Vignoli v Sydney Harbour Casino
[1999] NSWSC 1113
•22 November 1999
Reported Decision: (2000) Aust Torts Reports 81-541
New South Wales
Supreme Court
CITATION: Walter Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): 20875/96 HEARING DATE(S): 10,11 and 12 November 1999. JUDGMENT DATE:
22 November 1999PARTIES :
Walter Vignoli (Plaintiff)
Sydney Harbour Casino Pty Ltd (First Defendant)JUDGMENT OF: Bergin J
COUNSEL : B.W. Collins QC/T.D.F. Hughes (Plaintiff)
F.S. McAlary QC/Ms L. McCallum (Defendant)SOLICITORS: Nicholas G Pappas & Co (Plaintiff)
Dunhill Madden Butler (Defendant)CATCHWORDS: False Imprisonment of a patron at the Casino in relation to a dispute in respect of an overpayment to him by the Casino; Assessment of Damages; Compensatory damages; Aggravated damages awarded for lack of bona fides in persisting in an unjustifiable defence for a period of three years. Exemplary damages awarded - conscious and contumelious disregard of the plaintiff's rights - objectively conduct by the defendant high-handed deserving of curial disapprobation. ACTS CITED: Defamation Act 1974 CASES CITED: Cassell & Co Ltd v Broome (1972) AC 1027;
Spautz v Butterworth (1996) 41 NSWLR 1;
McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust. Torts Reports 62,682;
Woolley v Phillips (unreported NSWSC CA Clarke, Sheller & Cole JJA 26 August 1996);
Walter v Alltools Limited (1994) 171 LTR 371;
Myer Stores Ltd v Soo (1991) 2 VR 597;
XL Petroleum (NSW) v Caltex Oil (Australia) P/L (1985) 155 CLR 448;
Lamb v Cotogno (1987) 164 CLR 1;
Gray v Motor Accident Commission (1998) 73 ALJR 45.
McGregor on Damages 15th Ed.DECISION: Compensatory Damages par 123; Aggravated Damages par 140; Exemplary Damages 162; 163.
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONBERGIN J
DATE: 22 NOVEMBER 1999
20875/96 - WALTER VIGNOLI v SYDNEY HARBOUR CASINO PTY LTD
JUDGMENT
1 This is an assessment of damages arising out of an action brought by the plaintiff, Walter Vignoli, against the Sydney Harbour Casino Pty Limited (the Casino) for false imprisonment arising out of events which occurred on Thursday 20 June, l996 at the Casino.
2 The matter was commenced by way of Statement of Claim filed in August 1996 and liability was admitted on 25 October, l999. The matter was heard by me on 10,11 & 12 November, l999 when Mr B W Collins QC leading Mr T Hughes of counsel appeared for the plaintiff and Mr F S McAlary QC leading Ms L McCallum of counsel appeared for the defendant.
The Plaintiff
3 The plaintiff came to Australia from Uruguay in August 1972. After working as a welder and studying English five nights a week he had made enough money by 1975 to purchase his first business, a kiosk in the Royal South Sydney Hospital at Zetland. He sold that business in 1980 and acquired a laundromat in East Sydney. He also purchased an Italian restaurant, Il Bolognese, which he operated with his wife at the same time as operating the laundromat.
4 In 1983 the plaintiff acquired a chicken shop in the Lindfield Arcade where he worked six days a week. By 1985 he was in a position to purchase his first home in Turramurra with the assistance of a bank loan.
5 In 1988 the plaintiff sold the business in Lindfield and it was during this year that he also invested in property in Queensland. At about this time his marriage broke up and his wife returned to Uruguay. In 1990 he purchased his current business which is a delicatessen in Willoughby. In 1994 he met his partner, Mary Bryant, with whom he lives. Ms Bryant manages the delicatessen.
6 The plaintiff said that from an early age he has always enjoyed gambling. He regards it as his only pastime. He described it with warmth indicating that he was proud to become a member of what is known as the Endeavour Club at the Casino. The plaintiff said it was a club for “special players”. The Endeavour Club provides special benefits to its members including the capacity to place larger bets than non-members, free dining in the restaurant and free parking in the special car park for Endeavour Club members. The members are able to gamble in the Endeavour Room but are also able to attend the general area of the Casino should they wish to gamble in that area.
7 Other benefits include invitations to special functions at the Casino and participation in special promotions. The plaintiff was advised by letter of 12 June 1996, sent to his home, of one such special promotion known as the “Casino Gold Giveaway”. This letter was from the VIP Service Director, Mr Keith Lamb, and advised the plaintiff of the method by which he could have the chance of winning $25,000 and/or $200,000 in gold bullion. There was also reference to a recent promotion known as the “BMW Giveaway”.
8 Prior to 20 June 1996 it was the plaintiff’s habit to gamble at the Casino about four or five times a week. He had received his winnings both in cash and by cheque. On occasions he had been overpaid and had repaid amounts when requested. On one occasion in December 1995 a Pit Manager identified only as Ken with badge number 121 informed the plaintiff that he had been overpaid $2,000.
9 The plaintiff asked the Pit Manager if he could see the video and was informed that it was not the policy of the Casino to show patrons the videos. He said that he paid the $2,000 back on that occasion without pressing to see the video because he was playing $15,000 at two tables and he did not want to lose concentration.
Late afternoon to 6pm
The Events of 20 June 1996
10 In the late afternoon of Thursday 20 June 1996, the plaintiff was at the office of his solicitor, Mr Stewart Levitt, in Castlereagh Street Sydney. Mr Levitt was running a little behind schedule for his appointments for the day and the plaintiff decided to go to the Casino rather than sit and wait in Mr Levitt’s waiting room.
11 At the Casino the plaintiff gambled on roulette tables 29 and 30. These roulette tables were adjacent to each other and the plaintiff placed numerous bets on both tables, the wheels of which were spun every few minutes but not simultaneously.
12 At each table there is a dealer and a supervisor. A Pit Manager supervises the roulette tables and also other tables, including blackjack, in the designated area.
13 After playing the roulette tables for about an hour and just before 6 pm the plaintiff used his mobile phone to telephone the receptionist at Mr Levitt’s office to find out how many people were by then waiting to see Mr Levitt. He was informed that nobody else was waiting to see Mr Levitt at that time so he decided to return to Mr Levitt’s office to see him. He then placed his final bets but did not win anything on this final spin of the wheel.
The Overpayment
14 Prior to moving from the tables to cash in his chips the plaintiff was approached by a supervisor who informed him that there had been an overpayment of $1,250 made to him 20 minutes earlier which had been observed on video. He informed the supervisor that he could not remember how many chips he had been given 20 minutes earlier but that he was happy to give the $1,250 to the Casino if he could see the video to confirm the overpayment had occurred.
15 The plaintiff was informed that it was not the policy to show patrons the video which brought a response from him that if he was unable to see the video he was not going to pay the claimed amount to the Casino.
16 The plaintiff then moved away from the tables and went to the cashier and cashed in his chips. At approximately 6 pm he then approached the door leading to the car park.
