Hannam v State of New South Wales (No 11)

By application dated 3 June 2022, the State of New South Wales (the defendant), who was the defendant in the proceedings, applied for:

These applications arise from proceedings brought by the plaintiff against the defendant for damages for negligence, assault and battery. Each of the claims was rejected, which resulted in a judgment for the defendant and an order, subject to application for a different order, that the plaintiff pay the defendant’s costs of the proceedings: Hannam v State of New South Wales (No 9) [2022] NSWSC 648 (the principal judgment). These reasons ought be read together with the principal judgment.

The plaintiff’s claims arose in the following circumstances. On 20 February 2016, the plaintiff, who was then intoxicated, attended a gathering at a unit on an upper floor of a unit in Neutral Bay where his friend, Anthony Manion, lived. He took a drug which affected his behaviour in such a way that he became aggressive and appeared to be psychotic. He went out to the balcony to the unit where he threatened to jump over the railing. At least one of those present was sufficiently concerned about the potential danger to the plaintiff (and, potentially, other guests at the party) to call Triple-0 and request that police and ambulance come to the premises. Several police officers arrived and went out to the balcony in an attempt to get the plaintiff away from the edge of the balcony. When it looked as if the plaintiff intended to jump over the balcony, a police officer shot him with a taser gun, with a view to immobilising him to prevent him from climbing over the balcony railing. The taser gun was ineffective to cause neuromuscular incapacitation (NMI) as only one of the barbs pierced the plaintiff’s body. The plaintiff dived over the edge of the balcony. He landed on the balcony of the floor below and suffered substantial injuries.

The parties made the following offers of compromise (none of which was accepted):

Each of the defendant’s offers was accompanied by an analysis of the applicable law and the facts of the present case. The author informed the plaintiff’s solicitor that the proceedings were, in effect, bound to fail and that the offer ought be accepted. The reasons given in the correspondence largely accord with my reasons in the principal judgment.

The plaintiff accepted that each of the defendant’s offers complied with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

In support of its claim for indemnity costs, the defendant submitted:

However, the defendant’s three offers of compromise constituted the principal basis for its application for an order for costs on the ordinary basis up to the date of the relevant offer and on an indemnity basis thereafter. Notwithstanding the submission extracted above, Mr Hutchings confirmed that no claim is made for indemnity costs from the commencement of the proceedings.

Mr White SC, who appeared on behalf of the plaintiff, contended that none of the offers of compromise contained the requisite degree of compromise that would be required for r 42.15A of the UCPR to operate. He submitted that the first offer was no more than an offer to capitulate and that the second and third offers were derisory attempts to buy off the plaintiff’s solicitors without delivering any benefit to the plaintiff himself.

Mr Hutchings, who appeared with Mr Coffey on behalf of the defendant, contended that, in order to deliver a benefit to the plaintiff, it would have been necessary for the defendant to make an offer at least in excess of $1 million (not including costs) because of the likely repayment obligation to Centrelink ($250,000), Medicare ($250,000) and NDIS ($500,000) (derived from the figures in the schedule of damages attached to the plaintiff’s offer of compromise dated 24 November 2021). Mr Hutchings submitted that it could not be the case that, in order to contain the requisite level of compromise, the defendant’s offer would have to exceed any pay-back figure, since the plaintiff’s prospects of success may not warrant an offer in that sum. He submitted that, even if the first offer did not contain the requisite level of compromise, the amount of $250,000 for the plaintiff’s solicitors’ costs was sufficient for the offer to be regarded as an offer of compromise for the purposes of the costs consequences in UCPR, r 42.15A.

At the time the first offer of compromise was made, the plaintiff (and those advising him) was in a position to appreciate that the offer constituted a compromise (in relation to costs) as the proceedings had been on foot for 16 months and there had been several directions hearings as well as multiple pleadings. Nonetheless, the plaintiff’s solicitors were continuing to require production of documents from the Commissioner of Police and the evidence had not yet been finally prepared or served (the details of this chronology are addressed below in the context of the application against the plaintiff’s former solicitors). In these circumstances, I am persuaded that the defendant is not entitled to the benefit of the first offer of compromise because of the state of the proceedings at the time it was made. It was reasonable for the plaintiff’s solicitors to satisfy themselves as to the basis of the defendant’s defence of justification before, effectively, giving up the plaintiff’s claim.

However, by the time the defendant served the second offer of compromise, the position had changed in that the plaintiff had access, through production on subpoena, to all relevant documents, including the recording of the Triple-0 call.

Although the second offer did not provide the plaintiff with any cash, it protected him against a costs order in the event that the matter went to hearing and remunerated his legal representatives, at least in part. It involved a sufficient degree of compromise on the part of the defendant with the consequence that I am not persuaded that I ought make an order displacing the effect of the UCPR, r 42.15A. For these reasons, the defendant is entitled to an order that the plaintiff pay the defendant’s costs on the ordinary basis up to and including 2 September 2021 and on an indemnity basis thereafter.

