his client and amount to a mistrial.

208 That the plaintiff is litigious cannot be denied. In fact the only jurisdictions of which I am aware the plaintiff has not invoked in this State are those of the Local Court and of the Land and Environment Court. There was his first application to the CTTT against Mrs Papageorgious which was discontinued. There was then his application to the CTTT against the Kellehers which he lost. He then went to the Supreme Court on appeal and was successful. The matter was remitted to the CTTT to be dealt with according to law but the plaintiff then discontinued that process. He then commenced the proceedings in this Court. I have already mentioned that the plaintiff’s complaint to the Anti Discrimination Board and its refusal to admit the validity of his claim and his subsequent proceedings in the Administrative Decisions Tribunal. It appears from Dr Roberts’ report that Mr Diab filed an unfair dismissal complaint with the Industrial Relations Commission and that that matter was due to be conciliated on 25 November 2002 but the cost of bringing witnesses from Lismore was too expensive. The application was withdrawn and instead the complaint was made to the Anti Discrimination Board. The evidence before me also discloses that the plaintiff made an application to the Victims Compensation Tribunal which was unsuccessful . He then made a further application or an application for rehearing by the Victims Compensation Tribunal which was unsuccessful. He then appealed to this Court unsuccessfully and he has taken appeal from this Court to the Court of Appeal from the decision of Curtis DCJ.

209 In summary again, in fact he was not a man of normal fortitude and in my view there is sincere doubt as to any causal nexus between the various complaints the plaintiff has made and the event of 7 July 2001. He clearly has not been truthful with the doctors about his history, neither the history of events with which I am dealing or his medical history antecedent to that time.

210 The question then becomes what damages for the trespass I should award? They are clearly not compensatory damages for personal injury. The plaintiff asked me to award, in addition to the damages for the trespass to the plaintiff’s tenement, aggravated damages. I decline to do so. The first thing to note is that, on any view of it, the action of the police was premature. If, as I have found, the plaintiff’s tenancy ceased at 5pm when the tenancy of the Kellehers was surrendered by them to the owner, then the police in requiring the plaintiff to leave the property by high noon, it essentially kept him out of occupation of the premises for five hours. Even if I be wrong in that and the plaintiff was entitled to remain in occupation until midnight as was suggested by Stein AJ, the plaintiff was kept out of occupation for twelve hours. Had the police not intervened on 7 July 2001 it is quite clear to me the plaintiff would have stayed in possession contrary to the oral agreement that he had with the Kellehers. If he remained in occupation after 5pm or indeed after midnight, he would have been a squatter, to use the good, old-fashioned, Australian expression. If the police did what they did at 9am on 8 July 2001 the plaintiff could not have had any complaint whatever. The time that the plaintiff was kept out of possession was five hours in my view, at most twelve hours.

211 The plaintiff was in many respects, the author of his own misfortune. He was offered alternative accommodation with the Hong Kong gentleman by the Papageorgious’ but declined to take it up. Furthermore, he declined to take up the offer communicated to him by the police that Mrs Papageorgious was happy to let the plaintiff remain on the premises for “a couple of weeks” to enable him to find alternative accommodation, provided that the plaintiff gave up possession at the end of those few weeks. If the plaintiff had accepted that offer he could have stayed in occupation of the property for a further two weeks. There would have been no threat made to him by the Inspector. There would have been no threat of eviction and there would be no direction to quit the premises by noon and deliver up the keys to the Campsie Police Station.

