Meredith v State of New South Wales (No 5)

1. [1]

   These are representative proceedings pursuant to s 157 of the Civil Procedure Act 2005 (NSW) (“CPA”). There is one lead plaintiff, Raya Meredith (“the plaintiff”). The plaintiff was strip searched by police on 20 July 2018 when she attended the Splendour in the Grass music festival at North Byron Parklands (“SITG 2018”). Two hundred and five person searches were conducted during the festival. Approximately one hundred and forty-three of them were strip searches.

2. [2]

   The plaintiff was separated from her friends and partner and directed to a makeshift search area. A “person search” was conducted by way of a pat down. The plaintiff was then directed to pull down her top, exposing her breasts. The plaintiff told the searching police officer that she had inserted a tampon and that she was menstruating. She was directed to pull down her shorts and underwear and pull out her tampon. While naked from the waist down, she was directed to turn around and bend over. While in that position, a male police officer entered the “cubicle” (unannounced) to return the plaintiff’s bag. The plaintiff had no drugs in her possession. The strip search was unlawful. The defendant concedes that the strip search was unlawful. However, there remain several issues for resolution.

3. [3]

   It is important to state at the outset that while the Court acknowledges the community’s interest in and concern about the potential for drug overdoses at music festivals, this case is not about harm minimisation policies or initiatives. Rather, the Court is required to consider the conduct of searching police officers by reference to the legal requirements, constraints and safeguards Parliament has seen fit to impose on the exercise of police powers in conducting strip searches. It also involves an assessment of the appropriate damages.

4. [4]

   The proceedings are pursued on behalf of the plaintiff and those persons (“group members”) who:

5. [5]

   The claims of the plaintiff and the group members give rise to substantial common issues of law and fact.

6. [6]

   At all material times the police officers who conducted searches and gave directions (“the searching police”), were members of and employed by the New South Wales Police Force (“NSWPF”). The searching police were, at all material times, pursuant to s 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW), deemed to be persons in the service of the Crown.

7. [7]

   Pursuant to s 8 of the Law Reform (Vicarious Liability) Act and the Crown Proceedings Act 1988 (NSW), the defendant is vicariously liable for torts committed by persons in the service of the Crown.

Procedural history

1. [8]

   The following summary of the procedural history of this case does not include every application filed and heard during case management. Instead, this summary provides an overview of the history of the proceedings commencing in 2022.

2. [9]

   The plaintiff commenced proceedings against the State of New South Wales (“the defendant”) alleging intentional torts of assault, battery, and false imprisonment. The original Statement of Claim (“SoC”) was filed on 21 July 2022.

3. [10]

   On 29 September 2022, the defendant filed a Defence to the initial SoC. The defendant identified the searching police officers. The defendant did not admit to the characteristics of the group members.

4. [11]

   The defendant did not admit that the strip search of the plaintiff was unlawful. The plaintiff’s pleadings regarding the strip search were either not admitted or denied. The defendant maintained that the strip search of the plaintiff was lawfully authorised pursuant to s 31(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) because the searching police officer suspected on reasonable grounds that a strip search was necessary for the purposes of the search and that the seriousness and urgency of the circumstances made the strip search necessary.

5. [12]

   The defendant denied that any of the particularised conduct or other pleadings amounted to an assault, battery, or false imprisonment. The defendant did not admit or denied all paragraphs pertaining to the loss and damages claimed by the plaintiff. The defendant raised a defence pursuant to the Limitation Act 1969 (NSW) (“Limitation Act”) in respect of the claim for aggravated and exemplary damages.

6. [13]

   On 2 November 2022, the plaintiff filed an Amended Statement of Claim (“ASoC”) pursuant to orders made by Garling J on 27 October 2022 granting leave for the plaintiff to do so. This ASoC had amendments only to the pleadings identifying those persons classed as a group member to the action, where a sub-pleading was removed.

7. [14]

   On 23 November 2022, the defendant filed a Defence to the ASoC which included particulars as to the reasonable grounds and seriousness and urgency of the circumstances for the police powers exercised in respect of the plaintiff on 20 July 2018.

8. [15]

   The factors which were commonly pleaded to have constituted reasonable grounds to stop, search, and detain the plaintiff included:

9. [16]

   Factors that were pleaded to have constituted reasonable grounds for the strip search were:

10. [17]

    The defendant pleaded that there was suspicion that the seriousness and urgency of the circumstances made the strip search necessary based on:

11. [18]

    The defendant further pleaded that the suspicion of seriousness and urgency was reasonably held due to:

12. [19]

    On 8 December 2022, the plaintiff filed a Reply to the Defence to the ASoC. The Reply denied that the factors relied upon by the defendant to justify the police officers’ conduct constituted reasonable grounds to exercise the respective powers conferred by LEPRA. The plaintiff pleaded that even in combination, the circumstances particularised by the defendant could not constitute reasonable grounds to exercise the power conferred by s 21 of LEPRA. With respect to the strip search, the plaintiff denied that the grounds relied upon were reasonable grounds to suspect that a strip search was necessary and that there was seriousness and urgency in the circumstances to make the strip search necessary.

13. [20]

    The plaintiff denied that the limitation defence was made out. It was pleaded that the plaintiff’s claim for aggravated and exemplary damages did not “relate to the … personal injury of a person” within the meaning of s 11(1) of the Limitation Act.

14. [21]

    On 27 January 2023, the defendant filed a Notice of Motion which sought an order, pursuant to s 166 of the CPA, that the proceedings no longer continue as representative proceedings under Pt 10 of the CPA. On 16 March 2023, the defendant’s Notice of Motion to declass the proceedings was heard by Garling J and judgment was reserved.

15. [22]

    On 13 December 2023, Garling J made orders that the Notice of Motion seeking to declass the proceedings be dismissed with costs. Garling J found that there were likely to be common questions of fact or law raised by the proceedings and, if resolved, these would likely be applicable more broadly than just to the plaintiff alone: Meredith v State of New South Wales [2023] NSWSC 1546 (“Meredith”) at [63], [75], [82].

16. [23]

    Contrary to the defendant’s submissions, Garling J held that given the estimated number of potential group members and the significant number of common questions of fact and law, the representative action was likely to be more effective, efficient and in the interests of justice than each claimant pursuing individual proceedings: Meredith at [71]-[77], [83]-[84].

17. [24]

    On 30 March 2023, a Further Amended Statement of Claim (“FASoC”) was filed which included the subheading “Conduct of State Relevant to Exemplary Damages”. Under this subheading, the plaintiff pleaded that in the period from 22 July 2016 to 21 July 2022, most music festivals in NSW were policed by substantial detachments from the NSWPF for the purpose of, amongst other things, detecting prohibited substances. The plaintiff further particularised that between at least 2016 and 2019, the NSWPF carried out strip searches of attendees as a matter of routine rather than in circumstances lawfully justified by the provisions of LEPRA.

18. [25]

    On 26 May 2023, the defendant filed a Defence to the FASoC addressing the pleadings under the subheading “Conduct of State Relevant to Exemplary Damages”.

19. [26]

    On 17 July 2023, the defendant filed a Notice of Motion seeking an extension of time to produce documents under discovery, amongst other case management orders. On 23 August 2023, Garling J made consent orders pertaining to discovery.

20. [27]

    On 18 October 2024, the defendant served on the plaintiff’s solicitors a subpoena to produce a list of names and other identifying information of people who had become clients or registered their personal information for the purpose of the proceedings and those who had opted out of the proceedings.

21. [28]

    On 31 October 2024, the plaintiff filed a Notice of Motion to set aside the above subpoena. On 19 November 2024, Garling J made orders that the subpoena be set aside with costs. The defendant failed to establish a legitimate forensic purpose for accessing the relevant information: Meredith v State of New South Wales (No.3) [2024] NSWSC 1499 (“Meredith No.3”) at [36]. His Honour held that the determination of answers to the common questions did not (at that stage) require any identification of the individual group members.

22. [29]

    On 20 February 2025, Garling J handed down his Honour’s judgment with respect to a Notice of Motion filed by the defendant on 12 December 2023 which sought to strike out parts of the FASoC or alternatively, allow the plaintiff to re-plead them: Meredith v State of New South Wales (No.4) [2025] NSWSC 13 (“Meredith (No.4)”).

23. [30]

    The defendant had submitted that the pleadings concerning the police conduct giving rise to the plaintiff’s claim for exemplary damages were too vague and did not pinpoint any material facts. The defendant took issue with the pleadings claiming that “Senior Officers” were responsible for the training and supervision of police officers rather than pointing to precise conduct of an individual officer.

24. [31]

    Garling J refused (with the exception of one sub-paragraph), to strike out the relevant pleadings and did not agree with the contention that they were an abuse of process: Meredith (No.4) at [31]-[54].

25. [32]

    On 21 March 2025, the plaintiff was granted leave to include further particulars to paragraph 73, headed “Particulars of Aggravated Damages”, of the FASoC filed on 30 March 2023. The further particulars relate to specific conduct of the defendant during the course of the proceedings with respect to the plaintiff.

26. [33]

    Following this protracted history, the defendant filed an Amended Defence to the FASoC on 28 March 2025, approximately five weeks before the matter was listed for hearing before me. The defendant’s position has radically changed.

27. [34]

    The defendant admits that the strip search of the plaintiff was not lawfully authorised by s 31 of LEPRA. Put another way, the defendant concedes that it cannot establish that all the requirements under s 31(b) of LEPRA were satisfied. The defendant admits that the searching police did not have reasonable grounds to suspect that the strip search of the plaintiff was necessary for the purposes of the search. However, the defendant denies that there was no seriousness and urgency of the circumstances which made the strip search necessary.

28. [35]

    The defendant admits multiple pleadings that had previously been denied or in respect of which no admission was made. The defendant concedes that by virtue of the unlawful strip search, the plaintiff has made out a battery, assault, and false imprisonment. The defendant accepts that an award of general compensatory damages should be made. However, the defendant resists any award of exemplary damages and, in relation to the claim for aggravated and exemplary damages, maintains its Limitation Act defence.

29. [36]

    [Redacted].

30. [37]

    A Notice of Motion to set aside the subpoena was listed before Garling J on 21 March 2025.

31. [38]

    Two days before that hearing, the defendant consented to the plaintiff’s application to set aside the subpoena. Garling J made an order to set aside the subpoena on 21 March 2025.

32. [39]

    The proceedings commenced before me by way of hearing on 5 May 2025. The only witness called in the proceedings was the plaintiff. She gave evidence on a discrete topic relating to her claim for aggravated damages resulting from the conduct of the proceedings.

33. [40]

    A Second Further Amended Statement of Claim (“SFASoC”) was filed on 6 May 2025 pursuant to orders made by Garling J on 21 March 2025 granting leave to the plaintiff to add further particulars of aggravated damages relating to the defendant’s conduct of the proceedings.

34. [41]

    Closing arguments were finalised on 16 May 2025.

35. [42]

    Notwithstanding the radical change in the defendant’s position and the concession that the strip search to which the plaintiff was subjected was not lawfully justified, the defendant has extended no apology whatsoever to the plaintiff. The absence of an apology is confounding. In circumstances where the defendant has accepted that the strip search was unlawful, the absence of an apology is akin to an “own goal”.

Legal principles of general applicability

1. [43]

   In the Amended Defence, the defendant makes a number of admissions but has not pleaded to particulars. There is no requirement to plead to particulars: Hoxton Park Residents Action Group Inc v Liverpool City Council [2012] NSWSC 1026 at [43], citing Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 at 75. I accept that the absence of a pleading specifically to an individual particular cannot be taken to be an admission.

2. [44]

   The defendant does not by the Amended Defence seek to establish lawful justification for the conduct of the searching police officers. The defendant admits that the conduct was unlawful, and therefore tortious, and that the plaintiff is entitled to an award of compensatory damages. In the absence of a suspicion on reasonable grounds, compliance with the safeguards in ss 32 and 33 of LEPRA cannot establish lawful justification, thereby rendering unnecessary the plaintiff’s proof of any breach of those sections on the issue of liability. However, as will be seen, whether (and to what extent) searching officers breached ss 32 and 33 is relevant to the question of damages.

3. [45]

   The onus is on the plaintiff to establish those factors relied upon to justify the quantum of compensatory damages sought and any additional award by way of aggravated or exemplary damages.

4. [46]

   It is uncontroversial that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”: Blatch v Archer (1774) 1 Cowp 63 at 65; (1774) 98 ER 969 at 970. The defendant is in the unique position to identify all relevant documents relating to systemic materials concerning the training and supervision of police officers in exercising their powers of search, and in particular, in conducting strip searches.

5. [47]

   The plaintiff does not suggest that the absence of documentary evidence on any particular issue is sufficient to “convert conjecture and suspicion into inference”: Fair Work Ombudsman v Hu (2019) 266 FCR 83; [2019] FCAFC 133 at [56]; ASIC v Hellicar (2012) 247 CLR 345 at 412; [2012] HCA 17 at [165]-[166]. Rather, the plaintiff submits that in the absence of clear evidence from the defendant contradicting any inference which is available from the material relied upon by the plaintiff, for any particular fact in dispute, the Court may more readily draw the inference proposed by the plaintiff. That is a correct statement of principle.

6. [48]

   Furthermore, an unexplained failure by a party to adduce evidence, which it may be expected to have been in that party’s interest to adduce, may lead to an inference that the evidence would not have assisted that party’s case: Jones v Dunkel (1959) 101 CLR 298 at 320-321; [1959] HCA 8. Inferential reasoning may involve a conclusion that it would be natural for one party to produce a witness, rather than the other. The natural inference occurs where the witness might be regarded as in the “camp” of one party so as to make it unrealistic for the other party to call him or her: Payne v Parker [1976] 1 NSWLR 191 at 201-202.

The evidence

1. [49]

   The plaintiff’s account of the factual circumstances relating to the strip search is set out in her witness statement dated 21 November 2023. That account was not challenged in cross-examination. I make two observations in respect of the plaintiff’s witness statement. The first is that it should be taken as having provided a full account of her interactions with the searching police officers. In closing submissions, it was accepted on behalf of the defendant that the plaintiff’s statement was “a complete statement of the plaintiff’s evidence on these topics”.

2. [50]

   The second observation relates to the defendant’s repeated submissions that the plaintiff’s statement “is silent” as to whether the searching police informed her that she would be required to remove clothing during the search or whether they informed her of relevant matters in compliance with the ss 32 and 33 safeguards. The defendant submits that the absence of a positive denial by the plaintiff means that “[t]here is no direct evidence to support a finding that this did not occur”.

3. [51]

   This submission is misconceived. The plaintiff does not have to positively deny something to support a finding that it did not occur. The plaintiff’s account, as contained in her witness statement, attests to her interactions with the searching police officers. Those interactions did not include a conversation between the plaintiff and any of the searching police officers about the requirement to remove her clothing, the reason that she had to remove her clothing, or requests for her cooperation.

4. [52]

   The plaintiff has not been challenged in respect of that account. It has not been put to her that the searching police officer informed her about the requirement to remove her clothing or informed her as to why it was necessary to remove her clothing. The plaintiff does not have to positively deny a proposition that something took place in order to establish that it did not. Rather, her witness statement, being a full account of her interactions with the searching police officers, encompasses the entirety of those interactions.

5. [53]

   The plaintiff was called in the proceedings to give evidence about her claim for aggravated damages arising from the conduct of the proceedings. She was subjected to brief cross-examination on that discrete topic.

6. [54]

   The plaintiff also relies upon the evidence of Sean Rood, which is contained in his witness statement dated 8 December 2023. Mr Rood is the plaintiff’s partner. His account is not challenged.

7. [55]

   In addition, the plaintiff relies upon documentary evidence largely relevant to the claim for exemplary damages. The documentary evidence is made up of a large volume of material relating to the education and training of police officers including training in respect of person searches and strip searches (Exhibit 2).

8. [56]

   The documents produced by way of discovery are set out in the affidavit of the plaintiff’s solicitor Rory John Walsh, dated 2 May 2025. They include documents under Discovery Category 7 which relate to “All training and education materials provided, prior to Splendour 2018, to those police officers who interacted with the Plaintiff at Splendour 2018 relating to: (a) person/general searches; (b) strip searches; and (c) use of drug detection dogs”. One hundred and forty-five documents responsive to Category 7 were provided by the defendant’s solicitors.

9. [57]

   These documents include those concerning the training provided by the Police Academy; Mandatory Continuing Police Education Package; document extracts from the NSWPF Handbook or NSWPF Code of Practice for CRIME; and standalone articles, case summaries, standard operating procedures, computer messages, infographics, flyers, and journal extracts.

10. [58]

    The documents produced in response to Discovery Category 17 relate to “all training and education materials provided by NSWPF to police officers (excluding NSWPF Handbook) … from 22 July 2018 to 22 July 2022 relating to: (a) person searches; (b) strip searches; and/or (c) use of drug detection dogs”. One hundred and thirty-two documents were produced.

11. [59]

    The documents include a Police Academy training video; Police Academy modules; documents relating to a “Music Festivals Fundamentals” training program; Mandatory Continuing Education Programs; and further standalone articles, workshop materials, PowerPoints, fact sheets, stickers, videos, computer messages, briefing materials, and intranet resources.

12. [60]

    Under Discovery Category 8, the defendant produced the NSWPF Handbook on person searches and strip searches in operation as at July 2018, limited to the cover page, index and sections dealing with personal/general searches, strip searches, and drug detection dogs, as well as the parts which were provided to the Law Enforcement Conduct Commission (“LECC”) for Operation Brugge.

13. [61]

    Under Discovery Category 10, the defendant produced “All versions, or parts thereof, of the NSWPF Handbook and Code of Practice for CRIME in existence as at the date of Splendour 2018 music festival in relation to person searching (including strip searches) and/or the use of drug detection dogs which were provided to: (a) [the] Law Enforcement Conduct Commission (LECC) … and/or (b) The NSW State Coroner’s Inquest into the death of six patrons at NSW Music Festivals (Inquest)”.

14. [62]

    Discovery Category 3 produced 12 documents relating to “All directives, operational orders, joining instructions or similar documents, and any records or trainings or briefings created for or provided to searching, drug detection dog, and “user-pays” police at Splendour 2018”.

15. [63]

    The statements of searching police officers identified by the defendant were served on the plaintiff on 28 March 2024 and 5 April 2024. The statement of Senior Constable George (“SC George”) was signed on 28 March 2024. She stated that she is aware that LEPRA requires seriousness and urgency in order to conduct a strip search. She does not remember the plaintiff and does not remember searching her. SC George did not make a notebook entry in relation to a search of the plaintiff. She did not make a Computerised Operational Policing System (“COPS”) event entry in respect of any such search.

16. [64]

    Senior Constable Jarnet (“SC Jarnet”) made a statement dated 27 March 2024. He stated that he did not remember the plaintiff and could only comment on things that he would typically take into account when considering whether someone might have drugs in their possession. The redacted witness statement in evidence does not state what those considerations were. He did not make a notebook or COPS event entry in relation to the search of the plaintiff.

17. [65]

    Senior Constable Petrie (“SC Petrie”) made a statement on 29 March 2024. He does not recall the plaintiff. He does not recall being involved in any search of the plaintiff. He did make a notebook entry in respect of the search of the plaintiff but did not recall making the notebook entry.

18. [66]

    The relevant notebook entry records a time of 12:20pm. It records the plaintiff’s name, date of birth, address, and telephone number. It also records an alleged representation made by the plaintiff, namely “I had a smoke with a joint this morning”. There is no further detail about the circumstances of the search.

19. [67]

    SC Petrie subsequently made a COPS event entry at 19:52 or 7:52pm on 20 July 2018 in respect of the search of the plaintiff. Relevantly, the entry states:

20. [68]

    There is no other record of the circumstances relating to the search of the plaintiff. There is no record of any observations by police about her appearance or demeanour. Other than the alleged representation noted above, there is no record of any conversation between any of the searching police officers and the plaintiff.

21. [69]

    There is a factual dispute about whether the plaintiff made the representation “I had a smoke with a joint this morning”. That factual dispute can be conveniently dealt with now. Other than the notation in the notebook, which is repeated in the COPS event entry, SC Petrie had no recollection of the plaintiff or his dealings with her. I pause to observe that similar representations to that allegedly made by the plaintiff appear in seven separate entries in SC Petrie’s notebook between 12:00pm and 5:40pm in respect of different searches.

22. [70]

    The plaintiff denies that she said the words attributed to her. In her witness statement, the plaintiff gave a full account of her interactions with police on 20 July 2018. The plaintiff stated that she was not under the influence of any drugs and that she had not been asked by a police officer if she had taken any drugs. That evidence is unchallenged. Furthermore, in her evidence before me, the plaintiff stated:

23. [71]

    I have formed the view that the plaintiff is both a credible and reliable witness. She is supported by the unchallenged evidence of Mr Rood that neither he nor the plaintiff had consumed drugs. I have no hesitation in accepting the plaintiff’s account that she did not make the representation attributed to her in SC Petrie’s notebook.

24. [72]

    Contrary to the defendant’s submissions, the plaintiff’s assertion that the words attributed to her are untrue do not constitute an express allegation of fraud or dishonesty falling into a “special status in civil litigation”. Furthermore, the determination of this factual dispute is not a positive finding that SC Petrie deliberately lied. It is an acceptance of the plaintiff’s evidence that she did not say those words. Given the number of searches conducted and the perfunctory record keeping, the inclusion of those words in SC Petrie’s notebook may simply have been a mistake.

25. [73]

    There is no unfairness whatsoever to the author of the notebook entry. The defendant was well aware of the plaintiff’s position in light of the pleadings and the contents of her witness statement. Unsurprisingly, SC Petrie was not called by the defendant given his total lack of recollection about his interactions with the plaintiff.

26. [74]

    Insofar as the searching police officers’ statements refer to their awareness of the LEPRA requirements or otherwise refer to their usual practice, the redacted versions of their statements in evidence are conspicuously silent as to what their usual practice was or their specific knowledge as to how the LEPRA provisions apply to strip searches.

27. [75]

    The defendant has not called any witnesses. The defendant relies upon a number of documents including NSWPF training, educational, and operational materials (Exhibit 4).

28. [76]

    As indicated earlier, the documentary evidence largely relates to the education and training of police officers generally and in respect of strip searches. That evidence is primarily relevant to the claim for exemplary damages and will be comprehensively summarised when I come to consider that claim.

29. [77]

    A number of factual matters are agreed between the parties and are contained in the “Statement of Agreed Facts” (Exhibit 3). Although the defendant agrees with the facts contained in this document, this is not to be taken as agreement that those facts are relevant to any matter in issue in the proceedings. Those facts are relevant in large part to the claim for exemplary damages and will be reproduced in this judgment when I come to consider that issue.

30. [78]

    In light of the way the matter has proceeded, the defendant does not dispute material aspects of the plaintiff’s account. To the extent that I am required to make factual findings about particulars of the plaintiff’s pleadings, I will do so in due course. For present purposes, I proceed on the following account of the interactions between the plaintiff and the searching police officers on 20 July 2018, which I have found established by the plaintiff.

31. [79]

    In July 2018, the plaintiff was 27 years old. The plaintiff has no criminal record and, before the events in question, had never been taken into police custody for the purpose of a search or for any other purpose.

32. [80]

    Between 20 and 22 July 2018, SITG 2018 was held at North Byron Parklands in New South Wales. Police officers from various units attended including General Duties officers from across the Northern Region and the Drug Detection Dog (“DDD”) Unit.

33. [81]

    The following diagram taken from the statement of Sgt Kentwell dated 28 March 2024 (with the red circle added by the plaintiff) provides a general reference to the location of the campground gate at which part of the DDD operation was deployed:

34. [82]

    The DDD operation was staffed by approximately 60-70 police officers out of a total composite detachment of about 340 officers. Its target was “illegal drugs being supplied and used within the main entertainment and camping areas”. It can readily be inferred that police were deployed with an expectation that they would be conducting strip searches. This is made plain by the level of planning and the infrastructure that was put in place, including the DDD operation teams and setting up the Police Searching Area. The COPS entries for the festival also reveal that a pro-forma COPS event was developed, which further supports the inference that the NSWPF expected to be conducting searches.

35. [83]

    On 19 July 2018, the day before the festival commenced, the plaintiff arrived and set up camp at North Byron Parklands with a large group of friends and her partner, Sean Rood. She had purchased a ticket for the event along with a camping ticket, the total cost of which was $552.57.

36. [84]

    On the first day of the festival, between 11:40am and 12:00pm, the plaintiff approached the front entrance gate to the festival grounds with her friends and her partner. She was excited for the first day of the festival and was looking forward to seeing an artist who had been the 2018 Triple J Unearthed winner.

37. [85]

    The plaintiff made her way to the entrance when she noticed a police dog near her. The police dog sniffed in the plaintiff’s direction before moving away from her. Shortly after, the plaintiff was stopped from entering the festival by a police officer. The officer tapped the plaintiff on her shoulder and said words to the effect of, “The dog has detected drugs on you. If you follow me, we need to conduct a search”. The plaintiff does not recall whether the officer identified himself by name, the name on the officer’s badge, or if he was wearing a badge.

38. [86]

    In light of the fact that the searching police were in uniform there was no requirement for police to tell the plaintiff that they were police officers: s 202(1)(a) of LEPRA. Furthermore, the plaintiff cannot recall whether the officer identified himself by name. I cannot therefore make a positive finding that the officer did not inform the plaintiff of his name: s 202(1)(b) of LEPRA. For the reasons set out below I am satisfied that the searching police did not inform the plaintiff of the reason for the exercise of the power: s 202(1)(c) of LEPRA.

