Rachel Gardner is suing the NSW police force claiming she was kicked, sat on, handcuffed, pushed against a fence, loaded into a paddy wagon and then dumped at a nearby train station without charge after being caught without a train ticket on March 13, 2011.
Police initially denied the kick occurred but sought to amend their defence in the Sydney District Court on Monday, minutes before the beginning of a five-day trial, after Ms Gardner's legal team revealed they had obtained CCTV footage from Cronulla station.
On Tuesday, Judge Sharron Norton lambasted the force's barrister Matthew Hutchings for presenting an "entirely different" defence document on the morning of the trial but she allowed it and deferred the trial to November.
Ms Gardner, 36, was at Cronulla station with two tourist friends just before midnight when they were approached by transit officers and found to be without tickets.
An altercation ensued when the tourists couldn't produce identification and police attended. Ms Gardner claims that when she protested that one of the tourists was being pinned to the ground by a transit officer, Acting Sergeant Craig Sands kicked both her legs out from under her, breaking her right leg.
In her statement of claim, it is alleged Sergeant Sands then directed a transit officer to sit on her while she was lying face down on the platform before she was handcuffed, told she was under arrest and put in a paddy wagon.
When she objected to what she believed was an unlawful arrest, an officer said ''we don't care if this is legal'', the statement said. Ms Gardner was not taken to a police station and charged. Instead, she was driven to Sutherland railway station and ''left to fend for herself in a seriously injured condition''.
She is seeking damages of up to $750,000 for the injuries as well as the humiliation, disgrace, mental suffering, emotional distress, fear and anxiety, loss of social status and inconvenience caused by assault, false arrest and false imprisonment. A doctor's report says she will likely develop osteoarthritis within five to 10 years.
Her aspirations to become a filmmaker would also be hindered as well as attempts to get casual work while studying at the University of NSW College of Fine Arts, the court heard. Barrister Geoffrey Petty, SC, said the only record of the incident was a standard internal log that was ''brief in the extreme''. He said CCTV footage showed the kick ''as plain as daylight'' and also showed the officers chatting on the station as Ms Gardner limped away.
The police initially denied all Ms Gardner's claims and said she bit and kicked officers.
Mr Hutchings said this was because Ms Gardner's statement of claim was so vague and void of detail that it prevented them investigating the claims and preparing a proper response.
The trial will begin in November.
smh.com.au 24 Sep 2013