Strange v Turnbull

1. [1]

   HIS HONOUR: The plaintiff, Mr Robert Strange, has applied for summary judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) in respect of his claim against the executors of the estate of the late Mr Ian Turnbull, the defendant.

2. [2]

   Mr Strange has pleaded three causes of action (negligence, assault and false imprisonment) arising from an incident on 29 July 2014 during which he was present and witnessed his workmate, Mr Glendon (Glen) Turner being shot and killed by Mr Turnbull. Mr Turnbull was subsequently found guilty of murder by a jury. He died following a heart attack on 27 March 2017 while serving his sentence at Long Bay Correctional Centre.

3. [3]

   Mr Strange seeks summary judgment as to liability in respect of any or all of his causes of action with damages to be assessed.

4. [4]

   At the outset of the hearing on 28 September 2017, Mr Alexis, senior counsel for the defendant, made it clear that there was no issue as to liability on the negligence claim; summary judgment in respect of it was not opposed. It was contended, however, that there were triable issues in relation to the intentional tort claims such that summary judgment was opposed in relation to those causes of action.

5. [5]

   Given that concession, this judgment will be confined to consideration of the application for summary judgment in relation to liability for the assault and false imprisonment causes of action.

Summary judgment

1. [6]

   The principles to be applied in relation to an application for summary judgment were not controversial between the parties. The written submissions for the plaintiff referred to the well-known authorities of Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62, General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125, Theseus Exploration N.L. v Foyster [1972] HCA 41; 126 CLR 507 and Agar v Hyde [2000] HCA 41; 201 CLR 552. In Agar v Hyde, Gaudron, McHugh, Gummow and Hayne JJ (at [57]) describe the test as one requiring "a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way".

2. [7]

   The preconditions in r 13.1 for an application for summary judgment have been complied with. There is "evidence of the facts on which the claim … is based" (r 13.1(1)(a)). In this regard there were tendered evidentiary statements by Mr Strange and Mr Turnbull and, on a limited issue relating to the negligence claim only, reports by three psychiatrists who had assessed the plaintiff. For the purpose of complying with r 13.1(1)(b) there was read an affidavit by Mr Strange dated 17 August 2017 as to his belief “that the defendant does not have a defence to any of the causes of action".

Evidentiary statements

1. [8]

   The following factual account is derived from the evidentiary statement by Mr Strange. As will be seen, none of it is disputed in the evidentiary statement of the late Mr Turnbull, except that he claimed the incident occurred over 15 to 20 minutes whereas Mr Strange estimated 30 to 40 minutes. (Such a dispute is of no consequence in terms of liability.) There were no other witnesses able to give an account of the incident because of the remote location where it occurred.

2. [9]

   On 29 July 2014, Mr Strange and Mr Turner, who were environment protection officers with the Office of Environment and Heritage, drove by a property at Croppa Creek (near Moree) in order to familiarise themselves with the area in advance of an inspection relating to illegal land clearing. They stopped on Talga Lane and alighted from their vehicle in order to collect evidence of burning vegetation. Mr Turnbull drove up and stopped his vehicle nearby. Mr Turnbull had been involved in previous disputes in relation to land clearing issues with the Office of Environment and Heritage and with Mr Turner in particular.

3. [10]

   Mr Turnbull alighted from his vehicle with a rifle and fired a shot which struck Mr Turner in the chin. Mr Turnbull continued to fire shots from his rifle, ultimately striking Mr Turner three times. Mr Turner fell to the ground after the final shot. Mr Turnbull drove away from the scene. Mr Turner passed away soon after.

4. [11]

   Mr Turnbull's primary focus was upon shooting Mr Turner, who was trying to take cover at various points around his work vehicle. Mr Strange pleaded with him to desist. Mr Strange's evidentiary statement includes the following relevant to the intentional torts pleaded:

5. [12]

   The evidentiary statement by Mr Turnbull dated 14 March 2017 states in its entirety:

The assault cause of action

1. [13]

   In Croucher v Cachia [2016] NSWCA 132, Leeming JA (Beazley P and Ward JA agreeing) referred in two passages of his judgment to authoritative statements as to the tort of assault as follows:

2. [14]

   In Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 at 743D, Clarke JA stated "[I]t is not a necessary element of assault (and battery) that the defendant intended to injure the plaintiff".