As I consider that the defendant is entitled to this order on the basis of UCPR, rr 20.26 and UCPR 42.15A, it is not necessary to address (for the purposes of the application for indemnity costs) the defendant’s alternative contention that it is entitled to costs on an indemnity basis from the dates of the offers on the ground that the proceedings were hopeless.

The defendant sought orders against the plaintiff’s former solicitors on two bases. First, it relied on s 99 of the Civil Procedure Act, which relevantly provides:

The defendant also relied on cl 5 of Sch 2 of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act), which relevantly provides:

Clause 1(2) of Sch 2 of the Application Act imposes the same function on both a solicitor and a barrister who are acting on the same matter. Clause 2 prohibits a law practice from providing legal services unless the relevant legal practitioner, relevantly, “reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim … has reasonable prospects of success.” Clause 3 excludes “preliminary work”, that is, work performed to ascertain whether a claim has reasonable prospects of success.

Clause 4(2) of Sch 2 prohibits a law practice from filing a claim for damages unless a principal has certified that “there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim … has reasonable prospects of success.”

The respondents opposed the order sought by the defendant and relied on the evidence of Mr Tierney, who had carriage of the matter on behalf of the plaintiff.

An order under s 99 of the Civil Procedure Act or cl 5 of Sch 2 of the Application Act can only be made in circumstances where:

For the purposes of demonstrating that a claim had a reasonable basis at the time it was brought, the practitioner against whom such an order is sought is entitled to adduce evidence well beyond that which was adduced at trial: Muriniti at [83]. The findings made at trial may be relevant but are not determinative.

As the test is objective, the legal practitioner may adduce evidence and make submissions which did not reflect his or her state of mind at the time but which, nonetheless, make the provision of legal services reasonable having regard to the prospects of success of the proceedings. Thus, in Gokani v Visvalingham [2023] NSWCA 80 (Gokani), the Court of Appeal (Basten AJA, Leeming JA and Griffiths AJA agreeing) said, at [58], that a solicitor who had filed a defence denying the plaintiff’s claim would have been entitled (for the purposes of resisting an application such as the present) to rely on “subsequent events which demonstrate that the defence was entirely warranted and the statement of claim was deficient”.

While a legal practitioner is prohibited from providing legal services unless there are reasonable prospects of success, the legal practitioner is not obliged to form a view about the prospects of the opponent’s cause of action. Thus, in Gokani, the Court held that a solicitor acting for a defendant, who instructed him to deny the plaintiff’s claim, was not obliged to form a view about whether the plaintiff’s claim had reasonable prospects of success. In other words, the defendant (in Gokani) and its solicitor were entitled to put the plaintiff to proof: Gokani at [56].

As the practitioner is bound to maintain the client’s claim for privilege, the conduct of a practitioner who no longer acts for the client (as will inevitably be the case since the application creates a conflict between the solicitor and the client) cannot effect an implied waiver of the privilege (along the lines addressed in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66) which remains at all times that of the client.

Where the solicitor’s client has not waived privilege, the Court is obliged to make “full allowance” for the solicitor’s inability to tell the whole story. This means that the Court should not make an order against such a solicitor “without satisfying itself that it is in all the circumstances fair to do so”: Medcalf v Mardell [2003] 1 AC 120 at 135 (Lord Bingham of Cornhill); [2002] UKHL 27, cited with approval in Gokani at [16] and Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWSC 153 at [92](f) (McColl JA, Hodgson and Ipp JJA agreeing). His Lordship continued at 136:

Where an application is brought against a solicitor and the solicitor has retained counsel to advise and appear for the client in the matter, the inference is available that the solicitor obtained the advice of counsel “that the matter could properly run”: Gokani at [82]. This is a relevant consideration to be taken into account in favour of the solicitor: Gokani at [82].

Because the claim against the respondents turns on the facts of what Mr Tierney knew at particular times, it is necessary to set out in some detail how his knowledge changed over time.

The facts set out below largely derive from the documents (including the pleadings) and the evidence of Mr Tierney, who was cross-examined extensively by Mr Hutchings. Mr Tierney’s honesty was not challenged. The only substantial challenge to his reliability was the suggestion that he was reconstructing his state of mind at particular times by reference to his documents. This was denied by Mr Tierney. The impression I formed was that, to some extent, this was what was occurring. I do not accept that Mr Tierney had a particularly good recollection of his thought processes at any given time although I largely accept his evidence.