Mr Vignoli’s first attempt to leave at 6pm
17 At the exit door of the Casino a security officer said to the plaintiff “Please wait here. The manager would like to talk to you.” He was then approached by the Pit Manager who told him that he had been overpaid $1,250. The plaintiff responded "I have no idea if I have been overpaid. I have been informed by your supervisor about that. I already told your supervisor that I will be very happy to give you your money back if you in fact show me where the overpayment occurred and how many chips I was paid”
18 The Pit Manager informed the plaintiff that it was against Casino policy to show videos to patrons. The Pit Manager then called another officer of the Casino over to join them. That officer, Mr Toole, who had first made the plaintiff’s acquaintance at Jupiters Casino some years earlier then moved with the plaintiff some distance back from the exit doors of the Casino to an area in the foyer where there were a number of seats. A conversation then ensued in which Mr Toole said to the plaintiff ‘Walter we have known each other for a long time, I know you from Jupiters, you are an honest man, just give us the money back”.
19 The plaintiff responded that it was true that they had known each other for a long time but he wanted to ascertain if he had in fact been overpaid and requested Mr Toole to organise a viewing of the video. The plaintiff informed Mr Toole that he had to leave at that time to attend an important appointment with his solicitor. He said that he was at the Casino almost every day and that Mr Toole knew who he was and where he was and he said “please allow me to go”.
20 Mr Toole declined to show the plaintiff the video and told him that he should not leave with the money. The plaintiff said “Am I under arrest here? Are you keeping me here against my will?” to which Mr Toole responded “no, no, you can leave, you are not under arrest, that is something I do not want to do”. The plaintiff then started walking towards the exit door of the Casino.
Mr Vignoli’s second attempt to leave at 6 15 pm
21 As the plaintiff walked towards the door no less than six Casino employees walked parallel to and around him as he approached and was stopped by the security officer at the door. That officer blocked the plaintiff’s path and took what could be reasonably described as an aggressive stance in front of him and told him he was not leaving. The other six employees then took up positions in a wide circle around the plaintiff who was then approached again by Mr Toole and another Casino employee, Mr Vail.
22 Mr Toole then escorted the plaintiff back from the exit door to another man standing back in the foyer. Mr Toole said “Walter, this is our boss, Vince” to which the man responded “I am not your boss, we do not work for each other, I am the government inspector”. During the conversation Vince (apparently Mr Vince Verzi) told the plaintiff that he was the government inspector and if he wished to make a complaint he, Mr Verzi, could watch the video on his behalf.
23 The plaintiff informed Mr Verzi that he wanted to see the video himself as it was not the first time that he had experienced problems with overpayments. He also informed Mr Verzi that he was late for an important appointment. He told him he could watch the video and tell him another day but he wanted to leave to keep his appointment.
Mr Vignoli taken to the Endeavour Room office at 6.20 pm
24 The plaintiff was then taken by Mr Toole and Mr Vail to an office in the Endeavour Room not far from the area where these discussions and manoeuvrings had been taking place. Mr Vail and Mr Toole left the plaintiff in the office with Mr Brant Bedwell, the Casino Manager, and Mr Keith Lamb, the VIP Service Director, to whom I have already referred.
25 Mr Bedwell said “Just give us $1,250 and you can leave immediately”. The plaintiff informed Mr Bedwell that he was not sure whether there had been an overpayment and he wanted to have a look at the video to confirm that an overpayment had occurred. Mr Bedwell informed him that there was a Casino policy that prohibited the showing of a video to a patron.
26 The following conversation then occurred;27 The government inspector then came into the office, handed the plaintiff his card and signalled to Mr Bedwell to go with him out of the office. The plaintiff and Mr Lamb were then alone in the office. The plaintiff gave the following evidence;
Mr Vignoli I’ve got the money in my pocket. Let’s find
a solution. Show me the video.
Mr Bedwell I already told you we don’t show the video to patrons.
Mr Vignoli Well you have in fact by now by the manners of your bouncers kept me here against my will. What are you going to do next? Are you going to get two or three bouncers hold me by the hands, …and take the money from me?
Mr Bedwell No the police will do that for us.
28 The following conversation then took place;
Mr Lamb says to me that he was so sorry, he just arrived at the Casino, that he wished he would have been there earlier on because he could see how upset I was and he apologised for what they have done to me.
29 Mr Bedwell then returned to the office and said;
Mr Lamb Look we don’t show videos to patrons but if you want me to I
can go and have a look personally.
Mr Vignoli Keith this has become a matter of principle now. I have been
held here against my will and I will seek legal advice regarding
this. How can you do this to me? You know the $1,250 is what I
give the girls in tips on a good night. How can you think I can
steal the money?
Mr Lamb I know the money isn’t an issue, Walter, it is just that we have to
follow rules.
30 The office in which Mr Lamb suggested the plaintiff wait was larger and more comfortable than the Investigation Room. However Mr Lamb’s suggestion was rejected silently by Mr Bedwell who left the room. Another Casino employee, Mr Dunn, entered the office and said to the plaintiff “You’re coming with us to the Investigation Room”.
Mr Vignoli, this is your last chance before I call the police and the police will charge you with stealing.
Mr Vignoli responded;
How can I be charged with stealing? You have told me that you have made an error, you have made a mistake, you allege that you overpaid me money, how can I be charged with stealing?
Mr Bedwell said;
Well the police are going to be called.
Mr Vignoli said;
Well, this is getting out of hand. This is really getting out of hand but if that’s the way that you want to proceed call the police, I’ve got nothing to fear, I haven’t stolen any money, I haven’t put my hand behind the roulette wheel and taken the chips.
Mr Bedwell said;
You are going to be taken to the investigation room and you are going to wait for the police in there.
Mr Lamb then said to Mr Bedwell;
Why don’t we wait for the police here.
Trip to the Investigation Room at 6.55pm
31 As the plaintiff left the office he was escorted by Mr Dunn and two uniformed security officers who were waiting outside the office when he emerged. The first part of the trip required him to walk the full length of the Endeavour Room which is probably a little less than the distance between Phillip Street and Macquarie Street at Queens Square. The plaintiff estimated that there would have be about fifty to sixty people whom he recognised as regular patrons in the Endeavour Room at this time.
32 Mr Dunn walked next to the plaintiff who fairly conceded in cross examination that the distance between them was “the distance most people are when they are walking along together”. The two security officers walked about five or six feet behind Mr Dunn and the plaintiff. This was the configuration until the plaintiff arrived at the men’s toilet near the lifts and turned right to enter that room.
33 Although Mr Dunn initially followed the plaintiff into the men’s toilet he emerged fairly quickly to stand in the corridor immediately outside the door. The two uniformed security officers (joined by a third for a short time) stood opposite Mr Dunn in the corridor opposite the men’s toilet door. Whist waiting they began to pace around outside the door and other patrons had to thread their way through this group awaiting the plaintiff’s return.
34 When the plaintiff emerged the trip continued to the lift where he objected to the presence of what he called the “bouncers”. He said “Why do you have to take me like this? You are taking me like a criminal. Why are you doing this? I am not going to run away, why can’t you come with me and leave these other two persons back?”
35 One of the security officers/bouncers told him not to worry because they were only going as far as the lift and Mr Dunn would escort him for the remainder of the trip. However one of the security officers travelled with Mr Dunn and the plaintiff in the lift with another patron who had been observing the plaintiff’s discussion with the security officer.
36 Inconsistently with what he had just been told, when the lift arrived at the lower floor Mr Dunn once again walked with the plaintiff the full length of that floor and again with two security officers walking about five to six feet behind them. The plaintiff was then taken into the room designated as the Investigation Room and the security officers stood in the corridor outside.