39. [87]

    The plaintiff felt apprehensive and frightened about what was happening. By his words and actions, the plaintiff believed that she had to comply with the directions of the police officer and could not refuse to go with him. The defendant identified SC Jarnet as the police officer handling the drug detection dog named “Seeby”.

40. [88]

    The defendant identified SC Petrie as a police officer who also spoke to the plaintiff and directed her to the police inspection area.

41. [89]

    The plaintiff was separated from her friends and directed to a makeshift police inspection area. The temporary structure consisted of three-walled “cubicles”. The front of the cubicle was open and had a screen approximately 1.5 m high. Between the screen and the cubicles was a walkway used to lead people in and out of the cubicles. The plaintiff was directed to hand her bag over to an officer who took it out of her sight as she was directed into one of the cubicles by a female police officer. The female police officer entered and there was a brief verbal exchange to the effect of:

42. [90]

    The plaintiff does not recall if the officer identified herself by name, the name on the officer’s badge, or if the officer was wearing a badge. The Defence to the FASoC identified the female police officer as SC George.

43. [91]

    An issue arises as to whether I can be satisfied that SC George has been correctly identified as the female police officer who conducted the strip search of the plaintiff. SC George made no notebook or COPS event entry in respect of the strip search of the plaintiff. The notebook entry made by SC Petrie does not refer to the name of the searching officer for the plaintiff (the only reference to SC George is in the COPS event entry). As noted earlier, SC Petrie’s notebook entry concerning the plaintiff was recorded as commencing at 12:20pm.

44. [92]

    SC George’s notebook entries on the same day indicate that at 11:50am she was at Gate 4 with an “unknown … located on ground”. Immediately after is another entry in SC George’s notebook at 12:35pm with the details of a different person and at 12:43pm a further entry in relation to another person. The plaintiff submits that it is highly unlikely that SC George was the searching police officer, given that it is agreed upon that the detention of the plaintiff was 30 minutes and the timeline indicates that SC George was involved in another person’s search during that time.

45. [93]

    The evidence as to the identity of the female officer is less than satisfactory. However, in my view, the identity of the female officer is not in itself significant. The pertinent matters relate to the interactions between the searching police officer and the plaintiff. I am prepared to proceed on the basis that it was SC George who conducted the strip search of the plaintiff.

46. [94]

    The apparent inconsistency in the records highlights a larger problem relating to poor record keeping and in particular, the failure to record pertinent matters justifying the plaintiff’s strip search. That failure is telling and relevant to a broader issue. The absence of any reference to the statutory preconditions such as necessity, urgency, or seriousness, in the notebooks or COPS event entries discovered for SITG 2018, is one of several factors that demonstrates the extent of non-compliance on the part of searching officers.

47. [95]

    The Statement of Agreed Facts (Exhibit 3) states that the entries in the police notebooks of every police officer who conducted a strip search at SITG 2018 were discovered by the defendant in these proceedings. None of the notebooks contained any entry identifying:

48. [96]

    This circumstance, taken together with other evidence, leads to the irresistible inference that the police officer who conducted the strip search did not turn her mind to the statutory preconditions under s 31(b) of LEPRA.

49. [97]

    The female police officer began an ordinary person search of the plaintiff. She patted down the plaintiff by running her hands along the plaintiff’s outstretched arms and then along her body from torso to legs. The plaintiff was wearing a singlet top with her bare arms exposed. She was wearing high waisted three-quarter shorts that came to her knees, and boots. In conducting the pat down search, the female officer touched the plaintiff’s bare skin along her arms and on the lower half of her legs.

50. [98]

    The officer directed the plaintiff to remove her shoes and socks. The plaintiff was then directed to pull down her top. She was not wearing a bra. She complied with the direction, pulling down her top and exposing her breasts. The police officer directed the plaintiff with words to the effect of, “Lift your breasts up, lean forward and then drop your breasts”.

51. [99]

    The plaintiff complied with the direction and the female officer leaned down and looked at the area under the plaintiff’s breasts.

52. [100]

    A further verbal exchange occurred between the female police officer and the plaintiff as follows:

53. [101]

    The plaintiff’s fear was heightened. She felt threatened. She did not want to be removed from the event. She believed that she must comply with the directions of the police officer. The plaintiff was extremely frightened that the police officer was going to perform a cavity search, and she recalled thinking, “I am going to have to let this woman insert her hands into my vagina or she is going to kick me out of the festival”.

54. [102]

    Following this exchange the female police officer directed the plaintiff to remove her clothing from the lower half of her body, saying words to the effect of, “Pull down your shorts and your underpants”.

55. [103]

    The plaintiff complied and pulled down her shorts and underwear. She recalled feeling disgusted that another woman was putting her through this. She felt like vomiting.

56. [104]

    The female officer then said words to the effect of, “Pull out the tampon and show it to me”. The tone of the officer’s voice was commanding and even though the plaintiff was extremely upset and uncomfortable, she felt that she had no choice but to comply.

57. [105]

    The plaintiff pulled slightly on the string of the tampon whilst the female police officer bent down and looked towards the plaintiff’s vagina. The plaintiff did not want to pull the tampon fully out of her body as she did not want blood to go everywhere. She felt degraded. The plaintiff was also postpartum at the time of the search.

58. [106]

    With the plaintiff’s shorts and underwear around her knees, she was given further directions by the female officer to the effect of, “Turn around so that your back is towards me and bend right over”.

59. [107]

    Whilst the plaintiff was bending over, a male police officer entered the cubicle, without warning, holding the plaintiff’s bag. He gave the bag to the female police officer and said words to the effect of, “Nothing found in the bag”. The plaintiff does not believe the male officer identified himself by name. The plaintiff does not recall the name on the officer’s badge or if he was wearing a badge.

60. [108]

    The plaintiff felt “totally embarrassed and humiliated”. She scrambled to pull her underwear and shorts up so that she could cover herself. At this point the plaintiff was feeling angry and nauseous. She said something to the effect of, “I have nothing on me, can I leave?”.

61. [109]

    The female police officer responded, saying something to the effect of, “No, you can’t leave yet. We have to take your details in case you get pulled aside for another search, which wouldn’t look good for you”.

62. [110]

    The plaintiff scrambled to put her shoes and socks on. She felt dishevelled and rushed. She was directed out of the cubicle by the female officer who then directed the plaintiff to provide her driver’s licence to a male police officer. She complied and presented her driver’s licence to a police officer who recorded her details in a notepad. The plaintiff was then told she could leave the police inspection area and she entered the festival.

63. [111]

    The plaintiff was detained for approximately 30 minutes.

64. [112]

    No drugs or other prohibited items were found on the plaintiff or in her bag.

65. [113]

    The plaintiff returned to her friends and her partner who had waited for her just inside the festival grounds. The plaintiff told her friends that she had been strip searched. She was embarrassed and felt like she “was in shock”.

66. [114]

    The plaintiff accessed a toilet cubicle where she removed and disposed of the tampon that was still sitting uncomfortably inside her following the search. She recalled struggling to open the packaging of the new tampon because her hands were shaking.

Elements of the torts alleged

1. [115]

   The plaintiff alleges that the conduct of the searching police amounted to an assault, battery, and false imprisonment. The plaintiff alleges a battery constituted by the searching police officer conducting a pat down search of her body.

2. [116]

   The particulars of the assault are as follows:

   1. (1)

      Being forced to go into the search area within the Police Inspection Area;

   2. (2)

      Being forced to remove her top, expose her breasts, and lift up her breasts for inspection by the female police officer;

   3. (3)

      Being forced to remove her outer clothes and underpants for inspection of her lower body by the female police officer;

   4. (4)

      Being forced to remove (or partially remove) a tampon from her vagina for inspection by the female police officer;

   5. (5)

      Being forced to turn around and expose her back and bare buttocks for inspection by the female police officer;

   6. (6)

      Being forced to bend over for inspection by the female police officer;

   7. (7)

      By the male police officer entering the cubicle while the plaintiff was partially bent over;

   8. (8)

      Being forced to dress herself in front of the female police officer;

   9. (9)

      Having her bag removed from her and taken out of her sight;

   10. (10)

       Being subjected to the strip search at the same time as she believed her bag was searched; and

   11. (11)

       Being forced to provide her driver’s licence to the police and have those details recorded.

3. [117]

   The particulars of the false imprisonment, alleging that the plaintiff was completely deprived of her liberty for a period of approximately 30 minutes, are as follows:

   1. (1)

      For the duration of the period commencing with the plaintiff being directed to the Police Inspection Area by the police officer with the police dog to the time at which she was forced to go into the cubicle; and

   2. (2)

      Whilst the plaintiff:

   3. (3)

      For the period during which the plaintiff was forced to provide (and have recorded) her driver’s licence details until the time that she was directed to leave the Police Inspection Area.

4. [118]

   The torts are admitted, and their elements are not in dispute. The elements, therefore, need only brief mention.

5. [119]

   It is accepted that assault has two elements, namely, that the defendant’s conduct must be such as to cause the plaintiff to apprehend unlawful physical contact and the plaintiff must be put in apprehension of such unlawful contact: see R v Phillips (1971) 45 ALJR 467 at 472; Dowse v State of New South Wales (2012) 226 A Crim R 36; [2012] NSWCA 337 at [41].

6. [120]

   Battery requires that a defendant directly causes physical contact with the plaintiff, unless the defendant proves that he or she was “utterly without fault”: Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [21].

7. [121]

   False imprisonment involves the unlawful arrest or detaining of any person: see Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714; (1988) 34 A Crim R 364. False imprisonment occurs where there is an intentional, total, and direct restraint on a person’s liberty. It is a tort of strict liability, in that intent is irrelevant: Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 (“Ruddock”) at [140] (Kirby J in dissent, but not on this point).

8. [122]

   Imprisonment includes circumstances where a person is led to hold a belief that if they attempted to leave, they would be compelled to remain: see Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 (“Watson v Marshall”). Relatedly, a person’s liberty is constrained where, while acceding to a police officer’s direction, he or she does so with a justifiable apprehension that refusal would be met with compulsion: State of New South Wales v Exton (2017) 270 A Crim R 182; [2017] NSWCA 294 at [40]-[46].

9. [123]

   The defendant concedes that the plaintiff did not consent to being searched or strip searched. The plaintiff’s evidence that she believed she had to comply with the police officers’ directions is not disputed.

The position of the parties

1. [124]

   The plaintiff’s pleadings allege that the strip search was not lawfully authorised by s 31 of LEPRA in that the searching police did not have reasonable grounds to suspect that the strip search was necessary for the purposes of the search and there was no seriousness and urgency of the circumstances which made the strip search necessary.

2. [125]

   The plaintiff alleges that she was not informed prior to the strip search of the name of the police officer and their place of duty, the reason for the strip search, and that the plaintiff would be required to remove her clothing or why it was necessary to do so. The plaintiff also alleges that she was not asked for her cooperation.

3. [126]

   The plaintiff further alleges that the strip search was not conducted in an area that provided reasonable privacy nor was it the least invasive kind of search practicable in the circumstances, involving a search of her genital area and breasts in circumstances where the searching officer did not have reasonable grounds to suspect that it was necessary for the purposes of the search. It is also alleged that the plaintiff was questioned during the strip search.

4. [127]

   The plaintiff asserts that the police officers failed to comply with safeguards contained in ss 32 and 33 of LEPRA. In the absence of any lawful justification and in the absence of the plaintiff’s consent, the police officers’ conduct constituted a battery, assault, and false imprisonment.

5. [128]

   The plaintiff does not claim personal injury damages within the meaning of Pt 2 of the Civil Liability Act 2002 (NSW) (“Civil Liability Act”). Instead, the plaintiff claims compensatory damages, aggravated damages, and exemplary damages.

6. [129]

   The claim for aggravated damages is twofold. First, there is a claim for aggravated damages relating to the special humiliation occasioned by reason of the unlawful and unjustifiable actions of the police officers during the strip search. Second, there is a claim for aggravated damages flowing from the conduct of the proceedings.

7. [130]

   The plaintiff’s claim for exemplary damages, in part, relates to the conduct of searching police officers which is said to have been performed in contumelious disregard of the plaintiff’s rights and feelings. The essential proposition is that exemplary damages are warranted because senior officers failed to exercise reasonable care and skill to ensure that police officers were adequately trained and supervised in the performance of their duties (conducting strip searches) according to law.

8. [131]

   The plaintiff pleads that exemplary damages are warranted to reflect society’s disapprobation of such conduct, to mark the Court’s condemnation of such behaviour and to act as a salutary deterrent.

9. [132]

   The defendant admits that the searching police officer did not have reasonable grounds to suspect that the strip search was necessary for the purposes of the search. On that basis, the defendant admits the cause of action and accepts that the plaintiff was the victim of a battery, assault, and false imprisonment, entitling her to compensatory damages. However, in determining damages, the defendant disputes some of the contentions advanced by the plaintiff.

10. [133]

    The defendant does not concede that there was no seriousness and urgency of the circumstances to make the strip search necessary (s 31(b) of LEPRA). In respect of the seriousness and urgency of the circumstances, the defendant essentially relies upon statistics relating to the number of seizures of prohibited substances by police at music festivals and the number of overdoses and deaths attributed to the use of prohibited drugs at music festivals. The defendant submits that “seriousness” is “effectively self-evident” in the context of strip searches at music festivals.

11. [134]

    The defendant contends that the evidence does not support a finding that the strip search was conducted in circumstances that were not serious or urgent. Furthermore, the defendant submits that the plaintiff has not established non-compliance with a number of the safeguards in ss 32 and 33 of LEPRA in her claim for aggravated damages.

12. [135]

    The plaintiff’s entitlement to exemplary damages is hotly contested by the defendant. A significant portion of the hearing was dedicated to the evidence and submissions relating to this topic. It will therefore be necessary to set out the evidence which the plaintiff relies on in some detail when I come to consider the claim for exemplary damages.

The issues to be determined

1. [136]

   Although the defendant no longer disputes the plaintiff’s individual claim arising out of the strip search to which she was subjected on 20 July 2018, there remain factual and legal issues to be determined which include the following:

Legal principles and interpretation – LEPRA

1. [137]

   To the extent that it is necessary to say so, the following analysis applies to police powers to conduct strip searches in the field.

2. [138]

   LEPRA was assented to on 29 November 2002 and commenced in stages in 2004 and 2005. The Second Reading Speech to the Law Enforcement (Powers and Responsibilities) Bill 2002 (NSW) sheds some light on the purpose of the legislation: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4846.

3. [139]

   Section 21 of LEPRA grants a police officer the power to stop, search, and detain a person if that officer suspects on reasonable grounds that the person has something in their possession or under their control which meets the criteria set out in the section. It provides:

4. [140]

   In the Second Reading Speech, s 21 is discussed in general terms as follows (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4846):

5. [141]

   The three-tiered personal search model included a regime of frisk, ordinary, and strip searches. The distinction between a frisk search and an ordinary search has since been removed.

6. [142]

   It is apt to note that the Royal Commission into the New South Wales Police Service in 1997 came across “a number of incidents where private citizens were the subject of unlawful assaults and serious abuses of police powers”. The Royal Commission also observed that the powers entrusted to police are “very substantial”. The Royal Commission’s recommendations and findings included the consolidation of police powers in new legislation, with the following objectives:

7. [143]

   The overarching principles that apply to the construction of provisions of LEPRA recognise and emphasise two fundamental points. First, a strip search constitutes a highly invasive incursion on a subject’s personal liberty. Second, any power depriving the person of their liberty must be strictly construed: Zaravinos v State of New South Wales; State of New South Wales & Ors v Zaravinos (2004) 62 NSWLR 58; [2004] NSWCA 320 at [23] citing Williams v The Queen (1986) 161 CLR 278 at 292, 296; [1986] HCA 88 (“Williams v The Queen”) and Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139; [1980] HCA 49; George v Rockett (1990) 170 CLR 104 at 110-1; [1990] HCA 26 (“George v Rockett”); State of New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32.

8. [144]

   Section 21 of LEPRA identifies the circumstances in which a police officer may conduct an ordinary search of a person without a warrant. Section 30 prescribes what a police officer may do in performing such a search. Importantly, s 21(1) requires the searching officer to hold a suspicion on reasonable grounds that one of the four circumstances in s 21(a)-(d) exist.

9. [145]

   Section 31 of LEPRA provides additional requirements for the circumstances in which a strip search may be carried out. Relevantly, s 31(b) sets out the requirements for a strip search ‘in the field’ rather than an ‘in custody’ strip search provided for under s 31(a).

10. [146]

    A strip search is defined in s 3 of LEPRA as follows:

11. [147]

    Section 31 provides as follows:

12. [148]

    Suspicion on reasonable grounds is a requirement of both ss 21 and 31. It is a requirement that appears in a number of other LEPRA provisions, e.g., ss 11, 14, 22, 27, 36 and 37. The legal principles relevant to suspicion on reasonable grounds are well settled.

13. [149]

    In R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540, Smart AJ (Spigelman CJ and Simpson J agreeing) summarised the legal principles relating to “reasonable suspicion” at [53] (albeit before the commencement of LEPRA):

14. [150]

    The principles applicable to the state of mind required to have reasonable grounds to either suspect or believe certain matters for the purpose of issuing a warrant or arresting a person may overlap: Hyder v Commonwealth of Australia (2012) 217 A Crim R 571; [2012] NSWCA 336 at [15]. While suspicion may include an element of surmise or speculation, there must be a factual basis to ground the suspicion: State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 at [115]-[118]; George v Rockett at 112.

15. [151]

    In Hrdavec v State of New South Wales [2022] NSWCA 52, the Court (Bell P, Basten and White JJA) reiterated that the test for establishing a “suspicion on reasonable grounds” involves both a subjective and objective element:

16. [152]

    A consideration of whether a police officer holds a suspicion on reasonable grounds involves a two-step process. Firstly, a police officer must have the relevant suspicion, that is, a subjective state of suspicion. Unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion will only be available where it can be shown that the suspicion was manifestly unreasonable, arbitrary, capricious, irrational, or not bona fide: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [133]; State of New South Wales v Randall [2017] NSWCA 88 at [13]; AD v State of NSW (2023) 308 A Crim R 367; [2023] NSWCA 115 at [25]-[28].

17. [153]

    Secondly, the suspicion must be held on reasonable grounds. This second step imports an objective test. The answer to the question as to whether the suspicion was based on reasonable grounds is a binary one.

18. [154]

    Accordingly, in order to meet the criteria provided for by LEPRA in respect of a strip search in the field on the grounds of suspected possession of a prohibited plant or drug, a police officer must:

    1. (1)

       Form a suspicion on reasonable grounds that the person has in his or her possession, in contravention of the Drug Misuse and Trafficking Act 1985 (NSW), a prohibited plant or prohibited drug: s 21(1)(d), and

    2. (2)

       The police officer must suspect on reasonable grounds that the strip search is necessary for the purposes of the search: s 31(b); and

    3. (3)

       The police officer must form the view that the seriousness and urgency of the circumstances make the strip search necessary: s 31(b).

19. [155]

    Proceeding with a strip search without meeting these requirements would render the strip search unlawful. Section 31(b) is not merely an extension of s 21. A suspicion held on reasonable grounds that a person has in his or her possession or under his or her control a prohibited plant or prohibited drug, is not sufficient to enliven the power under s 31(b) to conduct a strip search of the person.

20. [156]

    The police officer must separately turn his or her mind to whether there are reasonable grounds to render the strip search necessary for the purposes of the search and that the circumstances are sufficiently serious and urgent to make it necessary.

21. [157]

    This statutory construction is consistent with the escalating tiered system of person searches provided for by LEPRA.

22. [158]

    Both limbs of s 31(b) of LEPRA adopt the requirement of necessity. The police officer must suspect on reasonable grounds that the strip search is necessary for the purposes of the search and necessary because of the seriousness and urgency of the circumstances. It is useful to consider other cases where the court has considered the meaning of “necessary” within the context of LEPRA provisions.

23. [159]

    Section 99 of LEPRA deals with the power of police officers to arrest without warrant. The section was amended by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Act 2013 (NSW). This amendment introduced the criterion of “reasonably necessary” to the section. Prior to the amendment, s 99(3) relevantly provided that a police officer must not arrest a person for the purposes of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the purposes set out in s 99(3).

24. [160]

    In State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 (“Robinson”), the Court (Beazley P, Payne JA and Sackville AJA) considered the meaning of “necessary” in s 99(3) as follows:

25. [161]

    In Owlstara v State of New South Wales (2020) 285 A Crim R 53; [2020] NSWCA 217, the Court (Meagher JA, Basten JA and Emmett AJA agreeing) endorsed the definition of necessary set out in Robinson, summarising the test in s 99(3) (prior to the amendment of s 99) as follows:

26. [162]

    The amendment to s 99 of LEPRA (by adopting a “reasonably necessary” criterion), demonstrates a choice by Parliament to dilute the previous requirement. Given that Parliament made that choice, the notion of being appropriate and adapted to achieve one or more of the identified reasons is an apt way to articulate what is now conveyed by “reasonably necessary” in s 99(1)(b): State of New South Wales v Dennis [2025] NSWCA 118 at [38]-[39]; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at [39].

27. [163]

    By contrast, s 31(b) of LEPRA retains the requirement of necessity, undiluted, under both limbs. Given the highly intrusive and invasive nature of strip searches, it is correct to construe “necessary” in the context of s 31 as meaning “needed to be done”, “required”, or something “that cannot be dispensed with”: see Robinson at [43].

28. [164]

    The phrase “seriousness and urgency” has not been explicitly judicially considered or defined in any legislative context that I have been able to find. The Macquarie Dictionary, online ed, definition of “serious” includes, “of grave aspect”, “weighty or important”, and “giving cause for apprehension; critical”. The Macquarie Dictionary, online ed, definition of “urgent” includes, “pressing; compelling or requiring immediate action or attention; imperative”.

29. [165]

    Although “seriousness and urgency” of the circumstances is a threshold requirement for the exercise of other statutory search powers, those terms are not defined in LEPRA or in any other legislation in other Australian jurisdictions where the phrase appears, and no guidance is afforded as to what sort of circumstances will meet this additional threshold.

30. [166]

    In a commercial context, Ward CJ in Eq considered the meaning of “urgent” in the context of urgent injunctive or declaratory relief, in CPB Contractors Pty Ltd v Rizzani De Eccher Australia Pty Ltd [2017] NSWSC 1798 as follows:

31. [167]

    Similarly, in WCX M4-M5 Link AT Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd (No 2) [2022] NSWSC 505, Rees J held as follows:

32. [168]

    As noted above, the notebooks and COPS event entries of searching police officers at SITG 2018 are completely silent in relation to the circumstances that made the strip search necessary or any identification of the seriousness and urgency of the circumstances. The evidence therefore sheds no light on how the searching police officers themselves construed those requirements or the factors that satisfied those requirements as they perceived them. Indeed, the complete absence of notes relating to the issue of seriousness and urgency of the circumstances, leads me to the irresistible conclusion that the searching police officers did not turn their minds to those legal requirements, or, if they did, wrongly understood that the mere indication by Seeby was sufficient to undertake a strip search. That conclusion is relevant not only to the question of aggravated damages, but also to the issue of whether there was an “abject failure” by senior police officers to train, educate, and monitor the exercise of police powers in respect of conducting strip searches. I will return to this question in due course.

33. [169]

    The defendant relies upon statistics collated following various music festivals in the period between 2016 to 2022 (MFI 11). The statistics are in respect of the number of arrests for possession and supply of prohibited drugs; the types of drugs seized; the number of attendees that were conveyed to hospital for suspected drug overdoses; and deaths occasioned by drug use at the event.

34. [170]

    By way of example, at the “Midnight Mafia” music festival held in 2018, three people were conveyed to Concord Hospital for drug overdoses, with one reported as being in a critical but stable condition. On 3 November 2018, at the “This That” music festival at Wickham Park, drug use caused two deaths and 13 presentations at Nepean Hospital. A complete account of the relevant statistics is helpfully set out in MFI 11.

35. [171]

    There is no question that these deaths and overdoses (short of causing death) are matters of grave concern to the community. It must also be acknowledged that harm minimisation is a profoundly important issue for the Government, various institutions (such as the NSWPF), and the community more generally. The statistics cited are highly relevant to policy considerations about harm minimisation initiatives. However, they are not by themselves sufficient to satisfy the requirements of “seriousness and urgency”.

36. [172]

    Parliament has seen fit to impose strict legal requirements and safeguards on the exercise of police powers in conducting strip searches. No doubt, the decision to do so has been informed by recognition of the intrusiveness of strip searches and the humiliation, degradation, and trauma experienced by individuals subjected to them. The requirements mandated by s 31(b) are not met by simply relying upon contextual matters such as the number of arrests, overdoses, or deaths at other music festivals on different occasions. It is not enough for an officer to merely rely on their general experience and understanding that patrons at music festivals may possess or conceal drugs on their bodies.

37. [173]

    Of the 205 COPS event entries produced from SITG 2018 (143 of those were agreed to have been strip searches), 74 entries mentioned an admission to the prior use of, being in the presence of, or being in possession of cannabis as a standalone drug. It cannot be seriously suggested that in those circumstances, the requirements of seriousness and urgency were met. No evidence has been provided that the possession or consumption of cannabis caused the overdoses or deaths referred to in MFI 11. Furthermore, there is no evidence that cannabis causes death by drug overdose.

38. [174]

    The seriousness and urgency of the circumstances may make a strip search necessary where immediate action is required to prevent harm to an individual. For example, there may be police intelligence about an individual’s propensity to possess a prohibited drug (for example, methylamphetamine or ecstasy) for the purposes of supply such that the seriousness and urgency of the circumstances justify a strip search.