On 12 February 2019, Mr Tierney received documents relating to the matter from the plaintiff’s father, Robert Hannam. Privilege was maintained over these documents. As far as the evidence established, this was the first occasion on which Mr Tierney became aware that he might be retained to act on behalf of the plaintiff in relation to a claim against the NSW Police. As the plaintiff sustained injuries on 20 February 2016, the limitation period of three years for claims for damages for personal injuries applied, which meant that, if proceedings were to be commenced, they would have to be commenced (subject to an extension of time) by 20 February 2019.

On 13 February 2019 (prior to filing the statement of claim), Mr Tierney obtained an electronic copy of the manual for the taser which had been used on the plaintiff on 20 February 2016 and noted that the manual stated that the taser ought not be used where there is a likelihood of a secondary injury as a result of a fall; ought not be used against a mental health patient solely to make them comply or to submit to medication or treatment; and should not be used against anyone who was “fleeing”. Mr Tierney also noted that the manual stated that officers should consider the subject’s threat level to themselves or others and the risk of injury to the subject before deciding to use a taser. He also learned that the taser, when operated, created a film of about 5 second in length which recorded what occurred in the line of sight of the taser.

In his affidavit affirmed on 12 August 2022 in opposition to the defendant’s application for costs, Mr Tierney deposed:

Mr Tierney deposed that he was aware that the plaintiff had been struck by a taser and that this constituted a battery, thereby requiring the defendant to prove lawful justification, which he considered posed a “high bar” (to the defendant) on the basis of Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132.

In relation to negligence, he deposed that he was aware of Fuller-Wilson v State of New South Wales [2018] NSWCA 218 (Fuller-Wilson) which “indicated that in certain circumstances, police could owe a duty of care to members of the public.” Mr Tierney deposed that he believed that there was a possibility of a duty of care being established and said:

At that time, Mr Tierney also came to a view about possible causation, as follows:

On 14 February 2019, Mr Tierney discussed the matter with counsel who reinforced his views about the matter. At that time, he did not consider the various defences that could be raised to the claims in battery and negligence. After that discussion, counsel (Peter Tierney (Mr Tierney’s brother) and Daniel McMahon) drafted a statement of claim to be filed.

The proceedings were commenced by statement of claim filed on 15 February 2019 in which the plaintiff alleged battery (from the taser) and negligence. A duty of care was alleged in paragraph 3.4:

The plaintiff alleged that the battery (the use of the taser) constituted a breach of the duty of care and that it caused the plaintiff to fall from the balcony. The plaintiff claimed compensatory damages, aggravated damages and exemplary damages. Mr Tierney considered that each of those claims had reasonable prospects of success.

Mr Tierney delayed serving the statement of claim until 14 April 2019 as he wanted to investigate the matter further (which, as Mr Faulkner submitted, had the effect of deferring the time at which the defendant would incur costs for which the plaintiff might be liable).

On 5 March 2019, the plaintiff’s solicitors made a request for information relating to the incident pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA) which was ultimately refined to seek the following:

On 2 April 2019, Mr Tierney and counsel (Peter Tierney and Mr McMahon) attended the unit where the incident occurred. They also spoke with Mr Manion, who still resided there. The plaintiff maintained privilege over these discussions.

On 8 April 2019, Mr Tierney received documents in answer to the GIPA request. The documents comprised extracts from the Computerised Operational Policing System database (the COPS report), photocopies from police notebooks and photographs taken at the scene. The COPS report comprised various entries regarding the incident, which included the following:

On 14 April 2019, the defendant was served. The defendant was not required to file a defence to the statement of claim as the plaintiff sought documents with a view to amending its statement of claim once the documents had been reviewed.

On 3 June 2019, Royal North Shore Hospital and NSW Ambulance produced documents to the Court in answer to subpoenas. Mr Tierney reviewed those documents and noted the following:

As a result of reviewing these documents, Mr Tierney considered there to be some evidence that the plaintiff had been struck by two probes (including one in the left chest) and had suffered NMI. The truth of the statements in these clinical notes about what happened on the balcony did not amount to “provable facts” in that form because they were not admissible for that purpose: Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 at [17] (French CJ, Heydon and Bell JJ). However, Mr Tierney was entitled to expect that documents produced in answer to the subpoena which he had issued to the Commissioner of Police would reveal the basis for these statements in an admissible form.

On 18 June 2019, Mr Tierney obtained the manual for the taser which had been used on the plaintiff. He deduced, after he had read the part of the manual dealing with the camera on the taser, that the film with which he had been provided was incomplete (and was missing 1.5-2 seconds of footage). He hoped that he would be able to obtain the complete film and that it would shed more light on what had happened on the balcony.

On 5 July 2019, Mr Tierney retained as senior counsel John Maconachie QC, whom he understood to be experienced in claims against NSW Police for intentional torts. As a result of a discussion with counsel, Mr Tierney decided that it was necessary to amend the pleading. The defendant’s consent to that course was obtained. On 30 July 2019, Mr Tierney ascertained by speaking with the defendant’s then solicitors that the Commissioner of NSW Police would answer the subpoena which he had issued when the pleadings were closed.

