AD v State of NSW [2023] NSWCA 115

AD v State of NSW [2023] NSWCA 115

Leave to appeal was granted only on the false imprisonment claim because that claim raised serious issues about s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), but the appeal was dismissed because no appellable error was shown in the findings that Senior Constable Burley had reasonable grounds to suspect AD had committed the relevant offences and was satisfied that arrest was reasonably necessary, including having regard to protection of safety or welfare and the nature and seriousness of the offence. Leave was refused on trespass because the evidence supported consent to the presence of the back-up police. Leave was refused on misfeasance because arranging care...

Jurisdiction
Australia
Judgment Date
26 May 2023
Procedural Posture
Application for Leave to Appeal and Appeal in Civil Tort Proceedings From the District Court of NSW / Court of Appeal Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal granted limited to the false imprisonment claim; appeal dismissed; leave refused on the remaining proposed grounds.
Legal Topics
['false Imprisonment' 'trespass' 'misfeasance in Public Office' 'arrest Without Warrant' 'suspicion on Reasonable Grounds' 'whether Arrest Reasonably Necessary' 'transfer of Care of Children Following Arrest' 'family Court Parenting Orders' 'inconsistency With a Federal Law' 'non Publication Orders' 'leave to Appeal']
['torts' 'police Powers' 'family Law' 'constitutional Law' 'civil Procedure'] ['false Imprisonment' 'trespass' 'misfeasance in Public Office' 'arrest Without Warrant' 'suspicion on Reasonable Grounds' 'whether Arrest Reasonably Necessary' 'transfer of Care of Children Following Arrest' 'family Court Parenting Orders' 'inconsistency With a Federal Law' 'non Publication Orders' 'leave to Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal in Civil Tort Proceedings From the District Court of NSW / Court of Appeal Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether Senior Constable Burley had reasonable grounds under s 99(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) to suspect AD had committed an offence, including recklessly causing grievous bodily harm.' "Whether Senior Constable Burley was satisfied under s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) that AD's arrest was reasonably necessary." 'Whether AD consented to the entry and presence of back-up police officers at her home so as to defeat the trespass claim.' "Whether arranging for AD's children to be transferred into their father's care after AD's arrest was an invalid or unauthorised act for the purposes of misfeasance in public office." 'Whether Senior Constable Burley acted maliciously or with reckless indifference to the availability of lawful power.' "Whether any act by Senior Constable Burley caused AD's claimed loss or harm." 'Whether a constitutional inconsistency issue arose between s 6 of the Police Act 1990 (NSW) and s 65M of the Family Law Act 1975 (Cth).']

Ratio Decidendi

Leave to appeal was granted only on the false imprisonment claim because that claim raised serious issues about s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), but the appeal was dismissed because no appellable error was shown in the findings that Senior Constable Burley had reasonable grounds to suspect AD had committed the relevant offences and was satisfied that arrest was reasonably necessary, including having regard to protection of safety or welfare and the nature and seriousness of the offence. Leave was refused on trespass because the evidence supported consent to the presence of the back-up police. Leave was refused on misfeasance because arranging care...

Court Disposition

Leave to appeal granted limited to the false imprisonment claim; appeal dismissed; leave refused on the remaining proposed grounds.

Orders

  • ['Grant the applicant leave to appeal from the judgment and orders of the District Court of 10 November 2022, limited to the claim of false imprisonment.' 'Dismiss the appeal.' 'Continue the non-publication order made by Registrar Riznyczok dated 11 April 2023.' 'Order that the appellant pay the costs of the State...