The Investigation Room
7 pm to 10pm
37 When they reached the Investigation Room at approximately 7 pm Mr Dunn informed the plaintiff that “the police have just been called. I have no idea when the police will arrive. Sit down”. The plaintiff complied and sat down. He was provided with a cool soft drink and Mr Dunn asked him for his Players Card. He gave his card to Mr Dunn and said “This has really got out of hand hasn’t it?” to which Mr Dunn responded “Yes, it appears so”.
38 The Investigation Room is a small room. The dimensions were described by the plaintiff as two by two/three metres. It contained two chairs but when Mr Dunn sat down on the other chair there was only about two feet between the two men. Mr Dunn remained that close to the plaintiff while he made a call to his solicitor, Mr Levitt and while he called his partner Ms Bryant.
39 The plaintiff was then “guarded” by various officers of the Casino either sitting or standing in the room with him. There were also employees standing outside the Investigation Room door.
40 At about 8 pm the plaintiff needed to go to the toilet and a number of security staff said that they were going to escort him. He objected to this saying “look there’s no need for me to be taken to the bathroom. I don’t want to bolt out. Please let me go and I’m not going to leave this place”. The security officer responded “that’s not possible we have to go with you, but we are not going to get into the toilet with you, we are just going to wait outside the door”.
41 By this stage, 8 pm, the Casino was fairly crowded and it was necessary to walk the full length of the lower floor to attend the general public toilet on that level. The plaintiff was walked to the bathroom with one security guard on his right and two others nearby. The security guards then waited outside the door for the plaintiff to return and escorted him back to the Investigation Room.
42 At about 8.30 pm two police officers arrived and informed the plaintiff that they had been called in by the Government Inspector and an accusation of stealing had been made against him. They asked the plaintiff to sit down whilst they obtained further information from the Casino staff.
43 At this stage the plaintiff telephoned his solicitor again who asked to speak with the police officers.
44 At about 8.45 pm the police returned to the Investigation Room and informed the plaintiff that there was an allegation that he had been overpaid $1250. He then informed the police that he had not stolen anything and that he only wanted to verify what had happened by looking at the video.
45 The plaintiff then telephoned Mr Levitt again and handed the telephone to one of the police officers who spoke to Mr Levitt. At the conclusion of that conversation the police informed the plaintiff that they were going to wait until Mr Levitt arrived before anything further occurred.
46 After this conversation the plaintiff again needed to attend the bathroom. Once again he was escorted by the security officers. On his return to the Investigation Room Mr Levitt telephoned the plaintiff to inform him that he was only three minutes from the Casino and that he would be there soon.
47 Mr Bedwell then came into the Investigation Room and said to the plaintiff “this is your last chance before the police charge you with stealing. If you don’t give us the money now in addition to that I will ban you from the Casino for twelve months. So I advise you to pay the money immediately”. He responded “the way you have treated me today I’m not going to be in a hurry to come back to the Casino and like I said before, I’m not going to give you the money back until I can verify your overpayment.” Mr Bedwell then said “well, you have been informed by us and by the Government Inspector that an overpayment has occurred.” The plaintiff responded “I haven’t been informed and I would like to repeat this, I haven’t been informed by any Government Inspector that an overpayment has occurred”. Mr Bedwell then said that he would get the Government Inspector to come in immediately.
48 A Government Inspector, Mr Stacey Gaviry then attended the Investigation Room. After some discussion about the whereabouts of the Government Inspector who had spoken to the plaintiff earlier in the evening, Mr Gaviry said that he would look at the video. The plaintiff said “by all means have a look at the video and tell me”.
Mr Levitt’s arrival at the Casino
49 Mr Levitt arrived at the Casino at approximately 9.25 pm. On his arrival at the Casino he spoke to two people at the front door of the Casino who appeared to him to be security guards. He said “I’m a solicitor. I want to see my client who I understand is being detained and maybe being interviewed by police. His name is Mr Vignoli. Could you show me where he is?” The security officer then appeared to speak on what Mr Levitt described as a “walkie-talkie” and then said to Mr Levitt “you can’t come in until the Casino officials have finished talking to him”.
50 This understandably precipitated an objection from Mr Levitt who then informed the security officer that he wrote a column in an Eastern Suburbs publication and that he would give the fact that he had been prevented from seeing his client some publicity. The security officer then “laughed and smirked” and Mr Levitt then said “if you don’t think much of the Messenger how about the Herald? I will ensure that this gets all the publicity it deserves that you denied me access to my client.”
51 By this stage the plaintiff had been visited by the Government Inspector again whom he had asked to wait for Mr Levitt’s arrival so that he could discuss the matter in his presence. Mr Bedwell and Mr Dunn then came to the Investigation Room whilst the plaintiff was on the telephone to Mr Levitt who had telephoned him to ask him whether he minded him contacting the Sydney Morning Herald as he was not being permitted access to see him. The plaintiff informed Mr Levitt that it was up to him to do whatever it took to obtain access to him.
52 The plaintiff mentioned the Sydney Morning Herald whilst he was on the telephone and it was during this call that the Government Inspector left the Investigation Room and Mr Dunn and Mr Bedwell also departed. When the call was finished Mr Dunn came into the Investigation Room and said to Mr Vignoli “nobody is stopping your lawyer from coming in here. He is coming right now. He is coming right now.” At approximately 10 pm Mr Levitt was permitted access to the plaintiff. He had waited from approximately 9.25 pm although there had been a five minute delay while Mr Levitt was on the telephone to the SMH journalist.
Finding an interim solution 10 pm to 12.30 am
53 Mr Levitt made offers to the Casino in an attempt to find an interim solution whilst the dispute was further explored. They included an offer that the money be placed in a joint trust account of Mr Levitt and the Casino’s solicitor and an offer that the money be placed into a trust account under the control of the Casino’s solicitor.
54 Although the actual discussions did not take a great deal of time there were “periods of stand offs” which were long intervals. These offers were rejected and the Casino staff informed Mr Levitt that once the money was paid to the Casino it would go back onto the tables.
55 In cross examination Mr Levitt gave evidence that “all the propositions were coming from me, so I would put a proposition, they would come back” and reject it and “I would have to think of another proposition”. He said there were delays between him coming up with a proposition and with “cooling off periods in between”.
56 By about midnight it was agreed that the police would hold the money as “stakeholders” until the dispute about whether there had been an overpayment could be settled or finalised in some way.
Surveillance Video
57 The majority of the events involving the plaintiff at the Casino from 5pm until 10.40 pm on 20 June 1996 were captured on the surveillance video. (Ex. C & D) There was no film of the meeting with Messrs Lamb and Bedwell in the office in the Endeavour Room before the plaintiff was taken to the Investigation Room on the lower floor. The film only captured the entry into and exit from that office.
58 There was no film of the plaintiff being escorted to and from the men’s toilet during the period he was in the Investigation Room although the “guarding” of the door at the men’s toilet in the Endeavour Room was captured on film as the group escorted the plaintiff from the Endeavour Room to the Investigation Room.
59 Although the plaintiff was always “guarded” by at least one Casino employee either standing or sitting with him his every action was filmed as he sat or stood in the small “bland” Investigation Room during the hours of his false imprisonment.