On 21 August 2019, Mr Tierney received a settled version of the draft amended statement of claim from Peter Tierney of counsel. When reading the draft, Mr Tierney satisfied himself that the amended pleading had reasonable prospects of success. In particular, he considered that the claim in assault (damage caused by apprehended harm) was reasonably arguable even though the plaintiff could not recall the incident and therefore could not depose as to his fear at the time. Some of the material from police supported the inference that the plaintiff had reacted to police and been fearful of them. Mr Tierney considered The Queen v Royall (1991) 172 CLR 378; [1991] HCA 27 in which the High Court held that the trial judge had not misdirected the jury by directing them as follows:

Mr Tierney reasoned that if causation could be established in a murder trial where the deceased was, necessarily, unavailable to give evidence of her fear, there were reasonable prospects of establishing causation by inference in the present case where the plaintiff could not give evidence of what caused him to jump over the balcony railing.

An amended statement of claim was filed on 29 August 2019. It added the allegation of assault to the allegation of battery and alleged that “the same conduct constituted an assault” which “caused the plaintiff to fall over the edge of the balcony.” The plaintiff alleged that the conduct of the police constituted “intentional acts done with an intent to cause the plaintiff harm for the purposes of s 3B of the Civil Liability Act 2002 (NSW)” and claimed compensatory damages, aggravated damages and exemplary damages. The claim in negligence which had been pleaded in the original statement of claim was deleted. Mr Tierney accepted in cross-examination that the deletion was the result of concerns about the cause of action in negligence although he believed that “it may still have been arguable.”

In its defence to the amended statement of claim filed on 25 September 2019, the defendant admitted that one prong of the taser had struck the plaintiff and that the use of the taser constituted a use of force but alleged that such use of force was “lawfully justified”. The particulars of the allegation of lawful justification included references to:

Mr Tierney considered the defences raised and reached the view that there was a prospect that the statutory defences raised by the defendant may not be made out.

Of present relevance, the plaintiff said in his statement:

In January 2020, Mr Tierney reviewed documents produced on subpoena by the Commissioner of Police, which included the Critical Incident Investigation Report of Strikeforce Hibernia (the internal police investigation into the incident) and associated interviews with police officers which were conducted as part of the investigation.

Mr Tierney deposed as to his views once he had read these documents, as follows:

On the basis of these views, Mr Tierney considered the case in battery remained viable (since the defendant admitted that the taser barb had connected with the plaintiff’s body).

He also considered that the case in assault remained viable based on the statement of Fiona Herriott (a guest at the party which the plaintiff had attended, who spoke to police when they arrived) in which she said, in part:

On 4 September 2020, Mr Tierney had a conference with counsel, as a result of which he instructed senior counsel to draft a further amended statement of claim.

A further amended statement of claim was filed on 18 November 2020. It substantially repleaded the plaintiff’s claim and maintained his claim for assault, battery and for compensatory, aggravated and exemplary damages. The plaintiff reinstated his claim in negligence.

The further amended statement of claim contained the following additional allegations:

In respect of the claim for negligence, Mr Tierney formed the view that “it was reasonably arguable that a duty of care might be found to arise.” His view was, largely, based on the statement of Ms Herriott (extracted above) and his reading of Fuller-Wilson, which did not rule out that police officers might owe a duty of care in particular circumstances.

Mr Tierney also formed the view that the police had breached that duty and caused the plaintiff to go over the edge of the balcony (by confronting him, yelling or screaming at him, advancing on him in numbers and using the taser on him).

Mr Tierney reasoned that, as the defendant bore the onus of proving legal justification for the battery and assault, that it would “most likely” need to call all of the police officers who were present at the scene “to give evidence of their observations and interactions with the plaintiff.”

In its defence to the further amended statement of claim, which was filed on 22 January 2021, the defendant alleged, in part:

On 14 February 2022, the defendant served statements of seven police officers (Officers David Tran, Sean Chen, Aaron Gaskell, Glenn Goulding, Simon Herold, Aaron Dennis and Ben O’Brien) and three ambulance paramedics (Scott Miles, Gareth Copland and Craig Perkins). Mr Tierney noted some inconsistencies between the accounts which he considered would be of forensic benefit to the plaintiff (which are referred to in more detail later in these reasons).

The plaintiff was, save as to one matter, the only liability witness at his trial. His mother, Maryanne Baker-Floyd, gave evidence in the form of a statement. She was not required for cross-examination. In her statement she said that she had seen two round marks to the left of the midline of the plaintiff’s sternum, which were 5-10mm in diameter and 20-25mm apart. I understand that this evidence was adduced to establish that the marks had been caused by taser barbs but, as the taser had been fired once and one of the barbs had gone into the plaintiff’s lower body, her evidence was inconsistent with either mark on his sternum being associated with a taser barb.

