Fuller v State of New South Wales

1. [1]

   THE COURT: By a summons filed on 4 December 2025 the applicant seeks leave to appeal from orders made in the District Court of New South Wales by Waugh SC DCJ on 5 September 2025: see Fuller v State of New South Wales [2025] NSWDC 350 (PJ). By those orders, the primary judge gave judgment for the State of New South Wales (the State) in relation to the applicant’s claim for false imprisonment, battery and trespass to goods and ordered that the applicant pay the State’s costs of the proceedings.

2. [2]

   Leave to appeal is required because the value of the applicant’s claim is less than $100,000: District Court Act 1973 (NSW), s 127(2)(c)(i). The primary judge made a contingent assessment of the applicant’s damages at $2,000.

3. [3]

   As is frequently observed, it is usually or generally only appropriate to grant leave to appeal concerning matters that involve issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable: see eg The Age Company Ltd v Liu (2013) 82 NSWLR 268 at [13]; [2013] NSWCA 26. Moreover, and significantly in the context of this application, this Court exercises caution about granting leave to appeal in cases where only small monetary sums are involved: see Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [29]. A grant of leave is not appropriate where the prospects of appeal are poor and the amount involved is small. As Gleeson JA observed in Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106 at [39] (Emmett AJA agreeing):

4. [4]

   For reasons which can be stated shortly, this is a clear case where leave to appeal should be refused.

The proceedings below

1. [5]

   On the evening of 13 January 2024, the applicant was subjected to a pat-down search by a member of the New South Wales Police Force, Constable Fletcher, when the applicant was outside the building known as “Kendall” at 43 Morehead Street, Redfern. The search was performed because Constable Fletcher suspected the applicant to be in possession of prohibited drugs. The search was recorded by a body-worn video camera and occurred during an interaction that lasted some 8 minutes.

2. [6]

   The applicant commenced proceedings against the State claiming damages for assault, battery, trespass to goods and false imprisonment in relation to the search. The principal issue before the primary judge was whether the search was justified under s 21(1)(d) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) and, in particular, whether Constable Fletcher suspected on reasonable grounds that the applicant was in possession of prohibited drugs.

3. [7]

   Section 21(1) relevantly provides:

4. [8]

   The primary judge concluded that Constable Fletcher’s suspicion that the applicant had a prohibited drug in his possession or under his control was based on five grounds, which provided reasonable grounds for Constable Fletcher’s suspicion: PJ[124]. The primary judge did not indicate whether each of the five grounds was necessary or, in some combination, sufficient to meet the requirement of reasonableness. Three grounds were supported by unchallenged evidence from Constable Fletcher which the primary judge accepted, namely that: (i) the applicant and his partner, who he was with at the time, were in a part of Redfern known to be a hotspot for drug activity, and the men did not look like they were from the area: PJ [103]-[105]; (ii) the applicant was present in an area which was dangerous at that time of night: PJ[106]‑[107]; and (iii) the applicant was far from his home: PJ[108]-[109]. The applicant does not seek to challenge these grounds on appeal.

5. [9]

   A further ground, which the applicant does not seek to challenge on appeal, was what was said to be the applicant’s “deceitfulness” in his initial responses to Constable Fletcher: PJ[110]-[114], [118]. Constable Fletcher’s evidence was that he had seen the applicant and his partner enter 43 Morehead Street and had observed CCTV footage showing the applicant and his partner take the elevator and enter a unit on level 11 in that building. However, when approached by Constable Fletcher the applicant volunteered that he had just been at 55 Morehead Street, an assertion which Constable Fletcher knew to be false: see PJ[114]. The primary judge found that not only would Constable Fletcher have considered this apparent untruthfulness to be significant, as a matter of logic and consistently with “ordinary human experience”, but he actually considered it to be significant at the time: PJ[114].

6. [10]

   The only ground the applicant seeks to challenge is Constable Fletcher’s observation that the applicant and his partner attended Unit 1107, which Constable Fletcher understood to be “running hot” (a term used by members of the NSW Police Force’s proactive crime team to refer to a high level of suspicion concerning drug-related activity): see PJ[48], [90]-[102]. The applicant conceded that Constable Fletcher knew that Unit 1107 was linked to drug‑related activity: see PJ[123]. However, the applicant’s case was that he and his partner in fact attended Unit 1106, and that it was necessary for the State to prove as a matter of fact, on the balance of probabilities, that the applicant had entered Unit 1107. The primary judge considered that it was not necessary for the State to prove as a matter of fact that the applicant went into Unit 1107 (PJ[90]). However, and in any event, his Honour accepted Constable Fletcher’s evidence that he saw the applicant enter Unit 1107, setting out what he took into account in so finding: PJ[91]-[94]. It is these conclusions the applicant seeks to challenge in the first two of the three proposed grounds of appeal.

7. [11]

   The third proposed ground of appeal seeks to challenge the primary judge’s rejection of the submission that “capriciousness” is available as a basis to attack a suspicion formed for the purposes of s 21 of LEPRA.

8. [12]

   By a proposed notice of contention, the respondent contends that the unchallenged findings of the primary judge themselves provided reasonable grounds to suspect that the applicant was in possession of a prohibited drug, irrespective of the ground which is the subject of challenge.

