Boumelhem & Anor v NSW Crime Commission & Ors [2006] NSWSC 1413

Boumelhem & Anor v NSW Crime Commission & Ors [2006] NSWSC 1413

The claim against the first defendant is dismissed other than the claim in detinue, as no arguable case can be pursued in tort for procuring or directing the wrongful actions executed under valid warrants issued by a justice; however, there is an arguable case in detinue due to statutory requirements and pleading, so the claim in detinue survives and the plaintiff is allowed to amend to plead possession.

Parties
First Plaintiff: Amin Boumelhem; Second Plaintiff: Leisure Coast Tobacconist & Gift Ware Pty Limited; First Defendant: NSW Crime Commission; Second Defendant: Michael Nibbs; Third Defendant: Richard Moore; Fourth Defendant: Robert East; Fifth Defendant: State of New South Wales
Jurisdiction
Australia
Judgment Date
19 December 2006
Procedural Posture
Civil / Ruling on Notices of Motion for Summary Dismissal and Amendment of Statement of Claim
Outcome
Proceedings against the first defendant dismissed except for the claim in detinue; leave to amend granted as specified; security for costs refused; costs orders made as detailed.
Legal Topics
Detinue, False Imprisonment, Trespass to Goods, Summary Dismissal, Amendment of Pleadings, Security for Costs
Torts Civil Procedure Detinue False Imprisonment Trespass to Goods Summary Dismissal Amendment of Pleadings Security for Costs

Case Brief

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Parties

Amin Boumelhem

First Plaintiff

Leisure Coast Tobacconist & Gift Ware Pty Limited

Second Plaintiff

NSW Crime Commission

First Defendant

Michael Nibbs

Second Defendant

Richard Moore

Third Defendant

Robert East

Fourth Defendant

State of New South Wales

Fifth Defendant

Procedural Posture

Civil / Ruling on Notices of Motion for Summary Dismissal and Amendment of Statement of Claim

Legal Issues

  1. 1 Whether the claim against the first defendant (NSW Crime Commission) should be dismissed other than the claim in detinue
  2. 2 Whether there is an arguable claim in detinue against the first defendant
  3. 3 Whether leave should be granted to amend the statement of claim

Ratio Decidendi

The claim against the first defendant is dismissed other than the claim in detinue, as no arguable case can be pursued in tort for procuring or directing the wrongful actions executed under valid warrants issued by a justice; however, there is an arguable case in detinue due to statutory requirements and pleading, so the claim in detinue survives and the plaintiff is allowed to amend to plead possession.

Court Disposition

Proceedings against the first defendant dismissed except for the claim in detinue; leave to amend granted as specified; security for costs refused; costs orders made as detailed.

Orders

  • Order that the proceedings as against the first defendant be dismissed other than on the claim in detinue.
  • In relation to the claim in detinue against the first defendant, leave granted to the first plaintiff to amend the statement of claim so as to assert possession in the first defendant.