Ass'ad v Nasra

[2024] NSWDC 100

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ass'ad v Nasra [2024] NSWDC 100

Hearing dates:

19-20 March 2024

Date of orders:

08 April 2024

Decision date:

08 April 2024

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1)   Judgment for the plaintiff for $0.

(2) Pursuant to UCPR r 42.35, no order as to costs is made, and each party is to bear his own costs.

(3)   Liberty to apply in relation to costs, such liberty to be exercised in seven days.

(4)   Exhibits retained until further order.

Catchwords:

TORT – assault, battery, trespass to the person and false imprisonment - plaintiff buys house from defendant – defendant asserts there was an oral agreement the plaintiff would split the profits from a subsequent resale with him, which the plaintiff denies – plaintiff and defendant have a chance encounter in the street and come to blows - police called to the scene charge plaintiff and defendant, who both plead guilty – no conviction recorded for plaintiff but defendant is fined - plaintiff brings proceedings for damages for assault, battery, trespass to the person and false imprisonment – claim for damages including aggravated and exemplary damages - nominal and derisory damages

Legislation Cited:

Crimes Act 1900 (NSW), s 93C(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10(1)(a)

Defamation Act 2005 (NSW), s 42

Evidence Act 1995 (NSW), ss 91, 140

Summary Offences Act 1988 (NSW), s 4(1)

Uniform Civil Procedure Rules 2005 (NSW), rr 15.7, 15.8, 15.12, 42.35

Cases Cited:

Ainsworth v Burden [2005] NSWCA 174

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596

Barton v Armstrong [1969] 2 NSWR 451

Cheng v Farjudi [2016] NSWCA 316

Coote v Kelly; Northam v Kelly [2016] NSWSC 1447

Dank v Nationwide News Pty Ltd [2016] NSWSC 295

Doueihi v State of New South Wales (No 3) [2022] NSWSC 1403

Fahd v Keneally [2011] NSWCA 419

Farjudi v Cheng [2015] NSWDC 297

Goldie v Commonwealth (No 2) [2004] FCA 156; (2004) 81 ALD 422

Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187

Gray v Motor Accidents Commission (1998) 196 CLR 1

Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90

King v Muriniti [2018] NSWCA 98

Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822

Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188

Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150

Monti-Haitsma Enterprises Pty Ltd v Lord (1988) Aust Torts Reports 80-200

Moses v State of New South Wales (No. 3) [2010] NSWDC 243

Nestle Australia Ltd v McDougall (Court of Appeal (NSW), 24 June 1998, unrep)

O'Neill v Foster (2004) 61 NSWLR 499; [2004] NSWSC 906

Rixon v Star City Pty Ltd (2001) 53 NSWLR 98

Ruddock v Taylor (2005) 222 CLR 612

Spautz v Dempsey (Supreme Court (NSW), Young J, 29 April 1993, unrep)

State of New South Wales v Ouhammi [2019] NSWCA 225

Styles v Clayton Utz (No 3) [2011] NSWSC 1452

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35

The Nominal Defendant v Cordin [2017] NSWCA 6

Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)

Tilden v Gregg [2015] NSWCA 164

Woolworths Ltd v Perrins [2015] QCA 207

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Nizar Adnan Rfefan Ass'ad (Plaintiff)
Khalil Nasra (Defendant)

Representation:

Counsel:
K Fitzgerald (Plaintiff)
J Sukkar (Defendant)

Solicitors:
Longton Legal (Plaintiff)
Crimcorp Defence Lawyers (Defendant)

File Number(s):

2022/00378161

Publication restriction:

Nil

Judgment

The claim before the court

1. The plaintiff brings a claim for damages for intentional torts of assault, battery trespass upon the person and unlawful imprisonment arising from a fracas between the plaintiff and defendant in a car park on 22 June 2021 at a Bankstown shopping centre. Other persons present intervened to stop them from fighting and rang 000. The plaintiff also rang 000 and asserted (wrongly) that the defendant had a gun. A number of police converged on the scene. Police took both the plaintiff and defendant into custody and they were both charged with offences set out in more detail below, to which both pleaded guilty on 21 June 2022, although no conviction was entered for the plaintiff.

2. The statement of claim identifies the following acts and statements as the basis for his claim:

1. A series of text messages sent by the defendant to the plaintiff between 24 December 2020 and 22 June 2021, which are asserted to have caused the plaintiff to feel apprehension of imminent harm and/or offensive contact (paragraphs 5 – 9 and 11 – 13).