60 At no time on 20 June 1996 was the plaintiff or his solicitor, Mr Levitt informed that they were being filmed.
Meeting with Mr Lamb and viewing the overpayment video
61 Some days after 20 June 1996 at the plaintiff’s request he had a meeting with Mr Lamb in the Endeavour Room at which time he informed Mr Lamb that he was very upset and that he felt that he had been treated unfairly. Mr Lamb apologised to the plaintiff and informed him that it was his intention to resolve the matter as amicably as possible as the plaintiff was a valued client. Mr Lamb informed him that although the Casino wanted the $1250 back it wanted to keep the plaintiff as a patron.
62 Mr Lamb asked the plaintiff if there was anything he could do to which he responded that he would like to see the video. Mr Lamb advised him that he would see if he could get “an exception” for him to view the video from Mr Arbuckle, who held the title Vice President Table Games, and Mr Bedwell.
63 After this meeting Mr Lamb organised for the plaintiff to view the video and on 27 June 1996 he attended the Casino with Mr Levitt and viewed the video. It took only five minutes to ascertain that an overpayment had occurred after which the plaintiff informed the Casino that he would return the money.
Apology
64 There is no doubt that Mr Lamb apologised to the plaintiff on 20 June 1996. He also apologised to him when he went to see him at the Endeavour Room some days later.
65 On 5 July 1996 Mr Arbuckle wrote the following letter to the plaintiff;
Thank you for taking the time to meet with Sydney Harbour Casino today. As indicated at the meeting, we wish to make it clear that we deeply regret the series of events which occurred on the evening of 20 June.
There is no doubt that one of our staff made the initial mistake in overpaying you and for that I apologise. In the absence of that mistake, we would not be where we are today. However, in a business such as Sydney Harbour Casino where so many hands are dealt each day, some mistakes are going to occur. It is our job to ensure that mistakes of this type are minimised. Indeed, it is crucial that these issues are dealt with promptly, sensitively and with minimum inconvenience to the customer.
Whilst we are still investigating the matter and interviewing all staff involved, I acknowledge your concern about being at the casino on that evening for such a long time. As I understand it, genuine attempts were being made to find a solution. There were a number of people involved, including the police, who all contributed to the situation in some part. To the extent that Sydney Harbour Casino contributed to the delay, I apologise on behalf of the company.
Please be assured that it is never the intention of the Sydney Harbour Casino to cause any of our customers embarrassment for incidents such as these. We believe it is most unfortunate that the matter was not resolved quickly and amicably, without the involvement of third parties. In fact, Sydney Harbour Casino will be taking steps to ensure that any similar incidents which occur in the future are handled in a way which will be satisfactory to both the company and customer.
Finally, I would like to thank you for agreeing to the return of the payment in question and look forward to receiving the final authorisation form so this matter can be put behind us.
Thank you again for your patience in this matter.
66 Mr Collins QC submits that the letter is really a piece of special pleading. He submits the Casino has chosen its words very carefully and has attempted to spread the blame for the length of time the plaintiff was held at the Casino and that this is really a “mealy mouthed non-apology”.
67 Mr McAlary QC on the other hand submitted that this letter must be taken into account as an apology and one should not be dissecting it to see whether the word “sorry” was used as opposed to the word “regret”. Mr McAlary QC submitted that on a proper analysis of the letter I would be satisfied that it is a formal acknowledgment of the expression of regret and apology that had already been proffered by Mr Lamb at the meeting with the plaintiff in the Endeavour Room some days after 20 June 1996.
Sydney Morning Herald Article
68 Although neither the plaintiff nor Mr Levitt were asked in evidence about the detail of any communications with any journalist or employee of the Sydney Morning Herald (SMH) Mr Levitt gave evience that he did telephone the SMH when he was at the front door of the Casino on 20 June 1996 trying to obtain access to Mr Vignoli. It is also apparent that some further communication occurred which resulted in an article being published in the SMH on Saturday 22 June 1996. That article was entitled “Casino high-roller held in wrangle over roulette” written by journalist Peter Cornford.
69 Mr Peter Grimshaw, a Casino employee, who was contacted by Mr Cornford prior to the publication of the article provided information to the SMH in the hope that the Casino’s side of the story would be published and that it would get a “fair go”. Mr Grimshaw read the article and although he did not know whether (but could not deny that) he used the words “of course” he considered the article to be “in effect” correct.
70 The article reported that;71 The article also contained quotes attributed to Mr Vignoli whose photograph also appeared, apparently in his delicatessen, with the caption “Mr Vignoli…I was denied natural justice and proof”.
The casino defends its actions. “He had been overpaid, he was trying to leave with the money,” a spokesman said. “Of course we stopped him”.
The casino spokesman said: “An independent authority adjudicated, we were satisfied the money was ours. We don’t show the video because it would put enormous stress on our security system if the resources were frivolously misused by clients”.
Conduct up to trial
72 On 28 June 1996 Mr Levitt wrote to the General Manager of the Casino advising him of his client’s appreciation of the meeting the previous evening to view the videotape of the overpayment. Mr Levitt referred to a number of other matters which included a claim that the plaintiff was falsely imprisoned. The letter sought a response from the Casino as to the “sum you are prepared to pay by way of out-of-Court settlement, as compensation” for a variety of matters but including the false imprisonment of the plaintiff.
73 Mr Grimshaw was asked by Mr Bill Brown, another Casino employee, for his thoughts on how the Casino might “go about resolving” the “Vignoli matter”. In an internal Casino memorandum of 4 July 1996 Mr Grimshaw suggested his “preferred course” was as follows;74 Another internal memorandum of the Casino dated 11 July 1996 between Bill Brown and other Casino employees including Messrs Arbuckle and Lamb dealt with the issue of whether the Casino’s “complaint to the police” should be withdrawn. Mr Brown expressed the following view;
1. Negotiate - obviously it would be best if we could appease him and get him to drop all legal action. Paul Arbuckle and Keith Lamb would know him best but I would have thought it would be best if these guys and Wes could have dinner with him and try to woo him back to the fold.
2. If it appears that he will accept a minor settlement it would probably be in our interests to give it to him rather than this drag on. But I would be reluctant to offer him much.
3. Pressure - if the negotiations are not working I think we should suggest to him that we are considering launching a counter legal action for the damage he has caused us. After all, the tape confirmed everything we said… that he was overpaid. And he was the one who did not want the government inspector to adjudicate. This resulted in very damaging material in the Herald about the casino.
My own experience is that people are much less inclined to pursue these types of actions if there is a threat that they may lose some of their own money.
And he would be aware that we have the resources to secure a strong legal team.
In relation to the media aspects he raises it is amazing that he is upset that his embarrassment was aggravated by having his photo in the paper. HE ACTUALLY POSED FOR THE PHOTO IN HIS DELI.. THAT’S WHY IT WAS IN THE PAPER. And it was his solicitor who took the issue up with the media in the first place. Only a very small number of people (those in the PGR at the time) would have known about the event if he did not try to get the story in the media. Certainly (the Casino) never sought any media coverage.