As the plaintiff’s evidence was that he had no recollection of what occurred on the balcony and he was not aware that police were there, he could not establish that he was fearful for the purposes of the action in assault. Nor was his evidence capable of advancing, much less establishing, the case in negligence in any material way.

Of the witnesses whose statements it had served, the defendant called three (out of seven) of the police officers (Officers Gaskell, Goulding and Herold) and all three paramedics. Officers Dennis, Tran, Chan and O’Brien were not called. This course had not been anticipated by Mr Tierney, who had expected that the defendant would call all seven of the police officers whose witness statements had been served. Thus, his expectation that the deficiencies in the plaintiff’s case at its close could be remedied by cross-examination of defence witnesses remained, to a significant extent, unfulfilled.

As referred to above, Mr Tierney had accepted instructions from the plaintiff’s father about a week before the limitation period expired and considered that there was material which might form a basis for the causes of action in battery, assault and negligence. As he obtained further material, he considered that each of these causes of action had reasonable prospects of success. He retained his view until the close of the defendant’s case, by which time he must have appreciated that only the plaintiff’s claim in battery (to which the defendant had a defence) would be proved from the evidence he had adduced.

At all times, Mr Tierney appreciated that the case would be “difficult” and that the plaintiff might lose. However, having accepted the instructions, he remained on the record until after judgment. He appreciated that, to a large extent, the plaintiff’s case could only be made out through police officers whom he, in consultation with counsel, expected would be called by the defendant in order to prove lawful justification as a defence to battery. I infer that he was heartened by the inconsistencies between the versions of police officers in the documents (which he had obtained from the NSW Police, both under GIPA and in response to subpoenas), some of which were relatively favourable to the plaintiff’s case. He candidly admitted that he did not have any detailed understanding of the workings of a taser and appeared to believe that the force of a taser would be capable of projecting the plaintiff off a balcony if the plaintiff were in an elevated position such that he could clear the railing. He did not understand the mechanism by which a taser operated: that it was necessary for two prongs of the taser to connect with the targets body to complete a circuit, thereby immobilising the target’s body by causing NMI. At no point did he seriously consider obtaining expert evidence as to these matters. I infer that cost was an issue.

The effect of Mr Tierney’s evidence was as follows:

Mr Hutchings submitted that the plaintiff’s only viable claim was a claim in battery, to which the defendant had the complete defence of lawful justification. Further, he submitted that the plaintiff could not prove that his injuries were the reasonable and probable result of the battery because the evidence established that the plaintiff was injured because he managed to jump over the railing notwithstanding the best endeavours of police to calm him down and get him to move away from the edge of the balcony. Thus, at best, the plaintiff would, if the defendant had failed to make out the defence of legal justification, have been entitled only to nominal damages for the battery. He described the plaintiff’s case as “a construct”, thereby implying that it was an artifice without any real substance.

Mr Hutchings submitted that the claim in assault was bound to fail because the provable facts did not include that the plaintiff had been fearful of police and reacted to their presence (in light of the plaintiff’s inability to recall even having been aware that the police were there). However, he accepted that it did not follow from the plaintiff’s lack of recollection of being aware of police that he had not been fearful at the time or that the police’s conduct had not been what he reacted to when he retreated and jumped over the balcony (on that scenario). Mr Hutchings accepted that the inference was available that the plaintiff’s lack of recollection was the product either of the injuries he sustained or the drugs he had taken.

Mr Hutchings submitted that the claim in negligence had no reasonable prospects of success because it was not reasonably arguable as a matter of law that a duty would be imposed on police in circumstances where they had been called to premises to deal with a breach of the peace and to intervene to stop an agitated, intoxicated individual (the plaintiff) from committing suicide. He submitted that statutory duties of police, including pursuant to s 6 of the Police Act, excluded any common law duty of care for the policy reasons articulated in Hill v Chief Constable of West Yorkshire [1989] AC 53 and consistently followed ever since, including in ACT v Crowley (2012) 7 ACTLR 142; [2012] ACTCA 52 (which overturned a trial judge’s decision which had found a duty of care).

Further, he contended that the plaintiff had no reasonable prospects of proving breach of duty in circumstances where the only practical means available to police to prevent the plaintiff going over the balcony was to use a taser since communication had proved to be ineffective (as no evidence was adduced that established that the plaintiff was aware that police were present) and neither a baton nor capsicum spray would have been effective (because of the distance between the plaintiff and the most proximate police officer).