2. Threatening words spoken by the defendant to the plaintiff on occasions between October 2020 and 13 May 2021 (paragraphs 4 and 10).

3. On 22 June 2021 the plaintiff and defendant saw each other at a traffic intersection in Bankstown near the shopping centre and went to the carpark where a confrontation of a physical and verbal nature occurred. This led to the conduct which resulted in the police coming to the scene. The circumstances of this assault are referred to as “the main incident” in this judgment, to differentiate it from the other acts and statements.

3. The main incident particularised in the statement of claim as follows:

“The Defendant yelled words at the Plaintiff in Arabic the effect of which was, inter alia, you mother fucker, I will take my money and take blood and bullets from your head thereby causing the Plaintiff to feel apprehension of imminent harm and/or offensive contact by the Defendant;

The Defendant grabbed the Plaintiff by the front of his jacket and frogmarched/ forced the Plaintiff along The Appian Way and then into a public carpark at the rear of the Compass Centre, Bankstown, New South Wales thereby:

depriving the Plaintiff of his liberty and unlawfully imprisoning the Plaintiff;

committing a trespass and/or battery upon the Plaintiff’s person;

causing the Plaintiff to feel apprehension of imminent harm and/or offensive contact by the Defendant;

At around the time the Defendant frog-marched/forced the Plaintiff to the said public carpark, the Plaintiff made an emergency telephone call to 000 at around which time the Defendant released the Plaintiff from his grip;

The Defendant struck/slapped the Plaintiff’s face several times thereby:

committing a trespass and/or battery upon the Plaintiff’s person causing him to feel immediate pain;

causing the Plaintiff to feel apprehension of imminent harm and/or offensive contact by the Defendant;

The Defendant attempted to stop the Plaintiff making the emergency call to 000 by trying to grab/snatch the mobile phone from the Plaintiff thereby:

causing the Plaintiff to feel apprehension of imminent harm and/or offensive contact by the Defendant;

committing a trespass and/or battery upon the Plaintiff’s person;

The Defendant yelled words at the Plaintiff to the effect that he, the Plaintiff, is eating my money, I am going to fuck his mother thereby:

Causing the Plaintiff to feel apprehension of imminent harm and/or offensive contact by the Defendant.” (DCB 6 – 7)

4. On the first morning of the hearing, the defendant sought leave to file a cross-claim to bring an assault claim in similar terms against the plaintiff. I refused leave, for the reasons set out at the end of the judgment.

The oral evidence and the evidence tendered by the parties

5. The plaintiff and defendant gave evidence and was cross-examined. They were both unsatisfactory witnesses for the following reasons:

1. They not only contradicted each other in their evidence in this court, but even contradicted themselves. The plaintiff’s evidence of most of the incidents was, as is noted in paragraphs 11 - 17 of the defendant’s submissions, “entirely different” to what was set out in the statement of claim; it was also different to his signed statement in the criminal proceedings. The same was the case with the defendant.

2. Both made statements about these events which were self-evidently false. For example, the plaintiff denied any collateral oral contract with the defendant when he had himself had tendered an earlier version of the contract for sale where both he and the defendant were jointly listed as purchasers. The defendant tried to blame his marriage breakdown on the plaintiff, although the date on the decree nisi date shows that he and his wife had been separated some time before the purchase dispute between the plaintiff and defendant occurred.

3. When confronted with any inconsistency between themselves and the police facts, the plaintiff and defendant alike (but the defendant in particular) had no hesitation in blaming the lawyers at the criminal proceedings, the police and/or the witnesses who had attempted to break up the fight. The defendant claimed his legal representatives told him nothing at the criminal hearing except to sign the agreed statement of facts and continued to do so even when shown the statement he signed which contained extensive handwritten amendment, clearly on instructions.

4. The plaintiff’s repeated claims to police that the defendant had a gun (which included a claim that he had put the gun in the boot of a nearby car) were entirely without foundation and, on the balance of probabilities (s 140 of the Evidence Act 1995 (NSW)), knowingly false. Police ascertained that the defendant’s car was parked some distance away, and a search revealed no firearms. The defendant’s account of the events to police were similarly false in many respects.

5. The demeanour of both parties in the witness box left much to be desired. Both the plaintiff and defendant lost no opportunity to denigrate each other. Both made speeches in the witness box rather than answer questions. However, I have placed little weight on this factor, as it has often been observed that an ounce of evidence is worth pounds of demeanour: Woolworths Ltd v Perrins [2015] QCA 207 at [115]. In particular, I need to take into account the factors explained in Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [16]-[31] and I have paid close attention to the explanations and warnings set out in this important judgment.