We should hold off on withdrawing the complaint pending:
(a) return of the money, as promised by Vignoli; and
(b) Vignoli’s institution of legal action, or his confirmation that
I think that Mike D’Arcy should make that decision, after consultation with Paul Arbuckle and then convey (the Casino’s) position on the complaint to the police.
he will not do so.75 On 31 July 1996 the Casino responded to Mr Levitt’s 28 June letter in which;
· it denied that there was any basis for the allegation made by Mr Levitt that he and Mr Vignoli’s movements and conversations were observed without their authority or permission;
· denied Mr Levitt’s allegation that Mr Vignoli was denied legal representation;
· denied Mr Levitt’s allegation that efforts were made to prevent him, as Mr Vignoli’s lawyer, from entering the casino;
· claimed that Mr Vignoli was “treated with courtesy and asked at all times whether he would proceed with staff from one place to another”;
· concluded that there was “no basis for any claim that your client was on the evening concerned falsely imprisoned” or “publicly humiliated” and advised that if legal proceedings were commenced “this letter together with Mr Arbuckle’s letter” of 5 July 1996 “will be produced in evidence”.
76 The plaintiff commenced proceedings for false imprisonment by way of Statement of Claim filed on 14 August 1996. On 29 November 1996 the Casino filed a defence denying each of the allegations pleaded in the Statement of Claim in respect of the facts and circumstances forming the basis for the claim. The defence also contained the following paragraph:77 That defence remained on the record for 3 years until 25 October 1999 when the Casino’s solicitors wrote to the plaintiff’s solicitors advising that the Casino was not contesting liability for false imprisonment.
10. In answer to the whole of the claim for false imprisonment pleaded in paragraphs 10 to 28 of the Statement of Claim, the First Defendant says that any detention of the Plaintiff (which is denied) was lawful because of the reasonable belief of servants or agents of the First Defendant that the Plaintiff was appropriating or attempting to appropriate money owned by the First Defendant for his own use contrary to Section 117 of the Crimes Act 1900”.
Effect on Mr Vignoli
78 The plaintiff gave evidence that he had never been placed in such a situation before in his life. As he was walking through the Casino and as he was being “guarded” as he went to the toilet he “felt that people were talking about” him and that “they see something was happening with me, something was going on with me that I was taken”. He felt that people thought that he must have done something terrible to be treated like that. He said that he was terribly embarrassed and terribly unhappy in being in such a situation.
79 He said that he was “numb” and he just couldn’t understand what had happened to his “pride, my dignity, everything that all my life I have worked for has been walked all over”. He said he felt like a criminal.
80 The plaintiff’s mental anguish, pleaded as “ great anxiety” in the Amended Statement of Claim (par 25), continued for some months. In an effort to ease this problem he attended his general practitioner who prescribed some medication and the problem resolved, on the plaintiff’s estimate, about 12 months after the incident.
81 Although, as I have already said, it was the plaintiff’s habit to attend the Casino four or five times a week he could not bring himself to return to the Endeavour Club until late September 1996. He attended about three times in that month but did not attend at all in October. He attended five times in November and thereafter was able to resume his usual pattern of gambling at the Casino. I am satisfied that his deep humiliation and feeling of disgrace was the reason he could not bring himself to attend his Club at the Casino until later in 1996.
82 Other evidence called on his behalf included evidence from his partner Mary Bryant. Ms Bryant told me that on the evening in the early morning of 21 June 1996 when the plaintiff returned home she observed him to be very distressed. She said that prior to this incident he was a quietly spoken, gentle, happy person. On the night of the incident she observed that he didn’t sleep well and he was tossing and turning, suffering hot sweats and he appeared to be very nervous.
83 For some months after the incident she noticed a marked change in him in that he became short-tempered, moody and snappy. She noticed that he was dealing abruptly with the clientele at the delicatessen and observed that his whole attitude seemed to have changed. He lost weight and couldn’t sleep properly. She told me that he did not begin to return to his old self until about nine months after the incident.
84 Further evidence was called from the plaintiff’s stepdaughter Banu Attahan. She described her stepfather as a funny, happy, easy going man. However any time that the incident at the Casino was discussed she noticed that he became very upset, withdrawn and distracted. She described him as a proud person and said that this incident had caused him a lot of embarrassment. She too spoke of the plaintiff’s weight loss and was of the view that the incident had put a great deal of “stress” upon him and she felt that it had “aged him”.
85 Another witness Isobel Garcia who was employed at the delicatessen described the plaintiff as a nice, gentle employer. She said he was very polite and happy, very likeable and very courteous. After the incident on 20 June 1996 Ms Garcia observed that the plaintiff was very distressed and looked very withdrawn. She observed him to be snappy and he appeared quite sad. She observed that he was “not holding it together” and had to have some time off a couple of weeks after the incident.
86 On arrival at the Investigation Room at approximately 10 pm on 20 June 1996 Mr Levitt observed the plaintiff to be sweating profusely and very agitated. He noticed that he gesticulated a lot and also jumped around a lot. He also noticed that he exhibited twitchy facial movements in particular around the mouth. After the interim resolution was reached and they departed from the Investigation Room area at 12.30 am he observed that although he seemed to be relieved to be out of the Investigation Room he also appeared to be exhausted and upset.
General or Compensatory Damages
87 The plaintiff claims general or compensatory damages for the harm caused to him by the wrongful acts of the defendant in falsely imprisoning him. These damages are to compensate him for the injury to liberty (the loss of time considered primarily from a non-pecuniary viewpoint) and the injury to feelings ( the indignity, the mental suffering, disgrace and humiliation) caused by the false imprisonment. Cassell & Co Ltd v Broome (1972) AC 1027 at 1124; McGregor on Damages 15th Ed. par 1619.
88 It is important to delineate between circumstances in which compensatory damages may be increased by the conduct of the defendant and circumstances which would justify an award of aggravated damages.
89 In assessing the general or compensatory damages in this case it is proper “to take into account the whole of the conduct of the defendant to the time of verdict”. Matters such as “the indignity, mental suffering, disgrace and humiliation” are to be included in the assessment together with any conduct by the Casino which “had the effect of increasing the injury” to the plaintiff’s feelings. This is quite separate from aggravated damages the pre-requisite for which is proof by the plaintiff of conduct by the defendant which was not bona fide, or was improper or unjustifiable. Spautz v Butterworth (1996) 41 NSWLR 1 per Clarke JA at 17G - 18E.
90 Mr McAlary QC submitted that in the light of Clarke JA’s judgment in Spautz v Butterworth (1996) 41 NSWLR 1 it was now “mandatory” in assessing damages in false imprisonment cases to “have regard” to other awards of damages “approved by” the Court for the purpose of reaching an assessment that ensures that the award will bear a proper relationship to the injury suffered.
91 Mr McAlary QC also referred me analagously to s 46A of the Defamation Act 1974, as amended, which requires the court in determining the amount of damages in defamation proceedings to “ensure” that there is an “appropriate and rational relationship between the relevant harm and the amount of damages awarded”. Mr McAlary QC delicately submitted that it was the legislature’s intention to remove the intrusion of eccentricities of trial judges and submitted that such an approach should be adopted in the assessment of damages for false imprisonment.
92 I disagree with the submission that Spautz v Butterworth is authority for the proposition for which Mr McAlary QC contends. I am of the view that Clarke JA’s focus was on what was “permissible” (at 13D-G) and there is nothing in his Honour’s judgment which I read as requiring me or, to use an American term, “mandating” me to compare awards of damages in false imprisonment cases which have been approved at appellate level with the circumstances of this case.
93 However I do agree that a proper principle by which I should be guided is that there should be an appropriate and rational relationship between the award of damages and the harm suffered by the plaintiff. I am also of the view that, although it is not mandatory, I am permitted to have regard to awards of damages “approved” by the Court. By that I mean awards approved by the Court of Appeal of this Court.