Proposed grounds 1 and 2

1. [13]

   Grounds 1 and 2 of the proposed notice of appeal are in the following terms:

2. [14]

   Both grounds and the written submissions made in support of them assume that success in relation to either of those grounds is sufficient to establish the absence of reasonable grounds for the purposes of s 21 of LEPRA. That is not correct. In order to obtain the relief he seeks from this Court, the applicant would also need to satisfy the Court that the other grounds relied on by Constable Fletcher were not themselves, when taken together, sufficient to establish reasonable grounds for his suspicion. The applicant was put on notice of that issue by the draft notice of contention. However, not only has he failed to address it, but his prospects of success in relation to it appear to be low. The applicant’s “deceitfulness” when questioned by Constable Fletcher about where he had been when taken together with the other uncontested circumstances relied on by Constable Fletcher appears to be sufficient to constitute reasonable grounds.

3. [15]

   Moreover, the grounds of appeal themselves are weak. As to ground 1, the primary judge accepted Constable Fletcher’s evidence that “he saw [the applicant] go into unit 1107 and that this was one of the facts and circumstances he relied upon to form the suspicion that [the applicant] had a prohibited drug in his possession or control”: PJ[93], [94]. That is, the primary judge was satisfied on the balance of probabilities that the applicant did go into Unit 1107 (based on Constable Fletcher’s evidence and notwithstanding the evidence given by the applicant). It follows that even if the point sought to be raised by ground 1 were correct, it would go nowhere given the factual findings of the primary judge.

4. [16]

   As to ground 2, at first instance, the applicant submitted that Constable Fletcher was not a credible witness for two reasons. One was because the State allegedly changed its case from alleging “the officers held the mistaken belief that [the applicant] had attended unit 1107” to “[the applicant] did indeed attend unit 1107 because Constable Fletcher observed this to occur” and that that change in case could only have occurred because of a change in instructions given by Constable Fletcher. The other was that Constable Fletcher’s evidence concerning his first entry in his computerised operational policing system audit report was implausible because he could not recall why he had undertaken some of the searches recorded there when he appeared to have a good memory of most of the events concerning the applicant.

5. [17]

   Although the primary judge did not specifically deal with those arguments, the primary judge accepted Constable Fletcher’s evidence on the points critical to the outcome of the case and explained why: PJ[68]-[74]; [94]. The primary judge was not obliged to deal with every point raised by the applicant for why Constable Fletcher’s evidence should be rejected. The points raised by the applicant appear to be tenuous. Moreover, if that ground were upheld, the likelihood is that it would be necessary to order a retrial. The amount in issue would not justify that course.

Proposed ground 3

1. [18]

   The third proposed ground of appeal is in the following terms:

2. [19]

   That ground derives from an invitation by the applicant’s counsel for the primary judge to find that Constable Fletcher’s state of satisfaction was formed “capriciously”, a consideration that has long been applied as a ground of review in cases where a decision-maker’s power depends on the formation of an opinion or on a state of satisfaction (see the discussion in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [131]‑[137]; [1999] HCA 21 per Gummow J). It has more recently been applied in relation to the statutory requirement in s 99(1)(b) of LEPRA that an arresting officer be “satisfied” that the arrest is “reasonably necessary” for one of the statutory purposes set out in s 99(1)(b)(i) to (ix): see eg State of New South Wales v Randall [2017] NSWCA 88 at [13] (Basten JA).

3. [20]

   The issue was addressed by the primary judge in this way:

4. [21]

   No error is disclosed in the primary judge’s approach. Capriciousness is not a criterion that this Court has applied to s 21(1), which differs in its terms to s 99(1)(b) by requiring the existence of reasonable grounds for the police officer’s suspicion: see State of NSW v Dennis [2025] NSWCA 118 at [26(1)], [28]-[30] (Kirk JA, Mitchelmore and Basten JJA agreeing). In any event, in circumstances where the primary judge found that there were reasonable grounds for the suspicion formed by Constable Fletcher, it could not be said that Constable Fletcher acted “capriciously” in forming the suspicion he did, even if that were a recognised criterion of review in relation to s 21(1) of LEPRA.

Conclusion

1. [22]

   It follows that none of the proposed grounds of appeal raise any question of principle or matter of public importance, nor an injustice which is reasonably clear in the sense of going beyond a merely arguable error. The proposed appeal does not have sufficient prospects to warrant a grant of leave. Moreover, in circumstances where the applicant makes no challenge to the primary judge’s assessment of damages at $2,000, the disproportionality of the costs of this litigation to the amount involved is a significant consideration telling against a grant of leave.

2. [23]

   The respondent sought its costs of the application for leave to appeal, including its costs of a notice of motion that the applicant filed, dated 20 January 2026, by which he sought that the Court receive further evidence. Counsel for the applicant confirmed at the hearing that the notice of motion was not pressed. An order for costs of the application for leave will be made in favour of the respondent, rendering a separate order for costs of the notice of motion unnecessary.

3. [24]

   The summons for leave to appeal is dismissed with costs.