6. The hatred between the plaintiff and defendant continued after charges were laid. Although the criminal matter was a simple one which should have been resolved quickly, it took a year for the respective parties to be prepared to sign their statements of facts.

7. The hostility between the parties has been evident in the conduct of these proceedings; their legal advisers were not even able to prepare a joint court book, although the contents of the court book are largely identical and only a handful of documents the subject of challenge. (I have referred to extracts taken from these court books as “PCB” for the plaintiff and “DCB” for the defendant respectively).

The credit of the plaintiff and defendant

8. As noted above, my findings of fact must be consonant with the requirements of s 140. This includes issues of credit.

9. Where the court finds the evidence of both parties to be untruthful, but a decision nevertheless has to be made, the determination of disputed issues of fact and damages is never easy: Monti-Haitsma Enterprises Pty Ltd v Lord (1988) Aust Torts Reports 80-200. That is certainly the case here.

10. As to the issue of credibility of the witnesses, I have been guided by the observations of Davies J in Coote v Kelly; Northam v Kelly [2016] NSWSC 1447, which his Honour set out again in The Nominal Defendant v Cordin [2017] NSWCA 6 at [165]. Although his Honour was in dissent in that decision, his summary of the relevant principles, in particular as to the reliability of contemporaneous documents, does not form part of the dissent and is a useful compendium of the relevant principles. I have also taken into account the analysis of credit issues as out in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB), as interpreted in a number of decisions at appellate level.

11. As the evidence of both the plaintiff and defendant is so unreliable, I have preferred to follow the advice of Davies J and to rely the documentation agreed upon by the parties’ legal representatives in their respective Court Book and in particular the police account of these events. While I note that the admissibility of such documents may in some circumstances come into question, no such challenges were made here.

The police records of these events

12. The plaintiff and defendant each rely upon the videos of the incident as recorded by bystanders and upon the witness statements in the criminal proceedings. These statements and videos show two men trying to attack each other.

13. The plaintiff signed Police Agreed Facts on 27 June 2022. These agreed facts were as follows:

“The accused the matter is Nizar ASSAD and the co-accused is Khalil NASRA. The 2 have known each other have known each other for about 4 years in a professional capacity.

Recently the accused purchased a house from the co-accused in Rose Meadows, which was settled respectively through their lawyers. Subsequent to the settlement, the co-accused alleged that the accused still owed him an amount of money. To date the co-accused, hasn't provided any evidence to support this allegation.

About 2.50PM on 22 June 2021 the accused was walking to Bankstown central to get lunch. The co-accused has sighted the accused and approached him aggressively. The co-accused has begun shouting at the accused, making threats and grabbing him to pull him to the rear of the compass centre. This intimidated the accused, who was then pulled into the rear of the Compass centre.

Once at the rear of the compass centre, the co-accused began making more threats and threw punches at the accused. The accused has defended himself and subsequently called triple zero to make a complaint. Upon the assault ceasing, the co-accused began making further threats by saying “I'm going to kill you by gun and take your money”. This has aggravated the accused who swore at the co-accused and began waving his hands. It is the conduct and the words used, that constitute the offence.

Shortly after the police arrived, they spoke to a number of witnesses who were unable to provide police with information as to who was the instigator.

The accused was then cautioned and placed under arrest and conveyed to Bankstown Police Station where he was introduced to the custody manager and read his rights under Part 9 of LEPRA 2002. During the process the accused was polite, compliant, and cooperative.” (DCB 209)

14. This is the version of events to which the plaintiff was prepared to sign. The Police Facts handed to the magistrate gives a different version; in particular, there was no assertion of the defendant dragging the plaintiff to the car park.

Police Facts Sheet

15. The Police Facts Sheet states:

“About 2.50pm on the 22 June 2021 the co-accused was walking to Bankstown Central to get lunch on The Appian Way, Bankstown. The accused was at the pedestrian traffic lights on Compass Central side of The Appian Way when he observed the accused walk out of Bankstown Central Shopping Centre and wait at the lights till they turned green. The accused approached the co-accused on his side of the road and an argument started between the accused and co-accused. The accused and co-accused walked to the rear of Compass Centre to talk away for onlookers.

The accused and the co-accused have gone through the Compass Centre into the rear carpark behind the centre and the library.

A witness Geoffrey MOORE who was in a shop front in the Compass Centre has observed two people walk past the window arguing and believed it may be one of his employees so he went into the carpark to make enquiries.

