On 27 September 2013, Garling J of the Supreme Court of New
South Wales handed down his judgment in the first class action
proceeding to be brought in New South Wales pursuant to Part 10 of
the Civil Procedure Act 2005 (NSW): Konneh v State of
NSW (No. 3)  NSWSC 1424.
Part 10 was inserted into the Civil Procedure Act 2005
(NSW) so as to make "representative proceedings"
available in NSW courts.1 Part 10 commenced on 4 March
2011 and supplements the class action procedures that exist at the
federal level and in the State of Victoria.2
Unlike most other class action proceedings, which have been in the
area of commercial law such as securities and cartel class actions,
or product liability claims, Konneh v State of NSW dealt
with children who were detained by police for breach of bail
conditions. The claims dealt with two categories of case: (i) where
a group member was not subject to bail but was nevertheless
arrested for being in breach of bail conditions, and (ii) where a
group member was subject to a bail condition which had been varied
but was arrested for being in breach of the original bail
condition. The proceedings claimed damages for wrongful arrest,
false imprisonment and assault.
Garling J managed the class action through four questions to be
determined separately, and in advance of all other questions
pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005. This
decision illustrates how "separate questions" can be used
effectively to resolve issues quickly and efficiently with benefits
for the parties involved as well as reducing the burden on the
Furthermore, this decision serves to remind us of the wide-ranging
uses of the class action procedure—in this case, in the area
of human rights and personal liberty.
The separate questions examined whether s 50(1)(a) of the Bail
Act 1978 (NSW) applied so as to afford a defence to the State
in relation to the claims in the class action. The claims and
separate questions were grouped into two different scenarios:
first, where Mr Konneh or a group member was not subject to bail at
the time of arrest, and second, where Mr Moffitt or a group member
was subject to a bail condition but it had been varied at the time
The State submitted that s 50 should be interpreted in a way which
had the consequence that if the police officer formed a belief on
reasonable grounds, albeit a mistaken belief, and if a person had
been released on bail and had failed to comply with a condition of
that bail, then an arrest is not unlawful. The plaintiff submitted
that the sphere of permissible mistake of an arresting officer
extended only to whether the person had engaged in particular
conduct and not to the existence or content of the bail
undertaking itself or of any of the conditions
For the first group of plaintiffs, it was determined that the New
South Wales police could not rely on s 50(1) of the Bail Act
1978 (NSW) to justify the arrest of any child or young person
who was not on bail at the time of arrest. Garling J found that the
police had no lawful excuse for mistakenly arresting young people
who were not on bail. Emphasising the importance of personal
liberty, Garling J stated, "It would be a significant
abrogation of a person's fundamental right to be at liberty if
a police officer was entitled to arrest them on the mistaken belief
that they were the subject of a grant of bail, unless there is a
clear indication in the words in the Bail Act that this is
For the second group of plaintiffs, Garling J qualified his answer
in the affirmative by stating that it depended on the facts,
matters and circumstances established by the evidence. His Honour
held that s 50(1) of the Bail Act 1978 (NSW) may apply to
this group. However, the arresting police officers must be able to
demonstrate that they had "reasonable grounds"
for their mistaken belief. Garling J stated, "In circumstances
where the terms of the condition are capable of being readily
objectively ascertained, it may be very difficult for an arresting
officer who has a mistaken belief as to those terms, to demonstrate
that such belief was one held on reasonable grounds, however, that
must be, in each case, a matter for evidence".
1 Courts and Crimes Legislation Further Amendment Act 2010
2 See Part IVA Federal Court of Australia Act 1976 (Cth)
and Part 4A Supreme Court Act 1986 (Vic).
3 Konneh v State of NSW (No. 3)  NSWSC 1424 at
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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