39. [175]

    I leave open the possibility that an occasion might provide a factual matrix that presents serious and urgent concerns about the preservation of evidence such that there is justification to conduct a strip search in the field to prevent destruction of evidence.

40. [176]

    I do not propose to set out an exhaustive list of the circumstances that may satisfy the requirements of seriousness and urgency, as those terms are used in s 31(b). Any attempt to do so would be futile and unnecessarily prescriptive.

41. [177]

    However, it is useful to provide some guidance by setting out the principles that apply to the exercise of police powers under s 31(b) of LEPRA:

    1. (1)

       Firstly, strip searches unquestionably represent a significant invasion of privacy and are often a humiliating, degrading, and traumatic experience for individuals subjected to them.

    2. (2)

       Secondly, Parliament has seen fit to impose strict legal requirements and safeguards on police powers in conducting strip searches.

    3. (3)

       Thirdly, the powers conferred by s 31(b) are not a mere extension of the power to search pursuant to s 21 of LEPRA. A suspicion held on reasonable grounds that a person has in his or her possession or under his or her control a prohibited plant or prohibited drug is not sufficient to conduct a strip search. Even if an officer is satisfied that the threshold requirements for a general search have been satisfied, that officer cannot strip search the person unless the officer also suspects on reasonable grounds that the strip search is necessary for the purposes of the search. This is a distinct and additional requirement. The officer must reasonably suspect that he or she needs to conduct a strip search, as opposed to just a general search, in order to achieve the objective of a particular search.

    4. (4)

       Fourthly, not only must a police officer suspect on reasonable grounds that the strip search is necessary for the purposes of the search, but also that the seriousness and urgency of the circumstances make the strip search necessary. This is an additional requirement that must be met before a strip search is rendered lawful.

    5. (5)

       Fifthly, “necessary” as it appears under both limbs of s 31(b), means “needed to be done”, “required”, or something “that cannot be dispensed with”. It is not enough that the officer suspects that it would be prudent to conduct a strip search of the person.

    6. (6)

       Sixthly, “urgency” requires that a matter is “pressing” or “requiring immediate action or attention”.

42. [178]

    Further, a lawful exercise of the power to conduct a strip search must adhere to the requirements and safeguards set out in ss 32 and 33, as far as is reasonably practicable. Those sections provide:

43. [179]

    Section 32 is concerned with the preservation of privacy and dignity during a search, requiring a police officer to conduct the least invasive kind of search reasonably practicable in the circumstances. Section 33 provides the rules that must be complied with, as far as is reasonably practicable, for the conduct of strip searches. Those rules prohibit a search of a person’s cavities or an examination of the body by touch.

44. [180]

    Sections 32 and 33 are framed in mandatory terms so that a police officer who searches a person must, as far as is reasonably practicable in the circumstances, comply with the sections. Where non-compliance with the safeguards is established by the plaintiff, it is for the defendant to establish that compliance was not reasonably practicable in the circumstances.

45. [181]

    To be clear, non-compliance with s 32 and/or s 33 renders a strip search unlawful, unless it is established that compliance was not reasonably practicable in the circumstances. I agree with the plaintiff’s submission that, assuming reasonable practicability is established in respect of the requirements to which it applies, the outcome is a binary proposition. It is not a question of degree, rather it is one of compliance or non-compliance, lawfulness or not.

46. [182]

    I have come to this view for the following reasons. First, on their plain terms, ss 32 and 33 are mandatory additional requirements to the exercise of power pursuant to s 31. Section 33(8) reinforces that s 33 (and the rules outlined therein) is “in addition to the other requirements of this Act relating to searches”.

47. [183]

    Second, this construction of ss 32 and 33 is consistent with existing authority that not only is compliance with each subsection required (as far as is reasonably practicable) but the failure to do so is not a mere technical breach: see Attalla v NSW (2018) 28 DCLR(NSW) 337; [2018] NSWDC 190 at [99]; Daniel Fromberg v R (2017) 26 DCLR(NSW) 6; [2017] NSWDC 259 at [37]-[45], [48].

48. [184]

    Third, the circumstances justifying a strip search should be construed narrowly and consistently with ss 3, 31, 32, and 33. This approach is consistent with the ordinary approach to interpreting a power given by statute to deprive a person of a significant civil liberty. In Williams v The Queen at 292, Mason and Brennan JJ quoted from Cleland v The Queen (1982) 151 CLR 1 at 26; [1982] HCA 67 (“Cleland v The Queen”) as follows:

49. [185]

    Although the High Court was dealing with police powers in the context of arrest and detention, the principle is equally applicable to the exercise of power by police officers conducting strip searches.

50. [186]

    Fourth, this construction is consistent with the function and purpose of ss 32 and 33 as statutory guardrails to the exercise of invasive powers. The Second Reading Speech to the Law Enforcement (Powers and Responsibilities) Bill 2002 (NSW) is unambiguous in respect of the intention and purpose of ss 32 and 33 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 17 September 2002 at 4847):

51. [187]

    In light of the mandatory terms in which the requirements in ss 32 and 33 are framed (assuming compliance is reasonably practicable), the categorisation of a breach as “minor” does not render unlawful conduct, lawful. Instead, it may be that an illegality by reason of a “minor” breach would sound in nominal damages or no award of damages. In a criminal case, it may result in the desirability of admitting the evidence outweighing the undesirability of admitting the evidence: s 138(1) of the Evidence Act 1995 (NSW).

52. [188]

    A question arises in these proceedings about whether there is an implied power for police officers to direct a person to move his/her body or to manipulate by touch his/her body parts to facilitate a visual inspection during a strip search.

53. [189]

    It is necessary to observe at the outset that police can request a person to move or manipulate their body in a particular way to facilitate a visual search. The person being searched can choose to comply with such a request. This is distinct from an implied power to direct a person to move or manipulate their body, which carries with it consequences arising from non-compliance, such as empowering the police officer to use force.

54. [190]

    The defendant contends that by necessary implication, a police officer may direct or force a person subject to a search to move his/her body and to touch or interact with his/her naked body to facilitate a visual inspection during a s 31(b) strip search.

55. [191]

    In support of that contention the defendant relies upon Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 (“Pelechowski v Registrar”) where Gaudron, Gummow and Callinan JJ, referring to “the principle that a grant of power carries with it everything necessary for its exercise”, explained at [51] that:

56. [192]

    However, it is worth noting that Pelechowski v Registrar concerned an action to recover a sum of money owed under a loan agreement. The relevant power in question was the power of the District Court to make an order after judgment restraining the judgment debtors from dealing with their property. The case did not involve a grant of power that infringed on an individual’s liberty of the person.

57. [193]

    This principle that a grant of power carries with it everything necessary for its exercise must be applied with caution in cases where its application impacts adversely on the interests or liberty of the person. In Fenton v Hampton (1858) 11 Moo PCC 347 at 360; (1858) 14 ER 727 at 732, Fleming CJ said:

58. [194]

    The plaintiff relies on Thompson v Goold & Co [1910] AC 409 at 420 where Lord Mersey held as follows:

59. [195]

    This passage was cited with approval by the High Court in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2008) 232 CLR 314; [2008] HCA 9 at [44].

60. [196]

    During oral submissions, the plaintiff also referred to seminal cases on the general principles of statutory interpretation. In Attorney General for New South Wales v XX (2018) 98 NSWLR 1012; [2018] NSWCCA 198, in the context of construing provisions of the Crimes (Appeal and Review) Act 2001 (NSW), the Court of Criminal Appeal (comprised of Bathurst CJ, Hoeben CJ at CL and McCallum J) conveniently summarised the principles as follows at [134]-[136]:

61. [197]

    In Marshall v Watson (1972) 124 CLR 640; [1972] HCA 27 (“Marshall v Watson”), the High Court dealt with the issue of whether there was an implied power of arrest and detention under the Mental Health Act 1959 (Vic) (“Mental Health Act”). It was clear that the respondent was mentally unwell and had to be admitted to a psychiatric hospital for observation. The respondent was taken to hospital in a police car with the appellant and other police officers. He was admitted to the hospital, examined, treated, and detained for some six days. The respondent subsequently claimed damages for trespass to his person, such trespass being his imprisonment and detention in the police car during its transit of some three miles from his rooms to the hospital.

62. [198]

    Although the appellant was found to have acted bona fide, believing that he was acting under the authority of the Mental Health Act, the primary judge held that upon its true construction, the Mental Health Act did not give the appellant any authority to take the respondent to the hospital.

63. [199]

    In dismissing the appeal, the High Court found that there was no room in the legislation to imply an authority in any particular person or class of persons to exercise a power of arrest or detention. Barwick CJ at 644 found that “the case is one in which a necessary element in the statutory scheme has been omitted by the legislation, and that gap ought not, and cannot, be filled by construction of the legislation so as to imply the requisite power”. In the interpretation of a statute affecting personal liberty, “supposition as to the intention of the Legislature had no place, the function of the Court being limited to interpreting and giving effect to the Legislature’s will as expressed in the statute”: Marshall v Watson per Stephen J at 649.

64. [200]

    In Carvana v State of New South Wales [2024] NSWSC 254, the plaintiff claimed damages for false imprisonment, malicious prosecution, and trespass to goods. The claim arose out of the plaintiff being arrested, charged, bailed, and then dealt with in the Local Court. One of the questions in that case was whether the seizure and retention of the plaintiff’s phone by police officers was lawful under s 21(1)(b) of LEPRA. In construing s 21 of LEPRA, Wright J held as follows:

65. [201]

    In Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales; Reyes-Carrion v State of New South Wales [2025] NSWDC 28, Newlinds SC DCJ, in considering the operation of s 30 of LEPRA, was of the view that although the section did not include any express provision for a police officer to give directions to a person, there was an implicit power to give reasonable directions to the person being searched, so as to allow the search to take place in a “safe and reasonable manner”: at [204]. The circumstances involved an ordinary search (under s 21) in which the person being searched was directed to face the wall and place his hands on it. The plaintiff in that case refused to comply and was handcuffed.

66. [202]

    His Honour was not dealing with a strip search and in any case the implied power was limited to giving reasonable directions to allow the search to take place in a safe manner. It is not authority for the proposition that broader implied powers should be read into LEPRA.

67. [203]

    As will be seen from the overview of the relevant provisions, Parliament did not inadvertently or unintentionally omit a power reasonably necessary for the enforcement of search powers. If anything, an examination of LEPRA provisions demonstrates that Parliament comprehensively considered the grant of powers to police, including the power to strip search individuals and the ancillary powers and safeguards necessary to enforce the search powers.

68. [204]

    LEPRA provides express powers to police officers to give directions. By way of example, Pt 14 of LEPRA deals with powers to give directions. Sections 197-198A give police the power to give a direction in specific circumstances. Section 199 makes it an offence to refuse or fail to comply with such a direction. Part 15 of LEPRA specifies safeguards relating to the police powers set out in s 201 (including a power to give or make a direction per s 201(1)(f)). Section 203 of LEPRA requires a police officer exercising a power under Pt 14, to warn the person subject to the exercise of the power that the person is required by law to comply with the direction.

69. [205]

    Part 4 of LEPRA deals with search and seizure powers without warrant. Section 21 empowers police officers to search persons and seize and detain things without a warrant. The ancillary power to search persons is expressed in s 21A of LEPRA. If a police officer suspects on reasonable grounds that a thing referred to in s 21(1)(a), (b), (c) or (d) is concealed in the person’s mouth or hair, the police officer has the power to require the person to do certain things including open his/her mouth, or shake, or otherwise move his/her hair.

70. [206]

    Section 27 of LEPRA deals with the power to carry out a search on arrest. Section 28 provides ancillary powers to conducting a search of a person under s 27 which are similar to the ancillary powers under s 21A.

71. [207]

    Section 30 expressly empowers a police officer to do certain things in conducting a search of a person, including requiring the person to remove articles of clothing but not, except in the case of a strip search, all of the person’s clothing.

72. [208]

    Under ss 32(2)(a) and (b) a police officer must inform the person to be searched whether the person will be required to remove their clothing and why it is necessary to do so. In respect of strip searches, s 33(5) of LEPRA provides that a strip search must not involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purpose of the search. By implication, a police officer has an implied power to direct the person being searched to remove some or all of their clothing. Indeed, s 3 of LEPRA provides that a strip search may include “requiring the person to remove all of his or her clothes”.

73. [209]

    Importantly, s 33(4) prohibits a search of a person’s body cavities or an examination of the body by touch. This is a mandatory prohibition.

74. [210]

    Lastly, s 230 provides for the use of force generally by police officers and states:

75. [211]

    Section 230 therefore provides for the use of force by a police officer where reasonably necessary to do so, in order to exercise a lawful function, either expressly or impliedly provided for at law. The purpose of s 230 is to authorise conduct which would otherwise be unlawful, in the sense that if a police officer establishes that they have used such force as is reasonably necessary to exercise a function, then the exercise of that function is lawful: Pham v Commissioner of Victim Rights [2019] NSWSC 1060 at [22]-[23]. “Reasonably necessary” for the purpose of s 230 has been held to import the test of whether a reasonable person in the position of the police officer would not consider the use of force by the police officer to be disproportionate to the risk or danger sought to be prevented: Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980 at [186].

76. [212]

    Notwithstanding that LEPRA is replete with ancillary powers, it does not provide express or ancillary powers to direct or force an individual to move his/her body or body parts to facilitate a visual inspection during a strip search.

77. [213]

    LEPRA does expressly prohibit a search of a person’s cavities and an examination of the body by touch: s 33(4). Relevantly, s 33(4) does not prohibit a police officer from touching a person in connection with a search. For example, a police officer may have cause to touch a person to get their attention or to guide them to a particular search area. Minor touching for these purposes would not render a search unlawful. However, a police officer is expressly prohibited from conducting an examination by touch which would extend to moving or positioning a person’s body or body parts to facilitate an inspection or examination of that person during the strip search.

78. [214]

    To construe the legislation as including an implied power for police officers to direct a person being strip searched to move their body to facilitate a visual inspection of the genital area or to direct a person to otherwise touch or interact with their body to facilitate a visual inspection during the strip search, necessarily empowers a police officer to use such force as is reasonably necessary to exercise that function: s 230. That would mean that a police officer, in the face of non-compliance with the direction, could use force as is reasonably necessary to enforce the direction including forcibly moving the person’s body or body parts to facilitate the inspection, thereby conducting an examination by touch. The use of force in this context would be entirely inconsistent with the conduct expressly prohibited by s 33(4) of LEPRA. While the plaintiff submits that a general power such as that set out in s 230 might “yield” to the specific prohibition in s 33(4), the defendant contends that the prohibition on touching would give way to the general use of force in s 230.

79. [215]

    The power to direct a person being searched in the way contended for by the defendant has been omitted by the legislation and “that gap ought not, and cannot, be filled by construction of the legislation so as to imply the requisite power”: Marshall v Watson at 644. The courts ought to be reluctant to imply a power which adversely impacts upon a person’s liberty.

80. [216]

    If Parliament intended that police officers have the power (a power that would be enforceable by the use of force) to direct persons being strip searched to move their body or body parts so as to facilitate a visual inspection, the legislature would have expressly provided for it. This is particularly so in circumstances where s 33(4) of LEPRA expressly prohibits examination by touch and prohibits the search of body cavities. It is for the legislature to reconcile how these competing imperatives are met.

81. [217]

    In cases where a police officer is conducting a lawful strip search and is unable to perform a visual examination due to the conduct of the person being searched, there may be recourse pursuant to ss 17, 18, 20, 22, 23 of the Crimes (Forensic Procedures) Act 2000 (NSW) (“CFP Act”). The CFP Act includes specific provision for forensic procedures of two types, being “non-intimate forensic procedures” and “intimate forensic procedures”.

82. [218]

    If, for example, a police officer concluded that a more intrusive search was required, a lawful approach may be to obtain consent for a forensic procedure or obtain an order permitting it. A consideration of the operation of the CFP Act is, however, outside the scope of the issues that have to be determined in this case.

83. [219]

    To be clear, a police officer may request that a person do certain things (move their body or touch their body parts) to facilitate the inspection. A request is not, however, a direction, enforceable by the use of force. In the absence of an express or implied power to give directions (non-compliance of which authorises the officer to use force), a police officer does not have the power to direct or force a person to move their body or touch or otherwise interact with their body parts to facilitate an inspection of their genital area or breasts, other than a direction for the person to remove their clothes or a reasonable direction to make the search safe for the police officer.

84. [220]

    Section 32(6) of LEPRA provides that a police officer must not search the “genital area of the person searched, or in the case of [a] female or a transgender person who identifies as a female, the person’s breasts unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search”. “Genital area” is not defined in LEPRA.

85. [221]

    A person’s “genital area”, as a matter of anatomy, does not include a person’s anus. While the anus and genitals are both located in the perineum area, they are anatomically distinct and serve different functions. Furthermore, a distinction is drawn between the anus and genitalia in other legislation (e.g., s 61HA of the Crimes Act 1900 (NSW)).

86. [222]

    However, in the specific statutory context of LEPRA, it would be incongruous to construe s 32(6) as requiring suspicion on reasonable grounds that it is necessary to do so in order to conduct a search of a person’s genital area and breasts (in the case of a female) but not the person’s anal area. It seems to me that a person’s “genital area” as used in s 32(6) of LEPRA, must include the anus as a matter of common sense and ordinary construction. Section 32 is concerned with preserving privacy and dignity during a search. Section 32(6) therefore sets out private parts of the body that are particularly invasive to search.

Factual and legal contentions – the plaintiff’s search

1. [223]

   The paucity of records in respect of the search of the plaintiff has already been referred to. The only record of the search of the plaintiff is that contained in SC Petrie’s notebook (which appears to be a contemporaneous entry) and the COPS event entry made almost eight hours after the search was conducted. As already alluded to, the defendant has called no witnesses and the only evidence from the three police officers who were purportedly involved in the search of the plaintiff is that they have no recollection of the plaintiff or of the search.

2. [224]

   There is no evidence (even accepting that SC George was the female police officer who strip searched the plaintiff) that the female officer independently formed a reasonable suspicion as required under LEPRA: ss 21(1)(d) and 31(b). There is no record (or other evidence) that the female officer turned her mind to issues of necessity, seriousness, and urgency as required under s 31(b) of LEPRA.

3. [225]

   It cannot simply be assumed that the female officer must have determined on reasonable grounds that the strip search was necessary for the purposes of the search and that the seriousness and urgency of the circumstances made the strip search necessary. Her rank and experience as a Senior Constable are simply not a sufficient basis to infer that the officer turned her mind to the necessary requirements, let alone establish the factors taken into account in this particular case.

4. [226]

   The contention that necessity, seriousness, and urgency of the circumstances can be inferred because the search was conducted at a music festival involves circular reasoning and must be rejected. The statistics relating to the possession and seizure of prohibited drugs, overdoses, or even deaths as a result of ingestion of prohibited drugs at music festivals generally may be a foundation for the development and implementation of harm minimisation policies and/or justification for the deployment of police in specific drug detection operations but, without more, is not sufficient to make out the legislative requirements under s 31(b).

5. [227]

   Nor can it be argued that the fact that police found quantities of illicit drugs vaginally secreted or otherwise hidden, at this particular music festival (SITG 2018) goes some way to fulfilling the requirements of necessity, seriousness, and urgency. Such an argument relies upon the result of a police operation and works backwards seeking to prove the necessary state of mind of a searching police officer for the purposes of establishing the lawfulness of the search.

6. [228]

   What must be considered is whether the searching police officer suspected on reasonable grounds that the strip search of the plaintiff (or another individual being strip searched) was necessary for the purposes of the search and that the seriousness and urgency of the circumstances made the strip search necessary. The evidence is that upon approaching the entrance of the music festival, Seeby gave an indication towards the plaintiff then immediately moved onto the next person. The plaintiff was directed to the police search area, a pat down search was conducted, then the plaintiff was strip searched.

7. [229]

   The notebook entry of SC Petrie records that the plaintiff said she had smoked a joint of marijuana (evidence that I have rejected). Even if I were to accept, for present purposes, the reliability of that entry, at its highest, it establishes an admission on the part of the plaintiff that she had smoked marijuana. The only reasonable inference that could have been drawn by police is that the plaintiff may have been in possession of marijuana. There was no basis, in these circumstances, for the searching police officer to form a view that there was, for example, a risk of someone overdosing or dying or a risk that the drugs (if they existed) would be supplied to another person or a risk that drugs or incriminating evidence may be destroyed. There was no basis to form the view that the “seriousness and urgency of the circumstances” made the strip search of the plaintiff necessary.

8. [230]

   The only available and reasonable inference is that the searching police officers not only failed to form a suspicion on reasonable grounds that the strip search was necessary for the purposes of the search but also failed to form a suspicion on reasonable grounds that the seriousness and urgency of the circumstances made the strip search necessary.

9. [231]

   The irresistible inference is that the searching police officers proceeded on the basis that because Seeby made an indication towards the plaintiff (and without more) the requirements pursuant to s 31(b) were met and the strip search was justified. That conclusion was entirely wrong and contrary to the relevant legislative provisions.

10. [232]

    I pause to observe that the information held by the NSWPF in approximately 2019 was that an indication by a drug detection dog generally only leads to drugs being detected in 30% of cases (according to a Current Issue Paper titled “Drug Dogs Policing Practices at Music Festivals”).

11. [233]

    I am satisfied that the plaintiff has established that the searching police officer did not suspect on reasonable grounds that the strip search was necessary for the purposes of the search and that they did not turn their mind to the additional legal requirement that the seriousness and urgency of the circumstances made the strip search necessary. I repeat, it is highly likely that the searching police officers failed to appreciate these additional mandatory requirements and simply proceeded on the basis that a strip search was justified because Seeby had given a positive indication.

12. [234]

    As stated above, the safeguards encapsulated in ss 32 and 33 are mandatory unless compliance is not reasonably practicable in the circumstances. It is necessary to determine the extent of non-compliance by searching officers for the assessment of damages. In undertaking that task and in making findings, it is important to remember the circumstances in which the strip search of the plaintiff was conducted.

13. [235]

    The searching police were not confronted with a situation in which a spontaneous response was required. On the contrary, the organisers of SITG 2018 expected up to 36,000 patrons on site between 19 to 23 July 2018. The police response relevantly included a DDD operation which was staffed by 60-70 police officers out of a total composite detachment of approximately 340 officers. Its target was the use and supply of illegal drugs in the main entertainment and camping areas.

14. [236]

    The infrastructure that existed demonstrates that there was an expectation that police officers would be conducting strip searches at scale. Large numbers of police officers were deployed. There was pre-planning which included DDD operation teams. Operational Orders and specialised Operational Orders for the Drug Dog Operation were prepared, which are summarised at [490]-[506]. These relevantly indicated that there would be two “discreet” search areas set up with tents for privacy, and that scales and drug bags would be provided to searching police officers.

15. [237]

    Notwithstanding the preparation and planning, the strip search of the plaintiff involved significant non-compliance with the statutory safeguards. The searching officer did not inform the plaintiff that she would be required to remove her clothing during the search, nor did she inform the plaintiff of the reasons why it was necessary to remove her clothing: s 32(2)(a)-(b).

16. [238]

    As I have already said, the defendant’s submission that where the plaintiff’s statement is silent on an issue I would proceed on the basis that there is no direct evidence to support a finding that something did not occur, is misconceived. The plaintiff has provided a full account of her interactions with the police in her witness statement. That account was not disputed during cross-examination. No evidence has been called by the defendant to challenge the plaintiff’s account. In making findings, I am therefore entitled to proceed on the unchallenged evidence before me.

17. [239]

    For the same reasons, I accept that the plaintiff was not asked for her cooperation: s 32(3).

18. [240]

    A further requirement is that the police officer conduct the search (a) in a way that provides reasonable privacy for the person searched, and (b) as quickly as is reasonably practicable: s 32(4)(a)-(b). I accept that the search was conducted as quickly as is reasonably practicable. However, the issue of whether the plaintiff was afforded reasonable privacy, requires closer consideration.

19. [241]

    The evidence relating to this issue is that of the plaintiff. In her witness statement, the plaintiff described the search area as follows:

20. [242]

    The only other relevant evidence, which is again unchallenged, is that while the plaintiff was naked from the waist down and bent over with her bare buttocks facing the female police officer, a male police officer entered the cubicle without warning. He returned the plaintiff’s bag to the female officer saying words to the effect of, “Nothing found in the bag”. The male officer did not knock and wait for a direction to enter. There was no mechanism which could have prevented his entry.

21. [243]

    I accept that the plaintiff’s assertions that the area in which she was strip searched was “not private at all”, is not determinative of whether the searching officer objectively provided reasonable privacy for the purpose of s 32(4)(a).

22. [244]

    Instead, I must have regard to the evidence of the description of the area and I am entitled to have regard to the evidence demonstrating the ease with which the male police officer entered the cubicle without warning and without affording the plaintiff an opportunity to pull up her underpants and shorts.

23. [245]

    I am satisfied that the searching police officer did not conduct the search in a way that provided reasonable privacy for the plaintiff. The use of a structure in which there was no mechanism to prevent entry by members of the public and the entry into the cubicle by a male police officer, unannounced and without warning, at a time when the plaintiff was naked from the waist down and bent over, is evidence from which I can readily conclude that reasonable privacy was not afforded to the plaintiff.