Another witness Oscar DAVIS who was walking down into the carpark from Featherstone Street entry has observed the co-accused and accused yelling at each other, throwing punches and grabbing for each other. DAVIS commenced filming the incident and tried to calm the situation down.

MOORE got in between both the accused and co-accused separating them and calming the situation down.

The accused has seen something tucked in the co-accused waist line like the size of a phone but was unable to see it. The accused then saw something in the co-accused hand and not knowing what it was grabbed it and threw it away.

The accused started to walk away and called 000 stating that he had been assaulted by the co-accused and that the co-accused had a firearm. Whilst the accused was on the phone the co-accused was following close behind.

Police arrived a short time later observing about 20 people standing around in the carpark watching on. Amongst those people were a couple of young persons. Police spoke to both the accused and the co-accused in the carpark. The accused alleged that the accused had a firearm and was near a black car that he had possibly put the firearm in. The accused stated that the co-accused had struck him to his left cheek 3 to 4 times and said in Arabic to the accused "going to kill you by gun and take the money ... bullet and blood". Police observed redness to the area of his left cheek. When the accused showed Police where the car was allegedly parked the car was no longer at the location. The accused stated that he did not see an actual firearm or the car drive away.

The co-accused provided Police with the keys to his vehicle which he said was not parked at the location but elsewhere close to the train station. Police located the vehicle being a ‘White Toyota Landcruiser. New South Wales registration DA 00 QQ registered to his mother Rouwaida BRAHAM. Police searched the vehicle and did not locate a firearm. The co-accused stated that the accused had scratched him to his neck and kicked his left hand. Police observed scratches to his neck and a red mark on his left hand. “

Witnesses provided footage to Police of an altercation between the accused and the co-accused and from the footage police ascertained both the accused and co-accused where assaulting each other in the public carpark.”

(DCB 35 – 36)

16. This footage was shown in court. It confirms the police account of both the plaintiff and defendant “assaulting each other” while hurling insults.

The plaintiff is charged but no conviction is recorded

17. According to the Court Attendance Notice, Mr Ass’ad was charged with the following offences:

1. Crimes Act 1900 (NSW), s 93C(1) – Affray; between 3:15 and 3:30 pm on 22/6/21 at Bankstown. Nizar Ass’ad did threaten unlawful violence towards Khalil Nasra by conduct such that a person of reasonable firmness if present at the scene would have feared for their safety.

2. Summary Offences Act 1988 (NSW), s 4(1) – Behave in offensive manner in/near/within view from/within hearing from a public place/school between 3:15 and 3:30 pm on 22/6/21 at Bankstown. Nizar Ass’ad did conduct himself in an offensive manner within view of/within hearing of a public place, to wit, carpark next to Bankstown Library off Fetherstone Street.

18. As was the case with the defendant, one charge was withdrawn and the other charge proceeded (Plaintiff’s CB (“CBP”), p 122; plaintiff’s submissions, paragraph 7), to which there was a plea of guilty. The plaintiff had no prior criminal record so no conviction was recorded. The charge was dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

19. The police also searched the plaintiff’s home and two guns were confiscated briefly before being returned (CBP 140 – 141).

The Police Facts concerning the defendant

20. On 17 June 2022, Mr Nasra, the defendant, signed a two-page-plus Full Facts prepared by the police. The first typed page of these Full Facts is very similar to the Full Facts prepared for the plaintiff, but the second section is very heavily altered.

21. The first section is as follows:

“The accused in the matter is Khalil NASRA (21.3.1984) and the co-accused is Nizar ASSAD (14.9.89) both the accused and co-accused have known each other for about 4 years in a professional capacity and would sometimes socialise together. The co-accused purchased a house off the accused in Rosemeadows which was settled privately through their lawyers and the accused now alleges the co-accused owes him a large sum of ‘money as a result of that settlement. The accused alleges that both the accused and co-accused have verbal arrangements for other investment properties and agreements but nothing has been put in writing.

About 2.50pm on the 22 June 2021 the co-accused was walking to Bankstown Central to get lunch on The Appian Way, Bankstown. The accused was at the pedestrian traffic lights on Compass Central side of The Appian Way when he observed the accused walk out of Bankstown Central Shopping Centre and wait at the lights till they turned green. The accused approached the co-accused on his side of the road and an argument started between the accused and co-accused. The accused and co-accused walked to the rear of Compass Centre to talk away for onlookers.

The accused and the co-accused have gone through the Compass Centre into the rear carpark behind the centre and the library.

A witness Geoffrey MOORE who was in a shop front in the Compass Centre has observed two people walk past the window arguing and believed it may be one of his employees so he went into the carpark to make enquiries.

