Anton v White

CITATION:	Anton v White [2001] NSWCA 66
FILE NUMBER(S):	CA 40974/99
HEARING DATE(S):	13 March 2001
JUDGMENT DATE:	30 March 2001
PARTIES :	Jonathon Anton v Anthony White
JUDGMENT OF:	Mason P at 1; Priestley JA at 2; Barr J at 42

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	7390/97
LOWER COURT JUDICIAL OFFICER :	Mahoney DCJ

COUNSEL:	Appellant - M.C. Ramage QC, D.R. Williams Respondent - J.E. Maconachie QC, I.R. Pike
SOLICITORS:	Appellant - W.R. Ghioni Solicitor Respondent - Carroll & O'Dea
CATCHWORDS:	Claim for damages for assault - dismissed by trial judge - attack on trial judge's findings of fact - whether demonstrably wrong - held: no sufficient basis for interfering with judge - s conclusions based on his principal findings of primary fact
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40974/99

DC 7390/97

MASON P

PRIESTLEY JA

BARR AJA

Friday, 30 March 2001

ANTON v WHITE

1    MASON P: I agree with Priestley JA.

2    PRIESTLEY JA:

Introduction .

On 22 March 1991 Mr J. Anton (the plaintiff) commenced proceedings in the Common Law Division of the Supreme Court against Mr A. White (the defendant). The plaintiff’s statement of claim was in very simple terms. He alleged that on 23 September 1990 the defendant assaulted him, he gave particulars of his injuries, and he claimed damages.

3    The proceedings were later transferred to the District Court.

4    In the final form of the grounds of defence filed in the District Court, the defendant: 1, denied he assaulted the plaintiff; 2, pleaded self-defence; 2A, pleaded (a) inevitable accident, or (b) conduct of the plaintiff involving no fault or want of care on the part of the defendant; 2B, said that the plaintiff had advanced upon the defendant quickly and aggressively and with the intention the defendant be put in fear of his safety and that no action by the plaintiff was maintainable because his actions were unlawful; 2C, said that in the circumstances alleged in 2B, the plaintiff voluntarily assumed risk of injury to himself; 3, did not admit the particulars of injuries or disabilities; 4, said if he were liable for assault, which he denied, the circumstances giving rise to any such liability were provoked by the plaintiff.

5    The case was heard over seven hearing days during October 1999 by his Honour Judge Mahoney QC, who on 17 November 1999 published detailed reasons for his conclusions and ordered a verdict and judgment for the defendant.

6    The plaintiff appealed to this court.

Matters not in dispute .

7    Some of the circumstances relating to the alleged assault are not in dispute.

8    The plaintiff and his wife lived in Unit 3 in a block of four home units. The defendant and his wife lived in Unit 2. Before 23 September 1990 there had been disputes and ill feeling between the plaintiff and the people…