Benn v State of New South Wales

1. [1]

   HER HONOUR: This is an appeal from the Local Court in relation to the plaintiff being tasered by a police officer.

2. [2]

   By amended summons filed 19 June 2015, the plaintiff seeks firstly, an order granting leave to appeal the whole of the decision of his Honour Magistrate Heilpern dated 14 April 2015; secondly, an order that the appeal be allowed; thirdly, that the order of the Magistrate dismissing the plaintiff’s claim be set aside and in lieu thereof a verdict be entered for the plaintiff; and fourthly, an order that damages be awarded to the plaintiff assessed at the sum of $120,000.

3. [3]

   On 30 September 2013, the plaintiff filed a statement of claim in the Local Court seeking damages including aggravated and exemplary damages against the State of NSW. On 14 April 2015, the Magistrate dismissed the plaintiff’s claim on the basis that he had not proved his case as to liability and therefore it was not necessary to deal with the issues relating to damages.

4. [4]

   The plaintiff in this Court is Andrew Stephen Benn who was the plaintiff in the Local Court proceedings. The defendant in this Court is the State of New South Wales who was defendant in the Local Court proceedings.

5. [5]

   The plaintiff relied on the affidavit of his solicitor, Jenna Lee Hill dated 3 July 2015, which annexed the Local Court file.

The appeal

1. [6]

   Section 39(1) of the Local Court Act 2007 (NSW) provides that a party who is dissatisfied with a judgment or order of the Local Court may appeal to the Supreme Court, but only on a question of law.

2. [7]

   Section 40(1) of the Local Court Act provides that a party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.

3. [8]

   Section 41 of the Local Court Act provides that this Court may determine an appeal either (a) by varying the terms of the judgment or order, (b) by setting aside the judgment or order, (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions or (d) by dismissing the appeal.

Grounds of appeal

1. [9]

   The main issue raised in this appeal is whether the police officers involved were obliged to inform the plaintiff that he was being apprehended and the substance of the reasons for his apprehension.

2. [10]

   The plaintiff appeals from the whole of the decision of his Honour Magistrate Heilpern dated 14 April 2015, on the grounds that firstly, the Magistrate erred in law in determining that the plaintiff could be detained pursuant to the Mental Health Act 2007 (NSW) absent some communication or action on the part of the police to communicate plainly to the plaintiff that he was to be apprehended, was under arrest, under compulsion or no longer a free man; secondly, the Magistrate erred in law in determining that the plaintiff could be detained pursuant to the Mental Health Act absent an explanation of the substance of the reason for his arrest under that Act; thirdly, the Magistrate erred in law in determining that electrocution of the plaintiff with the taser constituted a reasonable use of force pursuant to the Mental Health Act, in circumstances where he had not received an explanation from police that he was to be apprehended, or the substance of the reason for that apprehension; and finally, the Magistrate erred in fact and law in determining that the actions of police made their intentions so clear to the plaintiff that it was “not unreasonable not to warn” before applying force to apprehend the plaintiff under the Mental Health Act.

3. [11]

   Leave to appeal in relation to ground (4) of this appeal is required pursuant to s 40(1) of the Local Court Act as it involves questions of mixed fact and law. As this ground of appeal overlaps with the others and no specific opposition was made (other than it will fail) to leave being granted, I will do so. Leave to appeal is granted in relation to ground (4).

Summary of facts

1. [12]

   On 1 October 2010 at about 1.00 am, the plaintiff was sitting on the roundabout at the intersection of Barker Street and Walker Street in the Northern Rivers town of Casino when he came into contract with NSW police (J [1]).

2. [13]

   Initially, two police officers attended the location, including Senior Constable Reddell. The plaintiff was intoxicated and highly agitated as a result of issues with his girlfriend. Negotiations took place between the police officers and the plaintiff. After approximately 30 minutes a further police officer arrived and negotiations continued for about 25 minutes. During that time two further police officers arrived (J [17]).

3. [14]

   During the negotiations, the plaintiff made a variety of threats to the police officers, including that he would punch them in the face. He threatened to harm himself and his girlfriend (J [22]). After a period of time the plaintiff was shot with a taser in the back by Senior Constable Reddell.