Another witness Oscar DAVIS who was walking down into the carpark from Featherstone Street entry has observed the co-accused and accused yelling at each other, [Note: a passage referring to “throwing punches” is crossed out here] DAVIS commenced filming the incident and tried to calm the situation down.

MOORE got in between both the accused and co-accused separating them and calming the situation down.” (Defendant’s CB (“DCB”) 252 - 3)

22. Most of the rest of the second page of the Police Facts has been crossed out by hand. These alterations are as follows:

1. The next paragraph has been changed by deleting almost three lines of type to say: “The accused has produced his phone to record the incident. The co-accused then taken [sic] the accused’s phone from him [sic] threw it away onto roof of nearby building.”

2. Only the first sentence survives in the next paragraph. Nine lines of typing are deleted. This paragraph now says: “The co-accused started to walk away and called 000 stating that he had been assaulted by the police and falsely stated [Note: “falsely stated” in a handwritten change] that the accused had a firearm. Whilst the co-accused was on the phone the accused was following close behind.” A handwritten sentence is then added: “Whilst this was happening the co-accused has turned to the accused and struck him to [sic] him chest. The co-accused has then proceeded to kick the accused in his stomach.”

3. Four lines from the next paragraph have been deleted. This paragraph now says: “The accused stated that the co-accused had scratched him to his neck and kicked his left hand [a handwritten note adds that “This is evident in CCTV”]. Police observed scratches to his neck and a red mark on his left hand.”

4. The next paragraph says: “Witnesses provided footage to Police of an altercation between the accused and the co-accused” but the rest of the sentence has been deleted. The final paragraph on this page states that witnesses were “unable to provide [sic] Police as to who was the instigator of the altercation.” (DCB 253).

5. Four more paragraphs (DCB 254) set out that on 21 June 2021 the defendant had been arrested and participated in an electronic interview. It is noted that during that interview, he claimed the plaintiff said to him “You have to forget the plan otherwise one shot to the head.”

23. The extensive amount of alteration to this statement is, I consider, a result of instructions from the defendant to his legal advisers. Although the defendant claimed that he had no conversation with his lawyers about any issue and was simply told to “sign here” as he had to plead guilty, I am satisfied that he fought every line of this document in the same way that he fought every question in the witness box. I also consider it relevant that it took until 17 June 2022, almost a year since the altercation, for him to have signed this document.

Other police documents tendered

24. In their statements, the witnesses who had seen the fight all stated that the two men were fighting each other, and did not point to one or the other as an aggressor. None of the witnesses claimed to have seen either of the men dragging or otherwise seeming to be restricting the liberty of the other.

25. The parties also tendered the records of interview. These provide further admissions confirming that the plaintiff and defendant attacked each other. The defendant admitted to spitting on the plaintiff in the course of the Record of Interview (DCB 226). In his oral evidence, he volunteered that he had spat on the plaintiff; the record of interview at DCB 226 confirms this.

The charge to which the defendant pleads guilty

26. According to the Court Attendance Notice for 22 July 2021 (DCB 169), the defendant was charged with the same offences under s 93C(1) of the Crimes Act and s 4(1) of the Summary Offences Act, for identical conduct at the identical time. According to the plaintiff’s submissions, one of the charges was withdrawn. I was not told the penalty but I see that on 17 June 2022 the magistrate’s signed court order sheet refers to a fine of $400 (DCB 168).

27. The defendant, unlike the plaintiff, was not a first offender. He had a prior offence of common assault, on 26 April 2012, arising from a domestic violence incident involving his wife. He had been given a s 9 bond for the earlier offence.

The events leading to the fracas

28. As the police facts set out, the origin of the dispute between the plaintiff and defendant was a real estate transaction. The defendant’s marriage had broken down and the matrimonial home had to be sold (the precise date for this breakdown is unclear, but a Decree Nisi was granted in September 2022, according to Exhibit 4). The defendant hit upon the idea of selling the matrimonial home (in which the family no longer resided, and which was tenanted) to the plaintiff and to himself as joint purchasers; as the unsigned contract for sale at PCB 6 demonstrates, the defendant was listed both as the vendor and as the co-purchaser with the plaintiff.

29. Various explanations were proffered for the reasons for this unusual transaction, such as making use of the first homebuyer’s stamp duty remission scheme, but I am comfortably satisfied that the real purpose was connected with the defendant’s property settlement arrangements, to enable the plaintiff to make a profit at a later stage. The defendant’s wife did not agree to this sale, or even know about it until after the sale was effected; whatever else the parties disagreed on, both stated firmly that the defendant’s wife played no part in this transaction.