In addition, Mr Hutchings submitted that the plaintiff would be unable to prove that any breach of duty caused the plaintiff’s injuries since those representing the plaintiff were wholly unable to articulate a suitable counterfactual which would have averted the injuries. He submitted that those posited (see below) were no more than speculative and were, further, inconsistent with the positive duties imposed on police officers by s 6 of the Police Act. The counterfactuals which Mr Hutchings identified as having been put were as follows:

Mr Hutchings was also critical of Mr Tierney for his lack of analysis of the way in which the negligence case could be established and his reliance on Fuller-Wilson, which said no more than that a duty of care might, in some circumstances, be owed by a police officer.

Finally, Mr Hutchings submitted that, at the latest, Mr Tierney ought to have appreciated that, by the close of the plaintiff’s case, the causes of action in assault and negligence had no reasonable prospects of success (because the evidence adduced was insufficient to establish them) and that, therefore, this Court ought order the respondents to pay the defendant’s costs of the proceedings from the close of the plaintiff’s case.

It is not necessary to summarise the submissions of Mr Faulkner SC, who appeared for the respondents (Mr Tierney and Ken Cush & Co) because I have been persuaded that it would not be appropriate, in the particular circumstances of this case, to make the order sought by the defendant. My reasons for refusing to make the order sought by the defendant largely accord with Mr Faulkner’s submissions.

As the trial judge, I was privy to the evidence which was adduced by the parties at the trial. This evidence was manifestly insufficient to establish any of the plaintiff’s claims, except battery, in respect of which the defendant discharged its onus of proving lawful justification as a complete defence. The evidence did not establish that the plaintiff had reacted to police and therefore there was no basis for inferring fear and apprehension for the purposes of assault. The claim in negligence was defeated because I found that no duty was owed. There were further, insuperable, obstacles in establishing either breach or causation. It is not necessary to recount the factual findings which resulted in judgment for the defendant since they are set out in the principal judgment.

But the respondents are not to be judged by what happened at trial. As the authorities cited above in my summary of the relevant principles demonstrate, what matters for the purposes of the current application is what was in the possession of the plaintiff’s solicitor at any given time and whether, viewed objectively, the material warranted the opinion, on the basis of provable facts and a reasonably arguable view of the law, that the plaintiff’s claim had reasonable prospects of success. In other words, the question is whether, at the time the respondents provided legal services, the plaintiff’s claims had reasonable prospects of success. Because the requisite test is objective, the respondents are not to be judged by Mr Tierney’s subjective thought processes, although these are relevant and may shed light on the provable facts at any given time.

Because the plaintiff maintained the client legal privilege which protects communications between him and others (including his father and the barristers briefed on his behalf) and Mr Tierney, it is not possible for me to know all that was in Mr Tierney’s possession at any given time or what communications transpired between him and counsel for the purposes of advancing the plaintiff’s claim. The consequence of the plaintiff’s maintenance of his privilege is that I cannot make any finding against Mr Tierney which could be affected by privileged communications. I note that Mr White remained in court for the entire hearing of the defendant’s costs application, in part to protect the plaintiff’s privilege from accidental and unintended waiver by Mr Tierney.

Further, I am obliged to disregard what actually happened at the trial (except in so far as the defendant claimed that Mr Tierney ought to have ceased to act at the close of the plaintiff’s case) since Mr Tierney was not to know, for example, which witnesses would be called by the defendant or which parts of a witness’ evidence I would accept and which I would reject (it being open to me, as the tribunal of fact to accept part of a witness’ evidence and not accept other parts). Mr Tierney is not to be judged with the benefit of hindsight, but rather by reference to what a solicitor in his position knew and can be taken to have known at the time.

As part of this exercise, I have considered the following potential evidence, which was available to establish the plaintiff’s claims. It derives from statements of, or recorded interviews with, witnesses who were not called, including Ms Herriot, Mr Manion, Officers Dennis, Tran and O’Brien. These “provable facts” were, if established, more favourable to the plaintiff’s case than the evidence which was, in fact, adduced.

The following facts (which comprise a small sample) were “provable”:

The contrast between, on the one hand, the evidence which was adduced (on which my findings in the principal judgment were based) and, on the other, the evidence which might have been adduced is stark. It demonstrates the dynamic nature of a trial such as the present which is dependent on the recollections of eye witnesses in a fast-moving, short-lived, traumatic situation, which has a tragic outcome. The differences between the recollections of eye witnesses and the capacity for memory to change over time makes it difficult to predict the outcome of such a trial with any confidence.