212 The interaction between the plaintiff and the police was in private. No-one else was there to witness any upset or humiliation that the plaintiff had at the time, indeed the Kellehers were unaware that the police had attended until the plaintiff told them that he is taking the keys to the Campsie Police Station. There was not any public interaction which could lead to humiliation or upset. In the circumstances, I do not believe that aggravated damages ought be awarded to the plaintiff. However it is clear from Plenty v Dillon (1991) 171 CLR 635 that there should be some award of damages. In that case the following appears in the joint Judgment of Gaudron and McHugh JJ commencing at 654:

“In his judgment, the learned trial Judge said that, even if a trespass had occurred, it was ‘of such a trifling nature as not to found [sic] in damages’. However, once a plaintiff obtains a verdict in an action of trespass, he or she is entitled to an award of damages. In addition, we would unhesitatingly reject the suggestion that this trespass was of a trifling nature. The first and second respondents deliberately entered the appellant’s land against his express wish. True it is that the entry itself caused no damage to the appellant’s land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff to damage to the land. That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land. Although the first and second respondents were acting honestly in the supposed execution of their duty, their entry was attended by circumstances of aggravation. They entered as police officers with all the power of the State behind them, knowing that their entry was against the wish of the appellant and in circumstances likely to cause him distress. It is not to the point that the appellant was unco-operative or even unreasonable. The first and second respondents had no right to enter his land. The appellant was entitled to resist their entry. If the occupier of property has a right not to be unlawfully invaded, then, as Mr Jeffrey Samuel has pointed out in another context, the ‘right must be supported by an effective sanction otherwise the term will be just meaningless rhetoric.’: ‘The Right Approach?’ (1980) 96 Law Quarterly Review 12, at p 14, cited by Lord Edmund-Davies in Morris v Beardmore (87). If the Courts of Common Law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages.”

In light of that dictum, learned counsel for the plaintiff invited me to award the plaintiff between $10,000 and $40,000 in damages, which included a measure of aggravated damages.

213 However the facts in Plenty v Dillon are somewhat different to those here. In that case the police deliberately entered the appellant’s land against the express wishes of the appellant. In the current matter the actual entry was lawful but became unlawful when there was a breach of implied terms of the licence by the Chief Inspector in acting contrary to the plaintiff’s own legal right. The interference with the plaintiff’s legal right was not as grievous as was the right in Plenty v Dillon. True it is that the police did enter with the panoply of the State on their person in their uniform and appointments, which is something that the common law has traditionally viewed with great disdain. However it has to be acknowledged in this case that if the police did not do what they did at 9am on 7 July 2001 it would have had to be have been done some time shortly thereafter, either late in the afternoon of that day or on the following day. The plaintiff made it clear that he was staying in possession even at the expiration of his landlord’s own possession of the property. The police view as to the plaintiff’s legal rights was erroneous but equally the plaintiff’s own view of his legal rights was erroneous.

214 Doing the best I can, I believe in the award of $5,000 general damages is appropriate in this case with no further provision that ought be made for interest.

215 I was just about to invite counsel to ask me if any further reasons for judgment were required but I omitted to point to a few matters which I have a note to do.

216 The first thing is that there is no tort of eviction, such was decided by the English Court of Appeal in Perera v Vandiyar [1953] 1All ER 1109. In that case on 8 October 1952 the landlord of a flat which was subject to the Rent Restriction Act cut off the supply of gas and electricity to the flat with the object of inducing the statutory tenant to leave. As a result, the tenant was forced to move out of the flat and to live elsewhere until the services were restored on 15 October. In an action by the tenant against the landlord for damages of breach of implied covenant of quiet enjoyment and for eviction, the plaintiff obtained an award of damages of fifty-three pounds and ten shillings from the County Court at Wandsworth. Of that sum, twenty-five pounds was assessed as punitive damages in respect of the eviction. That award of twenty-five pounds punitive damages was set aside by the Court of Appeal, which comprised Sir Raymond Evershed MR and Birkett and Romer LJJ. Their Lordships clearly disapproved of the deliberate actions of the landlord in cutting off the gas and the electricity but held that there was no tort of eviction as such and that the twenty-five pounds punitive damages ought not to have been awarded. The tenant’s only remedy was in damages for breach of contract. They distinguished other cases where the eviction amounted to a trespass such as the landlord’s entering upon the tenement and removing the windows and doors, such that the property itself became uninhabitable. The plaintiff’s remedy in this case is not for eviction but with the interference in his legal dominion over the tenement, that is, when the police directed him to leave when he was entitled to stay.