24. [246]

    Contrary to the defendant’s submission, the fact that persons outside the tent may have been able to hear the conversation between the plaintiff and the searching officer is a relevant consideration particularly in circumstances where the plaintiff felt compelled to tell the searching officer that she was menstruating, a disclosure of an extremely private nature. The statistics relating to police finding illicit drugs “vaginally secreted” would have raised at least an expectation that a visual examination of women’s genitalia may have to be conducted in circumstances where those women (or at least some of them) may be menstruating.

25. [247]

    As already noted, a strip search is a highly invasive procedure. The increased invasiveness, humiliation, and degradation involved in a situation where a woman is strip searched while menstruating, brings home the absolute necessity that such a search (where all other requirements are met) be conducted affording reasonable privacy for the person searched.

26. [248]

    I find that there was non-compliance with ss 32(4)(a) and 33(1)(a)-(c).

27. [249]

    Section 32(5) of LEPRA mandates that the searching officer conduct the least invasive kind of search practicable in the circumstances. The searching officer failed to comply with that safeguard. On the evidence, I find that the only basis upon which the search was conducted was the indication by Seeby. It is conceded that the plaintiff has established that the searching police did not suspect on reasonable grounds that the strip search was necessary. Furthermore, I have found that the plaintiff has established that the seriousness and urgency of the circumstances did not make the strip search necessary.

28. [250]

    In these circumstances, the actions of the searching police officer went far beyond those objectively necessary for the purposes of the search. The highest that it could be put on behalf of the defendant (assuming the reliability of the contents of SC Petrie’s notebook entry) is that the police had information that the plaintiff had smoked a joint of marijuana. There was no basis for suspecting that the plaintiff had pills or other forms of illicit substances in her possession.

29. [251]

    The evidence does not support a finding that it was objectively reasonably necessary to visually inspect the plaintiff’s breasts and genital area. Furthermore, and for the same reasons, there were no reasonable grounds to believe that it was necessary for the purposes of the search that the plaintiff pull down her top or remove her underpants and shorts.

30. [252]

    The defendant’s submission that the “fact that the searching officer carried out those actions supports an inference that she thought what she [was] doing … was reasonably necessary” again involves circular reasoning and speculation. Nor am I attracted to the submission that it is “inherently unlikely that a woman would search another woman’s breasts and genital area without considering there was any need to do so as part of the search”. That rather depends upon the education and training provided to the officer (a matter I will address when I come to consider exemplary damages).

31. [253]

    What is “inherently unlikely” is that a properly trained police officer would fail to record the factors informing their assessment that the seriousness and urgency of the circumstances warranted a strip search of the plaintiff. Not only was there a failure to record the factors relevant to this particular search, there was a failure to record factors relevant to the officer’s usual practice in conducting a strip search.

32. [254]

    For these reasons, I find that there was non-compliance with ss 32(5), 33(5) and 33(6).

33. [255]

    The strip search was conducted by a female officer. I am not persuaded that the unannounced entry into the cubicle by a male officer constitutes a breach of s 32(7) of LEPRA. The plaintiff was naked from the waist down when the male officer entered the cubicle. He was present for a moment to return the plaintiff’s bag. His presence is evidence that the plaintiff was not afforded reasonable privacy. It does not establish that the strip search was conducted by a police officer other than a police officer of the same sex as the plaintiff.

34. [256]

    A further breach of the LEPRA safeguards involves non-compliance with s 32(8). A search of a person must not be carried out while the person is being questioned. That prohibition does not prevent the asking of questions that only relate to issues of personal safety associated with the search. The plaintiff was questioned during the search.

35. [257]

    After entering the cubicle for the purpose of the search, the female officer asked the plaintiff:

36. [258]

    After the female officer conducted a visual inspection of the plaintiff’s breasts, and while the strip search was still being conducted, the officer asked the plaintiff:

37. [259]

    That question could only be interpreted as a question asking the plaintiff whether she had inserted any drugs. Both questions were asked during the strip search. Neither question related to issues of personal safety associated with the search. Each question was directed to investigating whether the plaintiff was in possession of illicit drugs. Clearly, the plaintiff was questioned during the strip search in breach of s 32(8) of LEPRA.

38. [260]

    I find that the plaintiff was allowed to dress as soon as the search was completed: s 32(9) of LEPRA.

39. [261]

    To the extent that I have not already considered non-compliance with s 33 of LEPRA, I turn to do so now. Section 3(1) of LEPRA provides that a strip search includes a search of a person or of articles in the possession of a person that may include requiring the person to remove all of their clothes and an examination of the person’s body (but not the person’s body cavities) and of those clothes. Section 33(4) is a mandatory prohibition against a search of a person’s body cavities or an examination of the body by touch.

40. [262]

    In cases where a police officer suspects on reasonable grounds that a strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary, they are empowered to direct the person being searched to remove articles of clothing (bearing in mind the safeguards pursuant to ss 32 and 33). The police officer is also empowered to conduct a visual inspection of the person’s body. The visual inspection does not, however, extend to searching a person’s body cavities or touching the person for the purpose of the examination.

41. [263]

    There is no express or implied power to direct (as opposed to request) or force a person to position their body in a particular way or touch themselves or perform acts with or upon their own body that the police officer is not permitted to do themselves (other than reasonable directions to ensure the safety of the searching officer or to remove clothes). It follows that the direction to the plaintiff to, “Lift your breasts up, lean forward and then drop your breasts”, and the direction to remove her tampon, were beyond the powers conferred by ss 31-33 of LEPRA.

Factual and legal contentions – damages

1. [264]

   The plaintiff makes a claim for compensatory damages (including aggravated damages) and exemplary damages. The claim for aggravated damages can be separated into two subcategories. The first relates to the special humiliation suffered by the plaintiff as a result of the extent to which the police officers departed from the LEPRA preconditions and safeguards. The second subcategory relates to the manner in which the proceedings have been conducted by the defendant.

2. [265]

   The claim for exemplary damages is based on the conduct not only of the individual police officers who strip searched the plaintiff but the asserted “clear and unassailable failure” by senior members of the NSWPF to exercise reasonable care and skill to ensure that police officers deployed to music festivals were properly trained and supervised in undertaking strip searches.

3. [266]

   A significant portion of the proceedings before me were taken up with submissions relating to the claim for aggravated and exemplary damages. The defendant relies upon the Limitation Act in answer to the plaintiff’s claim for aggravated and exemplary damages.

4. [267]

   In addressing the claim for damages, I will commence by considering the Limitation Act defence and determine whether it has application in this case. I will then proceed to determine whether the plaintiff is entitled to aggravated and exemplary damages.

5. [268]

   The limitation defence is pleaded in respect of the claim for aggravated and exemplary damages only. The defendant does not contend that the plaintiff’s claim for general compensatory damages is barred. There is no issue that the plaintiff’s cause of action for damages in tort is brought within time: s 14(1)(b) of the Limitation Act.

6. [269]

   However, Pt 2 Div 6 of the Limitation Act imposes a three-year post discoverability limitation period for a cause of action for damages that relate to personal injury to a person: s 50C.

7. [270]

   To the extent that the plaintiff seeks damages for feelings of embarrassment, shock, shaking, fear, anger, upset, and outrage, the defendant contends that the plaintiff is seeking damages for hurt feelings within the meaning of “personal injury” in s 11(1) of the Limitation Act, and the plaintiff’s claim is therefore subject to the three-year limitation period.

8. [271]

   The defendant relies heavily on State of New South Wales v Steven Charles Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 (“Radford”), where Sackville AJA considered s 18A of the Limitation Act. Section 18A applies to causes of action that accrued prior to the commencement of s 50C.

9. [272]

   Sackville AJA (Beazley and Macfarlan JJA agreeing) stated:

10. [273]

    His Honour concluded that both the claim for aggravated damages and the claim for exemplary damages were subject to the three-year limitation period (at [118], [127]).

11. [274]

    The defendant submits that authorities on the meaning of “personal injury” for the purposes of the Civil Liability Act are inapplicable to the interpretation and application of ss 18A and 50C of the Limitation Act. Section 3B(1)(a) of the Civil Liability Act excludes intentional torts from the ambit of the Act (albeit with a few exceptions). In support of this contention, the defendant relies on Sackville AJA’s remarks in Radford at [110], where his Honour stated: “I see no compelling reason to introduce into s 18A concepts developed in relation to the law of negligence, but which do not apply to intentional torts”.

12. [275]

    The plaintiff maintains the position that she does not claim personal injury damages. The plaintiff does not allege impairment of the body or mind, nor seek compensation for an ongoing mental or physical condition. The plaintiff submits that labels for emotions such as humiliation, shame, and fear are the words used to describe infringements of intangible rights, namely, the liberty and integrity of the person. They are not inherently impairments of the mind.

13. [276]

    In the plaintiff’s outline of reply submissions filed during the course of the proceedings (MFI 9), the plaintiff relies on several decisions of the Court of Appeal and the High Court which considered the proper construction of “personal injury” in the context of the Civil Liability Act, in particular (but not limited to) State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 (“Ibbett (NSWCA)”); State of New South Wales v Williamson [2011] NSWCA 183; State of New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57 (“Williamson (HCA)”) and Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17 (“Moore”). The plaintiff submits that these decisions qualify Radford.

14. [277]

    The written submissions on this point were complemented by oral submissions. The plaintiff submits that there is a single set of cohesive laws that govern the litigation of civil claims in New South Wales, including but not limited to the Civil Liability Act and the Limitation Act, amongst other pieces of legislation. It is submitted that as this is a cohesive group of laws, there must be consistency in the way in which terms used in one piece of legislation are interpreted in another. The plaintiff submits that the Limitation Act does not govern the way in which civil liability claims are determined or how damages are measured but rather it is a “threshold” procedural piece of legislation.

15. [278]

    It is submitted that the Civil Liability Act is not restricted to actions in negligence but applies to all claims for civil liability damages “across the board”, except those specifically excluded by s 3B. It is acknowledged that parts of the Civil Liability Act do apply to intentional torts, for example s 15B.

16. [279]

    The Civil Liability Act and the Limitation Act contain nearly identical definitions of personal injury (with the only difference being that the Civil Liability Act has the addition of “pre-natal injury” in the definition). The plaintiff submits that for reasons of legislative coherence, the manner in which “personal injury damages” was construed by the High Court in Williamson (HCA) must prevail over the approach taken in Radford. The High Court in Williamson (HCA), although not dealing with “personal injury” in the context of the Limitation Act, explicitly held that damages for false imprisonment, as a trespass to the person, including loss of dignity and harm to reputation, does not constitute an impairment of the person’s mental condition or otherwise a form of “injury” within s 11 of the Civil Liability Act: at 429.

17. [280]

    The plaintiff also submits that Radford is fact specific and can be distinguished from the present matter. In Radford, personal injury was the foundation of the claim for exemplary and aggravated damages. The plaintiff in Radford initially claimed that he had schizophrenia and psychosis. The plaintiff in the present matter has never claimed that as a consequence of the conduct to which she was subjected, she suffered any physical injury or diagnosis of mental harm.

18. [281]

    Finally, the plaintiff submits that if the Court were to find that any of the plaintiff’s claim was statute-barred by operation of the Limitation Act, the limitation defence does not apply to any aggravated damages that may be awarded by reference to the conduct of the proceedings. The claim for aggravated damages for the defendant’s conduct of the proceedings is based on the defendant’s institution and maintenance of its defence and the issue of the subpoena, with the first defence being filed on 29 September 2022.

19. [282]

    I reject the submission that s 50C of the Limitation Act applies to the plaintiff’s claim for aggravated and exemplary damages. The defendant’s pleaded defence and its submissions in support of that defence, relying heavily on Radford, are flawed.

20. [283]

    The plaintiff pleads causes of action in tort, namely, battery, assault, and false imprisonment. The three torts (collectively referred to as “the cause of action”) essentially arise from one episode involving the conduct of searching police officers during the strip search of the plaintiff at SITG 2018. The plaintiff’s claims for compensatory damages (general and aggravated) and exemplary damages arise from that cause of action. Her compensatory damages relate to “hurt feelings”, including humiliation, embarrassment, fear, and distress which were a response to the conduct of searching police during an unlawful strip search.

21. [284]

    The plaintiff claims that those damages are aggravated because, (as a result of the extent to which the searching police officers deviated from or failed to comply with the provisions of LEPRA), she has suffered special humiliation. The aggravated damages do not arise from a separate cause of action.

22. [285]

    Similarly, the plaintiff’s claim for exemplary damages is a claim arising from the same cause of action (the torts of battery, assault, and false imprisonment). They are not compensatory damages but rather are directed to punishment and deterrence. As has often been said, aggravated damages are assessed from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant: Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47 (“Lamb v Cotogno”); Ibbett (NSWCA) at [83].

23. [286]

    Reliance on the Limitation Act defence in answer to the plaintiff’s claim for aggravated and exemplary damages only, is curious given the defendant’s acceptance in its written submissions, that the claim for aggravated damages and exemplary damages is not an independent cause of action. A claim for aggravated and exemplary damages is “parasitic” to a claim for compensatory damages: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 468-9; [1985] HCA 12 (“XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd”).

24. [287]

    Section 14(1)(b) of the Limitation Act provides that a cause of action founded on tort is not maintainable if brought after the expiration of the limitation period of six years running from the date on which the cause of action first accrues to the plaintiff. The plaintiff instituted proceedings within time. Her claim has always been for compensatory damages, aggravated damages, and exemplary damages arising from the torts of battery, assault, and false imprisonment.

25. [288]

    Section 50C of the Limitation Act stipulates that an action on a cause of action to which Pt 2 Div 6 applies is not maintainable if brought after the expiration of the three-year post discoverability limitation period: s 50C(1)(a). Section 50A states that Pt 2 Div 6 applies to “a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise” (emphasis added).

26. [289]

    The plaintiff’s cause of action is not a cause of action for damages that relate to “personal injury”, as contemplated by s 50A, or within the meaning of Pt 2 of the Civil Liability Act. At all times the plaintiff has pleaded that she (and group members) suffered loss of liberty and embarrassment and have been the subject of assault and battery. The plaintiff has never pleaded that she sustained a physical injury or mental harm. Instead, the plaintiff has described hurt feelings such as embarrassment, humiliation, fear, and distress.

27. [290]

    The plaintiff pleads that the hurt occasioned is increased by the following (the particulars of aggravated damages):

28. [291]

    The plaintiff’s evidence about the emotions she experienced as a result of the illegal strip search is contained in her statement dated 21 November 2023. The plaintiff felt apprehensive, frightened, humiliated, and anxious. She described feeling “terrified” when the female police officer directed her to take off her shoes and socks. Her fear was heightened, and she felt threatened as the strip search proceeded. By the time she was directed to turn around and “bend right over”, the plaintiff was “totally embarrassed and humiliated”.

29. [292]

    At the heart of the controversy is whether the plaintiff is claiming “damages for personal injury”. However, the defendant does not advance an argument that the plaintiff’s cause of action for general compensatory damages is barred because it has been brought out of time. The defendant does not advance an argument that the plaintiff is not entitled to compensatory damages arising from the pleaded cause of action.

30. [293]

    The defendant must therefore be taken to accept that the plaintiff’s cause of action is within time, being “a cause of action founded on tort, including a cause of action for damages for breach of statutory duty” (pursuant to s 14(1)(b) of the Limitation Act), as opposed to “a cause of action for damages that relate to … personal injury to a person” (within the meaning of s 50A of the Limitation Act). Had the plaintiff’s cause of action been a cause of action for damages that relate to personal injury, the defendant would have advanced an argument that the entirety of the plaintiff’s claim was not maintainable.

31. [294]

    The defendant seeks to artificially separate the claim for aggravated and exemplary damages from the claim for (general) compensatory damages in circumstances where they arise from the same cause of action (founded in tort), which was commenced within the relevant limitation period: s 14(1)(b) of the Limitation Act.

32. [295]

    In Radford, Sackville AJA (Beazley and Macfarlan JJA agreeing), referring to Spigelman CJ’s remarks in Ibbett (NSWCA), stated:

33. [296]

    In Radford the Court was dealing with the meaning of “damages for personal injury” in the context of s 18A of the Limitation Act (which applied prior to the commencement of s 50C). However, Radford is not authority for the general proposition that emotional responses to causes of action arising from trespass to the person (such as assault and battery) constitute “personal injury”. Radford is very fact specific and can be distinguished from the present case.

34. [297]

    In Radford, the Court was dealing with an appeal from interlocutory orders dismissing a motion filed by the State seeking to strike out and dismiss the statement of claim filed by the plaintiff in the proceedings and granting leave to the plaintiff to file a fifth further amended statement of claim (“5th ASC”).

35. [298]

    The respondent to the appeal (the plaintiff in the substantive proceedings) was arrested after a scuffle with police officers who had attended his home in order to execute a lawful search warrant. The incident occurred on 15 December 1999. There was no dispute that, whatever the circumstances of his arrest, the respondent suffered physical injuries and required medical treatment in consequence of the scuffle.

36. [299]

    The respondent was arrested and later convicted and sentenced to a term of imprisonment for drug-related offences. On 14 December 2005, one day short of six years after his arrest, the respondent commenced proceedings by filing a statement of claim. The respondent’s statement of claim alleged that in the course of the arrest, the police officers assaulted him using excessive force. The respondent alleged that in consequence of the assaults he suffered injuries and continued to suffer disabilities, loss, and damage as a consequence of the said injuries. In addition to the physical injuries that were identified, the respondent claimed damages for psychiatric disabilities including psychosis and schizophrenia. No claim was made for aggravated or exemplary damages.

37. [300]

    Relevantly, on 26 June 2009, the respondent filed a motion seeking leave to proceed upon a proposed fourth further amended statement of claim (“4th ASC”) which abandoned any claim for general compensatory damages for the previously particularised personal injuries and disabilities. Instead, it pleaded a case based on trespass to the person and false imprisonment and sought unspecified aggravated and exemplary damages.

38. [301]

    It was clear that the 4th ASC omitted the claim for damages for physical injuries in an attempt to overcome the fact that s 18A(2) of the Limitation Act imposes a three-year limitation period for a cause of action founded on breach of duty for damages for personal injury.

39. [302]

    The primary judge heard the respondent’s motion on 23 October 2009, granting the respondent leave to file the 5th ASC. The 5th ASC made it clear that the respondent wished to claim damages for “emotional upset, anxiety, distress and humiliation that he claimed to have suffered by reason of the assault and the wrongful imprisonment” (at [30]).

40. [303]

    It was in this context that Sackville AJA observed:

41. [304]

    Unlike the present case, Mr Radford’s personal injury claim morphed into a claim for aggravated and exemplary damages. It was clear that the 4th and 5th ASC in Radford were an effort to circumvent s 18A of the Limitation Act. Mr Radford’s personal injury claim was the foundation for the claim for aggravated and exemplary damages. It was in this specific context that Sackville AJA favoured a broader interpretation of “personal injury” and declined to adopt the approach of Spigelman CJ in Ibbett (NSWCA).

42. [305]

    Furthermore, the defendant’s argument that the plaintiff is permitted to bring a claim for general compensatory damages, but not for aggravated and exemplary damages, would give rise to an incongruous result. There is no dispute that the plaintiff is entitled to bring the proceedings to recover general damages. The institution of proceedings for the intentional torts of battery, assault, and false imprisonment is within time. The claim for aggravated damages relates to the special humiliation experienced by the plaintiff as a result of the gravity of the police officers’ unlawful conduct. The labels for the emotions experienced by the plaintiff (humiliation, fear, embarrassment) are words used to describe infringements on the right to liberty and integrity of the person. They are words used to describe the gravity of the relevant violations of the plaintiff’s rights.

43. [306]

    It is necessary to deal with some of the other authorities that have been referred to in submissions. These cases have considered the definition of “personal injury”, albeit not in the context of the Limitation Act.

44. [307]

    Section 11 of the Civil Liability Act provides as follows:

45. [308]

    Section 11(1) of the Limitation Act includes the following:

46. [309]

    With the exception of the additional inclusion of pre-natal injury in the Civil Liability Act, the two definitions are substantively the same.

47. [310]

    The plaintiff relies on Ibbett (NSWCA), which pre-dated Radford. In Ibbett (NSWCA), the State appealed against a decision of the District Court awarding Mrs Ibbett aggravated and exemplary damages in relation to the unlawful conduct of police officers. Mrs Ibbett was successful in her action for trespass and assault. One of the issues before the Court of Appeal was whether the award of exemplary damages was precluded by s 21 of the Civil Liability Act. Section 21 of the Civil Liability Act provided that in an action for the award of personal injury damages where the act or omission causing injury was negligence, a court cannot award exemplary or aggravated damages.

48. [311]

    Spigelman CJ found that it was not necessary to determine whether the proceedings were “an action for the award of personal injury damages” (at [4]). However, his Honour expressed the following opinion:

49. [312]

    Ipp JA, on the issue of what constituted impairment, came to a different view, stating:

50. [313]

    Basten JA observed:

51. [314]

    In Williamson (HCA) (which post-dates Radford), the High Court considered the proper construction of “personal injury” within s 11 of the Civil Liability Act. The case concerned a repealed provision of the Legal Profession Act 2004 (NSW) that limited costs recovery by a law practice in connection with a claim for “personal injury damages” where the amount recovered did not exceed $100,000.

52. [315]

    Mr Williamson sued the State of New South Wales for damages for trespass to the person and false imprisonment, due to the actions of police officers who had allegedly thrown him to the ground, restrained him, confined him in a police wagon, further assaulted him and then released him without charge. The action was settled, and orders were made by consent, awarding Mr Williamson $80,000 plus costs as agreed or assessed. Mr Williamson applied for an order transferring the proceedings to the Supreme Court and for a declaration that costs were not regulated by s 338 of the Legal Profession Act. Hall J made orders to that effect.

53. [316]

    The State then appealed to the Court of Appeal. The appeal was dismissed. One of the reasons for dismissing the appeal was the Court’s finding that “a claim for false imprisonment, at least in so far as it extends to a claim for damages for deprivation of liberty and loss of dignity, is not a claim for personal injury damages within the meaning of s 338(1)”: Williamson (HCA) at [6]. The Court of Appeal also held that “personal injury damages” as used in the Legal Profession Act did not include claims for intentional torts (a finding that was overturned on appeal). The State appealed to the High Court.

54. [317]

    Relevantly, the definition of personal injury damages in the Legal Profession Act stated, “personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002”. Thus, in construing “personal injury damages” in this case, the High Court was effectively construing the definition of “personal injury damages” in the Civil Liability Act.

55. [318]

    French CJ and Hayne J (Kiefel J agreeing) relevantly found as follows:

56. [319]

    In Moore, the appellant sued Scenic Tours for disappointment and distress for breach of a contract to provide a pleasant and relaxed holiday. The issue before the High Court on appeal was whether s 16 of the Civil Liability Act precluded Mr Moore from recovering damages for loss of that kind. Mr Moore submitted that Pt 2 of the Civil Liability Act is concerned exclusively with claims for damages for personal injury and his claim was not for personal injury. The relevant findings of the majority (comprised of Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) included as follows:

57. [320]

    The High Court decisions in Williamson (HCA) and Moore make clear that for the purpose of s 11 of the Civil Liability Act, deprivation of liberty, loss of dignity, harm to reputation, and disappointment, distress, frustration and indignation in response to a breach of contract, do not amount to impairment of a person’s mental condition or “personal injury”. Although the decisions engage with the definition of “personal injury damages” in the context of the Civil Liability Act, as earlier explained, there is no reason to differentiate between that phrase and the definition in the Limitation Act.

58. [321]

    To be clear, I am of the view that the Limitation Act does not apply to the plaintiff’s claim for aggravated and exemplary damages for the following reasons:

59. [322]

    Having found that the Limitation Act does not apply to bar the plaintiff’s claim for aggravated and exemplary damages, I will turn now to consider each head of damages.

Compensatory (general) damages

1. [323]

   The plaintiff handed up a schedule of damages during the proceedings (MFI 1). The plaintiff contends that she should be awarded $5,000 for the battery, $25,000 for the assault and $20,000 for the false imprisonment. The defendant accepts that the Court would award compensatory damages for the three causes of action, but forcefully resists the quantum proposed by the plaintiff. The defendant points out that the three causes of action arise out of substantially the same facts and careful assessment is required so that the plaintiff is appropriately compensated but not overcompensated, as an award of “damages must not exceed the amount appropriate to compensate the plaintiff for any relevant harm he or she has suffered”: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66; [1993] HCA 31 at [47] (Mason CJ, Deane, Dawson and Gaudron JJ).

2. [324]

   The plaintiff contends that a substantial award of damages is necessary to compensate the plaintiff for the wrong done to her by the unlawful exercise of police powers. That compensation must take into account “the particularly distressing and humiliating circumstances of the torts”: Bulsey v The State of Queensland [2015] QCA 187 at [109] (Fraser JA, Atkinson and McMeekin JJ agreeing).

3. [325]

   The applicable principles are not in dispute and do not require extensive consideration. The assessment of damages for false imprisonment involves an evaluative judgment: see Costa and Another v The Public Trustee of NSW (2008) 1 ASTLR 56; [2008] NSWCA 223 at [37], [39] (Ipp JA) and [103]-[105] (Basten JA); State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 (“Abed”) at [218]. It is often a matter of “opinion, impression, speculation, and estimation”: Clifton & Ors v Lewis [2012] NSWCA 229 at [56] (Basten JA agreeing with Beazley JA), citing Dell v Dalton (1991) 23 NSWLR 528 at 533G; [1991] NSWCA 76.