There are several different inferences available depending on which permutation of the provable facts are selected. For example, the provable facts include that the plaintiff dived over the balcony with a view to escaping from police because he feared what they would do to him; the plaintiff dived over the balcony because he saw that the taser had been unholstered; and that the police were responsible for creating the very situation which was known to produce the outcome where the person (in this case, the plaintiff) would, to borrow Officer Dennis’ words, “do something silly”. The plaintiff’s case attains a different complexion when these facts are included in the matrix. As the plaintiff’s solicitor, Mr Tierney was obliged to put the plaintiff’s case as well as he could (with the assistance of counsel) and give the plaintiff advice as to prospects. He was not obliged to play a judicial role and find the facts.

On these “alternative facts”, there was an arguable case in assault. Battery had been admitted. While negligence remained highly problematic, it is significant that an appeal against the summary dismissal of Mr Fuller-Wilson’s claim against police was allowed, in part “because it is important that claims requiring an incremental development of the common law not be disposed of summarily unless they can be shown to be hopeless”: Fuller-Wilson at [24] (Basten JA). Justice Barrett’s statement in Digiorgio v Dunn (No 2) (2005) 62 NSWLR 284; [2005] NSWSC 3 at [17] that what constitutes a reasonably arguable view of the law is “not to be approached narrowly: arguably available extension and innovation may be contemplated” was approved in Gokani at [85].

While Mr Hutchings used the word “construct” (as a noun) to denigrate the plaintiff’s case, I do not accept that it ought be so understood. In a sense, all actions in negligence are “constructs” in that the plaintiff is obliged to formulate the duty and the breach in such a way that the counterfactual (had the duty not been breached) can be shown to produce a more favourable outcome, and therefore, establish an entitlement to damages. Unlike intentional torts such as battery and assault, negligence gives rise to greater forensic choices and, therefore, different outcomes. A case which may be lost if, say, the alleged negligence is operating on a patient with the result that the plaintiff is worse off by reason of a particular complication, may be won if the alleged negligence is the failure to warn the plaintiff of the risk of that particular complication (and the court accepts that the plaintiff would not have had the operation if warned of the risk): see, for example, Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58, where the appellant, who performed surgery with the requisite skill and care, was found liable for failure to warn of a potential risk of the operation.

This is not to suggest that I consider that the trial would have had a different outcome if, say, Mr Manion or Ms Herriot, or the remaining police officers had been called. The defendant’s defence was strong and the parts of the evidence of the potential witnesses which favoured the plaintiff’s case were, to a large extent, outweighed by the balance of those witnesses’ evidence. For example, as the passage from Ms Herriot’s statement illustrates, she warned the police as to the best approach (not aggressively because the plaintiff was already scared). It would appear that her observations were that they proceeded in a way which was calculated to pacify the plaintiff (by calling him by name, speaking to him softly and having the police officers come onto the balcony as surreptitiously as possible).

Further, the forensic skill with which the defendant’s case was presented at trial ought not be underestimated. The decision to call particular witnesses and not call others deprived the plaintiff of the opportunity of bringing before the Court the evidence which put his case in the most favourable light. The choice of which witnesses to call is generally made by counsel and therefore Mr Tierney may not have been in a position to determine, for example, that Mr Manion or Ms Herriot be called (such a matter falls within the privileged material and therefore no finding can be made against Mr Tierney).

As at the close of the plaintiff’s case, it was reasonable for Mr Tierney to expect the defendant to call some, if not all, of the witnesses whose statements had been served. He was also entitled to consider that there was a prospect that such evidence would remedy at least some of the deficiencies in the plaintiff’s case (such as whether the plaintiff was aware of the presence of police). In addition, he was entitled to put the defendant to proof of the defence of legal justification: Gokani, at [56]. As Basten AJA said at [85] in Gokani, “the purpose of such regulation [s 99 of the Application Act and cl 5 of sch 2 of the Civil Procedure Act] is subverted at a point where practitioners are discouraged from pursuing their client’s interests in litigation, where there are grounds to do so.”

In these circumstances, which include that the plaintiff has maintained privilege and that Mr Tierney had engaged experienced counsel to advise and appear in the matter, I am not persuaded that Mr Tierney provided legal services without reasonable prospects of success at any stage (apart from the initial period where the defendant accepted that he was engaged in “preparatory work”), including for the balance of the hearing after the close of the plaintiff’s case. Accordingly, it is not necessary to consider the discretion because the condition for its exercise has not been established.

Thus, it is not necessary to resolve the defendant’s submission that the respondents ought indemnify the plaintiff for the defendant’s costs of the balance of the hearing after the close of the plaintiff’s case. It is sufficient to note that there are considerable difficulties with the defendant’s submission.

