Moutia Elzahed & Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 353

Moutia Elzahed & Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 353

The claims failed because the plaintiffs did not prove the pleaded assaults, intimidation or unlawful restraints and because, on the accepted police evidence, the AFP and NSW Police used only force and movement restrictions that were necessary and reasonable in the circumstances of executing a terrorism-related search warrant. The AFP was not present when the pleaded physical assaults allegedly occurred, and the plaintiffs were not permitted to rely on unpleaded vicarious liability or agency allegations against the AFP. NSW Police had genuine and reasonable suspicions arising from the briefing and acted reasonably in entering, securing the premises, restraining occupants who did not...

Jurisdiction
Australia
Judgment Date
15 December 2016
Procedural Posture
Civil Claim for Damages Arising Out of the Execution of a Search Warrant / Principal Judgment After Hearing on Liability
Outcome
Verdicts for the defendants on the claims determined; the claims by all four plaintiffs against the AFP failed, and the claims by Ms Elzahed and the two sons against NSW Police failed. Mr Alqudsi had settled his proceedings against NSW Police.
Legal Topics
['execution of Search Warrant' 'reasonable and Necessary Force' 'assault and Battery' 'false Imprisonment' 'intimidation' 'pleadings' 'vicarious Liability and Agency Not Pleaded']
['torts' 'police Powers' 'civil Procedure'] ['execution of Search Warrant' 'reasonable and Necessary Force' 'assault and Battery' 'false Imprisonment' 'intimidation' 'pleadings' 'vicarious Liability and Agency Not Pleaded']

Case Brief

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Procedural Posture

Civil Claim for Damages Arising Out of the Execution of a Search Warrant / Principal Judgment After Hearing on Liability

Legal Issues

  1. 1 ["Whether AFP or NSW Police officers used more force than was necessary and reasonable when executing the search warrant at the plaintiffs' home." 'Whether the plaintiffs proved assault, battery, false imprisonment or intimidation by AFP officers.' 'Whether the plaintiffs proved assault, battery, false imprisonment or intimidation by NSW Police officers.' 'Whether the plaintiffs could rely on an unpleaded contention that the AFP was vicariously liable for, or principal of, NSW Police officers.']

Ratio Decidendi

The claims failed because the plaintiffs did not prove the pleaded assaults, intimidation or unlawful restraints and because, on the accepted police evidence, the AFP and NSW Police used only force and movement restrictions that were necessary and reasonable in the circumstances of executing a terrorism-related search warrant. The AFP was not present when the pleaded physical assaults allegedly occurred, and the plaintiffs were not permitted to rely on unpleaded vicarious liability or agency allegations against the AFP. NSW Police had genuine and reasonable suspicions arising from the briefing and acted reasonably in entering, securing the premises, restraining occupants who did not...

Court Disposition

Verdicts for the defendants on the claims determined; the claims by all four plaintiffs against the AFP failed, and the claims by Ms Elzahed and the two sons against NSW Police failed. Mr Alqudsi had settled his proceedings against NSW Police.

Orders

  • ['Verdict for the first defendant against the first plaintiff.' 'Verdict for the second defendant against the first plaintiff.' 'Verdict for the first defendant against the second plaintiff.' 'Verdict for the first defendant against the third plaintiff.' 'Verdict for the second defendant against the third...