Assignment Task
QUESTION 1
Mario Maestro operates a secondhand goods store in Newtown, New South Wales. His shop was in the antique goods quarter of the neighbourhood amongst many other similar stores. He lives upstairs in a one-bedroom flat above the shop. Shortly after 7.30am on the morning of 15 January 2010, he was awakened by loud knocking on the door downstairs. He got out of bed and went to the window to investigate. He could not see anyone in the street and headed downstairs to check the door. When he opened the door downstairs, he was met by an Inspector Raymond who said that he and his fellow police officer Constable Wayne were there to make some inquiries about some stolen goods.
Although they did not have a search warrant, Mario invited them into the shop and asked them to sit down. He made the officers a cup of tea and they began to ask him questions about whether he knew anyone in the area that had been receiving stolen goods. Despite Mario answering in the negative, Inspector Raymond became quite insistent that Mario ‘knew what they were talking about’. As Mario became increasingly frustrated, he began to argue with Inspector Raymond. Constable Wayne in the meantime, stood up and started looking around the shop, he picked several items up, looked at them, and then placed them back on the shelves. He then picked up a valuable piano accordion, unlatched a clip and whilst doing so dropped it on the floor. The piano accordion was damaged when it hit the floor. Seeing this, Mario became very upset. He yelled at the police officers ‘get out of my shop, you have no right to be here, you have no warrant, I am not under arrest, get out of my shop!’.
Instead of leaving however, Inspector Raymond grabbed Mario’s arm and twisted it behind his back. ‘If you don’t help us with our inquiries, we will start looking closely at every single thing you do Mario’, he said. He let go of Mario and Mario, holding his arm again told the police to leave. Constable Wayne (who was very tall) walked toward Mario very quickly, then stopped just in front of Mario, lent his body forward towards him and glared down at him. Mario’s heart pounded in his chest as he thought Constable Wayne was going to hit him. Constable Wayne however had no intention of hitting Mario, he just wanted to ‘let him know who was boss’ and ‘put the fear into him’.
The police then picked up the piano-accordion and took it with them as they headed out of the premises. Mario shouted, ‘leave that alone, you have no right to take that’! Inspector Raymond answered, ‘You better come with us too then’. Mario, who thought that he was under arrest followed Inspector Raymond and Constable Wayne. He got into the back seat of their car, and they drove a distance before parking and then walked for about ten minutes until reaching the police station. Mario followed the police and did not attempt to leave. On arrival at the police station Inspector Raymond said ‘I am very sorry, but you are not under arrest. You may go now’.
Mario was very confused. He asked for his piano-accordion to be returned to him immediately, but the Inspector replied that he would first have to check if the item was a stolen good. The police have now had the piano-accordion for weeks and despite repeated demands for its return by Mario have not given it back to him.
Please advise Mario in relation to all causes of action he might have (focus your answer on the relevant ‘intentional torts’ covered in our course). Include in your advice a discussion of counterarguments, defences and any other relevant matters.
QUESTION 2
Julian’s neighbour, Phillipa has been operating a small printing business in her house. At times during the day, some evenings, and on weekends, the printing machines make a lot of noise. This has been going on for two years, but Julian has not said anything as he has instead chosen to wear noise cancelling headphones when it bothered him. However, six months ago Julian’s aged father came to his house to convalesce after a major operation. He found the noise intolerable and cannot wear the noise cancelling headphones. Julian took the matter up with Phillipa, but she said there is ‘nothing she can do’. As a result, Julian’s father’s recovery has been slowed down, and he is suffering significant anxiety and depression due to the noise.
Please advise Julian regarding any cause of action he may have against Phillipa. Include in your advice a discussion of counterarguments, defences and any other relevant matters.
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