4. [326]

   The damages may take into account the effect on the plaintiff’s liberty, dignity, and reputation: see State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 at [153]-[157]. Loss of liberty, even for a short period, is not a trivial wrong: Watson v Marshall at 632. There is no issue about fault. It is irrelevant whether the defendant intended to act unlawfully or cause injury. In Ruddock at [140], Kirby J (in dissent, but not on this point), described unlawful imprisonment as a “tort of strict liability”, citing R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 at 26. His Honour held that “[t]his is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant”.

5. [327]

   Damages may be awarded for assault and battery whether or not the plaintiff is injured or suffers loss. It is fear of imminent harmful or offensive contact that is the gist of an assault: see Hall v Fonceca [1983] WAR 309 at 311; Rixon v Star City Pty Ltd (2001) 53 NSWLR 98; [2001] NSWCA 265 at [57].

6. [328]

   The defendant accepts that the plaintiff’s experience in being stopped, detained, and searched, in fact occasioned fear and distress. She believed that she would be arrested if she did not comply with the directions of searching police officers. The defendant points out, however, that the plaintiff was not subjected to any physical force, and contends that the searching police officer’s questioning was not threatening, rude, or overbearing. There was no deployment of weapons or unnecessary physical restraint. The defendant submits that the police officer’s manner in conducting the strip search was not egregious and that the circumstances do not warrant a significant award of compensatory damages.

7. [329]

   The defendant takes issue with the quantum of “general” compensatory damages proposed by the plaintiff. In respect of the assault, the defendant relies upon other cases where there has been an award of damages of lesser amounts, in support of the contention that the proposed amounts of damages would amount to overcompensation.

8. [330]

   In Abed at [225], an award of $10,000 for trespass was confirmed on appeal. In that case a female plaintiff was assaulted by being tackled to the ground by two police officers, handcuffed, and placed in the cage of a police motor vehicle, transported to a police station and then removed from that vehicle. In Anderson v State of NSW; Perri v State of NSW [2023] NSWCA 160, the damages were assessed at $20,000 as a combination of general damages and aggravated damages for false imprisonment and a pat down search, followed by a strip search at a police station. The applicants in that case were aged 14 and 13 years old respectively at the time of the searches.

9. [331]

   In respect of damages for false imprisonment, the defendant relies on Bhattacharya v State of New South Wales & Anor [2003] NSWSC 261, where damages for false imprisonment over a period of three hours was assessed at $15,000. In that case, the conduct of police was described as “overbearing, bullying and arrogant”: at [15] (Mathews AJ). The defendant also cites McLaughlin v State of New South Wales [2023] NSWDC 525 and McLaughlin v State of New South Wales (No. 2) [2023] NSWDC 557, where there was an award of $5,000 for false imprisonment for a period of more than 20 hours (and an additional $5,000 for exemplary damages). That sum was not thought inappropriate in the determination of the state’s unsuccessful appeal: State of New South Wales v McLaughlin [2024] NSWCA 137. Of course, it must be observed that the quantum of damages for false imprisonment is not measured simply by the number of hours for which a plaintiff is unlawfully detained.

10. [332]

    Damages for assault and battery are “very much at large”: Louis v Commonwealth (1987) 87 FLR 277 at 284. While it is instructive to have regard to amounts that have been awarded in other cases (Spautz v Butterworth (1996) 41 NSWLR 1 at 13C), each case must be looked at individually when assessing damages for false imprisonment, assault, and battery.

11. [333]

    Here, the plaintiff was 27 years old at the time of the strip search. She had no criminal record. She had never been in police custody for any reason. While the period of false imprisonment was not particularly lengthy (30 minutes), the plaintiff was subjected to particularly humiliating treatment while at a total loss of liberty. That treatment struck at the core interests that the three torts protect, namely, dignity, personal privacy, and personal bodily integrity.

12. [334]

    The facts and circumstances relating to the torts have been set out above, but it is necessary to emphasise aspects of the plaintiff’s interaction with the searching police officers:

13. [335]

    Although no physical force was employed by the searching police officer and there was no deployment of weapons or unnecessary physical restraint, the circumstances in which the plaintiff was unlawfully detained involved significant harm to the plaintiff’s interest in bodily integrity and liberty. Furthermore, although the searching officer did not raise her voice, the officer’s conduct in directing the plaintiff to move her body and body parts, including a direction to remove her tampon, in the absence of lawful justification, was egregious.

14. [336]

    The plaintiff suffered considerable humiliation, fear, and distress in having to disclose that she was menstruating. That exchange took place just after she had been directed to pull down her top, exposing her breasts. The plaintiff had to pull on her tampon string to prove to the searching officer that a tampon was the only thing inserted in her vagina.

15. [337]

    The contention that the conduct was not egregious fails to appreciate the particular state of vulnerability of the plaintiff and the degree of humiliation, fear, and distress that she experienced as a result of the searching police officer’s conduct. That conduct took place in circumstances where the searching police did not have reasonable grounds to suspect that the plaintiff was in possession of an illicit substance.

16. [338]

    I am comfortably of the view that the quantum of compensatory (general) damages that should be awarded to the plaintiff is:

Aggravated and exemplary damages distinguished

1. [339]

   The distinction between aggravated and exemplary damages was discussed in Abed as follows (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing):

2. [340]

   An award of exemplary damages is not confined to punishment but also serves to deter police officers, in similar circumstances, from committing serious statutory contraventions. Put simply, in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant: Ibbett (NSWCA) at [83]. It is necessary to assess aggravated damages before determining whether the plaintiff is entitled to a further award by way of exemplary damages: New South Wales v Ibbett (2006) 229 CLR 638 at 647-8; [2006] HCA 57(“Ibbett (HCA)”) citing Ibbett (NSWCA) at [83].

Aggravated damages for assault and false imprisonment

1. [341]

   I will deal first with the claim for aggravated damages. The claim for aggravated damages can be separated into two subcategories. The first arises from what is described as the “magnitude of departure from the LEPRA pre-conditions and safeguards”. The second subcategory relates to the plaintiff’s hurt feelings arising from the conduct of the proceedings by the defendant. I will deal with each in turn. The plaintiff contends that $30,000 should be awarded in aggravated damages for the assault and false imprisonment and a further $30,000 should be awarded for the conduct of the proceedings.

2. [342]

   The defendant submits that an award of aggravated damages (in addition to the amounts which the plaintiff is entitled to for general compensatory damages) should be no more than $5,000. The defendant resists an award of aggravated damages for the conduct of the proceedings, submitting that the “plaintiff’s claim for aggravated damages because of the manner in which the defendant conducted the litigation is in substance a claim that whenever a defendant in a common law tort claim puts a plaintiff to proof of a not admitted fact or denies a material fact which is ultimately proved by the plaintiff then aggravated damages are appropriate”.

3. [343]

   The extent to which the searching police officers failed to comply with the preconditions and safeguards of LEPRA have been addressed at [223]-[263]. It is not necessary to repeat that analysis but only to refer to the findings in summary.

4. [344]

   There was significant departure from the preconditions and safeguards in LEPRA. The searching police officers did not have reasonable grounds to suspect that the plaintiff was in possession of an illicit substance. The departure from LEPRA extended to the failure by searching police to form a suspicion on reasonable grounds that the strip search was necessary for the purposes of the search and that the seriousness and urgency of the circumstances made the strip search necessary.

5. [345]

   Furthermore, in respect of ss 32 and 33 the female police officer did not inform the plaintiff that she would be required to remove her clothes and the reasons why it was necessary: ss 32(2)(a)-(b). The search escalated in unexplained circumstances from a pat down search to a strip search. The plaintiff was not asked for her cooperation: s 32(3). The strip search was not conducted in a way that provided reasonable privacy for the plaintiff, nor was it conducted in the least invasive way possible: ss 32(4)(a) and 32(5).

6. [346]

   The searching police officer conducted a search of the plaintiff’s breasts and genital area in the absence of a suspicion on reasonable grounds that it was necessary to do so for the purpose of the search: s 32(6). The plaintiff was questioned by the searching police officer during the strip search. The questions were not limited to issues of personal safety associated with the search: ss 32(8) and 32(8A).

7. [347]

   The conduct of the searching police also departed from the safeguards in s 33. The strip search was not conducted in a sufficiently private area to comply with s 33(1): see [240]-[248] above.

8. [348]

   The strip search of the plaintiff did not involve a search of her body cavities or an examination of her body by touch. This is a different issue from the question as to whether police officers have an implied power to direct or force a person to move their body parts or position their bodies in a particular way. The evidence establishes that the plaintiff complied with the directions given to her, essentially believing that she was obliged to do so. In the circumstances of the present case, I cannot find that the conduct of the searching police officer breached s 33(4). It may well have been a different situation had the plaintiff not complied with the directions and was physically forced to do so in some manner.

9. [349]

   Having determined that the searching police officer did not have reasonable grounds to suspect that the strip search was necessary for the purposes of the search and did not form a suspicion on reasonable grounds of the seriousness and urgency of the circumstances making the strip search necessary, it follows that the plaintiff was required to remove more clothing than reasonably necessary to perform the search and that the search involved more visual inspection than the searching officer believed on reasonable grounds to be reasonably necessary for the purposes of the search: ss 33(5)-(6).

10. [350]

    Where a safeguard is qualified by the requirement of reasonable practicability in the circumstances, I find in each case that it was reasonably practicable for searching police to comply with the ss 32 and 33 safeguards. The police were not caught by surprise nor was this a situation which unfolded spontaneously, providing little opportunity for police to consider and implement the safeguards.

11. [351]

    To the contrary, the search operation, including the deployment of the DDD and the expectation that strip searches would be conducted, was carefully planned and infrastructure was put in place. There is no basis upon which to conclude that it was not reasonably practicable for the searching police officers to comply with the legislative safeguards.

12. [352]

    I am therefore satisfied that the applicant is entitled to an award of aggravated damages by virtue of the substantial failures and the marked departure from the LEPRA provisions in the conduct of searching police. There were three particularly invasive directions given to the plaintiff:

13. [353]

    The defendant’s submission that an appropriate award of aggravated damages should be no more than $5,000, significantly underestimates the degree of aggravation. It fails to appreciate the degree of humiliation, degradation, and trauma caused by directing a woman to strip in a makeshift structure where a male officer entered without impediment; directing her to lift her breasts and bend over, exposing her buttocks; and, upon disclosing that she was menstruating, being directed to pull out her tampon.

14. [354]

    I agree with the plaintiff’s submission that the overall picture is that the searching police did not turn their mind to whether LEPRA authorised the strip search of the plaintiff and failed to comply with many of the safeguards. The only objective evidence for suspicion is that a drug detection dog gave an indication. However, the evidence clearly establishes that a positive drug dog indication, alone, is not a basis for a strip search.

15. [355]

    The plaintiff experienced greater affront, greater humiliation, and greater damage to her dignity, from the fact that she was subjected to an escalating series of invasive powers by searching police, in circumstances where there was no explanation of the necessity for the search. Her response went from apprehension to humiliation, to terror, to degradation, to nausea, and onto anger.

16. [356]

    The appropriate award of aggravated damages (considered separately from the conduct of the proceedings complaint) is $30,000.

Aggravated damages for the conduct of the proceedings by the defendant

1. [357]

   In The Korean Times Pty Ltd & Anor v Un Doc Pak [2011] NSWCA 365 at [127] Nicholas J (with whom Beazley JA agreed) held:

2. [358]

   The plaintiff has particularised two aspects of the defendant’s conduct that she claims should sound in aggravated damages for its conduct during the proceedings. First, the plaintiff relies on the defendant’s institution and maintenance of a defence of lawful justification and the factual challenge to the plaintiff’s account for a period of over two years from 29 September 2022 (being the date of the original Defence) until the filing of an Amended Defence on 28 March 2025.

3. [359]

   [Redacted].

4. [360]

   I pause to deal with a submission made on behalf of the defendant in respect of this part of the claim for aggravated damages. It is submitted that I cannot make findings that there was no reasonable basis for filing the defence because of the absence of a waiver of privilege. The importance of legal professional privilege is emphasised, and it is essentially submitted that it would be highly unfair for clients to have to waive privilege in order to avoid a claim for aggravated damages because of the way that a pleading was prepared.

5. [361]

   I do not accept that the submission has force in this case. The uncontroverted evidence is that the three police officers involved in the plaintiff’s search do not remember the plaintiff and have no recollection of interactions with her. Furthermore, the only contemporaneous note about the search appears in the notebook of SC Petrie. The notebook contains very little detail. Its contents could never have provided the evidentiary foundation for some of the positive assertions pleaded.

6. [362]

   Had there been evidence supporting positive assertions about observations made of the plaintiff or interactions with her (by way of police statements, notebook entries or COPS event entries), I would expect that it would have been produced and relied upon. It was not.

7. [363]

   The particulars relied upon by the plaintiff in support of her claim for this category of aggravated damages is comprehensively set out in the plaintiff’s outline of closing submissions (MFI 4). The following summary draws heavily from that outline.

8. [364]

   In its original Defence, the defendant denied liability and asserted that there was lawful justification for the strip search of the plaintiff on the basis of express observations and determinations of the three police officers involved in the search. The Defence pleaded:

9. [365]

   In relation to the plaintiff’s pleadings as to what occurred during the strip search, the initial Defence does not admit certain things but otherwise specifically denies [47]-[52] of the original SoC which alleged the following:

10. [366]

    The Defence also expressly denies that the plaintiff was directed to provide her driver’s licence and stipulates that the plaintiff was asked and voluntarily provided her name, address, date of birth, and phone number to SC Petrie: (Defence at [56]).

11. [367]

    The defence of lawful justification and express denials as to parts of the plaintiff’s factual claims is maintained in later iterations of the defendant’s pleadings. Further and better particulars were provided which also maintain the denials.

12. [368]

    In March, April and May 2024, the defendant filed and served a large number of witness statements of police officers who had been deployed during SITG 2018, including the statements of SC Jarnet, SC Petrie, and SC George. These police officers had no recollection of the strip search or their interactions with the plaintiff. Notwithstanding this, the Defence was maintained for another 12 months.

13. [369]

    Approximately five weeks prior to the hearing date, the defendant filed an Amended Defence in which it was accepted that the strip search was not lawfully justified and the denials earlier pleaded were (at least to some extent) abandoned.

14. [370]

    The institution and maintenance of the pleadings (until the Amended Defence was filed) adversely impacted the plaintiff. The plaintiff gave oral evidence about her feelings on the first day of the hearing. The plaintiff accepted that she understood the difference between a non-admission and a denial of a fact. The plaintiff gave evidence that she understood that the totality of the Defence was to challenge her account about what had occurred to her on 20 July 2018.

15. [371]

    The plaintiff said (Tcpt, 5 May 2025 p 31(47)):

16. [372]

    In later evidence the plaintiff was asked and answered (Tcpt, 5 May 2025 p 37(1)):

17. [373]

    The plaintiff was taken through each of the non-admissions and denials in the original Defence. Although she accepted that the difference between a non-admission and denial had been explained to her, unsurprisingly, her reaction to the original Defence was that her integrity and honesty were being called into question.

18. [374]

    The express denials in [47]-[52] of the initial Defence related to the allegations that the female police officer directed the plaintiff to remove her tampon, to bend over, to turn around, and to pull on the string of her tampon. The plaintiff’s reaction to these denials is captured in her evidence that “it was very insulting, very angry and very anger inducing … Being called a liar and then probably expected to defend myself over all these facts bit by bit”. She was exasperated, angry, and irritated and said that the denials caused her “further humiliation”.

19. [375]

    When the plaintiff was provided with the statements of the three searching police officers and had the contents explained to her, she was “beyond infuriated, because that means even though I was called a liar in so many aspects, of so many minute details I lied apparently they don’t recall me. It did not match up to my understanding and it was very insulting”.

20. [376]

    The defendant relies upon Jamieson v R (1993) 177 CLR 574 at 579; [1993] HCA 48, where the purpose and function of an unverified pleading was explained by Deane and Dawson JJ as follows:

21. [377]

    The defendant appears to submit that the various iterations of its Defence should be treated as pleading the general issue and are not verified pleadings.

22. [378]

    These proceedings do not require verified pleadings: Uniform Civil Procedure Rules 2005 (NSW) rr 14.22, 14.23. I am not persuaded that Jamieson v R is authority for the proposition that a lower standard of pleading as between the parties is justified or that the difference between a non-admission and a denial is displaced.

23. [379]

    There is a difference between a non-admission, a denial, and advancing a positive assertion(s). Non-admissions and putting the plaintiff to proof, without more, do not amount to unjustifiable or improper conduct: David Syme & Co Ltd v Mather [1977] VR 516 at 527, citing Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729. Furthermore, the defendant is entitled, at least to some extent, to formulate pleadings on the basis of the police officers’ “usual practice”, even where the interaction which gives rise to the complaint, is not remembered.

24. [380]

    However, that is not what happened here. The defendant’s original pleadings went far beyond non-admissions or reliance upon “usual practice”. It is one thing to maintain that the strip search was justifiable because the searching police officers’ usual practice was to comply with the preconditions and safeguards in conducting a strip search (providing evidence of usual practice is actually produced), and that it was for the plaintiff to prove otherwise. So much is understood. However, the defendant’s pleadings extended to denying particulars about what took place during the strip search of the plaintiff.

25. [381]

    The defendant denied that the plaintiff was directed to remove her tampon and that the police officer bent down to inspect the plaintiff’s vagina. The defendant denied that the female police officer directed the plaintiff to turn around so that her back was to the officer and further denied that the plaintiff was directed to bend over with her buttocks facing the female officer. It was also denied that whilst in that position the male police officer entered the search area without warning. The defendant expressly denied that the plaintiff was directed to provide her driver’s licence and pleaded that she was rather asked to voluntarily provide her details.

26. [382]

    Such pleadings are not based on “usual practice”. The specific express denials challenged the credibility and reliability of the plaintiff’s account as pleaded in the SoC.

27. [383]

    Furthermore, the defendant’s pleadings posited positive assertions about what took place during the interaction between searching police and the plaintiff. By way of example, the Defence to the FASoC, filed on 26 May 2023, pleaded that SC Jarnet’s suspicion was based subjectively on a number of matters including his assessment “of the Plaintiff’s conduct on approaching the entrance” and “his assessment of the Plaintiff’s response to any questions he asked of her”.

28. [384]

    SC Jarnet does not remember the plaintiff or his interaction with her. He made no notebook entry and no COPS event entry. These particulars could not have been based on “usual practice” because they were positive assertions about there being something about the plaintiff’s conduct on approaching the entrance and her responses to questions which formed at least part of the basis for reasonable suspicion.

29. [385]

    A further example relates to the particulars of reasonable grounds relating to SC George’s suspicion. Her suspicion that a strip search was necessary for the purposes of the search was based subjectively on a number of matters including her “assessment of the plaintiff’s demeanour, physical appearance, body language and answers to questions while they spoke outside the Tent”.

30. [386]

    These are very specific particulars based on the plaintiff’s demeanour and her physical appearance as well as her body language. The particulars even assert that the conversation with the plaintiff took place outside the tent.

31. [387]

    Further particulars of reasonable grounds pertaining to SC George’s suspicion that a strip search was necessary, included her “assessment of the extent to which the plaintiff’s clothing or hairstyle would allow for a prohibited drug to be concealed even during an ordinary search”: [39(a)(ii)]. The particulars clearly suggest that one of the bases for SC George’s suspicion was the plaintiff’s clothing or her hairstyle.

32. [388]

    Yet neither SC Jarnet or SC George remembered anything at all about the plaintiff or their interactions with her. In the absence of any recollection, how could positive assertions be legitimately particularised or pleaded?

33. [389]

    This is not a matter of impermissibly pressuring the defendant to waive privilege. The evidence is clear. The searching police officers had no recollection of the plaintiff or of the search. Two of the searching police officers made no contemporaneous record at all about any interactions with the plaintiff. The only contemporaneous notebook entry was that made by SC Petrie. Other than the representation attributed to the plaintiff (which I have rejected), there is no record of any conversation with the plaintiff; any observations of her demeanour; or any details of her clothing or hairstyle.

34. [390]

    There was no basis to put positive assertions in support of the suspicion on reasonable grounds that a strip search was necessary. To the extent that the defendant posited positive assertions about the plaintiff’s appearance and demeanour, or about interactions with the plaintiff, I find such assertions wholly without basis. Indeed, I am very troubled by those features of the original defence pleadings.

35. [391]

    In expressing this concern, I pause to observe that Mr Sexton SC and Mr Hutchings were not engaged at the time the defendant’s initial pleadings were prepared and filed. Indeed, the conduct of the hearing before me has been nothing short of professional, considered, and of significant assistance to the Court.

36. [392]

    [Redacted].

37. [393]

    [Redacted].

38. [394]

    [Redacted].

39. [395]

    [Redacted].

40. [396]

    [Redacted].

41. [397]

    [Redacted].

42. [398]

    In 2016, the Premier issued a memorandum, titled M2016-03-Model Litigant Policy for Civil Litigation and [Redacted] (“the Model Litigant Policy”), which provides principles for maintaining proper standards in civil litigation and the provision of legal services in NSW. The Model Litigant Policy is founded upon the concepts of behaving ethically, fairly, and honestly to model best practice in litigation.

43. [399]

    It places an obligation on the State and its agencies to act as a model litigant in the conduct of litigation. The obligation extends beyond merely acting honestly, in accordance with the law and court rules, and in accordance with ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly, and in accordance with the highest professional standards. The expectation that the State and its agencies will act as a model litigant has been recognised by the courts: see Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342; [1912] HCA 69; Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166; (1997) 144 ALR 695; Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345 at 353; [2012] HCA 17.

44. [400]

    The nature of the obligation prescribed by the Model Litigant Policy includes dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation and apologising where the State or an agency is aware that it has acted wrongfully or improperly. These proceedings have had a protracted history and notwithstanding the concession that the strip search of the plaintiff was indeed unlawful, no apology has been extended.

45. [401]

    The plaintiff is entitled to an award of aggravated damages for the conduct of the proceedings by the defendant. In assessing the quantum of damages in this regard, I have not taken into account the plaintiff’s hurt feelings in relation to non-admissions by the defendant. As earlier alluded to, the defendant was entitled to put the plaintiff to proof. The appropriate award of aggravated damages for the conduct of the proceedings by the defendant is $20,000.

Exemplary damages

1. [402]

   The plaintiff’s claim for exemplary damages is based not only on the conduct of the searching police officers, but the overall conduct of the State, by the senior officers of the NSWPF (senior officers) in failing to exercise reasonable skill and care to ensure the provision of proper training and supervision of police officers in relation to the legal requirements for a nonconsensual strip search in the field. The plaintiff contends that $50,000 in exemplary damages would be appropriate in the circumstances.

2. [403]

   The conduct of the State relevant to exemplary damages is pleaded at 68A-68D of the SFASoC. The plaintiff’s pleadings assert that at all material times it was the case that most music festivals conducted in New South Wales in the period from 22 July 2016 to 21 July 2022 were policed by substantial detachments from New South Wales police for the purpose of (amongst other things) detecting prohibited substances in the possession of attendees, and that strip searches were one of the primary means police officers were directed to use to carry out the purpose of detecting prohibited substances. Strip searches were likely to be humiliating for the person searched and could give rise to both lasting and immediate traumatic responses. They could also result in the commission of torts of assault, battery, and false imprisonment: [68A.1]-[68A.3].

3. [404]

   The pleadings also assert that in the period between at least 2016 and 2019, there developed a practice or pattern of conduct by police officers of carrying out strip searches of attendees at music festivals as a matter of routine and not in circumstances lawfully justified by LEPRA: [68A.4].

4. [405]

   Further, it is pleaded that the State, by the senior officers of the NSWPF, is responsible for authorising the use of strip searches at music festivals and was aware (or ought reasonably to have been aware) of the circumstances pleaded in subparagraphs [68A.1]-[68A.4]: [68B].

5. [406]

   Notwithstanding this awareness, the State is alleged to have failed to exercise reasonable skill and care to ensure the training delivered to the police officers tasked to police music festivals was adequate to ensure that they adhered to LEPRA and conducted strip searches without committing assault, battery, or false imprisonment. It is also alleged that the State failed to exercise reasonable skill and care to ensure that the said police officers were adequately supervised: [68C].

6. [407]

   The plaintiff submits that there was an “abject failure” in the training and supervision of police officers in respect of the legal preconditions and safeguards for a lawful strip search.

7. [408]

   The plaintiff does not seek a “global” award for the conduct she complains of. That is, she does not seek an award that corresponds to disapprobation of the conduct of the defendant vis-à-vis each group member. Rather, she seeks a personal award of exemplary damages to reflect policy objectives of both punishment and deterrence, submitting that the award must “sting”: see Digital Pulse Pty Limited v Christopher Harris and Ors (2002) 166 FLR 421; [2002] NSWSC 33 at [133]; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd at 472; Pollack v Volpato [1973] 1 NSWLR 653 at 657-8.

8. [409]

   In support of the claim for exemplary damages, the plaintiff relies upon the documents produced in answer to discovery. Ms Nomchong SC has carefully and comprehensively referred to the relevant documents which include, but are not limited to, NSWPF training and educational material and directives operational orders, joining instructions and records of trainings or briefings created for or provided to searching police officers at SITG 2018.

9. [410]

   The defendant accepts that the common law has long recognised the availability of exemplary damages in cases of egregious misconduct by government officials. The defendant accepts that in a case where a party is liable for wrongs committed by its servants or agents, liability for exemplary damages can, notionally, rest on at least three bases. Firstly, it can include liability for exemplary damages arising from the misconduct of the individual servant or agent. Secondly, cases of vicarious liability have sometimes recognised a “direct” liability on the part of the defendant for exemplary damages based on its own misconduct. Thirdly, a potential basis for liability is the mechanism of attribution: in other words, the servants or agents who committed the wrong are treated as the State.