94 Both parties referred me to decisions at first instance of other courts. Lackersteen v Jones & Ors (1988) 92 FLR 6; Rixon v Sydney Harbour Casino (unreported NSW District Court, Garling DCJ 1 December 1997) However in line with what I regard Clarke JA to have said in Spautz v Butterworth I intend only to “have regard to” to those Court of Appeal cases to which I have been referred on this aspect of the matter.
95 In addition to Spautz V Butterworth I was referred to McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports 62,682 and Woolley v Phillips (unreported, NSWSC, Court of Appeal Clarke, Sheller and Cole JJA 26 August 1996).96 In Woolley v Phillips the appellant, Mrs Woolley, had been falsely imprisoned by the defendant police officers and had been subjected to assault and battery by them in her home. The police mistakenly believed that a person for whom they were searching was in the appellant’s home. The assault and battery consisted of threatening the appellant that she would be taken to the police station and charged and holding the appellant by the wrist and pulling her by the arm. There was no apology proffered to Mrs Woolley for the conduct of the defendants. The trial judge found the appellant suffered “post traumatic stress disorder”.
97 At the trial the appellant abandoned any claim for aggravated or exemplary damages and the trial judge awarded $30,000 for general damages together with interest and other amounts for medical expenses and future treatment. Although the appellant challenged the trial judge’s award as inadequate the Court of Appeal found that it was “within the available discretionary range”.(per Cole JA at page 5)
98 Although the false imprisonment in Woolley v Phillips was coupled with both assault and battery the length of time that the appellant’s liberty was curtailed appears to have been much less than in this case. However this was a case in which a woman had been falsely imprisoned in her own home by two aggressive and apparently violent police officers. There was no public nature to the false imprisonment as was the case here. Certainly Mr Vignoli was threatened in a similar fashion - of being charged - but there was no battery of him.
99 In McDonald v Coles Myer Ltd (1995) Aust Torts Reports 62,682 Mrs McDonald was falsely imprisoned in a very public way, charged with obtaining goods by false pretences, and had to endure both a criminal and civil trial.
100 Mrs McDonald was also subjected to a cross examination which included a baseless allegation that she had a mental disorder. The trial judge was of the view that there should be an award of “significant damages” and awarded $12,500 plus interest of $1,000. The Court of Appeal found that $12,500 was not “significant” and increased the damages to $27,000.
101 Mr Collins QC submitted that the plaintiff’s unchallenged evidence supplemented by the video evidence together with the evidence of the three honest, decent and impressive women will convince me that substantial compensatory damages should be awarded. In addition to the lengthy period of time during which the plaintiff’s liberty was curtailed and the consequent humiliation it was submitted that the following matters increased the injury:
· The fact that no food was provided to him at all during that period.
· The fact that he was confined in a small space sitting on a chair without the benefit of any support.
· The fact that he was “guarded” not only in the small space but also as he travelled to and from the toilet although he had pleaded to be allowed to go to the toilet without being guarded.
· He was told that he had his last chance to pay or the police would be called and he would be charged with stealing.
· He was threatened with being banned for 12 months from the Casino.
102 These matters need to be assessed in the light of the evidence that at all times the plaintiff said he was happy to pay the money to the Casino if he could verify the alleged overpayment by viewing the video.
103 Mr Collins QC submitted that the observations of the plaintiff during the time that he gave his evidence would persuade me of the genuine humiliation and disgrace felt by him. He submitted that the viewing of the incident on the video had distressed his client to the point which caused him to break down in the witness box.
104 There is no doubt that the plaintiff was indeed distressed in the witness box and for some period in tears. It was never suggested to him, understandably so, that such an occurrence was not genuine and was a result of the distress caused by reviewing the events of this incident on the videos.
105 Mr Collins QC submitted that there had been a long, slow, studied and repeated series of insults to the plaintiff by an almost faceless group of Casino employees which led to his deepest humiliation. He submitted that I would be satisfied that this was a searing experience for a person who had been appropriately described as gentle, polite and urbane.
106 The defendant made no real challenge to the evidence of the distress and humiliation of the plaintiff caused by its conduct. There was no cross examination of any of the three female witnesses to whom I have already referred who gave evidence of their observations of the effect this incident had upon the plaintiff.
107 I am satisfied that the plaintiff’s false imprisonment lasted from 6pm until midnight. Although the Casino’s admission of liability on the pleadings was to a period of four and one half hours I am of the view that the extra one and one half hours is proved on the evidence before me.
108 I am satisfied that this was indeed a searing experience for the plaintiff and that he felt deep humiliation and disgrace. I am also satisfied that he experienced a deal of mental anguish and discomfort as a result of this experience.
109 I am also satisfied that the plaintiff felt proud and saw it as an achievement to become a member of the Endeavour Club at the Casino. It was something that had taken a lifetime to achieve with the pastime that he loved. The description that he gave of walking amongst other members of the Club with a feeling that they were talking about him as if he were a common criminal portrays vividly the deep humiliation I accept he experienced.
110 I also accept that the injury to his feelings was heightened by the confinement in the close quarters of the Investigation Room with the constant presence of at least one Casino employee either standing or sitting with him.
111 I also accept that his humiliation was deepened by being escorted to and from the toilet by as many as three Casino employees and their standing “guard” outside the toilet awaiting his return. I also accept that the pressure placed upon the plaintiff to pay the money to the Casino by the threat of police action and a 12 month ban from the club he loved heightened the injury and hurt to his feelings.
112 The plaintiff conceded in cross examination that the casino staff were polite and did not manhandle him at any stage and I take these matters into account when assessing these damages. Mr McAlary QC submitted that I should also take into account the fact that the plaintiff was provided with two cool drinks at his request, that he was permitted to go to the bathroom when he requested to do so and that he was able to make and receive phone calls. Mr McAlary QC also relied upon the fact that the plaintiff was given access to his solicitor, Mr Levitt.
113 These are all matters that I have taken into account in this assessment however I am of the view that they are not very powerful circumstances in the defendant’s favour. However matters that are more powerful are Mr Lamb’s apologies both on the 20 June 1996 and when the plaintiff had his subsequent meeting with him in the Endeavour Room and the defendant’s apology in Mr Arbuckle’s letter of 5 July 1996. I intend to give these matters appropriate weight in this assessment.
114 Mr Collins QC also relied upon a number of matters as a basis for an award for aggravated damages and I will deal with those in due course. However some of the matters upon which he relied are in my view appropriate to analyse in the assessment of the compensatory damages. They are:
· the failure to proffer a proper apology and/or the proffering of “a mealy mouthed non-apology”;· defending its actions by the statements made to the SMH journalist knowing that in all likelihood the statements would be published;
· the pleading of par 10 of the defence and persisting in that defence when there was no reasonable basis for pleading or maintaining such a defence;
115 Although I was initially attracted by Mr Collins QC’s analysis of the apology on reflection I am of the view that it is not an appropriate description of it. There is a clear statement of regret in the first paragraph; a clear statement of apology for the overpayment in the second paragraph and a clear statement of apology for the “delay” caused by the Casino in the third paragraph. It may have been of more comfort to have received a letter without reference to the involvement of others and their contribution to the delay but I am not satisfied that the terms of this letter warrant an increase in the compensatory damages to be awarded to the plaintiff.