3. [15]

   It can been seen that there is no need for Mr Strange to establish that Mr Turnbull intended to cause injury or harm; simply that he intentionally created in Mr Strange an apprehension of imminent harmful or offensive contact. This is of some significance to the relevance of the claim in Mr Turnbull's evidentiary statement (at [5]) that he "had no intention of causing any harm, injury or death to Mr Strange" and (at [6]) that "it was not [his] intention to harm Mr Strange in any way".

4. [16]

   In the Second Amended Defence, the defendant admits that Mr Turnbull acted with reckless disregard to Mr Strange's rights. The defendant does not admit (but does not deny) that Mr Strange reasonably apprehended the threat of immediate harm and offensive physical contact perpetrated by Mr Turnbull against Mr Strange's person. The defendant does not claim any matter that would defeat the claim of assault in the nature of consent or self-defence.

The false imprisonment cause of action

1. [17]

   False imprisonment is an act by which a person directly causes (either intentionally or negligently) the total restraint of the liberty of another person for however short a time without lawful justification within an area defined by the tortfeasor: Halsbury's Laws of Australia at [415-395]. (In a footnote it is stated that there is no authority in Australia as to whether the tort may be committed through negligence, although it may be presumed).

2. [18]

   The only intention necessary to be established is the intention to detain the plaintiff: Cowell v Corrective Services Commission of New South Wales at 743E (Clarke JA). Liability turns on intention to detain: Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at [4] (Spigelman CJ). The successful appeal to the High Court in Ruddock v Taylor [2005] HCA 48; 222 CLR 612 was based upon issues presently irrelevant. In dissent, but uncontroversially on this point, Kirby J described the tort as follows (at [140]):

3. [19]

   As to the nature and degree of the "imprisonment":

4. [20]

   In the present case, I take the plaintiff to be relying upon an assertion that his movements were constrained at the will of and by the actions of Mr Turnbull.

5. [21]

   Mr Strange's account includes that Mr Turnbull, while holding the rifle and sometimes pointing it at Mr Strange, said, "Move back or you'll get one in the heart"; he threatened to shoot Mr Strange if he went any closer; he pointed the gun at Mr Strange and said, "Don't move, I've told you get back or I will fucking shoot you too"; Mr Turnbull "would catch [Mr Strange] moving in his peripheral vision and then point the gun at [Mr Strange], ordering [him] to get back"; he "put the gun straight to [Mr Strange's] head and said: ‘I fucking told you, I will fucking shoot you, now get back’; "Turnbull saw [Mr Strange] move and pointed the gun back at [him]". When Mr Strange pleaded with Mr Turnbull to "let [them] go", Mr Turnbull responded, "No, you're not going anywhere".

6. [22]

   In his evidentiary statement Mr Turnbull did not deny pointing the gun at Mr Strange and making commands about his movements. Moreover, Mr Turnbull said he recalled that after firing the final shot at Mr Turner he said to Mr Strange that he could go; a further indication that up to that point Mr Strange had been under Mr Turnbull's restraint.

7. [23]

   In relation to the cause of action of false imprisonment, the Second Amended Defence included an admission that Mr Turnbull deprived Mr Strange of his liberty. It is Mr Strange's case that the means by which Mr Turnbull did so was to put him in fear of suffering physical harm himself (his statement includes that at one stage he "seriously believed that [Mr Turnbull] would shoot me if I tried to get to the car … I thought that I was going to die"). In Mr Turnbull's evidentiary statement there is no denial of key features of the incident described by Mr Strange such as the pointing of the gun at him and the threats by Mr Turnbull to shoot him.

Submissions

1. [24]

   Mr Romaniuk, senior counsel for the plaintiff, submitted that the pleaded defence and the evidentiary statements made it patently clear that there were no triable issues in relation to both of the intentional torts pleaded. There was no dispute about the facts necessary to be proved on the plaintiff's behalf. There had been no defence pleaded for the assault, such as consent, necessity (self-defence) or the like. Nor was authority, justification or consent pleaded in the defence for false imprisonment.