4. [15]

   A number of the police officers present had either direct experience with the plaintiff, or knowledge of him. This included that the plaintiff had previously been charged with assaulting police, had attempted to take a firearm from a police officer and had approached another armed with a knife (J [19]-[21). Senior Constable Reddell had recent knowledge of the plaintiff’s mental health issues, having scheduled the plaintiff pursuant to s 22 of the Mental Health Act a week prior to 1 October 2010. On that occasion, the plaintiff had entered the police station requesting to be scheduled as he wanted to hurt someone or kill himself (J [20]).

The Local Court proceedings

1. [16]

   The State of NSW’s primary submission is that the grounds of appeal being argued in this Court were not ones raised in the Local Court. Hence, it is necessary to briefly refer to the pleading framework.

The pleading framework

1. [17]

   The statement of claim pleads (at [4]):

2. [18]

   The plaintiff is claiming damages for an assault that was allegedly committed by Senior Constable Reddell when he fired and activated two probes of a taser weapon into the plaintiff’s back at a time when the plaintiff was walking away from the police officers. There is no allegation contained in the statement of claim that the plaintiff was unlawfully apprehended. The plaintiff claims aggravated, compensatory and exemplary damages.

The defence

1. [19]

   The defence pleads (at [3]):

2. [20]

   Although it was not an issue raised in the statement of claim, at [3] in the defence it is pleaded that the apprehension of the plaintiff was lawful under the Mental Health Act.

The relevant law

1. [21]

   The plaintiff claims that following the assault, he was “arrested… under the Mental Health Act”. But, s 22 of the Mental Health Act uses the term “apprehend”, not “arrest”. It is common ground that the provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) concerning arrest do not apply with the exception of s 4.

2. [22]

   Section 4 of the Law Enforcement (Powers and Responsibilities) Act preserves the operation of common law with respect to powers of police. It reads:

3. [23]

   It is common ground that the police officers were exercising power pursuant to ss 22 and 81 of the Mental Health Act.

The Mental Health Act

1. [24]

   Sections 22 and 81 of the Mental Health Act relevantly read:

2. [25]

   Hence, a police officer who finds a person who is mentally disturbed or mentally ill and believes on reasonable grounds the matters set out in ss 22(1)(a) and (b) of the Mental Health Act can apprehend the person and transport him or her to a mental health facility. The police officer may use reasonable force and restrain the person in any way that is reasonably necessary in the circumstances. (ss 81(2)(a) and (b)).

3. [26]

   The Mental Health Act neither provides for nor excludes the requirement at common law that the person when taken to a mental health facility has to be told why that is being done.

The common law

1. [27]

   The parties referred to two authorities R v Inwood [1973] 2 All ER 645; [1973] 1 WLR 647 and State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496. Neither of these cases were brought to the attention of the Magistrate, although Christie v Leachinsky [1947] 1 All ER 567; [1947] AC 573 was mentioned by counsel for the plaintiff.

R v Inwood

1. [28]

   In R v Inwood, an English Court of Appeal case, the appellant went voluntarily to a police station to help the police with their enquiries into certain thefts and handling of stolen goods which had taken place. After some questioning a police officer said to the appellant, “I propose to charge you with theft... and dishonestly handling...” The police then began the appropriate formalities, such as taking fingerprints and preparing documents. After some time the appellant decided to leave. He was prevented from so doing by two police officers and in the resulting struggle the police officers were injured. The appellant was charged with assaulting a police officer in the execution of his duty. The trial judge directed the jury as a matter of law that the words of the police officer and the commencement of formalities meant that the appellant was no longer merely a suspect, free to leave the police station at any time, but had been adequately placed under arrest and that the police officers were therefore acting in execution of their duty in preventing him from leaving. The appellant was convicted and appealed. The appeal was allowed.

2. [29]

   In a joint judgment, Caulfield J, Stephenson and Orr LJJ recorded that counsel had conceded that there was an obligation on the police officers to make it clear to the appellant that he had to remain until actually charged and then until bailed, but had submitted that on the facts (which were not disputed) that the appellant must have known he was under compulsion to stay.