For the respondents, in effect, to abandon the plaintiff at that juncture, would have been a drastic step. It would have resulted in either, the plaintiff abandoning his case (with the inevitable costs order against him), or, the plaintiff having to represent himself. This would have been detrimental not only to the plaintiff, who would not have had the capacity to cross-examine the defendants’ witnesses effectively, but also to the administration of justice. The Court would have been deprived of the benefit of a contradictor to the defendant’s claim of lawful justification on the battery claim and would have been required to take steps to accommodate the fact that the plaintiff was appearing for himself. As the plaintiff became easily fatigued when giving his evidence, it can be expected that, without representation, he would have needed to take regular breaks, thereby substantially elongating the hearing. Further, the plaintiff’s maintenance of his privilege means that I cannot know what discussions were taking place between Mr Tierney and counsel as to the appropriate course to be taken.

Mr Faulkner further submitted that a factor to be taken into account against the defendant was that the defendant had not brought an application for summary dismissal of the plaintiff’s claim at any stage and had not brought an application under UCPR, r 29.10 (application for judgment for want of evidence) at the close of the plaintiff’s case. Having regard to my conclusion that the defendant’s application against the respondents ought be dismissed, it is not necessary to address this submission in any detail. It is sufficient to say that the Court’s power to order summary dismissal is not apposite for proceedings such as the present when the facts are in dispute. Further, the defendant could not be expected to bring an application under UCPR, r 29.10 at the close of the plaintiff’s case because, if it were unsuccessful (as it would have been, at least for battery), it would have been precluded from going into evidence to prove lawful justification for the battery, in respect of which it bore the onus.

By reason of my conclusion, it is not necessary to address Mr Faulkner’s submission that I could regard the applications made by the defendant shortly before the hearing and in the course of the hearing (for leave to adduce further evidence and to amend its pleading) as implied admissions on the part of the defendant that the plaintiff’s case had reasonable prospects of success.

The defendant adduced evidence from James Clohesy, a partner at Wotton + Kearney, the defendant’s current solicitors, as to its costs by reference to various dates. This evidence was not challenged by cross-examination. Neither the plaintiff nor the respondents put on evidence to the contrary. Mr White accepted that there was merit in such an application in a case such as the present. Mr Faulkner’s opposition to such an order arose only in the event that an order was made against the respondents that they indemnify the plaintiff. As no such order has been made, there is no substantive opposition to the making of an order that costs be paid in a gross sum.

This is the type of case where it is desirable that such an order be made. The plaintiff is likely to be impecunious and unable to meet a costs order of whatever magnitude. In these circumstances, it is preferable that further costs not be required to be spent on a costs assessment. The principles which apply to such applications were summarised by Beazley P in Hamod v State of New South Wales [2011] NSWCA 375 at [814]-[820].

On the basis of the indemnity costs order I propose to make against the plaintiff, he is obliged to pay the defendant’s costs on the ordinary basis up to and including 2 September 2021 and on an indemnity basis thereafter.

Mr Clohesy deposed that, in his experience, the rates adopted by the defendant’s solicitors for government agencies and the scrutiny applied to the invoices issued, he expected that on assessment, the costs which would be recovered would be approximately 75% of solicitor fees incurred on an ordinary basis and 95% of solicitors’ fees incurred on an indemnity basis and that almost all of counsel’s fees and other disbursements would be recovered. His assessment of the amount of costs on the basis of the proposed order is as follows:

The defendant also included a claim for the costs of the present application, which will be considered separately below.

Because the fixing of a gross sum for a costs order requires a broad-brush approach, I do not consider that the percentages applied by the defendant on the basis of Mr Clohesy’s evidence ought be adopted by the Court, although his evidence was not challenged. While rates for government agencies tend to be considerably lower than for other clients (thereby giving rise to a higher percentage recovery on assessment), I consider that it would be appropriate to apply a further discount to the fees sought by applying a 65% recovery rate for solicitors’ costs on the ordinary basis and a 85% recovery rate for such costs on the indemnity basis. I have also made a modest reduction to the figure for disbursements and rounded down the total to arrive at $600,000.

The defendant’s application has, as set out above, three components. The defendant has been successful on two out of three (the application for indemnity costs and the application for costs to be paid in a gross sum) but unsuccessful in its application for an order that the respondents indemnify the plaintiff for his liability for the defendant’s costs. The last-mentioned application took almost all of the two days allocated for the hearing and required the most substantial preparation in terms of evidence and submissions. Although Mr Clohesy’s evidence about costs was detailed and would have required significant work, it was not contested.

Although none of the parties suggested that there was any reason why costs ought not follow the event, Mr Faulkner asked me to provide liberty to make an application, in case any party wished to be heard against the order I propose to make.

The respondents are the only parties who have succeeded overall. The plaintiff defeated the defendant’s application based on the first offer but was unsuccessful in resisting the defendant’s application based on the second offer. The plaintiff did not participate in the dispute between the defendant and the respondent and did not resist the order that costs be ordered in a gross sum. In these circumstances, the plaintiff and the defendant ought each bear his, or its, as the case may be, own costs of these applications.

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