10. [411]

    The defendant submits that the position in New South Wales remains that the State is only vicariously liable for damages, including exemplary damages. The entitlement to exemplary damages (if any) arises where the misconduct of the individual tortfeasor rises to the level of conscious wrongdoing under the ordinary, well-established principles. Deterrence then provides a justification for awarding exemplary damages against a defendant who is not the actual tortfeasor but a person with the ability to influence whether similar events happen in future.

11. [412]

    The defendant contends that the plaintiff must prove something more than negligence in training, instruction, and supervision. The onus is on the plaintiff to establish such egregious conduct as would justify punishment and require deterrence over and above the award of compensatory and aggravated damages. The defendant further contends that the fact that the NSWPF has taken steps to improve its education and training, does not demonstrate that the systems that were in existence are necessarily inadequate. It is submitted that improving the system does not demonstrate that the existing system must be substandard.

12. [413]

    Ultimately, the defendant submits that the plaintiff has not established her entitlement to exemplary damages. However, if, contrary to the defendant’s position, the Court is satisfied that the plaintiff has made good her claim, then the defendant submits that the evidence of post-2018 changes must also be taken into account in determining the extent to which punishment is now to be meted out to the State for the conduct of senior officers.

13. [414]

    There are three issues to resolve in respect of the claim for exemplary damages. Firstly, whether on the evidence the plaintiff has established that she is entitled to exemplary damages, that is damages over and beyond general and aggravated damages?

14. [415]

    Secondly, if so entitled, to what extent do the improvements in training, education and supervision post-2018 mitigate the punitive and deterrent effect of exemplary damages?

15. [416]

    Thirdly, in the event that the plaintiff is entitled to exemplary damages, whether an assessment of the quantum can be made at this stage of the proceedings having regard to the nature of the proceedings (that is, being representative proceedings)?

Evidence relating to exemplary damages

1. [417]

   A significant volume of the documentary evidence tendered in the proceedings relates to the issue of exemplary damages. The plaintiff and the defendant rely upon portions of that evidence in support of their respective submissions. It is necessary to set out a summary of the evidence. In light of the voluminous nature of that material, the summary is necessarily lengthy.

2. [418]

   The Statement of Agreed Facts relevantly establishes the following. In October 2018, the Law Enforcement Conduct Commission (LECC) commenced an examination of the practices of the NSWPF concerning the conduct of strip searches outside a custodial setting. The substance of the investigation related to searches carried out at music festivals. On 8 May 2020, LECC produced two reports on specific operations.

   1. (1)

      Operation Brugge investigated the police presence at SITG 2018. The subject complaint concerned a 16-year-old who had been strip searched at the festival following an alleged indication by a drug dog.

   2. (2)

      Operation Gennaker investigated the police presence at Lost City Music Festival in Homebush Park in 2019. The subject complaints concerned three young persons who were subjected to strip searches by police officers.

3. [419]

   In March 2019, the NSWPF established Strike Force Blackford to investigate five complaints about strip searches performed by police officers, predominantly at music festivals. LECC monitored four of the five complaints investigated by the Strike Force. LECC produced a report dated 21 July 2020, which covered three festivals over 2018 and 2019. LECC’s investigation culminated in a report titled “Inquiry into NSW Police Force strip search practices”, dated 15 December 2020.

4. [420]

   In 2018, “Police Powers” stickers were created and distributed across the NSWPF. These stickers could be adhered onto pages of police notebooks for use as a ready reference guide at the time of exercising powers to conduct a strip search.

5. [421]

   The NSWPF Leadership and Capability Command introduced the “Lessons Learned Unit” (“LLU”) in mid-2018. In November 2018, the LLU conducted an evaluation of the way in which strip searches were conducted by police at major events, such as music festivals or sporting events (the “LLU report”). In August 2019, the NSWPF implemented the NSWPF Person Search Manual 2019.

6. [422]

   The primary policy documents which explain how police are to exercise their general powers and functions are amalgamated in the NSWPF Handbook. The NSWPF updated the Handbook regarding “Person Searches” in October 2019. It relevantly directed police to the new Person Search Manual.

7. [423]

   The NSWPF introduced a standardised drug detection briefing for all police working at music festivals in late 2019, under which briefings are usually delivered by the Event Commander, Drug Detection Commander and an intelligence team. The briefing contains information about the nature of the event, police powers, drug detection and search processes, and processes for dealing with persons taken into custody.

8. [424]

   In late 2019 the NSWPF introduced mandatory joining instructions for police working at music festivals. Since then, the joining instructions have been developed into an online education package called Music Festivals Fundamentals. This package:

9. [425]

   Until September 2019, police officers could self-verify any COPS event that related to a person search. The NSWPF ceased COPS event self-verification on 4 September 2019. COPS events relating to a person search must now be verified by a duty officer or other designated officer.

10. [426]

    In mid-December 2019, the NSWPF introduced enhancements to the way strip searches are recorded in COPS. These include prompts which pop-up when a strip search event type is created, which contains a description of what constitutes a strip search. As from 21 November 2019, the NSWPF also required commands to conduct their own mandatory monthly audit of all COPS events containing a strip search for both adults and people under 18 years of age.

11. [427]

    Following the 2013 Mardi Gras and after party, a large number of complaints about police conduct were received amid protest activity and general community unrest with widespread criticism of police officers and the NSWPF. In response, sometime following Mardi Gras in 2013 and before Mardi Gras in 2014, the NSWPF developed a 22-point plan to improve policing strategies and, in particular, the exercise of powers related to drug detection and strip searching at future Mardi Gras events. These strategies were used at Mardi Gras from 2014 onwards. The 22-point plan is annexed to the Statement of Agreed Facts.

12. [428]

    The categories of documentary material provided by the defendant by way verified discovery are set out in the affidavit of Mr Walsh, which has been summarised above at [56]-[62]. The defendant discovered a large number of documents including extracts of training manuals, extracts from the Police Handbook, extracts from the now defunct Code of Practice for CRIME, extracts of journal articles and the Police Monthly.

13. [429]

    No evidence was adduced by the defendant to show the distribution of these materials and whether the training materials were mandatory or optional. No police officers were called to give evidence as to what training they undertook or what instructions they received.

14. [430]

    I will summarise the education and training materials produced by way of discovery in the categorical and chronological order in which Ms Nomchong SC and Mr Sexton SC referred to the material.

15. [431]

    It is submitted on behalf of the plaintiff that the documents summarised below comprise the entirety of the material produced as part of discovery that contain any reference to person searches of any kind (not only strip searches).

16. [432]

    I am cognisant of the fact that the scope of Category 7 of the verified discovery is documentary material relating to training and education provided “to those police officers who interacted with the Plaintiff at Splendour 2018”, not all police officers. Nevertheless, I accept the plaintiff’s submission that the training and educational materials produced represent the general training and education (with respect to searches) of a police officer who was with the NSWPF in approximately the same period as the three officers who interacted with the plaintiff at SITG 2018.

17. [433]

    The following documents were produced in response to verified discovery Category 7 and comprise material directed to or made available at the NSW Police Academy. Some documents pre-date the commencement of LEPRA.

18. [434]

    The first document is titled “PREP Phase III Tutor Guide/Student Handouts”, dated October 1997. On page 23 is a checkbox which states, “Knowledge of Powers in relation to Stop, Search and Detain under the Drug Misuse and Trafficking Act”. Underneath this is another checkbox which states, “Ability to correctly search a personal offender. (Care for personal safety, needle stick etc)”. On page 24 are “Action-Research Questions”, which include “When may you Stop, search and detain a person under the Drug Misuse and Trafficking Act?” and “What constitutes ‘reasonable suspicion’ in relation to this legislation?”.

19. [435]

    The next document is a Study Guide titled “The Criminal Justice System and the Police Role”, dated November 2001. Only one passage refers to search powers, on page 73. This passage has the heading “Summary of search powers” and sets out four main occasions when an officer may have a lawful power of search: pre-arrest search; search on arrest; search before transport; and search at the station. The passage only covers general person searches and there is no reference to strip searches. No reference is made to reasonable suspicion in this section.

20. [436]

    The next document is a training workbook titled “Critical Assessment of Investigative Practice”, dated November 2002. Module 3 is titled “Search and seizure”. The only reference to person searches is on page 9 of the workbook, which contains questions.

21. [437]

    Question 15 states:

22. [438]

    Question 16 states:

23. [439]

    The next document is also titled “Critical Assessment of Investigative Practice”, dated November 2002. This was also a training module and contained no reference to strip searches or reasonable suspicion.

24. [440]

    The next document is also a training module, titled “Critical Assessment of Investigative Practice Module 3” and dated November 2002. A section on search and seizure begins on page 5 of the document. This passage refers to both common law principles on search and seizure and provisions in the Crimes Act 1900 (NSW) on search and seizure. The focus from page 6 onwards is on searches conducted pursuant to warrants. No reference is made to reasonable suspicion or strip searches.

25. [441]

    All of the above training materials pre-date the commencement of LEPRA. Little weight attaches to them in determining the question of whether there was an abject failure by senior officers to educate and train police officers in the conduct of strip searches.

26. [442]

    The first document post-dating LEPRA is a Study Guide titled “Simulated Policing (Acquiring Confidence) & Operational Safety and Tactics 1”, dated November 2006. Topic 6 in this document is “Searching Persons”. The overview at the beginning of the topic states:

27. [443]

    One of the learning objectives set out on page 17 of the Study Guide is to “explain the NSW Police policy regarding strip searches and searching persons of an opposite gender”. Another objective is to “define reasonable suspicion and reasonable belief”. There is no further reference to the policy on strip searches in the document.

28. [444]

    Over the page, on page 18 of the document is a reference to reasonable suspicion, which states, “The concepts of reasonable suspicion and reasonable belief must always be considered before exercising the powers to search”. The Study Guide goes on to cover search techniques. On page 20, there is reference to special circumstances that may arise when conducting a search, including “strip searching”. The Study Guide states that one of the readings will “explain in detail how to search in each of these circumstances”. The content of the readings is unknown.

29. [445]

    The focus of this topic in the Study Guide is practical search techniques. There is no reference in the Study Guide to provisions of LEPRA. There is no reference to the particular requirements under s 31 of LEPRA including the requirement that a police officer must suspect on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary. There is no reference to the safeguards under ss 32 and 33 of LEPRA.

30. [446]

    The next document is a Study Guide/Residential School Workbook titled “Investigation & Communication in Policing 1” and dated November 2006. On page 16 is the heading “Human rights”. Reference is made to the Universal Declaration of Human Rights and specifically to the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The document then states, “Police must be careful that they do not unlawfully infringe on any of these rights when conducting investigations”. The only reference to searching in this document is on page 46. Section 23 of LEPRA as extracted in the “Police Powers Handbook” is listed as reading material. There is then a question on searching pursuant to s 23. There is no reference to s 31 strip search powers. There is no reference to ss 32 and 33 safeguards.

31. [447]

    The next document is a Study Guide titled “Police, Crime and Society 2”, dated April 2007. On page 39, the document sets out an overview of the content to be covered in week 5 on “Drug law enforcement”. The document states:

32. [448]

    Section 21 of LEPRA is listed as reading material.

33. [449]

    Page 42 includes the following question:

34. [450]

    Page 44 includes a case study and the following question:

35. [451]

    Pages 56 and 57 include case studies and associated questions. Part of the case study on page 56 is as follows:

36. [452]

    The following question is, “Where do you obtain your powers to search Fellowes and Merchant? What is your justification for searching them?”. This question is identical to that asked after the other case studies involving general person searches. Despite this scenario clearly involving more than a general person search, there is no reference to the provisions of LEPRA concerning strip searches, unlike the reference to s 21 as above. There is also no reference to or explanation of the circumstances that justify a search of the character’s bra in the case study, or any acknowledgment that this type of search has additional preconditions as stipulated by LEPRA.

37. [453]

    There is no reference in the document to strip searches. There is no reference to ss 31, 32 or 33 of LEPRA.

38. [454]

    These documents comprise the additional mandatory continuing education units that were available to officers between 1999 and 2018 that were produced in response to verified discovery Category 7.

39. [455]

    The first document is titled “Mandatory Continuing Police Education Scheme”, dated January 1999. This package pre-dates LEPRA. There are sections on powers of search and seizure, powers to stop and search persons and vehicles, and search warrants. Reference is made to statutory powers of search and seizure in the Crimes Act. Page 43 states as follows:

40. [456]

    On page 44 there is a section on the strip search of prisoners as follows:

41. [457]

    On page 83, as part of the case study exercises is the following:

42. [458]

    On page 87, the question is answered as follows:

43. [459]

    Later in the document, there is an extract from what appears to be a slide show of some sort which sets out the same three dot points as above as to when a strip search might be considered. Over the page, another slide reaffirms that a record of all strip searches should be made in the officer’s notebook and where a search is performed on a person of the opposite sex an Occurrence Only COPS entry must be made.

44. [460]

    The next item is a video from approximately 2014-2015. The only reference to strip searches is at minute 1.11 of the video. A screenshot of that part of the video was handed up during oral submissions. The slide sets out the following:

45. [461]

    There is no reference to the relevant LEPRA provisions, what they provide, examples of what is meant by “seriousness and urgency of the circumstances” pursuant to LEPRA, the necessary safeguards and how they may or may not apply. The notation that students should be directed to LEPRA says nothing about whether, and to what extent, they were so directed.

46. [462]

    The next document is titled “Mandatory Continuing Police Education 1617/1: Body Worn Video”, dated July 2016. The only reference to strip searches is on page 2 where it states, “Intimate searches should not be recorded on BWV”.

47. [463]

    The next document is material said to be available on the NSWPF intranet as at 3 November 2016 on stop, search and detain. The material relevantly states, “Remember the safeguards when you are exercising your powers relating to stopping, searching and detaining of persons. The safeguards are set out in Part 15 of LEPRA”. Section 21 of LEPRA is then extracted. Underneath the extract of s 21 are some notes, which include:

48. [464]

    Other provisions extracted include ss 21A, 27 and 28. Section 33 of LEPRA, ‘Rules for conduct of strip searches’ is then set out in full. No guidelines or instructions are provided in respect of these safeguards, only the text of the provision is extracted. Section 31 of LEPRA, concerning the statutory criteria for strip searches, is not extracted or referred to in the material. Section 32 is also not extracted or referred to.

49. [465]

    The next document is a six minute intensive training module dated 1 September 2016 titled “LEPRA – Power to Search (2)”. This document sets out a scenario and a set of questions as to whether police officers can conduct a search of the person in the scenario. The third question asks, “You search the person but cannot find the knife. What would you need to consider in determining whether you could carry out a ‘strip search’ at the scene?”. The document then states as follows:

50. [466]

    This appears to be the first document that refers to all three provisions (ss 31, 32 and 33 of LEPRA) although no guidance is provided as to what may constitute “seriousness and urgency of the circumstances”. The reference to ss 32 and 33 is perfunctory.

51. [467]

    The next document is another six minute intensive training module extracted from the NSWPF intranet as at 3 August 2018 titled “Strip Searches”. This document sets out s 31 of LEPRA and contains a link to the statutory provision. Once again, there is no guidance provided as to what constitutes seriousness and urgency of the circumstances. Furthermore, there is no reference to ss 32 and 33 of LEPRA. The module also notes that you cannot carry out a strip search solely because a person is in custody to be transferred to another location and Corrective Services requests that all persons be strip searched prior to transfer.

52. [468]

    The next documents comprise material from the NSWPF Handbook and the Code of Practice for CRIME produced in response to verified discovery Categories 7 and 8.

53. [469]

    The first document is the iteration of the NSWPF Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence) that was in force as at March 2017. On page 10, the Code sets out the police powers to which the Pt 15 safeguards in LEPRA apply. Pages 11-16 of this iteration of the Code were omitted from the verified discovery. Page 39 states that, “The search carried out should be the least invasive kind of search practicable in the circumstances”. Page 40 contains a definition of a frisk search, an ordinary search and a strip search and then states as follows:

54. [470]

    The following appears on page 100:

55. [471]

    Annexure A is found at page 146 and is titled “Rules for conducting personal searches”. Section 32 of LEPRA is extracted. Annexure A then contains a subsection on strip searches, which includes the following:

56. [472]

    This was a proper recitation of the statutory requirements and safeguards for a strip search, though it does not provide any additional instructions as to when the preconditions for a strip search may be met.

57. [473]

    This Code was withdrawn from the NSWPF in December 2017 and did not exist as at SITG 2018 (affidavit of Mr Walsh dated 2 May 2025 at [18]). A letter annexed to Mr Walsh’s affidavit by the defendant’s legal representatives provides the following explanation:

58. [474]

    The next document is an undated extract from the Handbook titled “Consensual Searches”. This predominantly deals with s 34A of LEPRA. There is also reference to the safeguards in ss 32 and 33 of LEPRA, but the extract does not substantively deal with strip searches or refer to s 31.

59. [475]

    The next document is an extract from the Handbook on searches while in custody as at 3 August 2018. The extract sets out s 31 of LEPRA and provides a link to s 32 of LEPRA. The document also notes that the search should be carried out by an officer of the same sex and where possible, in the presence of a senior officer not connected with the investigation.

60. [476]

    Although this document refers to ss 31 and 32 of LEPRA, it does so in the context of searches of people in custody only.

61. [477]

    The next documents comprise the standalone journal articles, newsletters and other informational materials including the Police Weekly and the Police Monthly produced in response to verified discovery Categories 7 and 17.

62. [478]

    With respect to these documents, there is no evidence as to how these documents were circulated or whether there was any direction that NSWPF officers were to read them. In the absence of evidence as to how this material was promulgated, the inference is that they were optional reading for police officers.

63. [479]

    The first document is a Police Service Notice dated 14 February 2000. This was prior to the enactment of LEPRA. Under the heading “Strip Searches” is the following:

64. [480]

    The next article is an extract from the Police Weekly dated 19 December 2006. This post-dates the enactment of LEPRA. The article states:

65. [481]

    The focus in this article is on the prohibition on searching a person’s body cavities or an examination of the body by touch. It deals primarily with what an officer must not do, as opposed to providing any instruction or guidance about exercising the power to conduct a lawful strip search in the field.

66. [482]

    The next article is an extract from the Policing Issues & Practice Journal dated May 2013 titled “Person Searches and the Section 32 Safeguards”. The article refers to the power to conduct a search in ss 21, 23 and 24 of LEPRA and then discusses the safeguards in s 32 of LEPRA. The article specifically addresses how s 32 applies to strip searches and what factors might influence the decision to strip search as follows:

67. [483]

    The article is confined to strip searches in custody, not in the field.

68. [484]

    The next article is an extract from the Police Monthly dated July 2014 titled “LEPRA: long-awaited amendments”. The article notes that the body cavities of a person (which cannot be searched under LEPRA) do not include the person’s mouth. Under the subheading “Strip searches”, the article then states as follows:

69. [485]

    The article then discusses amendments to s 32 of LEPRA. While this article refers to the added requirement that the strip search must be necessary because of the seriousness and urgency of the circumstances if conducted in the field, no instruction or guidance is provided as to what might constitute “seriousness and urgency”.

70. [486]

    The next article was published in the Police Monthly in September 2016 and is titled “New powers among LEPRA changes”. This discusses the same amendments outlined in the above article, namely that the test for conducting a strip search at a police station was changed to be simply “whether you suspect on reasonable grounds that the strip search is necessary for the purpose of the search. You no longer need to consider whether the strip search is necessary because of the seriousness and urgency of the circumstances”. The article then notes that the test for strip searches in the field has not changed and requires that you suspect on reasonable grounds that the strip search is necessary and that the seriousness and urgency of the circumstances make it necessary. No instruction or guidance is provided as to what constitutes “seriousness and urgency of the circumstances”.

71. [487]

    The next article is dated May 2018 and titled “Police Gazette” but seemingly appears in the Police Monthly. Under the heading “LECC investigating strip searches”, the article notes that LECC is currently looking into strip searches performed on people in custody. The article then outlines the requirements contained in ss 27 and 31 to 33, including the following:

72. [488]

    These were all the journal articles produced under verified discovery that refer to searches and strip searches.

73. [489]

    It is evident from the documents summarised below that the operational orders, joining instructions and briefing material in evidence were prepared, checked and signed off by senior members of the NSWPF (e.g., individuals in the positions of Chief Inspector and Superintendent).

74. [490]

    These documents comprise the directives, operational orders, joining instructions, briefings and similar documents created for or provided to NSWPF officers at SITG 2018 (the music festival at which the plaintiff was strip searched) produced in response to verified discovery Category 3.

75. [491]

    The first document is titled “Splendour in the Grass 19-22 July 2018 Joining Instructions”. These instructions were prepared by [redacted] and signed off by [redacted]. On page 4, the intent of the instructions is expressed as, “To provide a safe environment for persons to attend Splendour in the Grass 2018 and maintain public confidence and safety in the surrounding townships”. The instructions cover issues such as intelligence, rostering, tasking, deployment, meal breaks, uniform, professional standards, critical incidents and high-risk situations. There is no reference in the Joining Instructions to drug detection dogs, searches or strip searches.

76. [492]

    The next document is the Operational Orders for SITG 2018, dated 27 April 2018. These Orders were prepared by [redacted] and checked by [redacted]. Page 4 of the Orders states, “The significant risk again to the festival in 2018 is the significant number of patrons, a proportion of which are affected by drugs and alcohol”. Page 10 notes that a detachment of 340 police are to be deployed, consisting of 12 core groups. These groups include “Drug Dog” and “Drug Dog Operation (Region Response Team)”. Page 12 notes, “A Drug Detection Dog Operation is being run at the event site from Thursday 19 to Saturday 21 July 2018 and separate operation orders, staffing and tasking are attached to these Operational Orders”.

77. [493]

    The Operational Orders set out the statutory powers of arrest and the safeguards in ss 201 and 202 of LEPRA. Section 99 of LEPRA is extracted. Page 24 discusses searching a person on arrest. Page 25 states, “Remember when exercising your power to search a person on arrest, you must comply with section 201 of LEPRA (safeguards) and the general rules relating to personal searches (see Annexure A)”. There is no reference to s 21 searches, s 31 searches or the safeguards in ss 32 and 33 of LEPRA.

78. [494]

    Turning to the specialised Operational Orders for the Drug Dog Operation at SITG 2018, these were dated 18 July 2018. They were prepared by Detective Sergeant Matthew Woods and checked by [redacted]. On page 3, the following is noted:

79. [495]

    The Orders then set out statistics on past operational deployments, including statistics on the amount of drug overdoses, amount of drug detections and the amount of drugs seized.

80. [496]

    The Orders then state as follows:

81. [497]

    On page 5, it is noted that general duties police will be in attendance for operational deployments.

82. [498]

    Page 6 includes the following:

83. [499]

    The only relevant notation is that the “LEPRA safeguards are to be adhered to”. Those safeguards are not referenced or explained.

84. [500]

    Page 7 states that “All events will be recorded on COPS under the operation name “SPLENDOUR 2018”. Generic narrative to be utilised…”.

85. [501]

    Page 7 also contains the following:

86. [502]

    A similar instruction is reproduced on page 8:

87. [503]

    The instructions direct that a search should be conducted “if appropriate”. This is not the same as reminding searching officers of the preconditions required for a strip search as set out in s 31(b). No reference is made to the safeguards, beyond the general reminder to be “aware” of police powers pursuant to LEPRA.

88. [504]

    On page 9, under the heading “Discreet Search Area”, the Orders state that, “Tents at the scene will be used to conduct the searches and exhibits will be stored in a secure exhibit box. Scales and drug bags to be provided by exhibit officers”. There is no other reference to searches or the relevant provisions in LEPRA.

89. [505]

    The final document in this category is the “Briefing Notes – SITG 2018”. There is no reference to searches, strip searches or LEPRA in that document.

90. [506]

    It is clear that these directives, joining instructions, operational orders and briefings do not set out the relevant mandatory requirements and safeguards under LEPRA and give no instruction or guidance as to how they should be complied with. Essentially, they assume that police officers are adequately trained and educated in respect of these requirements and safeguards.

91. [507]

    These documents comprise the directives, operational orders, joining instructions, briefings and similar documents created for or provided to NSWPF officers at SITG 2017.

92. [508]

    The first document is the Operational Orders for SITG 2017, prepared on 11 July 2017. The only reference to searches is to searching on arrest and the LEPRA safeguards in ss 201 and 202. Again, officers are reminded to comply with the “general rules relating to personal searches”. There is no reference to strip searches or ss 31, 32 and 33 of LEPRA.

93. [509]

    The next document is the specialised Operational Orders for the Drug Dog Operation at SITG 2017, dated 18 July 2017, which is substantially the same as the Orders for SITG 2018. There is no reference to strip searches or to ss 31, 32 and 33 of LEPRA. The Orders state:

94. [510]

    The Operational Orders for SITG 2016 were prepared on 11 July 2016. The Orders are nearly identical to those for SITG 2017 and 2018. There is no reference to strip searches or ss 31, 32 and 33 of LEPRA.

95. [511]

    The Operational Orders for the Drug Dog Operation at SITG 2016 were prepared on 19 July 2016. The reference to searching is in the same terms as for SITG 2017 and 2018. There is no reference to ss 31, 32 and 33 of LEPRA or the statutory criteria and safeguards in those provisions, only the instruction that police should be aware of the “Powers outlined in LEPRA”.