3. [30]

   At 650 Caulfield J and Stephenson and Orr LJJ stated:

State of NSW v Riley

1. [31]

   In Riley, the NSW Court of Appeal held that s 24 of the Mental Health Act 1990 (NSW) (the predecessor to s 22 of the Mental Health Act 2007) if its provisions were otherwise satisfied, it did not authorise an apprehension and taking away of a person to hospital without telling that person the reason for his or her apprehension. The brief facts were that the car in which the respondent was travelling was pulled over by police. The respondent was apprehended, his hands were handcuffed and he was placed face down on the bonnet of a police car. The handcuffs were too tight and caused injury to his wrists. Shortly after he was handcuffed he was put inside a paddy wagon. A decision was then made by Sergeant Wilson to take him to Moruya hospital for psychiatric assessment. He was transported there in the paddy wagon. After examination at Moruya hospital, he was scheduled and taken by police to Batemans Bay police station and then by ambulance to Kenmore hospital at Goulburn. In relation to these events the respondent claimed assault, battery and false imprisonment.

2. [32]

   In relation to the assault, the primary judge found that the power of arrest conferred by s 352 of the Crimes Act 1900 (NSW) was subject to the requirements of the common law, including the requirement that the arresting officer inform the person arrested of the true ground on which he or she was being arrested: see Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 at 85. The primary judge held that this was not a case where the requirement did not arise for the reason that the respondent must have known what he was being arrested for. He held that the same requirement applied to rights of arrest and/or detention given by ss 357(2) and 357E of the Crimes Act: see Pedro v Diss [1981] 2 All ER 59; (1980) 72 Cr App Rep 193.

3. [33]

   The primary judge concluded that there were sufficient reasons for Sergeant Wilson to conclude that the respondent was a danger to himself and/or others, and that it was appropriate to take action under the Mental Health Act 1990; and that s 24 of that Act was not subject to the common law requirements as to arrest. Accordingly, the primary judge held that from the time Sergeant Wilson issued the instructions for the respondent to be taken to Moruya hospital, the respondent’s detention was authorised by that section. He further held that, if he was wrong on this, any continuing unlawful imprisonment ended with the scheduling of the respondent by Dr Beazley.

4. [34]

   In Riley, Sheller JA addressed the issue as to whether s 24 of the Mental Health Act 1990 is subject to the common law requirements of arrest. His Honour at [25] and [30] stated:

5. [35]

   Also in Riley, Hodgson JA stated at [76] to [79], [84] and [89] to [92]:

6. [36]

   Hodgson JA continued:

7. [37]

   Riley establishes that the provisions contained in the Mental Health Act do not displace the common law right for a person to be informed of the reason for apprehension or deprivation of liberty. So, if the plaintiff’s apprehension were to be lawful, the police officers were obliged to have informed him that he was deprived of his liberty unless a common law exception applied. Technical or precise words need not be used.

The hearing in the Local Court

1. [38]

   On 4 and 5 December 2014, these proceedings were heard by the Magistrate at the Local Court Lismore.

2. [39]

   The opening address by the State of New South Wales was very brief. It is as follows:

3. [40]

   No opening address was given on behalf of the plaintiff.

4. [41]

   The main issue at trial was the use of the taser and whether it was reasonable. Although it was not pleaded as an issue in the statement of the claim, evidence about whether the plaintiff was given an explanation for his apprehension was mentioned by the plaintiff and Senior Constable Reddell in their witness statements and during cross examination. The plaintiff’s evidence was that he was not aware why the police wanted to detain him.

5. [42]

   During cross examination, the following exchange between counsel for the State of NSW, Mr Bateman, and the plaintiff took place:

6. [43]

   Senior Constable Reddell’s evidence was that that the plaintiff made threats to kill himself; and after forming the view on reasonable grounds of the matters in s 22(1)(a) and (b), he communicated to the plaintiff that they could take him to the hospital.

7. [44]

   Both parties supplied written submissions and supplementary submissions. In the submissions for the State of NSW at [3], counsel wrote that:

8. [45]

   There is reference to lack of explanation by the police officers in the plaintiff’s supplementary submissions at [33] to [35] and [44]:

The Magistrate’s decision

1. [46]

   On 14 April 2015, the Magistrate handed down his written judgment. At [2] the Magistrate stated “Benn sues the State of NSW for assault, also known as battery, a species of trespass to the person.”