2. [25]

   Mr Alexis resisted summary judgment on a number of bases. First, he submitted that there was a triable issue in relation to both of the pleaded intentional torts relating to Mr Turnbull's "intention". In this respect he referred to paragraphs 5 and 6 of Mr Turnbull's evidentiary statement wherein he stated:

3. [26]

   It was submitted that while "any harm" and "harm … in any way" might be a reference to physical harm, it could also be construed as a reference to harm that included mental harm. Accordingly, there was a triable issue in this respect. It was not a matter for the preferred construction to be determined on an application for summary judgment. (T16)

4. [27]

   Secondly, it was submitted that while the facts set out in Mr Strange's evidentiary statement concerning the incident were, according to that of Mr Turnbull, "broadly … not in contest" (T16.49) it could not be assumed that everything that Mr Strange said would be accepted and "further facts may well emerge to properly and fully complete the context in which an assessment of the late Mr Turnbull's conduct will ultimately be made" (T17.8). When pressed as to what "further facts" might emerge, Mr Alexis referred to the precise location where each of the three men were during the incident, which was a matter that was not clear from the evidentiary statements. This would emerge in cross-examination of Mr Strange. It was said that through such cross-examination, with the benefit of statements made on previous occasions ("not that there will likely be much controversy of them"), that "the full picture will emerge" (T18.5).

5. [28]

   A related issue was said to be whether Mr Turnbull had any intention to cause relevant mental harm to Mr Strange or whether that was "very much collateral" when his absolute focus appeared to have been upon Mr Turner (T20.20).

6. [29]

   Mr Alexis confirmed (and it is apparent from Mr Turnbull's evidentiary statement) that there was no dispute that Mr Turnbull said things to Mr Strange as the latter claimed, such as "Move back or you'll get one in the heart" and "Don't move, I've told you get back or I will fucking shoot you too" (T17)

7. [30]

   Mr Alexis submitted that there would be an issue about whether Mr Turnbull had the capacity to form the intention to put Mr Strange in fear and control his movements so that he could not intervene or otherwise prevent what was occurring between Mr Turnbull and Mr Turner. Mr Alexis indicated that a report by Professor Greenberg, psychiatrist, had been commissioned and would be available in the coming weeks. He gave evidence at Mr Turnbull’s criminal trial in support of an unsuccessful endeavour to make out the partial defence to murder in s 23A of the Crimes Act 1900 (NSW) of substantial impairment by abnormality of mind. Whether that defence failed on the subjective limb in s 23A(1)(a) or the objective limb in s 23A(1)(b) is unknowable given the inscrutability of the jury's verdict.

8. [31]

   Mr Alexis said that he was instructed that Professor Greenberg had "come to a view on the question of the late Mr Turnbull's intention having regard to what he diagnosed as Mr Turnbull's underlying psychiatric condition" (T18.30). It was said that this would bear upon the question as to whether or not there was a capacity to form an intention to harm (in the relevant sense) Mr Strange.

9. [32]

   A further submission advanced by Mr Alexis was that the issue of intention in relation to the intentional torts was interwoven with one that would be raised at a hearing for the assessment of damages. There is an issue between the parties as to whether the provisions of s 3B(1)(a) of the Civil Liability Act 2002 (NSW) applies. That is, there is an issue as to whether there was an intentional act by Mr Turnbull that was done with intent to cause injury to Mr Strange. Accordingly, the issue of Mr Turnbull's intention is a matter that is going to be litigated at a damages hearing and there was a concern that summary judgment entered now might foreclose the defendant's opportunity to ventilate this by way of issue estoppel (T20).

Consideration

1. [33]

   It is necessary to be clear about the term "intention" when considering the submissions about whether there is a triable issue about it in relation to the causes of action of assault and false imprisonment. On the facts of the case, Mr Turnbull deliberately causing Mr Strange to fear being shot is sufficient for assault. In relation to false imprisonment, deliberately depriving Mr Strange of his liberty is sufficient.