96. [512]

    The Operational Orders for SITG 2015 were prepared on 16 July 2015. These are substantively the same as the Orders for SITG 2016, 2017 and 2018. While there is reference to provisions of LEPRA in the context of arrests, there is no reference to ss 31, 32 or 33 of LEPRA or strip searches.

97. [513]

    No specialised drug dog operational orders were discovered in relation to SITG 2015.

98. [514]

    The Operational Orders for the Drug Dog Operation at SITG 2014 were prepared on 11 July 2014. Like the Orders for 2015, 2016, 2017 and 2018, these Orders make no reference to ss 31, 32 and 33 of LEPRA or to strip searches.

99. [515]

    Notably, the 2014 Orders state on page 6-7 that “searching police will walk behind the detection dog and if the dog indicates that there may be the presence of drugs in the atmosphere around a person, then a member of the team should take this person to a discrete area and search them” (emphasis added). This instruction was refined in subsequent years to note that the officer should make their own assessment, as set out above.

100. [516]

     Operational orders for other festivals support the contention that SITG 2018 was not an isolated event. Rather, the same lack of training and instruction was observable across a number of events and festivals in NSW.

101. [517]

     The Drug and Investigation Operational Plan for Defqon 2018 contains on page 3 a section titled “Phase 2 – Drug Detection Dog Operation”. The instructions include that, “Once the drug detection dog makes an indication, the person of interest will be approached by Police and removed to the provided secure area where that person can be searched”.

102. [518]

     It is unclear whether these instructions were referring to a person search or a strip search. The instruction suggests that it is sufficient, for a search to be conducted in a secure area, that a drug detection dog has made an indication. That instruction is questionable given the contents of a Current Issue Paper produced by the NSWPF in approximately 2019 on “Drug Dogs (Policing Practices at music festivals)”, which refers to drug detection dogs having “only a 30% hit rate for drugs found based on their indications”.

103. [519]

     The Operational Orders for this event in March 2018 included the following (emphasis in original):

104. [520]

     These Orders show a greater level of supervision of strip searches than the operational orders for similar events the same year, as the decision to strip search must be made by the Field Commander. There is also direction that an indication by a drug detection dog is insufficient.

105. [521]

     There are no further instructions with respect to strip searches.

106. [522]

     On page 9 of the Operation Orders for this event is a diagram that depicts the positioning of three drug detection dogs, adjacent to tents. The diagram indicates that patrons will walk past the drug detection dogs and can then be diverted to the tents. This leads to the inference that infrastructure was being put in place to facilitate searches and that it was expected that searches would be conducted as part of the drug dog operation.

107. [523]

     There are limited instructions with respect to searching. The following is included on page 14:

108. [524]

     There is reference to general adherence to LEPRA. There is also reference to special consideration of privacy for strip searches. However, there is no mention of the added pre-requisites for strip searches compared to general person searches (seriousness and urgency of the circumstances).

109. [525]

     Page 19 includes the following:

110. [526]

     This is one of the only instances where the three provisions of LEPRA are mentioned in the operational orders. The provisions are not explained or extracted in full.

111. [527]

     The Master Operation Orders for Defqon 2017 include on page 11 details of the drug dog operation. Eighty-eight police were rostered to assist with the operation.

112. [528]

     On page 40 of the Orders is a flowchart depicting how a person of interest would be taken to police to be searched, then if drugs were found, moved onto the next desk to weigh the drugs, and if no drugs found, released. There is no guidance in the Orders with respect to how the searches should be conducted.

113. [529]

     On page 36, under the heading “Arrest Procedures”, the Orders note that “Compliance with safeguards of LEPRA is strictly required”. There is no other reference to LEPRA and no reference to ss 31, 32 and 33.

114. [530]

     In the Drug Dog Operation Orders for this event, the following is set out on page 3:

115. [531]

     This suggests that a person search is an automatic consequence flowing from a positive drug dog indication.

116. [532]

     In the Operational Orders for Midnight Mafia 2017, there is a chronology of resource allocations and timings, which includes 70 drug dog support officers and 5 police drug dogs and handlers.

117. [533]

     On page 7 of the Orders are the following instructions, “Drug Detection Dogs & Drug Detection Dog support Officers – Attend Briefing, move to entry point and conduct Drug Dog Operation”.

118. [534]

     Page 11 notes the following tasks allocated to the Drug Detection Dog Support Officers (emphasis added):

119. [535]

     No further briefing or instructions are set out with respect to the drug dog operation. There is no further elaboration on “Conduct person searches in accordance with the provisions of LEPRA”.

120. [536]

     The Operational Orders for the FOMO Music Festival in 2017 note that there would be a Drug Detection Operation involving 9 rostered police. The Orders provide as follows:

121. [537]

     The Orders make no reference to strip searches or relevant provisions of LEPRA. There are no further instructions with respect to conducting searches.

122. [538]

     In the Operation Orders for this event, there is no specific reference to strip searches or guidance for conducting strip searches. However, on page 14, there is reference to infrastructure being put in place for searches, as it states:

123. [539]

     The Operational Orders for the Drug Dog Operation include the following:

124. [540]

     The ordinary person search power is then set out. There is no reference to strip searches or the additional requirements for strip searches. Attached to the Orders is an Annexure which sets out detailed instructions on the use of drug detection dogs, including how they can be used and recording searches in COPS events. There is no reference to strip searches in the Annexure.

125. [541]

     In the Operational Orders for this event, there is nothing directed towards training or instructions for strip searches. However, the Orders note that the police deployed to the event included “Specialists – Drug Detection dogs”.

126. [542]

     Later, the Orders state:

127. [543]

     This suggests that a drug dog indication would automatically lead to a search. There is no reference to the requisite suspicion under LEPRA.

128. [544]

     The operational orders summarised above indicate that the NSWPF routinely put the infrastructure in place to conduct searches at these festivals and that there was a lack of training, instruction and guidance on how to conduct strip searches in compliance with LEPRA observable across all events.

129. [545]

     Lists of training undertaken by the three police officers who interacted with the plaintiff at SITG 2018, set out in their respective “Individual Profiles”, were also before the Court. I was taken to the content of relevant courses by Counsel; however, I note that I have no other evidence to substantiate that the material I was taken to is in fact the content of the courses named on the officers’ profiles.

130. [546]

     The “Individual Profile” for SC George includes on page 5 a list titled “Qualification”, which sets out the training completed by the officer.

131. [547]

     Relevantly, on 23 February 2012, SC George undertook a course titled “Powers of Police Workshop (BMEC)”. The workshop included a set of slides titled “Powers of Police Workshop – Search Powers”. Slide 2 sets out the following objectives:

132. [548]

     Slide 4 states as follows:

133. [549]

     The subsequent slides set out cases on search and seizure, including George v Rockett, before setting out some of the relevant provisions of LEPRA, including ss 21, 22, 230 and 36. There is no reference to ss 31, 32 and 33 of LEPRA in these slides.

134. [550]

     However, later in the “Powers of Police Workshop – Field Resource Material”, provisions of LEPRA are extracted in full. This includes ss 31, 32 and 33.

135. [551]

     SC George’s profile also records that she completed a course titled “Person Search (Practical)” between 2 June 2015 and 30 June 2015.

136. [552]

     This course refers to an education & training document titled “Weapons & Tactics, Policy & Review – Searching”, published March 2013 and reviewed December 2015. Pages 16-18 make reference to strip searches and ss 31, 32, 33 and 34 of LEPRA. Page 5 includes the following:

137. [553]

     Page 8 sets out the definition of a strip search and extracts s 31 of LEPRA.

138. [554]

     The next course is the Mandatory Continuing Police Education Scheme document dated January 1999, referred to above. On page 44 of the document there is information relating to strip searches of prisoners. Page 44 includes the following passage, which Mr Sexton SC submits is equally applicable to strip searches pursuant to s 31(b) of LEPRA:

139. [555]

     Page 45 includes the following passage:

140. [556]

     On 28 October 2019, SC George completed a course titled “Use Your Powers! (19/20)”. The content of this course was not referred to during the proceedings. It is not known whether it included search powers.

141. [557]

     Between 24 March 2021 and 16 July 2023, SC George completed a course titled “Music Festivals”.

142. [558]

     On 10 May 2021, she completed a course titled “Police Powers Search 2020-21”.

143. [559]

     On 30 March 2023, she undertook “Police Powers – Person Search 2022-2023”.

144. [560]

     On 17 July 2023, there is another entry titled “Music Festivals”. No evidence has been provided as to the content of these courses.

145. [561]

     The “Individual Profile” for SC Petrie includes on page 3 a list under the heading “Qualification” setting out the various training courses completed.

146. [562]

     Between 2 April 2015 and 30 June 2015, SC Petrie completed a course titled “Person Search (Practical)”. This is the same course completed by SC George and summarised at [551]-[553] above.

147. [563]

     This was the only course or workshop completed by SC Petrie relevant to strip searches/searches prior to 2018. The only other entries that appear of any relevance prior to 2018 are “Police Powers I” and “Police Powers II” completed on 23 June 2000. The content of the courses is unknown, including whether they included any reference to search powers. Both courses pre-dated LEPRA.

148. [564]

     On 23 October 2019, SC Petrie completed a course titled “Use Your Powers! (19/20)”.

149. [565]

     On 3 April 2021, SC Petrie completed a course titled “Music Festivals”.

150. [566]

     On 20 April 2021, he completed a course titled “Police Powers Search 2020-1”.

151. [567]

     The content of these courses was not referred to during the proceedings.

152. [568]

     The “Individual Profile” for SC Jarnet also includes on page 2 a list under the heading “Qualification” of training courses completed.

153. [569]

     On 2 January 2013, SC Jarnet completed a course titled “Police Powers (Online)”. The content of this training course is not in evidence.

154. [570]

     Between 2 March 2015 and 30 June 2015, SC Jarnet completed a course titled “Person Search (Practical)”. There is also an entry for “Person Search (Practical)” on 1 July 2015. This course is purportedly the same as the one referred to above at [551]-[553].

155. [571]

     On 16 January 2020, SC Jarnet completed a course titled “Use Your Powers! (19/20)”.

156. [572]

     On 25 May 2021, SC Jarnet completed a course titled “Music Festivals” and on 28 June 2021, he completed a course titled “Police Powers Search 2020-21”.

157. [573]

     There is no evidence of the content of these courses.

Evidence relating to senior officers’ awareness of strip searches not being conducted in compliance with LEPRA

1. [574]

   A central part of the plaintiff’s argument with respect to exemplary damages is that senior officers, from no later than October 2018, were aware (or ought reasonably to have been aware) of unlawful strip searches being undertaken because of complaints, litigation, and the onset of the LECC inquiries. The plaintiff submits that they were aware of the deficiencies in training, and that there were easily available measures that they could have implemented.

2. [575]

   The 2013 Mardi Gras after party generated a significant number of complaints against police, predominantly in relation to attendees being strip searched (LLU Report p 14). Mr Gary Leeson also pursued a successful civil claim against the NSWPF for an unlawful strip search at the 2013 Mardi Gras.

3. [576]

   A strategy was developed for the 2014 Mardi Gras Operation which aimed to reduce the number of complaints. Part of this strategy involved the implementation of a triage officer as a mechanism to assess potential strip searches. The role of the triage officer was to assess all circumstances surrounding the cause for a strip search and either permit or refuse the search. Another part of the strategy was the development of a briefing package which included a presentation which clearly articulated officers’ use of powers in relation to drug detection dogs, reasonable suspicion and both general and strip searches (LLU Report p 14).

4. [577]

   Annexed to the Statement of Agreed Facts was the 22-point strategy for the 2014 Mardi Gras Operation. Under the heading “Drug Dog Operation for Mardi Gras After Party 2014” were ten points. These included the following:

5. [578]

   These strategies were developed and implemented in 2014 and then continued to be applied to Mardi Gras festivals. Following the implementation of these strategies, complaint statistics specific to Mardi Gras reduced significantly. There was no increase in drug overdoses inside the venue. In 2013, there were 4 strip search complaints specific to Mardi Gras. Following the 2014 Mardi Gras, there were 0 strip search complaints. There was 1 strip search complaint in 2015, and none in 2016-2018.

6. [579]

   As outlined above, in November 2018, the NSWPF LLU released a report evaluating the way in which strip searches were conducted by police at major events, titled “Lesson Identified – Best Practice Strip Search Guidelines for Pre-Planned Events Involving Drug Detection Dogs”. It is noteworthy that the LLU unit was introduced in mid-2018 apparently in response to concerns about compliance with the statutory requirements in conducting strip searches.

7. [580]

   The version of the LLU report in evidence was created approximately four months after the plaintiff’s search.

8. [581]

   The Executive Summary includes the following:

9. [582]

   The LLU report found that the lack of compliance with LEPRA stems from two areas:

10. [583]

    The report referred to the obsolete Code of Practice for CRIME (summarised above at [469]-[473]) and found that there was no current document that provided a proper explanation of what amounted to a strip search, leaving the interpretation of the definition of a strip search to the individual officer or operation commander.

11. [584]

    Under the heading “Lack of documentation”, the LLU report noted that notebook recording is regarded as common practice within the NSWPF, and a failure to document incidents is attributed to “poor practice amongst the individual officers neglecting to do so”.

12. [585]

    The report then sets out the complaints investigated by Professional Standards. In 2016, there were 79 search complaints, with 16 strip search complaints. In 2017, there were 85 search complaints, with 14 strip search complaints. In 2018, there were 77 search complaints, with 2 strip search complaints. The report observes that the number of complaints proceeding to litigation for unlawful searches were increasing as at the date of the report.

13. [586]

    The LLU report also referred to the LECC investigation into strip searches, which concerned not only specific incidents but also relevant policies and training with regards to strip searches, precipitated by complaints and anecdotal information from community organisations.

14. [587]

    Relevantly, on page 12, the LLU report concluded that there was “a plethora of information and educational material available to officers regarding their powers with regards to strip searches”. It is submitted on behalf of the plaintiff that I would conclude that there was in fact a paucity of training and educational materials.

15. [588]

    The educational materials identified in the LLU report were as follows:

16. [589]

    The LLU report went on to find that:

17. [590]

    On page 13, there is a section titled “Strip Search Procedures at Festivals, Mardi Gras and Other Large Events”. The report relevantly states:

18. [591]

    On 2 November 2018, a Nemesis message was sent out regarding general and strip searches, to reinforce police responsibilities and powers under LEPRA. A set of notebook stickers were also developed “in response to the broad issues surrounding police powers”. These stickers set out what police officers are required to consider under LEPRA before exercising their search powers. The LLU report also notes that the NSW Police Academy begun a review into all education and training material.

19. [592]

    Two microlearn videos were developed with respect to strip searches, one on strip searches in a police station and one on strip searches in the field. The LLU report notes these were to be deployed in late December 2018/early January 2019.

20. [593]

    The LLU also developed a rapid response educational strategy utilising a screen saver to consolidate the educational information available in an effective and timely manner. The report states that the screen saver was deployed for a one-month period from 16 November 2018 and it was envisaged that there would be a series of screen savers with slightly different messaging on strip searches to follow.

21. [594]

    The LLU found inconsistent definition and application of powers with regards to strip searches at music festivals and identified an opportunity for best practice through the use of a strip search triage officer, as used at the Mardi Gras after party, for all pre-planned events using drug dogs.

22. [595]

    The following recommendations emerged from the LLU report:

23. [596]

    It is submitted on behalf of the plaintiff that the LLU itself identified numerous strategies that could and should have been rolled out, and in relation to Mardi Gras, that the NSWPF knew of a process that dramatically reduced the number of strip searches and the number of complaints arising from Mardi Gras 2014, but failed to implement these for all music festivals. To the contrary, the defendant submits that when an organisation introduces something like the LLU unit, whose purpose is to find ways to improve practices, it does not bespeak “abject inadequacy” in current practices.

24. [597]

    I note that I do not have evidence as to whether the recommendations set out in the LLU report were implemented.

25. [598]

    An Inquest into the death of six patrons of NSW music festivals was conducted in 2019 by the State Coroner’s Court of NSW. The NSW Government response to the findings of the Coroner’s Inquest was in evidence in the proceedings.

26. [599]

    Several recommendations arising from the Inquest were directed towards the NSWPF. One of these recommendations was as follows:

27. [600]

    The response of the NSW Government to this recommendation was to note that LECC was investigating the use by police officers of powers to conduct strip searches under LEPRA and that the Government would consider the outcomes of this investigation.

28. [601]

    Another recommendation directed towards the NSWPF was that “training for attendance at police operations at music festivals be developed and implemented within NSW Police and that such training be a pre-requisite for those police assigned to or wishing to perform police operations at music festivals”. This recommendation was partially supported.

29. [602]

    The plaintiff relies on the recommendations arising from the Coroner’s Inquest and the NSW Government’s response as further evidence in support of the pleaded assertion that in the period between at least 2016 and 2019, there developed a practice or pattern of conduct whereby strip searches were carried out as a matter of routine and not in circumstances lawfully justified by LEPRA.

Post-2018 improvements

1. [603]

   I pause to note that the focus in this case is not improvements to education and training that were introduced after the plaintiff’s search. I have limited evidence of the extent to which the recommendations in the LLU report were implemented. However, the evidence adduced and relied upon by both parties reveals changes to education and training and the operational orders for festivals post-2018. Any improvements are relevant to my determination of the plaintiff’s claim for exemplary damages to some extent, noting that the purpose of exemplary damages is to punish and deter the defendant. I will address this in due course. The plaintiff also relies on some of the training measures introduced post-2018 as evidence of steps that could have been taken prior to the plaintiff’s search.

2. [604]

   Both parties took the Court to the document titled “Music Festival Fundamentals”, which was introduced following the LLU Report in late 2019 as an online education package.

3. [605]

   The Music Festival Fundamentals includes a section titled “Search Legislation”. A sub-section is titled “Strip Search Legislation”, which makes reference to provisions of LEPRA, including ss 31, 32 and 33. The full text of the provisions is not extracted.

4. [606]

   There is then an interactive video exercise titled “Music Festival Drug Detection Video”. This asks the user questions such as, “Does an indication by a drug dog on its own amount to reasonable suspicion to search?”. The interactive exercise then displays the correct answer, with an explanation.

5. [607]

   The module covers what behaviours may be considered by officers in forming the requisite reasonable suspicion. The module proceeds through an example general search, with reference to the relevant provisions of LEPRA, before turning to strip searches.

6. [608]

   In the section on strip searches, the education package states:

7. [609]

   The plaintiff submits that this slide is still deficient because it fails to explain what may constitute “serious and urgent” circumstances.

8. [610]

   There is then an interactive exercise on strip searches, which includes references to the updated Person Search Manual and provisions of LEPRA. At the end of the module are questions with feedback depending on the response entered.

9. [611]

   The module ends with a list of resources, including the following: “Seriousness & Urgency Document”; “Person Search Manual”; and “Strip Search Briefing Document”.

10. [612]

    It is submitted on behalf of the plaintiff that the Music Festival Fundamentals package was an easily available strategy that could have been rolled out, and should have been rolled out, well before 2018.

11. [613]

    The Operational Orders for SITG 2019 were in evidence in the proceedings. SITG 2019 took place one year after SITG 2018, the festival at which the plaintiff was strip searched.

12. [614]

    Pages 26-28 of the Operational Orders contain specific instructions with respect to strip searches that were absent from the Operational Orders for SITG 2018. The Orders note that an inspector will “verify all relevant COPS events in relation to searches”. Section 31 of LEPRA is extracted and reference is made to the safeguards in ss 32 and 33 of LEPRA. There are also instructions with respect to how strip searches should be captured on BWV to best protect the privacy of the person being searched.

13. [615]

    Separate Operational Orders were prepared for the Drug Dog Operation for SITG 2019. These Orders emphasise on page 5 that legislative requirements for searches must be strictly adhered to and justification for the search must not only be achieved but recorded. The Orders state, “Prior to an individual being subjected to a strip search, the Operation Commander is to be notified”. Page 7 of the Orders states, “Please refer to attached legislative guidelines with respect to searches. This will be promoted during each briefing and throughout the course of the deployment. Also refer to Commanders joining instructions and operational orders”.

14. [616]

    Attached to the Operational Orders for the Drug Dog Operation was an Aide-Memoire in relation to search powers and safeguards. This Aide-Memoire emphasises that an indication by a drug detection dog is not sufficient to empower police to conduct a search. Relevant provisions of LEPRA are extracted in the Aide-Memoire, including s 31. Under the text of s 31 is the following:

15. [617]

    Section 32 of LEPRA is then extracted. The Aide-Memoire goes on to address how searches should be recorded in COPS and how BWV can be used during a strip search.

16. [618]

    The addition of the Aide-Memoire is a notable improvement to the Operational Orders from SITG 2018 to SITG 2019. There was evidently a much greater emphasis in the Operational Orders for SITG 2019 on instructing and assisting police to comply with the provisions of LEPRA when conducting strip searches.

17. [619]

    Harbourlife 2019 took place on 16 November 2019. The Operational Orders for this event were in evidence. As observed above, the Operational Orders for Harbourlife 2018 were some of the only orders that referred to ss 31, 32 and 33 of LEPRA (albeit the provisions were not extracted in full and no further instructions or guidance was provided). The Orders for Harbourlife 2019 are notably different to the Orders for the 2018 iteration of the festival.

18. [620]

    On page 13 of the Orders is a section on “searches”, with a subsection specifically on “strip searching”. The Orders state, “The searching officer must inform the Search Coordinator prior to strip searching a person. The Search Coordinator will be located within the designated search area”. This indicates a higher level of supervision than what is contained in the majority of the pre-2019 operational orders.

19. [621]

    The Orders then set out s 31 in full. Immediately following the text of s 31 is the following, which appears to be taken from the Person Search Manual (summarised at [637]-[645]):

20. [622]

    The Orders then direct the searching officer to consider whether the strip search can wait until at the police station, if an arrested person is being conveyed back to the station. Sections 32 and 33 of LEPRA are then extracted in full.

21. [623]

    On page 16, the Orders state, “DO NOT ASK SOMEONE TO REMOVE THEIR TAMPON”. There are then instructions on strip searching children or someone with impaired intellectual functioning and the recording of searches. The Orders note that the COPS event must be verified by the searching officer’s supervisor on that shift.

22. [624]

    These Orders contain five pages of instructions on the legislative requirements and safeguards for strip searches. This is remarkably different to the operational orders for festivals pre-2019 which have been summarised above.

23. [625]

    Field Day 2020 took place on 1 January 2020. The “Drug Detection Briefing” for this festival was in evidence. The briefing for this festival is both an example of post-2018 improvements and an example of training and educational measures that easily could have been implemented pre-2018.

24. [626]

    On a slide titled “Drug Detection Operation”, it is noted that six drug detection dogs would be in attendance. It then states, “Be mindful of searching legislation. (S21 Lepra power to search, S32 Privacy of Search & S33 Rules for Strip Search) Handout given upon entry”.

25. [627]

    A few slides later, the briefing includes the following (emphasis added):

26. [628]

    Apart from this, the briefing does not contain any instructions or guidance on what might constitute serious and urgent circumstances.

27. [629]

    Later, there is a slide that states, “Any detection made by a drug detection dog, the handler will make contact with the person and caution them. You (operational police) are responsible for deciding whether to search”.

28. [630]

    Immediately following this slide is a slide that contains the following directives:

29. [631]

    The subsequent slide states, “You MUST apply the LEPRA safeguards (section 202) when you search a person”.

30. [632]

    The next two slides set out instructions on person searches (not involving a strip search).

31. [633]

    There is then a slide on strip searching as follows:

32. [634]

    The next slide sets out what constitutes a strip search. The following slide then states again, “You can only strip search a person if you suspect on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary”.

33. [635]

    There are a further five slides on strip searching, covering issues such as not filming strip searches, privacy, safeguards and strip searching children. There is then a slide directing that all searches must be contemporaneously recorded regardless of whether a drug was located.

34. [636]

    The briefing for this festival was unequivocally vastly different to the operational orders and instructions summarised above in respect of festivals pre-2019.

35. [637]

    As noted above, it is an agreed fact that in August 2019, the NSWPF implemented the NSWPF Person Search Manual 2019.

36. [638]

    On page 4, the Manual sets out that whenever police exercise a search power they must:

37. [639]

    The Manual then sets out what “reasonable suspicion” is, based on guidance provided by the courts.

38. [640]

    Over the page, there is reference to ss 32 and 33 of LEPRA.

39. [641]

    Page 6 provides a definition of what amounts to a strip search. On page 7, under the heading “When can a person be strip searched?”, the Manual sets out the requirements in s 31 of LEPRA.

40. [642]

    The following pages then answer basic questions about strip searches, when they can be carried out and how they should be carried out. Pages 11 and 12 set out the privacy and dignity rules for all person searches and the additional rules for strip searches.

41. [643]

    Two further versions of the Person Search Manual were in evidence, dated September 2021 and January 2023 respectively, which reveal further improvements.

42. [644]

    In the most recent version in evidence, on page 8 is a section titled “What constitutes ‘serious and urgent’ for the purpose of strip searching in the field?”. Below that appears the following:

43. [645]

    The Person Search Manual states that police can ask a person to do things to allow for visual inspection such as lift testicles, part buttock cheeks, spread fingers and toes, lift breasts, turn their body to face a different direction, open their mouth and shake their hair, and squat.

44. [646]

    As can be seen from the above summary, the NSWPF introduced several improvements to training, education and supervision post-2018. These included the Music Festival Fundamentals, an online education package purportedly provided to officers prior to festivals, and the Person Search Manual, which includes in the most recent version in evidence a clear outline of the statutory preconditions and safeguards attaching to strip searches, and some guidance on what may constitute serious and urgent circumstances and how strip searches should be conducted. These materials make reference to ss 31, 32 and 33 of LEPRA, provide guidance as to what may amount to the requisite state of suspicion, and delineate the extent of police powers to strip search, including setting out what officers are prohibited from doing.