2. [47]

   The Magistrate at [3] and [4] sets out the onus of proof as follows:

3. [48]

   In other words, if the plaintiff proved that an assault occurred, the onus shifted to the State of NSW to establish firstly, that the act occurred with lawful justification and secondly, that the use of force was reasonable and not excessive.

4. [49]

   I should mention that the Magistrate preferred Senior Constable Reddell’s evidence over that of the plaintiff. Although there were inconsistencies in Senior Constable Reddell’s evidence, the Magistrate examined these inconsistencies but overall found him to be a credible witness. This was the first time Senior Constable Reddell had used a taser and fired one round (not two rounds as the plaintiff had alleged). It hit the plaintiff in the back and an assault occurred (J [27]).

5. [50]

   After finding that the plaintiff was assaulted, the Magistrate then addressed the next issue, namely whether the State of NSW had established, on the balance of probabilities, whether the assault had occurred with lawful justification and that the force used was reasonable and not excessive in the circumstances.

6. [51]

   The Magistrate stated at [52] that where the plaintiff, a mental health patient, has a known history of violence to police, has threatened to kill his girlfriend and to assault police and to harm himself, and there had been lengthy negotiations the answer is that the use of the taser may be justified, if the other options are properly considered and rejected.

7. [52]

   His Honour concluded at [58] and [59] that it was a reasonable assessment of the situation by Senior Constable Reddell that violent confrontation was imminent when the police took action to restrain and it was reasonable to detain the plaintiff. The Magistrate made a finding that any choice had risks of injury both to the police and the plaintiff, it was likely that the plaintiff was going to resist whatever option was used; and it was reasonable for Senior Constable Reddell to reject the options of force by unarmed restraint, baton or OC spray in the circumstances (J [47]). Hence, the Magistrate made a finding there was lawful justification and the use of the taser was reasonable.

8. [53]

   At [39] to [43], [56] and [57] of his written reasons, his Honour addressed the decision to detain. His Honour stated:

Plaintiff’s submissions

1. [54]

   Counsel for the plaintiff submitted that it is one thing for the officers to reasonably arrive at a conclusion that they ought to detain the plaintiff for assessment under the Mental Health Act; and that decision is not challenged on appeal. However, it is another question to inquire whether, having made such a determination, the officers complied with the law in executing that detention.

2. [55]

   Counsel for the plaintiff submitted that paragraphs [39] to [43] of the Magistrate’s judgment are important because they demonstrate a conflation of two distinct notions, the reasonable decision to detain [39] and moving to the “restraint phase” [43].

3. [56]

   According to the plaintiff, his case is not one where his mental disturbance would have interfered with his capacity to understand the reasons for his arrest or otherwise not have been in his best interest. Counsel says that on the contrary, the plaintiff had asked to go to the hospital and the police had suggested that they would take him. He had certainly been erratic in his attitude to that option, but it was clearly discussed and that it would have been a small step for the police to inform the plaintiff that he was to be taken to the hospital and that the law provided this could be done without his consent and if necessary by force.

4. [57]

   Counsel for the plaintiff then referred to paragraph [57] of the Magistrate’s decision where the Magistrate found that “it was perfectly clear by the actions of the police in negotiating, enticing and then encircling Benn what their intentions were.” According to the plaintiff, whether a police officer’s intention to arrest is clear to a subject is not a sufficient basis to make out an exception to the rule. The person arrested is entitled to know the substance of the reason why. It would not aid police in the case of arrest on a charge and it does not aid police in the case of arrest under the Mental Health Act. It follows he says that the Magistrate erred in finding that it, “was not unreasonable not to warn in all those circumstances.”

5. [58]

   Once it is established that the common law of arrest applies to detention under the Mental Health Act, the plaintiff says that it follows that other common law requirements for a lawful arrest also apply. It has long been a requirement for a valid arrest that the officer make plain to the subject that they are arrested and no longer free: see R v Inwood.

6. [59]

   Counsel for the plaintiff further submitted that there is no evidence to suggest that the plaintiff was informed, prior to being shot with the taser, that he was under arrest, detained or otherwise no longer free to leave. According to the plaintiff, in the hour or so that he was engaged in negotiations with the police, it would have been a simple matter to advise him that a decision had been made and he was no longer free to leave.