2. [34]

   The prospect that Mr Turnbull, by his claim in his evidentiary statement that he did not intend to harm Mr Strange in any way, may have been speaking of both physical and mental harm, seems rather remote. But more importantly, the fact that there is no dispute that he pointed the rifle at Mr Strange a number of times and threatened to shoot him renders it a seemingly strong inference that he intended to cause a fear of being shot.

3. [35]

   It may be accepted that Mr Turnbull's primary focus was to shoot and kill Mr Turner. It seems clear that he had no desire to injure or kill Mr Strange (because if he did he could easily have attempted to do so). But the uncontested facts are that during the course of giving effect to his primary goal relating to Mr Turner it became necessary for Mr Turnbull to prevent interference by Mr Strange. It is uncontested that to do so he did things that were specifically directed towards Mr Strange when necessary. What he did was, on the face of it, deliberate and, if established, this would make out both an assault and a deprivation of Mr Strange's liberty.

4. [36]

   The contention that further facts and a "full picture" may emerge takes the avoidance of summary judgment nowhere. There was a failure to articulate anything relevant in this respect. The prospect of the precise whereabouts of each of the three men during the incident being clarified will not change the fact (again, undisputed) that Mr Turnbull pointed the gun at Mr Strange a number of times and threatened to shoot him, thereby compelling him through fear not to physically interfere in Mr Turnbull's endeavour to kill Mr Turner.

5. [37]

   The prospect of an expert psychiatric opinion becoming available that might bear upon Mr Turnbull's state of mind must be acknowledged. The prospect of it bearing upon his state of mind in some way relevant to the quite minimal requirement for the plaintiff to establish the deliberateness of Mr Turnbull's actions directed towards Mr Strange seems at the moment to be remote. In the submissions for the plaintiff, this contention was described as a "last moment ambush" of the present application (T21.25). There appears to be some force in this as there is presently nothing in the pleaded defence that raises an issue of impairment.

6. [38]

   The assertion that the issue of intent for the two relevant causes of action was "interwoven" with the intent issue that will be raised at a damages assessment hearing is of doubtful relevance. An intention to injure for the purposes of s 3B(1)(a) of the Civil Liability Act is not a component of the tort of false imprisonment, although it is an aspect of the assault claim: see Dominic Villa, Annotated Civil Liability Act 2002 (NSW), (2nd ed 2013, Lawbook Co.) at 57. Given it is not a component of one of the claims, any negative impact that summary judgment might have for the defendant at a damages assessment hearing is not clear.

Conclusion

1. [39]

   In the end, I am not persuaded that summary judgment should be entered in respect of the intentional torts. While I have very grave misgivings about the viability of a defence to the intentional torts, it is not such a clear case that the defendants should be deprived of the opportunity to litigate the issues in the usual way: Agar v Hyde at [57]. I do not regard this as being a sufficiently clear case of there being no triable issue concerning the deliberateness of Mr Turnbull's actions vis-à-vis Mr Strange. There is the argument, albeit seemingly tenuous, about how what he said in his evidentiary statement regarding his intentions towards Mr Strange should be construed. There is also the prospect, however unlikely it may seem at present, of there being expert evidence bearing upon the issue. In short, despite misgivings, I am unable to say with certainty that there is no substance in the defendant's prospective case on this issue.

2. [40]

   It is necessary to be mindful of the "extreme care" that is required because "it is a very serious matter to deny to a litigant the right to have his or her case heard at trial": Spellson v George (1992) 26 NSWLR 666 at 678E (Young AJA). In Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118, French CJ and Gummow J (at [24]) referred to the need for "caution" in the "exercise of powers to summarily terminate proceedings". "Exceptional caution" was the term used in Webster v Lampard [1993] HCA 57; 177 CLR 598 at 603 (Mason CJ, Deane and Dawson JJ).

3. [41]

   A further matter of which I am mindful is that the triable issue is one that is unlikely to require the devotion of substantial resources in preparation for, and at, a final hearing of the matter; certainly so in comparison to those relevant to the assessment of damages.

4. [42]

   In accordance with the agreed position of the parties there will be summary judgment on the claim in negligence with damages to be assessed.

Orders

1. [43]

   I make the following orders:

2. [44]

   I will hear the parties as to costs.