45. [647]

    The Operational Orders for SITG 2019 and Harbourlife 2019 and the briefing for Field Day 2020 also illustrate post-2018 improvements, as they provide much more detailed directives and instructions in respect of strip searches than the operational orders for earlier festivals that were in evidence (many of which were completely silent on strip searching). The Field Day 2020 briefing illustrates heightened supervision, as officers were directed to consult with one of two Sergeants prior to conducting a strip search. Similarly, the Operational Orders for SITG 2019 required an Operation Commander to be notified prior to a strip search being conducted.

46. [648]

    However, the inverse to these post-2018 improvements is that these measures were available for the NSWPF to implement pre-2018. There is no evidence that the improvements were too difficult or costly to implement. As set out above, the NSWPF was aware of complaints in respect of unlawful strip searches at festivals and large events as early as Mardi Gras 2013.

Is the plaintiff entitled to exemplary damages?

1. [649]

   The defendant accepts, as a matter of general principle, that exemplary damages may be available in cases of trespass to the person (assault, battery, and false imprisonment) including in actions against the police. Furthermore, the defendant does not contend that the Court cannot or should not make findings relevant to the plaintiff’s pleadings at 68A-68D of the SFASoC. Instead, the defendant argues that the Court cannot then turn that “into a dollar figure” at this stage because these are representative proceedings. This latter contention is what I have identified as constituting question 3.

2. [650]

   The onus is on the plaintiff to establish that she is entitled to an award of exemplary damages.

3. [651]

   Exemplary damages may be awarded against the State for the conduct of officers for whom the state is responsible: State of New South Wales v Landini [2010] NSWCA 157 at [114] citing Ibbett (HCA). In Australia, the availability of exemplary damages is not restricted to any particular categories of conduct: Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 at 136; [1966] HCA 40 (“Uren”); Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185; [1966] HCA 37; Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221; [1968] ALR 3; Lamb v Cotogno at 8.

4. [652]

   Unlike compensatory damages, exemplary damages are intended to punish the defendant and deter the defendant and others from behaving in the same or a similar way in the future: Fede v Gray by his tutor New South Wales Trustee and Guardian (2018) 98 NSWLR 1149; [2018] NSWCA 316 at [152]. The objectives of an award of exemplary damages encompass condemnation and admonition, marking the courts’ strong disapproval of the conduct. The policy basis for exemplary damages extends to disapprobation of “those officials of the State who are responsible for the overseeing of the police force”: Adams v Kennedy & Ors (2000) 49 NSWLR 78; [2000] NSWCA 152 at [36].

5. [653]

   The conceptual distinction between exemplary damages and aggravated damages is that aggravated damages are assessed from the plaintiff’s perspective, whereas an assessment of exemplary damages focuses upon the defendant’s conduct. Exemplary damages are awarded only in cases of conscious wrongdoing in contumelious disregard of another’s rights: see Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 at 77; [1920] HCA 75; Uren at 129 (Taylor J) and at 154 (Windeyer J); XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd at 471; Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 (“Gray v Motor Accident Commission”) at [14].

6. [654]

   What is then meant by conscious wrongdoing in contumelious disregard of another’s rights? I have found additional assistance in the exposé of the requisite conduct and state of mind necessary for an award of exemplary damages set out in Harold Luntz and Sirko Harder, Assessment of Damages for Personal Injury and Death (5th ed, 2021, LexisNexis) at 173.

7. [655]

   The meaning of “contumelious” that appears in the Shorter Oxford English Dictionary (as quoted by Luntz and Harder) is “(e)xhibiting contumely (ie, insolence, reproach or abuse, insulting or contemptuous language or treatment such as tends to dishonour or humiliate), despiteful, superciliously insolent, reproachful, disgraceful”. The phrase does not however cover the field: Gray v Motor Accident Commission at [14]; State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 (“State of New South Wales v Riley”) at [138].

8. [656]

   The defendant’s conduct must be of such a character that it merits punishment. Various descriptors have been used, including conduct knowingly wanton, malicious, insolent, violent, cruel, high-handed, or an abuse of power: see Uren at 122 (McTiernan J), 129 (Taylor J). Absence of malice alone will not prevent an award of exemplary damages: State of New South Wales v Riley at [138]; State of NSW v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 at [91].

9. [657]

   The power to award exemplary damages should be exercised with restraint: Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130 at [232]; XL Petroleum NSW Pty Ltd v Caltex Oil (Australia) Pty Ltd at 463; TCN Channel Nine Pty Limited v Henry Alfred Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 at [185].

10. [658]

    The question which the Court has to address is whether an award of exemplary damages is appropriate on the basis that there is a need for punishment and deterrence. It is not alleged that senior officers positively instructed or incited the searching police officers to ignore the LEPRA provisions. Rather, a central plank of the plaintiff’s argument is that there was an abject failure by senior members of the NSWPF to adequately educate, train, and supervise police officers in the conduct of strip searches, particularly in the period preceding 2019. Whether that failure constitutes a conscious wrongdoing in contumelious disregard for another’s rights requires, amongst other things, a consideration of the nature of the power bestowed on police officers to conduct strip searches of individuals (relevantly, individuals going about their lawful business) and the extent to which there was a failure by senior members of the NSWPF to properly train, educate, and supervise those officers in the exercise of such invasive powers.

11. [659]

    This has not been an easy question to resolve.

12. [660]

    Police officers are bestowed with extraordinary powers to allow them to fulfil their role in investigating criminal activity and apprehending those suspected of committing crimes. They are charged with the role and responsibility of protecting the community. That role cannot be understated or underrated. It should also be acknowledged that police officers are sometimes called upon to fulfil their role in challenging, sometimes violent, circumstances.

13. [661]

    The scope of these extraordinary powers includes the power to strip search citizens, a power that involves directing individuals to remove their clothes in the presence of strangers, in makeshift structures in public places. This is only one example of the broad and extraordinary scope of police powers. Due to the breadth of these powers, Parliament has understandably seen fit to regulate these powers by imposing strict legal requirements and safeguards, recognising the balance that must be struck between giving police the power necessary to fulfil their functions, on the one hand, and the protection of the rights of the individual to privacy, integrity, and autonomy, on the other.

14. [662]

    The crucial and consequential obligation to adequately educate, train, and supervise police officers in the conduct of strip searches is to be assessed by reference to the observations already made that strip searches (relevantly, in the field) constitute a significant invasion of privacy and intrusion on the person. As is apparent from the facts of the present case, a young woman was directed to lift her breasts, bend over, and remove her tampon. The potential for significant humiliation, embarrassment, distress, and trauma is unquestionable.

15. [663]

    The power conferred on police officers to conduct strip searches must therefore be exercised having regard to the stringent legal requirements and safeguards provided by the LEPRA provisions. A failure to comply with those requirements renders the search unlawful and potentially constitutes an assault, battery, or false imprisonment. One might ask how a police officer exercising these considerable powers can do so lawfully, in the absence of adequate education, training, and supervision?

16. [664]

    Put another way, it is incumbent upon senior officers to ensure that police officers who exercise such powers are adequately educated, trained, and supervised. Serving police officers who are entrusted with these duties are entitled to be placed in the best position possible to lawfully exercise their powers. Members of the public who may be the subject of strip searches are entitled to the protection afforded by the lawful exercise of police powers. A failure to ensure adequate education, training, and supervision in respect of strip searches may therefore constitute contumelious disregard of another’s rights.

17. [665]

    The unlawfulness of the strip search conducted on the plaintiff and the significant disregard for statutory safeguards demonstrated during that search, has been comprehensively detailed above. The evidence permits a finding that the breaches established were symptomatic of failures in education, training and supervision with respect to strip searches at music festivals, particularly prior to 2019.

18. [666]

    It is trite to say that poor record keeping is an insufficient basis to award exemplary damages. However, the complete failure by police at SITG 2018 to record the reasons giving rise to a suspicion on reasonable grounds that the strip searches were necessary, and the absence of any reference to the seriousness and urgency of the circumstances, clearly demonstrates that the statutory requirements were overlooked.

19. [667]

    Not one of the notebooks or COPS event entries relating to SITG 2018 identified what circumstances made a strip search necessary or what rendered the circumstances serious and urgent. Not one referred to any of the LEPRA safeguards in ss 32 and 33. Had police exercising their powers to conduct strip searches been aware of the legal requirements pursuant to s 31 of LEPRA, one would have expected that at least some of the entries would have recorded the reasons why the necessary requirements were met. The complete failure to record such details is telling.

20. [668]

    An assessment of whether systemic failures have been established by the plaintiff requires consideration of the evidence relating to events leading up to 2018. That is the proper context in which to view the LLU Report and the inferences that can be drawn from it.

21. [669]

    The evidence reveals a significant increase in the number of strip searches of attendees at music festivals in New South Wales between 2014 and 2018. The increase is demonstrated in the following table contained in the Statement of Agreed Facts (Exhibit 3):

22. [670]

    The statistics reveal that the increase in the number of strip searches in the field between 2014 and 2015 was over 60% (from 2,952 to 4,832). There was also an increase of more than 80% from 2014 to 2018 (from 2,952 to 5,526). The majority of all strip searches in the field in that period were of attendees at music festivals.

23. [671]

    The NSWPF introduced the LLU as part of its Leadership and Capability Command in mid-2018. It is reasonable to infer that the purpose of the LLU, in general terms, was to consider what changes to practice and training may be made in the face of complaints and issues being raised about strip searches.

24. [672]

    It is an agreed fact that while 143 strip searches were conducted at SITG 2018, this number dropped to 16 strip searches at SITG 2019. This was a reduction of nearly 90%. This is notable in light of the significant changes made to the Operational Orders for SITG 2019, summarised at [613]-[618], and the other measures introduced post-2018, such as the Music Festival Fundamentals.

25. [673]

    The following acknowledgements in the LLU Report are relevant. Firstly, in October 2018 LECC launched an investigation into the practices of the NSWPF concerning the conduct of strip searches in response to specific complaints and advocacy from community organisations.

26. [674]

    Secondly, the 2013 Mardi Gras after party generated a significant number of complaints against police, with most relating to attendees being strip-searched. Indeed, as a result of these complaints the NSWPF developed the 22-point plan to improve policing strategies and in particular, the exercise of powers relating to strip searches at future Mardi Gras events. Importantly, the plan included assignment of a senior police officer of or above the rank of Sergeant to monitor, advise, supervise, and process all strip/ordinary searches at the searching tent areas allocated. It must have been apparent to senior officers from as early as 2013 that there were issues arising from the conduct of strip searches by the NSWPF.

27. [675]

    Thirdly, the LLU Report contains a table identifying a number of civil cases based on allegedly unlawful strip searches launched against the NSWPF between 2011 and 2018. There was an increase from two cases in 2015 to seven cases in 2016 and 2017. Thirty-two complaints in relation to strip searches were received by Professional Standards between 2016 and 2018. Material produced under subpoena contains eight complaints received by the NSWPF’s Customer Assistance Unit between 2016 and 2018 regarding strip searches.

28. [676]

    In addition, although of less weight, a number of media articles featuring complaints from the public and discourse surrounding NSWPF strip search practices were published between 2001-2018. These articles are not relied upon for hearsay purpose but rather as evidence of public comment about strip searches reported in the media that it might be inferred the NSWPF was aware of.

29. [677]

    That senior officers were aware (from no later than October 2018) that at least between 2016 and 2018, there developed a practice or pattern of conduct by police officers carrying out strip searches of attendees at music festivals in circumstances which did not always comply with the provisions of LEPRA, is a reasonable inference to draw. During this period and until about 2019, NSWPF education, training, and supervision in respect of the relevant LEPRA provisions pertaining to strip searches, was wholly inadequate. This was far from a situation where the training, education, and supervision was sufficient but later improved.

30. [678]

    The evidence establishes that whilst some training was offered prior to 2018, it was clearly deficient and wholly inadequate in educating police officers as to the legal requirements for conducting strip searches. The substantial failures must be assessed in the context of the NSWPF routinely mounting DDD operations at music festivals, knowing and planning for high numbers of strip searches to be conducted. I acknowledge that the ambit of the evidence of training and education produced was in response to a category of discovery that only called for documents relating to the training of the three officers who interacted with the plaintiff at SITG 2018. However, as set out above, in the absence of any evidence to the contrary, I am satisfied that this represents the general training of a police officer during this period. Regardless, the operational orders, briefings and directives for the various festivals and events summarised above were the standard orders provided to all police officers deployed to the relevant events.

31. [679]

    The evidence makes it clear that senior members of the NSWPF routinely implemented the infrastructure for strip searches at festivals and large events. They did so in the absence of proper (or in most cases, any) instructions or directions in the operational orders as to how to conduct strip searches in compliance with LEPRA. They did so against a backdrop of piecemeal and wholly insufficient education and training on the statutory pre-requisites and safeguards for strip searches. The NSWPF was made aware of the prevalence of unlawful strip searches at large events as early as Mardi Gras 2013. Strip searches were the subject of complaints to Professional Standards and civil claims against the NSWPF. Despite this, the NSWPF did not see fit to improve their approach to festivals (other than Mardi Gras) until post-2018. Police officers must be held to a high standard in the exercise of their extraordinary powers and their adherence to the safeguards implemented by Parliament. Strip searches are inherently invasive and intrusive. The complete silence on strip searches that is observable in the majority of the operational orders and briefings for festivals prior to 2019, in the face of the regularity at which they were occurring, is wholly inadequate. There is no evidence to indicate that the improvements introduced from 2019 onwards were not available to senior members of the NSWPF to implement earlier.

32. [680]

    Ultimately, I have concluded that the conduct of searching police not only constituted an unlawful strip search of the plaintiff (as conceded by the defendant) but amounted to a gross failure to comply with the requirements and safeguards of LEPRA. Furthermore, these failures to lawfully exercise the relevant powers, were a product of a conspicuous deficiency in the training, education, and monitoring of police officers in the exercise of their powers to conduct a strip search, resulting in a flagrant disregard of the rights of the plaintiff. These failures are compounded by the fact that senior officers were authorising, organising, and planning drug detection operations at music festivals as a matter of routine, which clearly included the strip searching of attendees.

33. [681]

    The improvements made by the NSWPF to training and education post-2018 are set out at [603]-[648]. In summary they include the introduction of the “Music Festival Fundamentals” online education package, the Person Search Manual, and clearer and more detailed instructions on the statutory requirements and safeguards in operational orders for festivals such as SITG 2019 and Field Day 2020. Officers can also no longer self-verify COPS event entries that relate to a person search and monthly audits of COPS events entries containing a strip search are required.

34. [682]

    Although there is limited or no evidence as to how and to what extent these improvements and other recommendations set out in the LLU Report have been implemented, I am satisfied that the defendant has (subsequent to 2018) taken more seriously the need to adequately train, educate and supervise police officers in respect of the exercise of power in conducting strip searches. Those improvements mitigate the punitive and deterrent effect of exemplary damages in more than a “small way”.

35. [683]

    That said, the failures of senior police to adequately train, educate, instruct, and monitor police officers in the exercise of their powers to conduct strip searches at music festivals, in the period between at least 2016 and 2018, was egregious. That strip searches involve a significant intrusion on the privacy and bodily integrity of the individual is universally understood including by senior members of the NSWPF.

36. [684]

    Music festivals held in New South Wales between 2016 and 2018 were policed by substantial detachments from the NSWPF for the purpose of, amongst other things, detecting prohibited substances in the possession of attendees. Senior officers were aware that strip searches were to be conducted for the purpose of detecting prohibited substances in the possession of attendees. The infrastructure to support such operations included, but were not limited to, the deployment of the DDD unit and construction of makeshift search areas.

37. [685]

    The evidence establishes that the Operational Orders provided at music festivals failed to clearly instruct police about the LEPRA requirements. These failures must be assessed in the context of senior police officers being aware of complaints about the way in which police conducted strip searches. In the case of the complaints made about strip searches at Mardi Gras, senior police sought to address those complaints by formulating the 22-point plan (a plan that did not necessarily reflect best practice but demonstrated some attempt to improve the procedures adopted in the conduct of strip searches). The question remains as to why these limited improvements were not deployed more widely to music festivals in general where strip searches were being conducted.

38. [686]

    Having considered the evidence closely, and notwithstanding the improvements that have been implemented post-2018, I am satisfied that the plaintiff has established her entitlement to exemplary damages.

39. [687]

    Having determined that the plaintiff is entitled to exemplary damages, and that the objectives of punishment and deterrence are mitigated by virtue of the improvements that the NSWPF has implemented, the question remains as to whether the Court should quantify and make an award of exemplary damages at this stage of the proceedings.

40. [688]

    The defendant contends that whilst I can determine the plaintiff’s entitlement to exemplary damages, the quantum of exemplary damages cannot be assessed at this stage of the proceedings. The defendant relies on Walumba Lumba (Congo) v Secretary of State for the Home Department [2011] UKSC 12 (“Walumba Lumba”). In that case, the Supreme Court of the United Kingdom held as follows at [167]:

41. [689]

    Mr Sexton SC points out that the plaintiff’s claim of $50,000 in exemplary damages, if applied across the class, would add up to $150 million in exemplary damages. The defendant submits that there will come a point where the State has been “adequately deterred and punished” and no further exemplary damages are warranted.

42. [690]

    The plaintiff submits that Walumba Lumba is not binding on this Court, and I would treat the decision with caution because the law on exemplary damages in the UK has significantly departed from that in Australia, at least since Uren. The plaintiff also submits that Walumba Lumba can be distinguished from the plaintiff’s claim. In Walumba Lumba, the question of entitlement to exemplary damages arose from a “single act”, namely, the invariable application of a single policy to all persons within the class. In the present case, the plaintiff makes a personal claim that “relies to some extent on a common factual sub-stratum”. However, the ultimate question in the present matter is the relevance of that set of common circumstances (inappropriate training and direction) to the plaintiff’s individual case. The plaintiff submits that this depends upon the extent to which it can be inferred that the absence of proper training and supervision had a causative role in the circumstances in which intentional torts were committed on her. Thus, the plaintiff submits that Walumba Lumba has no application to the present matter.

43. [691]

    The plaintiff contends that there is no reason to deprive the plaintiff of an award of exemplary damages to the extent it is referable to a systemic issue that might be shared by other claims. The plaintiff submits that an individual award of exemplary damages depends on the facts of a particular case and the relationship between the circumstances relied upon (including shared circumstances) and the precise nature of the person’s case.

44. [692]

    The plaintiff relies on Nixon v Philip Morris (Aust) Ltd (1999) 95 FCR 453; [1999] FCA 1107. This case concerned the analogous federal class actions regime. The decision related to an application to strike out the applicant’s statement of claim, so no assessment of damages was undertaken. However, Wilcox J said as follows at [119]:

45. [693]

    The respondent successfully appealed to the Full Court on other grounds: see Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487; [2000] FCA 229. On appeal, Sackville J said as follows with respect to the issue of exemplary damages:

46. [694]

    I note that the Federal Court did not finally deal with the issue of whether exemplary damages should be awarded in representative proceedings until compensatory damages have been assessed in respect of all claimants. I have not been able to find a case that squarely decides this point. I have also not been able to find an example of an Australian Court awarding exemplary damages in representative proceedings. There is some force in the defendant’s contention that the Court should not make an award of exemplary damages at this stage.

47. [695]

    Although the plaintiff is entitled to exemplary damages, I have concluded that it would not be appropriate to quantify or make an award of exemplary damages at this stage for the following reasons.

48. [696]

    Firstly, while I have some sympathy for the plaintiff’s position, I do not accept the argument that it is “nonsensical” that an award of exemplary damages cannot be made until all group members’ claims are considered. The plaintiff’s submission that an individual award of exemplary damages depends on the facts of the particular case and the relationship between the circumstances relied upon (including shared circumstances) and the precise nature of the person’s case, in my view, ignores the fundamental nature of exemplary damages which are punitive and deterrent rather than compensatory.

49. [697]

    Secondly, I have no evidence about the number of members in the class or the details of their claims. Having regard to the submission made by Mr Sexton SC (that if I award $50,000 in exemplary damages as contended for by the plaintiff, the State would be liable for $150,000,000 in total for exemplary damages alone) I deduce that there are about 3,000 registered members in the class. I note that at the time of Garling J’s judgment on 19 November 2024, approximately 2,316 individuals had registered as members of the class: Meredith (No.3) at [10].

50. [698]

    If I were to make an award of exemplary damages based upon the systemic (and common) failure by senior officers to adequately train, educate, and monitor police officers in the exercise of their powers to conduct strip searches, it seems to me that all successful claimants would potentially be entitled to the same or similar quantum of exemplary damages. The unlawfulness of each strip search and the extent of non-compliance with statutory provisions would very likely flow from the common systemic failure. In those circumstances, there would come a point at which the punitive and deterrent effect of exemplary damages would expire.

51. [699]

    Thirdly, the plaintiff has been unable to point to any authority (and I have not been able to find any authority) that could persuade me that exemplary damages can be quantified and awarded to a lead plaintiff in representative proceedings.

52. [700]

    The following table sets out the award of damages to the plaintiff:

Orders

1. [701]

   For the reasons outlined above, I make the following orders:

   1. (1)

      Judgment for the plaintiff in the sum of $93,000 plus pre-judgment interest.

   2. (2)

      Direct the parties to confer and agree as to the quantum of interest payable.

   3. (3)

      Defer for later assessment the quantum of exemplary damages for the plaintiff.

   4. (4)

      The defendant pay the plaintiff’s costs on the ordinary basis unless a party shows an entitlement to some other costs order.

2. [702]

   I turn now to answer the common questions.

3. [703]

   In these questions:

   1. (1)

      In order to form the necessary state of mind to conduct a 31(b) strip search, does a police officer need to consider s 21 first before considering the criteria in s 31(b) of LEPRA?

   2. (2)

      Are the necessary criteria in s 31(b) of LEPRA for carrying out a 31(b) strip search the following:

   3. (3)

      In determining whether a “strip search is necessary for the purposes of the search”, does a police officer need to conclude that an ordinary search is insufficient in order to form the reasonable suspicion required for the exercise of the power to conduct the 31(b) strip search?

   4. (4)

      Assuming reasonable grounds for suspicion of the existence of a circumstance in LEPRA s 21(1)(d), is an officer’s state of mind that any contravention of the Drug Misuse and Trafficking Act 1985 is ‘serious’ capable of also providing reasonable grounds for suspicion of the state/s of mind required to perform a 31(b) strip search?

   5. (5)

      Does failure by a Police Officer to have the required state/s of mind identified in s 31(b) of LEPRA render a 31(b) strip search purportedly undertaken pursuant to that provision unlawful?

   6. (6)

      Does non‐compliance by a Police Officer with a provision contained in s 32 of LEPRA in conducting a 31(b) strip search make that search unlawful?

   7. (7)

      Does non‐compliance by a Police Officer with a provision contained in s 33 of LEPRA in conducting a 31(b) strip search make that search unlawful?

   8. (8)

      Does “genital area” in the meaning of s 32(6) of LEPRA include a person’s anal area?

   9. (9)

      To what extent did ss 31, 32 or 33 of LEPRA empower a police officer to ask or direct that a Group Member bend over or otherwise move his or her body to facilitate visual inspection of the genital area during the course of a 31(b) strip search?

   10. (10)

       Did LEPRA otherwise empower a police officer to direct or force a Group Member to bend over or otherwise move his or her body to facilitate visual inspection of the genital area in the course of a 31(b) strip search, and in what circumstances?

   11. (11)

       To what extent did ss 31, 32 or 33 of LEPRA empower a police officer to ask or direct a Group Member to lift their breasts or otherwise touch or interact with his or her naked body to facilitate visual inspection during the course of a 31(b) strip search?

   12. (12)

       Did LEPRA otherwise empower a police officer to direct or force a Group Member to lift their breasts or otherwise touch or interact with his or her naked body to facilitate visual inspection during the course of a 31(b) strip search, and in what circumstances?

   13. (13)

       To what extent did ss 31, 32 or 33 of LEPRA empower a police officer to ask or direct that a Group Member interact with a tampon or other item inserted into a body cavity during the course of a 31(b) strip search?

   14. (14)

       Does LEPRA otherwise empower a police officer to direct or force a Group Member to interact with a tampon or other item inserted into a body cavity during the course of a 31(b) strip search, and in what circumstances?

   15. (15)

       Could non‐compliance by a Police Officer with a safeguard contained in ss 32 and/or 33 of LEPRA be an aggravating factor in the Court’s assessment of damages of false imprisonment / assault / battery of a person the subject of an unlawful strip search?

   16. (16)

       Were the matters pleaded at paragraph 68A.1 to 68A.3 the case as at July 2018?

   17. (17)

       If so, was the State aware of those matters as at July 2018?

   18. (18)

       In the period between 2016 and July 2018, was there a practice or pattern of conduct by Police Officers of carrying out strip searches of attendees at music festivals as a matter of routine?

   19. (19)

       If so, was the State aware or ought reasonably to have been aware of such a practice or pattern of conduct as at July 2018?

   20. (20)

       Was the State aware that the performance of strip searches was the subject of training given to and supervision of police officers as at July 2018?

   21. (21)

       Did the State exercise reasonable care and skill to ensure the training of the training and supervision of police officers in respect of the correct observance of ss 21 and 31-33 of LEPRA at music festivals was adequate as at July 2018?