30. For unknown reasons, but probably as a result of legal advice, the house for which the defendant was the sole owner was sold outright to the plaintiff, and not to both of them as planned.

31. The defendant told the court he believed that, shortly after the house was sold, the plaintiff would sell the house again and split the profit from the previous sale with him equally (this is the basis of the debt claim for $70,000). He also believed the plaintiff would repay him money he had advanced (variously described as being $4,000 or $11,200) for purchase-related costs. The plaintiff did not do so, and the defendant sent a series of increasingly minatory text messages which contained many messages about religious principles and the importance of going to heaven with a clear conscience. Counsel for the plaintiff submits that these were threatening emails, and that the purpose of the hints was to suggest injury or death might occur if the defendant’s wishes were not complied with.

32. That is not what the messages say. The defendant’s problem was that, even on his own version of the facts, he had entered into an oral, inconsistent collateral contract (Fahd v Keneally [2011] NSWCA 419) for the sale of land which, not being in writing and potentially being for purposes inconsistent with family law legislation, would be difficult and expensive to enforce in a court of law, so the defendant turned to the parties’ common religious beliefs as a source of persuasion. His text messages and phone calls reflected this problem. It was easier for the defendant to try to put pressure on the plaintiff by the use of religious imagery rather than go to court.

33. This is why he never sued the plaintiff. He took refuge in religious principles again, when asked by counsel for the defendant why he had not simply sued the plaintiff for this money, replying he had decided to “forgive” the plaintiff because he had been told by a mutual acquaintance that the plaintiff, although not previously religious, was now regularly praying in the mosque.

34. I do not accept this explanation. I am comfortably satisfied that the dispute between the plaintiff and defendant arose because after they came to this agreement, the plaintiff withdrew from the scheme, leaving the defendant without his secret windfall.

The evidentiary standing of the convictions

35. Each of the parties submits that his opponent cannot discharge the onus of proof to the requisite standard (s 140 of the Evidence Act) for credit reasons. Neither party addressed how I should approach the evidence of the pleas of guilty by both plaintiff and defendant (or the impact of no conviction being recorded for the plaintiff).

36. To what extent, if any, is what happened in the criminal proceedings proof of any issue in this case, having regard to evidentiary principles and provisions such as s 91 of the Evidence Act? As Schmidt J explained in Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596, s 91 does not preclude a judgment being tendered as evidence in other proceedings. To the contrary, it is settled law that a judgment may be tendered in other proceedings in order to establish things other than the truth of the facts found in the proceedings (Ainsworth v Burden [2005] NSWCA 174 at [109]).

37. The practical resolution of how to treat the findings in other proceedings is dealt with in other claims for damages for assault where evidence of criminal conviction has been put before the court. In Farjudi v Cheng [2015] NSWDC 297, where the defendant was charged with assault occasioning actual bodily harm, the defendant had pleaded guilty and been placed on a good behaviour bond for a period of 12 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act. The plaintiff contended that the plea of guilty constituted an admission against the defendant in respect of the claim of self-defence in the pleading (no such defence is pleaded here) and argued an estoppel arose. Sidis ADCJ rejected the submission that the plea created any estoppel, but her Honour considered that the plea might be taken into account in deciding the issues in the civil proceedings if evidence was provided concerning the nature of the facts put before the court when the plea was entered. The Court of Appeal accepted a similar approach in relation to a claim for punitive damages in Tilden v Gregg [2015] NSWCA 164. There is a helpful discussion of how s 91 works, in the context of the legislation as a whole, in King v Muriniti [2018] NSWCA 98 at [12]-[28].

38. In the present case, my task is made even easier as the parties put before me, and consent to the tender of, not only their signed statements but also videos, police facts and witness statements, all of which were tendered without objection.

39. The witness statements, video and police facts paint a vivid picture of two men in a tussle over a debt claim. In the interests of preserving the privacy of those witnesses, several of whom bravely sought to discourage or even to intervene to stop the fighting, I do not propose to set out any further details. Their evidence underlines the accuracy of the Police Facts set out above. While I have taken into account the parties’ attempts, in their signed statements (set out above) to explain the reasons for their actions, I prefer the objective evidence of these more reliable sources to any such attempted explanation. The result is a picture of the plaintiff and defendant trading attacks on each other in circumstances where they are equally to blame.

