Alternatives to a formal complaint: civil litigation
Private individuals can use the civil law (civil litigation) to try to get a remedy for a harm or wrong done to them by a member of the police force by filing a claim in court
Police officers and their employers (NSW Police) can be sued for actions (called “torts”) that have caused harm or injury of some kind. These can include:
- wrongful arrest
- false imprisonment
- negligence; and
- malicious prosecution
You will require solid evidence to be successful in bringing one of these claims against the police. This might include having photos, expert reports (for example from a doctor to confirm any harm done) and witnesses who would be able to confirm the action. You must be able to show that on the balance of probabilities, what you claim happened is correct.
It is unwise to bring a claim against the police without first obtaining legal advice. There is a risk that if you lose, you may be liable to pay the legal costs incurred by the State Government in defending the Police Force.
Legal advice may also help you decide whether a court claim or a formal police complaint (or both) is more appropriate for your situation.
Legal advice should be obtained about:
- the particular situation and your chances of success; and
- the pros and cons of pursuing a claim in court.
Civil litigation can be commenced before or after a formal complaint against the police is made, or it may be the only option that is chosen.
There are strict time limits for commencing civil litigation (e.g. 3 years or 6 years after the incident, depending on the situation), so get some legal advice as soon as possible.
A claim can be commenced in the Local Court if it is estimated to be worth less than $100,000 or in the District Court if it is a larger claim. There are fees when you file a claim in either of these courts, although you can ask the court to waive these fees in certain circumstances.
Once litigation is commenced, it can take many months, or years in more complex cases.
Why use civil litigation?
Civil litigation can be an effective way to get justice and compensation for the harm suffered. The court can award payments to people who have had their rights violated by the police.
In response to a question during the 2010 Budget Estimates in the NSW Parliament, the Minister for Police revealed that in 2009-2010:
- $2,737,213 was paid in damages in relation to 22 matters involving allegations of false imprisonment (including related claims such as assault or malicious prosecution);
- A further $140,000 was paid in relation to two cases involving assault allegations only.
More broadly, civil litigation can call police officers to account and challenge their conduct. In terms of police accountability, there is the opportunity to bring about change on the part of both individual police officers and the organisation as a whole, if there is a risk they will have to pay legal compensation. This table provides a summary of the pros and cons of civil litigation, as opposed to a formal complaint.
Below are some articles and studies relevant to civil litigation against the police.
- Civil Litigation as a Police Accountability Mechanism (FKCLC)
- Civil Litigation Against the Police (Tim Prenzler et al)
- Civil Litigation in Australia (Jude McCulloch & Darren Palmer)
- When Police Complaint Mechanisms Fail: The Use of Civil Litigation (Tamar Hopkins)
Examples of civil litigation against NSW Police include:
- Adam Houda sued three police officers and the State of New South Wales alleging malicious prosecution, false imprisonment, wrongful arrest and assault and claimed general compensatory damages, special damages, aggravated damages, exemplary damages, costs and interest. He received $145, 000 in damages. Houda v The State of New South Wales . This was reported in the Sydney Morning Herald, 25 October 2005 Lawyer wins $145,000 for ‘spiteful’ arrest.
- The Court of Appeal awarded Dorothy Ibbett $100,000 for assault and trespass. Police had turned a gun on her as they arrested her son for a traffic offence at their home, in January 2001: NSW v Ibbett 
- Several successful claims against police are summarised in this article: Police censured for violent arrests by Michael Pelly, Sydney Morning Herald, 26 December 2005.
- This article outlines a claim against police for trespass: Police outstayed welcome: court by Tim Dick Sydney Morning Herald, 13 June 2008.
- Lawyer, Andrea Turner, was awarded $40,000 in compensation after police officers wrongfully arrested her and falsified official documents: Compensation for lawyer after wrongful arrest, Bellinda Kontominas, 6 October 2009.
- Activist Padraic 'Paddy' Gibson sued police for unlawful arrest during the APEC protests. The settlement and amount of compensation is confidential: See question and answer in NSW Parliament.
- A Victorian case, State of Victoria & Ors v Richards , confirmed that a negligence action against police could be pursued by the bystander who was affected by capsicum spray.
It is possible to bring a civil claim for damages against a member of the Police force. However, there are risks involved in taking this step and you should seek legal advice first.
NOTE: This information sheet provides general information only and should not be relied on for legal advice. Anyone wishing to make a claim against the police should seek their own independent legal advice.
 These torts usually have a time limit of 6 years in which you can take action. However, as section 18A of the Limitation Act 1969 (NSW) limits personal injury damages to 3 years, torts of assault, battery and negligence, which automatically involve an element of personal injury, are now limited to 3 years. In relation to false imprisonment and malicious prosecution, the law is less settled – the recent case of State of NSW v Radford  NSWCA 276 held that an element of damages in false imprisonment actions are related to personal injury, therefore the time limit should be 3 years.
 Minister for Police, Michael Dale MP, 2010 Budget Estimates- Part B- Additional Questions on Notice B6, MP David Shoebridge.
 Minister for Police, Michael Dale MP, 2010 Budget Estimates- Part B- Additional Questions on Notice B8, MP David Shoebridge.