217 Two other small points which I should make are these. Prior to the expiry of the lease, the plaintiff himself acknowledged that it was going to expire and that the Kellehers were leaving because he asked the Kellehers to use up his $200 bond money as rent for the final two weeks of their tenure. This appears to be an acceptance by the plaintiff that the tenure of the Kellehers was to end and he ought to have realised that therefore his tenure would also end. Furthermore the evidence of Mr Jason Kelleher is that he would discuss from time to time with the plaintiff, his attempts to find alternative accommodation and the plaintiff told Mr Kelleher that he was finding it difficult. Here gave this evidence commencing at 265:

“Q. Did you ever think to ask him what he meant by his words to Danielle, that it didn’t concern him?
A. No. No, I didn’t, no. All I kept in touch with him after, and he, offered him alternative accommodation. And he, he turned it down. I said to him, how are you going, I just kept in touch with him on a regular basis, how are you going finding somewhere to live. And he goes, you know, it’s difficult, it’s not easy, I don’t have the time, which I thought a bit strange because he was unemployed, well, I presume he was unemployed at the time.

Q. And at that point in time when you had that conversation with him--
A. I had that conversation with him on a regular basis on a few times, just seeing how he was going finding alternative accommodation.”

Again seeking alternative accommodation appears to acknowledge that the plaintiff was then admitting that his tenure as a tenant would come to an end. It appears that it was the plaintiff’s failure to obtain suitable alternative accommodation that caused him to decide that he would say in possession, irrespective of the fact that the Kellehers were leaving. Again in my view that points to the plaintiff’s accepting for some time that he would have to move but then perhaps changing his mind because of some personal necessity. Perhaps it was a lack of money. I do not know. It would only be a matter for speculation.

218 I have invited counsel as to whether any further reasons for judgment are required. Mr Austin for the plaintiff asked me to make findings about ejectment. I do not believe it appropriate to make any findings about ejectment because, on my view of it, as I stated yesterday, the tort has never been pleaded and nor was it ever raised by anybody until I raised it prior to commencing judgment yesterday. In my view the application concerning ejectment was is another classic example of counsel clutching at straws.

AUSTIN: Your Honour suggested it, not me.

HIS HONOUR: To that last statement I have received a riposte in good humour, I must say, from Mr Austin that it was I who raised the straw. It was perhaps the Court throwing counsel a lifeline. But the lifeline could not be taken up because it would have caused irrevocable prejudice to the defendant.

219 For those reasons I give verdict and judgment to the plaintiff against the first defendant for $5000. I will hear counsel on the question of costs.

220 I have now heard counsel on the question of costs. As I have had cause to remark on numerous earlier occasions, nothing can arouse the ardour and the zeal of legal practitioners more than an argument about costs. However the first issue is not contentious. Yesterday I gave judgment for the plaintiff against the third and fourth defendants for $50 and ordered the plaintiff to pay the third and fourth defendants’ costs. Material has now been put before me which enables me to assess the costs of the third and fourth defendants. Their only claim for costs is their claim for loss of wages whilst they were present in Court. Mr Jason Kelleher was present in Court for seven days and Danielle Kelleher was present in Court for eight days.

221 Their wage slips have been put before me, I have marked them exhibit 11. At the conclusion of my reasons exhibit 11 will be returned to the solicitor for the first defendant, on her receipt therefore and her undertaking to return IT to the Court if called upon to do so, Which undertaking I note has been given by the solicitor instructing Mr Hutchings.

222 The total of the costs of the third and fourth defendants is $2184.39. Accordingly I assess the costs for the third and fourth defendants to be $2184.39. I order the plaintiff to pay to the third and fourth defendants that sum in satisfaction of the costs order I made yesterday.

223 I now turn to the question of costs as between the plaintiff and the first defendant. The plaintiff asked that costs follow the event but his counsel has very properly conceded that there are special circumstances in the current matter which might cause me to vary the usual order. The first defendant has asked that the plaintiff pay the first defendant’s costs or, in the alternative, that each of the plaintiff and the first defendant pay their own costs of the plaintiff’s action against the first defendant.