116 The statements made by the Casino to the SMH reported in the published article as amounting to the Casino “defending” its actions were not dealt with at all in the oral evidence given by the plaintiff. He did not suggest that he felt more hurt to his feelings when he read the article indeed he did not give evidence that he read the article. However the plaintiff brought defamation proceedings against the defendant and Mr Grimshaw in respect of the article and some of the evidence in that trial, in which I was the trial judge, is evidence before me. (Ex J)
117 There was a claim made in Mr Levitt’s letter of 28 June that the article had “aggravated” an imputation that his client was a thief and there was an analysis of this claim in Mr Grimshaw’s memo of 4 July 1996. From the evidence before me I am satisfied that the plaintiff read the article and was distressed by it.
118 Additionally the plaintiff gave no evidence at all about par 10 of the defence. Although he gave detailed evidence of his general distress and humiliation and as I have said earlier broke down in the witness box he did not specifically mention the matters of the SMH article and the defence.
119 In these circumstances Mr McAlary QC submitted that I could not be satisfied that the plaintiff has proved his case to allow such conduct to be taken into account in the assessment of compensatory damages.
120 In this regard I am assisted by the approach adopted by Clarke JA in McDonald v Coles Myer Ltd (t/as K Mart Chatswood) (1995) Aust Torts Reports 62,682 at 62,687 where His Honour dealt with the trial judge’s failure to take into account as relevant to the solatium the hurtful experience of the trial, the persistence of false and hurtful allegations and overlooked the damage to the plaintiff’s reputation as a result of the false imprisonment. His Honour said “it is no answer to say that the appellant didn’t specifically mention all of these matters”.
121 I am satisfied in all the circumstances of the plaintiff’s evidence and in particular his presentation in the witness box which demonstrated to me the distress he experienced in having to go through these proceedings that these two matters would be appropriate to take into account in the assessment of compensatory damages.
122 However I intend only to take the first of these matters, the SMH article, into account on this aspect of the assessment because the second of them will be taken into account in the assessment of aggravated damages. I am of the view that the Casino’s statements made public in the SMH article were in fact a defence of the false imprisonment of the plaintiff and should increase the compensatory damages by two percent.
123 In all the circumstances of this case I am of the view that an appropriate award is $30,000
Aggravated Damages
124 In Cassell & Co Ltd v Broome (1972 A.C. 1027 at 1124) Lord Diplock referred to what Lord Devlin called “aggravated damages” as “additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or motive for which the defendant did it”.
125 Since Spautz v Butterworth (1996) 41 NSWLR 1 the former of these two matters, the manner in which the wrong is perpetrated, is also taken into account as increasing compensatory damages, unless of course it is the basis of a claim that such manner demonstrated a lack of bona fides or improper or unjustifiable conduct which as, I have said earlier, is what the plaintiff has to prove to obtain an award of aggravated damages.
126 The plaintiff relied upon a number of matters in his claim for aggravated damages. They included;
· the failure to proffer a proper apology and/or the proffering of “a mealy mouthed non-apology”;· defending its actions publicly by the statements made to the SMH journalist knowing that in all likelihood the statements would be published;
· the pleading of par 10 of the defence and persisting in that defence when there was no reasonable basis for pleading or maintaining such a defence;
· persisting in the defence for the purpose of and in the hope that the plaintiff would be worn down or emotionally crushed and not pursue the litigation.
127 I have dealt with the first and second of these matters in the assessment of the compensatory damages, accepting the second as increasing the damages and rejecting the first.
128 In respect of the other matters relied upon Mr Collins QC submitted that the plaintiff was entitled to an award of aggravated damages because the defendant had persisted in the original “charge” made against the plaintiff by the filing of the defence for which, he submitted there was never a proper basis. Walter v Alltools Limited (1944) 171 T.L.R 371 and Myer Stores Ltd & Ors v Soo (1991) 2 VR 597.
129 Mr McAlary QC submitted that I would not be satisfied that the pre- requisites of an absence of bona fides or improper motive have been proved by the plaintiff. He submitted there was no evidence upon which I could make such a finding and that the defendant had admitted liability on 25 October 1999 when Senior Counsel had reviewed the matter.
130 The defendant pleaded a blanket denial to paragraphs 12 to 21 of the Statement of Claim putting the plaintiff to proof of these matters until its admission of liability on 25 October 1999. There were similar denials in the letter to Mr Levitt in July 1996. The factual matters pleaded in these paragraphs in the defence were clearly matters for which there was no proper basis for a denial. The majority of them were depicted vividly on the defendant’s video as events which had occurred.
131 But the defence went further and pleaded par 10 set out earlier in this judgment. It denied the detention and alternatively sought to justify it. It then pleaded the reasonable belief in its officers that the plaintiff was “appropriating or attempting to appropriate” the defendant’s money contrary to s 117 of the Crimes Act 1900.
132 This pleading had no proper basis at all. The defendant made a mistake and gave the plaintiff possession of the $1,250. The plaintiff said he was happy to pay the money to the Casino if they showed him the video and an overpayment was demonstrated. The defendant’s officers knew the plaintiff well enough to form the view as was stated on 20 June 1996 that he was “an honest man”.
133 How anyone could have contemplated that the plaintiff had the requisite mens rea for an offence under s117 of the Crimes Act is most puzzling. If it was a belief it certainly could not have been characterised as a “reasonable” belief on any of the material that must have been available to the defendant at the time it pleaded its defence.
134 One of the keys in assessing the bona fides, propriety and justification of this pleading and its maintenance is an analysis of the internal Casino memoranda. (Exs G & H) From those two documents and in the absence of any evidence from the defendant, it having called no evidence in these proceedings, I have reached the conclusion that there was a lack of bona fides in the defendant’s pleading and that it was not justified in maintaining it.
135 After the plaintiff was permitted to view the video on 27 June 1996 he agreed that there was an overpayment and that the police should give the money back to the Casino. This much is confirmed in Mr Brown’s memorandum of 11 July 1996. (Ex H). Mr Brown suggested that the Casino’s “complaint” to the police should not be withdrawn pending the plaintiff’s “confirmation” that he would not commence legal proceedings.
136 I am of the view that to maintain or to contemplate the maintenance of a baseless police complaint for the purpose (which I am of the view was its purpose) to pressure the plaintiff into a position favourable to the Casino is conduct that provides a very good view of the Casino’s motive during this period.
137 The other memorandum from Mr Grimshaw (Ex G ) is a little more complex. It is relied upon to demonstrate that the defendant was considering the pursuit of action that would effectively grind the plaintiff down to the point where he would no longer have the fortitude to continue in his claim against the Casino.
138 Mr McAlary QC submitted that there was no such legal action commenced and I should not be persuaded to take the contents of this memo into account to the defendant’s disadvantage in this assessment of damages. It is true that there was no action of the kind as mentioned in the memo commenced by the defendant. However I observe that to contemplate the making of such a threat in the circumstances also gives me a view into the minds and motives of the defendant in the defence it ultimately adopted.
139 The question is whether these memoranda and the defendant’s admission of liability on 25 October 1999 is evidence upon which I am able to reach the conclusion on the balance of probabilities that the defence lacked justification and the defendant was not acting in a bona fide manner in filing and maintaining such a defence. I am of the view that it is.
140 In the circumstances I am satisfied that an award of aggravated damages should be made in respect of these latter two matters. I award $10,000.