7. [60]

   Also the plaintiff submitted that the Magistrate erred in law in finding that it was not unreasonable not to warn the plaintiff that he was no longer free to leave. Counsel says that it is clear by the manner in which the plaintiff went to leave that he did not understand this. He did not attack any officer or run away, he simply went to walk home. His actions demonstrate that he did not understand that he was not free to leave and he did not consider that he would have to run or take violent action to resist police efforts to detain him.

8. [61]

   Counsel further submitted that if there was any doubt that the common law applies strictly, then failure to clearly announce to the plaintiff that he was not free and explain some basis for his arrest are properly considered in deciding the question of reasonableness. Counsel says that the Magistrate erred in law in finding that it was not unreasonable not to warn the plaintiff prior to firing the taser (J [57], AB 540).

9. [62]

   The Magistrate expressed his finding that it was not unreasonable not to warn the plaintiff following a conclusion that, from all the circumstances, it was perfectly clear what police intentions were. Counsel for the plaintiff submitted that this finding of fact is against the weight of the evidence, disclosing error, which erroneous finding then infects a finding of law.

Submissions for the State of NSW

1. [63]

   As previously stated, the State of NSW submitted that at no time up to the conclusion of the hearing before the Magistrate was the lawfulness of the plaintiff’s apprehension under the Mental Health Act in issue or raised as part of the plaintiff’s case and one that it had to meet. According to counsel for the State of NSW, this appeal raises an entirely different issue to that which was litigated in the Local Court.

2. [64]

   The State of NSW referred to Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, in which the High Court approved in a passage in Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71:

3. [65]

   In Coulton v Holcome, the High Court referred to a passage of the Court of Appeal in Holcombe v Coulton (unreported, NSW Court of Appeal, 25 June 1985) which recognised the importance of this principle in the public interest:

4. [66]

   Also, in Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4, Gleeson CJ at [2] reiterated that in the common law system of civil justice, the trial process determines the issues between the parties. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.

5. [67]

   Counsel for the State of NSW submitted that this ground of appeal, as with the three previous grounds, again clearly offends the longstanding principle referred to in Coulton v Holcombe and for that reason it should fail.

6. [68]

   Further, according to the State of NSW, the factual finding that the police intentions must have been perfectly clear to the plaintiff is clearly justified by the evidence and is not one which is susceptible to appeal, particularly when the question was not raised or explored during the hearing.

7. [69]

   The State of NSW also drew this Court’s attention to s 56 of the Civil Procedure Act 2005 (NSW) which requires the Court and the parties in litigation to identify and address the real issues between the parties. The real issue in the proceedings before the Magistrate was whether the use of force was reasonable in the circumstances. The State of NSW submitted that the Magistrate determined that issue, the only issue that was before him, and made no error of law, or error of fact and law, in doing so.

8. [70]

   Finally, counsel for the State of NSW submitted that as to the asserted error of law that “it was not unreasonable not to warn in all those circumstances”, it must be remembered that the issue as to what warnings may or may not have been given, apart from the warning of taser deployment, was not raised or explored in the pleadings or the evidence. In dealing with the supplementary submissions subsequently made, the Magistrate reviewed the evidence to the extent that such evidence enabled findings on the issue and included such findings. (J [56] and [57]). Counsel for the State of NSW submitted that such factual findings were correctly made and significantly, there was no affirmative finding that the police failed to warn or explain to the plaintiff their intentions.

Conclusion

1. [71]

   The pleading in the statement of claim did not allege that the plaintiff was unlawfully detained or apprehended. What was pleaded in the statement of claim and was also in dispute at trial was whether the plaintiff was assaulted by a police officer when he fired and activated two probes (a finding was made by the Magistrate that there was only one probe) of a taser weapon into the plaintiff’s back and whether firstly, the police had lawful justification and secondly, whether they used reasonable force.

2. [72]

   If the plaintiff proved that he had been assaulted (which he did) the State of NSW had to prove, on the balance of probabilities, that the police officer had lawful justification, used reasonable force and that the force used was not excessive. It if had been pleaded that the plaintiff had been unlawfully detained or apprehended, the onus would have also been upon the State of NSW to prove that the plaintiff’s detention or apprehension was lawful.