The relevant principles of law

40. Assault is the apprehension of contact where an intentional offer of force or violence is made to another person, who reasonably believes that the threat will be carried out forthwith. The menace must be accompanied by an intention to raise in the mind of the person threatened an apprehension that violence is about to be committed: Rixon v Star City Pty Ltd (2001) 53 NSWLR 98. Physical presence is not necessary; menace is still evident even where the offer of force is made on the telephone: Barton v Armstrong [1969] 2 NSWR 451 at 455.

41. A battery is constituted by the direct application of force to the person of another, without lawful justification or excuse: State of New South Wales v Ouhammi [2019] NSWCA 225 at [55]. In practical terms, the distinction between battery and assault has largely disappeared from the criminal law and battery is now treated as a form of assault.

42. False imprisonment affects a person‘s liberty as well as his dignity and reputation, and this is reflected in the calculation of damages. The duration, the injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment are relevant: Goldie v Commonwealth (No 2) [2004] FCA 156; (2004) 81 ALD 422 at [14].

43. The parties did not address me on the claim for trespass to the person, but the relevant principles are set out in O'Neill v Foster (2004) 61 NSWLR 499; [2004] NSWSC 906. Any such claim would arise only from the main incident.

44. As is noted above, both parties agreed that I must be comfortably satisfied in relation to my findings of fact pursuant to s 140 of the Evidence Act.

Conclusions

45. I make the following findings of fact:

1. The text messages: I do not propose to set out the text of each of these messages, but I am satisfied that, both individually and collectively, their content is not threatening at all. The defendant is urging the plaintiff to honour the agreement he claims they entered into, and asking for a mediation by a third party. In response to a proposal from the plaintiff that any mediator would have to be unknown to both parties, he puts forward the name of one of the senior heads of the community and provides his phone number. The references to standing before divine judgment hand having a clear conscience at the hour of death about doing the right thing during one’s lifetime are not death threats, but an attempt to invoke resolving their dispute based on religious, rather than common law or equitable, principles. I found the plaintiff’s attempts to claim he was frightened by these to be wholly implausible and additionally to be contrary to his response to them. He invited the choice of a mediator by saying it should be someone totally independent of both parties, and this is what the defendant said he was doing when he named one particular senior member of their community and provided his telephone number so the plaintiff could contact him.

2. The phone calls: The phone calls were essentially requests for the plaintiff to call the defendant because the plaintiff was refusing to take his calls. They sound insistent and rather angry, but do not contain any threats of physical harm, or indeed any threats likely to put a person in fear of anything other than an unpleasant conversation about a deal the plaintiff wanted to deny making. The plaintiff’s claim that he was frightened or anxious was implausible as well as inconsistent with his conduct at the time.

3. False imprisonment: There is no independent evidence corroborating the plaintiff’s account of being dragged along any part of the road or path from the traffic lights to the car park, although such conduct in a public place would have immediately drawn attention, as the immediate response of bystanders showed when the plaintiff and defendant started to fight each other. According to the police facts, the plaintiff and defendant “walked to the rear of Compass Centre to talk away for onlookers”, a more likely scenario, as neither of them wanted to attract attention to their argument. I cannot be comfortably satisfied that any false imprisonment occurred.

4. The main incident: In his evidence, the defendant would only concede that he spat on the plaintiff. That would be enough to constitute assault and battery, particularly as this incident occurred at a time of heightened concern about Covid 19 (the total lockdown order was made three days after these events) when there were requirements for social distancing. I take into account the admissions made by the defendant in his signed statement for the police that he spat on the plaintiff. I am satisfied, however, that the defendant did much more than spit, and that I should accept the evidence of the witnesses who described both men attacking each other, resulting in at least one bystander having to physically intervene. I am satisfied that the defender was the initiator of the assault, although I consider that the plaintiff gave as good as he got in return.

5. If I were to consider any submissions as going to a claim for trespass to the person, I would make the same findings as those set out in (d) above.

46. I am comfortably satisfied, conformably with s 140 of the Evidence Act, that the defendant committed assault and battery on the plaintiff during the main incident, but I find all the other claims made on behalf of the plaintiff are not made out.

Damages

47. The claim for damages for the assault, battery, trespass upon person and unlawful imprisonment and “other assaults” referred to in the statement of claim. I have accepted the evidence of assault and battery for the main incident, and the claim for damages is accordingly reduced to what occurred in the car park on that day.

48. The claim for damages set out at paragraph 17 of the statement of claim seeks damages for:

1. “Personal injury”;

2. “Harm to his reputation”;

3. “Loss of his liberty”;

4. “Loss of his dignity”;

5. “Injury and hurt to his feelings” and

6. “Humiliation”.