224 The first thing to note is that the plaintiff has succeeded in obtaining damages in the sum of $5000 for trespass to land, a cause of action which is actionable per se without proof of damage. For reasons I have already given I declined to order any compensatory damages and because the plaintiff had failed to establish firstly that he is a person of normal fortitude, secondly because the alleged medical conditions suffered by him were the natural and probable consequence of the tort committed, and thirdly because I was not satisfied as to causal nexus between any of the plaintiff’s complaints and the tort which I found.

225 The reasons for departing from the normal costs order are these: firstly, the plaintiff was unsuccessful in his claim for compensatory damages for reasons I have just given. In particular the credit of the plaintiff was very successfully challenged and I held that he was not either reliable or honest, and there had been an attempt by the plaintiff to attribute a number of ailments to the circumstances he alleged on 7 July 2001, which attribution was quite false. In the course of seeking to establish that, he had made a number of misrepresentations to medical practitioners. That that is a consideration that the Court can take into account has been made the subject of comment of Ipp AJA in Arian v Nguyen [2001] NSW CA 5.

226 Secondly, it is to be recalled that the plaintiff claimed against the State of New South Wales damages for not only trespass to land, but also for the torts of assault and intimidation. There was no evidence which could properly justify either of those causes of action. Learned counsel for the plaintiff withdrew the claim of intimidation on the third day of hearing but the claim of damages for assault was only withdrawn on the seventh day of hearing, during the course of the address of counsel for the plaintiff in reply. It certainly was still being agitated by the plaintiff in his primary written submissions.

227 The written submissions concerning the tort of assault are paras 40 to 43 of the plaintiff’s primary written submissions and the claim for damages extends from paras 44 to 56, approximately five pages.

228 I could order that the plaintiff pay the first defendant’s costs of preparing its defence and defending the claims in intimidation and assault but it appears to me that that is not an appropriate course of action to take in the current matter, but the fact that the plaintiff alleged causes of action which could not be sustained, and only withdrew them during the course of the trial, must be taken into account.

229 The third thing to bear in mind is that the plaintiff’s claim against the first defendant was for unspecified general damages, that is the upper limit of the Court’s jurisdiction, $750,000 plus interest and costs. The plaintiff has recovered the sum of $5000. He could have pursued his remedy more cheaply and as I understand it more swiftly by bringing proceedings against the State of New South Wales in the Local Court.

230 At one stage the rules of this Court would not have permitted the recovery of a costs order where damages of that magnitude were awarded but such is not the position since the coming into force of the Civil Procedure Act 2005. However, there must be some power in a Court to try to ensure that proceedings are commenced in the appropriate tribunal. It is not appropriate that claims of a small nature be litigated in this Court or for example in the Supreme Court.

231 Rather than severing issues it was suggested at first that I should make an order limiting the amount of costs that the plaintiff could recover. However, the authorities make it clear that that must be done in a principled way and the Court would need to consider actual bills of costs and fees agreements and the like, in order to make an appropriate limiting order. That is also an inappropriate way of proceeding.

232 In my view the appropriate order is that the first defendant should pay a proportion of the plaintiff’s costs and it appears to me that the appropriate portion is one third.

233 Accordingly I order the first defendant to pay one third of the plaintiff’s costs of his action against the first defendant. No other orders sought?

234 The first defendant now asks me to enter judgment in its favour in respect of the torts of intimidation and assault which were alleged in the statement of claim but not proceeded with. There is no objection to that course of action by counsel for the plaintiff, it being agreed between counsel that the entry of those judgments will not be used in any further costs argument. No doubt the State seeks the entry of those judgments in order to vindicate the rights of the policemen for whom it is vicariously liable. In the circumstances it appears to me to be the appropriate course of conduct and one which is not resisted by counsel for the plaintiff.

235 Accordingly on the plaintiff’s claim against the State of New South Wales for damages for assault there will be a verdict and judgment for the defendant. On the plaintiff’s case against the State of New South Wales for intimidation by members of the police force against the plaintiff there will be a verdict and judgment for the defendant.

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