Exemplary Damages
141 Lord Diplock referred to exemplary damages as “punishment of the defendant for his anti-social behaviour to the plaintiff” Cassell & Co v Broome (1972) A.C.1027 at1124. Brennan J, as His Honour then was, referred to the punishment of the defendant “for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again”. His Honour approved of Lord Diplock’s description in Cassell & Co v Broome of the social purpose to be served as to “teach a wrong-doer that tort does not pay”. XL Petroleum (NSW) v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471.
142 The object of exemplary damages is however not “wholly punishment and the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing”. It extends beyond the defendant and other like minded persons “generally to conduct of the same reprehensible kind”. Lamb v Cotogno (1987) 164 CLR 1 at 9-10.
143 Mr McAlary QC submitted I should not award exemplary damages because the plaintiff had not proved that the defendant acted in a manner that could be categorised as “conscious or contumelious disregard” of the plaintiff’s rights. He submitted also that I could not conclude that the Casino did not know that what it was doing was wrong. He submitted that there was no evidence one way or the other.
144 I am of the view that the plaintiff has demonstrated consciousness in the defendant of its disregard of the plaintiff’s rights. This begins to emerge from the moment, at 6.15 pm, the plaintiff asked Mr Dunn, “am I under arrest here, are you keeping me here against my will?” and Mr Dunn responded “no, no, you can leave you are not under arrest, that is something I do not want to do”.
145 There is further evidence from the events between 6.30 pm and 7pm in the office in the Endeavour Room. Mr Lamb, who it seems was trying his best to inject some sensibility into the situation suggested that the plaintiff could wait in that office. As I have said earlier this was a bigger room and it is obvious from Mr Lamb’s approach that he thought it was far more appropriate for the plaintiff’s comfort. Mr Lamb also expressed concern that he had not arrived earlier and sorrow at what had happened thus far to the plaintiff.
146 Mr Lamb’s attempts were not even given a response. Mr Bedwell walked out of the room when the suggestion was made and sent the security officer in to take the plaintiff on his journey through the Casino to the small Investigation Room.
147 Further evidence of the consciousness is available in the unchallenged Mr Dunn was not called to give evidence and no application for an adjournment at the end of the plaintiff’s case was made to accommodate Mr Dunn who had been recently injured in a motor vehicle accident. conversation between the plaintiff and Mr Dunn when Mr Dunn agreed that the situation had got “out of hand”.
148 There was the delay in letting Mr Levitt have access to the plaintiff coupled with the additional and timely pressure on the plaintiff to take up his “last chance” to pay the money before he was “charged” and banned for 12 months. The change in attitude when the SMH was mentioned is also telling of consciousness that it knew it was disregarding the plaintiff’s rights.
149 In conclusion I am of the view that the defendant’s conduct was consciously in disregard of the plaintiffs rights and I am also of the view that such disregard was contumelious and an award of exemplary damages should be made.
150 A further matter arises from what Kirby J said Gray v Motor Accident Commission (1998) 73 ALJR 45 at 61 as follows;
Punishment for deliberate wrongdoing is certainly a consideration in deciding the applicability of exemplary damages. But it is not the sole reason for the award of such damages. The more recent cases on the subject, including in this Court, have accepted that such damages may be recovered whatever the subjective intention of the tortfeasor if, objectively, the conduct involved was high-handed, calling for curial disapprobation addressed not only to the tortfeasor but to the world.
151 I am firmly convinced that objectively the defendants conduct was high handed and calls for the curial disapprobation to which Kirby J referred. Such “high handed” or overbearing conduct includes;
· the manner in which the plaintiff was confronted at the exit door of the Casino and prevented from leaving after he was told he was free to leave as vividly depicted on the video;
· placing the plaintiff is such a small room when a far more reasonable office was available and suggested by Mr Lamb;
· the continuous “guarding” of the plaintiff in that small room;
· the continuous filming of the plaintiff without his knowledge;
· the failure to give the plaintiff any privacy to make phone calls to his solicitor or his partner and the closeness of the employees of the defendant to the plaintiff whilst he made or received those phone calls;
· the refusal to allow the plaintiff to go to the toilet without an escort of “guard” when he had stated that he would not “bolt” and that he wished to go without such an escort;
152 Even when the plaintiff’s solicitor arrived they were not offered a bigger or more comfortable room. They had to remain in that room until an interim solution could be reached and the filming of them continued without their knowledge.
153 Mr Levitt gave some evidence that suggested that there was audio surveillance of the plaintiff and himself. That evidence was that when the money was produced for the police to hold as stakeholders it was placed on the table in various denominations and the Casino employee looked up to the “black dome” area above and said “can you see the serial numbers”.
154 In these circumstances, although this evidence and some of the actions of some of the employees on the video during the many hours of it that I watched may give an impression that there was some audio surveillance I am not able to make any positive finding about this on the balance of probabilities and I do not do so. If I had been satisfied that audio surveillance occurred the award of exemplary damages would have been larger.
155 The defendant’s conduct vividly depicted on the video was quite disgraceful. The number of people “guarding” this honest plaintiff and escorting him to and from even the men’s room may have been appropriate for a violent sociopath but this conduct was, as the plaintiff and an officer of the defendant said on the night in question, “out of hand”. It had no sense of any proportion whatsoever.
156 The only voice of some reason was that of Mr Lamb, the VIP Service Director. Of serious concern is that he was but a voice in the wilderness. He was ignored.
157 That such conduct can be perpetrated without a proper understanding that it is so terrible to wrongfully deprive a person of their liberty, a liberty which our community values so greatly, is also a basis for serious concern.
158 The only evidence that the Court has of the defendant’s possible action to prevent such a situation occurring in the future is found in the letter of apology tendered by the plaintiff. It reads as follows;
In fact, Sydney Harbour Casino will be taking steps to ensure that any similar incidents which occur in the future are handled in a way which will be satisfactory to both the company and the customer.
159 I do not know what steps, if any, have been taken as no evidence was called by the defendant. Indeed, although I was not persuaded that this letter was a basis for an increase in compensatory damages, I am convinced that this letter is evidence that the Casino did not recognise the gravamen of its conduct. This conclusion is reached from the circumstances of the Casino writing about its satisfaction in the future when the sort of conduct it had just engaged in with this plaintiff should have focused its mind firmly on how it could excise from its employees’ armoury the disgraceful tactics engaged in to deprive the plaintiff of his liberty.
160 Mr McAlary QC’s emphasis on the polite way in which the plaintiff was treated needs to be analysed in the light of what I have just said. Politeness is of course preferrable to rudeness. However it does not change the conclusion reached that the defendant’s conduct was in contumelious disregard of the plaintiff’s rights and was objectively high-handed. But it must be recognised in this award that the conduct could have been worse if the “guard” was rude. This plaintiff was guarded and escorted in a manner that was quite disgraceful notwithstanding the politeness with which his liberty was stolen.
161 It should never have happened. This award is to punish the defendant and to deter such conduct both by this defendant and by others.
162 I am of the view that an appropriate award of exemplary damages is $35,000.
163 There will be a verdict for the plaintiff. Judgment will be entered in due course in the amount of $75,000 together with interest, which I am of the view should be awarded, the calculation of which I will hear submissions upon at the same time as the submissions as to costs. The parties have liberty to restore the matter to the list for such submissions.
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