NEW SOUTH WALES COURTS ISSUES JUDGEMENT FOR CHRISTOPHER DENNIS V/S STATE OF NEW SOUTH WALES CASE

Australia, July 15 -- New South Wales Land and Environment Court issued text of the following judgement on June 28:

1. On the morning of 19 March 2021, Senior Constable Matthew Owen ("SC Owen") of the New South Wales Police Force purported to arrest the Plaintiff ("Mr Dennis") at the conclusion of a random audit ("the Audit") of Mr Dennis' mechanic business in Wagga Wagga, known as Wagga City Auto Centre. The Audit had been conducted that morning by SC Owen, Inspector Jonathan Smith of Transport New South Wales ("TNSW"), and Ms Lauren Madden of Fair Trading. It concerned the provision by Mr Dennis, as an "authorised proprietor" and "authorised examiner", of what are known as "pink slips" in relation to vehicles for the purpose of registration pursuant to the authorised inspection scheme proclaimed by TNSW and in particular the "Business rules for authorised proprietors and authorised examiners", issued by TNSW and in force at the time.

2. Following the Audit, which included an interview conducted with Mr Dennis at the place of business, SC Owen decided to arrest Mr Dennis.

3. Mr Dennis was arrested, placed in the back of a caged police vehicle, and conveyed to Wagga Wagga Police Station (approximately 5 to 10 minutes drive away) and thereafter held in custody for a period of four and a half hours, at the conclusion of which he was charged with a number of offences and released on conditional bail. Relevantly, the bail condition was to "not permit any examiner to issue any AIS report from AIS station 500342".

The claim

4. By statement of claim filed 20 February 2023 as amended on 30 May 2023, Mr Dennis claims against the State of New South Wales that he was falsely imprisoned during the period of about four and a half hours following his arrest by SC Owen and his release from the police station on bail that afternoon. He seeks general, aggravated, and exemplary damages for what he contends was his unlawful deprivation of liberty.

The issues

5. The Defendant, the State of New South Wales, accepts that it is vicariously liable for any wrongdoing of SC Owen, but otherwise defends the proceedings alleging that SC Owen formed both requisite states of mind for the purpose of satisfying s 99(1) of the Law Enforcement (Powers and Responsibilities Act 2002 (NSW) ("LEPRA") and having done so, exercised his discretionary power to arrest Mr Dennis. The defence is that, in those circumstances, what would otherwise have been the unlawful deprivation of Mr Dennis' liberty was rendered lawful because of the operation of s 99(1) of LEPRA. The onus of demonstrating that lawfulness rests with the Defendant.

6. Leaving damages to one side, the central issues in the case are whether SC Owen formed the required states of mind for the purpose of s 99(1) and, if he did, whether his ultimate decision to arrest Mr Dennis is vitiated in some way so as to have the consequence that Mr Dennis' deprivation of liberty that afternoon was unlawful.

7. There is a subsidiary but related issue which turns on a subsequent decision, better described as a non-decision, by SC Owen, made while still at Wagga City Auto Centre that morning, to not consider exercising his discretion pursuant to s 105 of LEPRA when he was asked to do so by Mr Dennis' solicitor, who arrived at the scene and demanded that the decision be revoked and offered instead to immediately drive Mr Dennis to the police station himself. The basic facts

8. Mr Dennis was born in March 1969. As at 19 March 2021, he was 51 years old. He was not known to police, was married to a former police officer, and had lived in Wagga Wagga all his life.

9. Mr Dennis purchased Wagga City Auto Centre in November 2001. He had operated it successfully since that time. Part of the business was to provide services as an Authorised Inspection Station ("AIS") for the purpose of the TNSW Business rules. Mr Dennis was an "Authorised Proprietor" and an "Authorised Inspector" for the purpose of the Authorised Inspection Scheme and the business was a registered inspection station for the purpose of that same scheme.

10. In around January 2021, Mr Dennis was diagnosed with Non-Hodgkin's lymphoma.

11. On 28 January 2021, Mr Dennis commenced chemotherapy treatment for his cancer.

12. On 11 March 2021, Mr Dennis had received his fifth course of chemotherapy.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19052581708ca1cc13bbb6b2)

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