3. [73]

   When exercising the power under s 24 of the Mental Health Act, the police officers were obliged to inform the plaintiff that he was being apprehended and taken to a mental health facility, save for exceptional circumstances. The State of NSW had to establish, on the balance of probabilities, that the plaintiff had been informed of the reasons for his apprehension or to put it another way, that he was to be deprived of his liberty. Had the State of NSW been aware that this was an issue in dispute, which was not apparent from the pleadings nor during the hearing, it may have elected to run its case in a different way. It would have elicited more evidence on this topic or an explanation that the plaintiff himself had produced the situation which made it practically impossible to inform him that he was being detained. Nevertheless, some evidence was adduced on this topic.

4. [74]

   The plaintiff agreed that Senior Constable Reddell said something to him like “Andrew, stop or you are going to be tasered.” The plaintiff also agreed that he was told by police officers “to get in the truck” and that he did not do so. Thus there was evidence that the plaintiff was told that if he did not stop he would be tasered and he had to get into the truck and walking home was no longer an option. This denotes to the plaintiff that he had to “get in the truck”. In other words the plaintiff was being told he was being apprehended and deprived of his liberty.

5. [75]

   The plaintiff was also asked in cross examination whether he was told by the police officers that they would not allow him to go home as he was threatening to kill himself. The plaintiff denied that he threatened to kill himself.

6. [76]

   So far as whether it was reasonable for the police not to warn the plaintiff about the tasering is concerned, on the way the case was run in the Local Court the Magistrate was satisfied that a warning would most likely have led to reaction, resistance or violence by the plaintiff which may well have rendered the taser the only option available. (J [56]).

7. [77]

   Had it been put in issue that the apprehension was unlawful, then counsel for the State of NSW would have had the opportunity to direct further questions to the plaintiff and police officers as to what the plaintiff was told by the police officers in relation to his liberty being taken away. It appears that the plaintiff’s level of agitation increased and decreased at various times during the hour or so of negotiation. Also, the State of NSW would also have had the opportunity to elicit evidence to support a finding that due to the plaintiff’s actions it was impossible to inform him that he was being detained and was being taken to a mental health facility.

8. [78]

   The plaintiff’s counsel, in his supplementary submissions in the Local Court, submitted that no evidence was given to suggest that the police officer had concerns for the safety of himself, the community, his partner and perhaps if he had done so the plaintiff would have understood and complied. Those submissions also stated that before the police used the taser there should have been at least some attempt to explain what they were doing, why and what was required of the plaintiff. However, at paragraph [44] of these submissions the plaintiff linked the pre-warning to be given before the use of the taser operation could be found to be reasonable.

9. [79]

   So far as counsel for the plaintiff alleges that the Magistrate’s finding that it was “not unreasonable not to warn the plaintiff prior to firing the taser” was against the evidence and an error of law, the Magistrate at [56] is addressing the plaintiff’s further submissions at [33] to [35]. I accept that the Magistrate was perhaps incorrect in finding it was not unreasonable not to warn the plaintiff prior to firing the taser in light of the uncontradicted evidence that the plaintiff was told if he did not stop he would be tasered by Senior Constable Reddell. But, this error does not advance the plaintiff’s submissions.

10. [80]

    On appeal the plaintiff is seeking to run a new argument that he was unlawfully apprehended or detained. He had failed to raise this issue in the pleadings during the hearing when he had an opportunity to do so. I accept that the plaintiff made reference to the failure to warn in his supplementary submissions but by then it was too late. Had the plaintiff made it clear he was alleging unlawful detention or apprehension under the Mental Health Act, the State of NSW would have had the opportunity to make different forensic decisions in the pleadings or at the commencement of the trial directing questions to the plaintiff’s witnesses and making submissions on this issue.

11. [81]

    It is my view that the Magistrate did not err in law nor did he err on the issue of mixed fact and law (ground 4). The plaintiff’s grounds of appeal fail. The result is that the appeal is dismissed.

12. [82]

    The decision of his Honour Magistrate Heilpern dated 14 April 2015 is affirmed. The summons filed 19 June 2015 is dismissed.

13. [83]

    Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.