49. The plaintiff also makes a claim (described as “either or both”) for “aggravated and/or exemplary damages” (paragraph 18 of the statement of claim). These claims are particularised as follows:

1. “Aggravated damages to compensate the plaintiff for damage to his person, reputation [sic] and damage by reason of the loss of his dignity and liberty”;

2. “Exemplary damages on the basis that the conduct of the defendant was a contumelious disregard of the plaintiff’s rights.”

50. The plaintiff also claims interest (note, however, that interest is not available on punitive damages).

51. Damages are “very much at large” for intentional torts: Louis v Commonwealth (1987) 87 FLR 277 (assault); Ruddock v Taylor (2005) 222 CLR 612 at [140] (false imprisonment). Compensatory damages in the case of the torts of assault and battery are assessed on the basis of the harm to the plaintiff’s in terms of mental and bodily integrity and liberty. It is unnecessary for the plaintiff to establish economic loss or actual injury in order to recover damages. Damages may be, and commonly are, awarded for assault and battery, whether or not the plaintiff is injured or suffers loss.

52. The plaintiff’s statement of claim specifically seeks damages for, inter alia, personal injury. However, there has been no compliance with the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 15.12 for the service of a statement of particulars. Is the plaintiff excused from compliance with this rule because he makes no formal claim for injury or out of pockets? Is UCPR r 15.12 restricted to non-intentional torts? This is a rarely-considered issue as plaintiffs invariably file a statement of particulars, but the answer would appear to be that it does apply. In Styles v Clayton Utz (No 3) [2011] NSWSC 1452, McCallum J pointed out:

“[221] However, a separate complaint made by the defendants must be considered. The defendants submitted, correctly in my view, that the claim attracts the obligation on a plaintiff to comply with rule 15.12 of the Uniform Civil Procedure Rules (which mandates the provision of certain particulars and documents in personal injury claims). Rule 15.12 applies to "a claim for damages in respect of personal injuries arising from any event (the accident)". It was submitted on behalf of the plaintiff that the claim does not attract the application of that rule, since the alleged intentional tort is not an "accident".

[222] In my view, the rule plainly applies to a claim for psychiatric illness allegedly arising as a result of an intentional tort. I propose that the leave to amend to include that claim be conditional upon compliance by the plaintiff with rule 15.12.” (Emphasis added)

53. Styles v Clayton Utz (No 3) is referred to in Ritchie’s Uniform Civil Procedure (NSW) as being the relevant authority on this issue. The learned authors go on to note that claims that have not been particularised may still be made, citing Nestle Australia Ltd v McDougall (Court of Appeal (NSW), 24 June 1998, unrep) but that case predates the Civil Liability Act 2005 (NSW) and related only to out of pocket expenses, as opposed to a total failure to file any particulars. The plaintiff in those proceedings made a “lavish” (at p 23) claim for future out of pocket expenses in excess of $200,000. Mason P held that the trial judge had not erred in awarding out of pockets (although in the more modest sum of $25,000) despite these not being particularised.

54. McCallum J’s ruling was endorsed by Davies J in Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822 at [41]; as these proceedings were still in the interlocutory stage, the plaintiff was simply ordered to file the relevant particulars. In Doueihi v State of New South Wales (No 3) [2022] NSWSC 1403 at [31]-[34], Schmidt AJ similarly held that such particulars must be provided where there was a claim for misfeasance of office, although not referring to either of these two earlier authorities, and directed the plaintiff to file a statement of particulars. I have been unable to find other authority on this issue. In two of the three decisions cited above, the plaintiff was self-represented, which may explain the oversight. However, in Styles v Clayton Utz (No 3), the plaintiff was represented by experienced counsel.

55. In all of the above cases, the situation was able to be rectified before the hearing. The difficulty with these proceedings is that the issue did not come up before the hearing. Counsel for the plaintiff initially indicated that he would abandon the claim for damages for personal injury but his written submissions seek not only general but also aggravated and exemplary damages.

56. In the present case, I propose to proceed with caution. To refuse to entertain a claim at the hearing because of failure to file a statement of particulars is an extreme step, particularly where objection was never taken before the trial. In practical terms, the extremely slight nature of any injuries is such that most of the particulars a party is required to supply (out of pockets, economic loss and care) do not exist here. However, the defendant argues that a statement of injuries would have clarified what these are, as would any claim for future disabilities, even if it transpires there are none.

57. Although I am conscious of the weight of authority being against this course, I propose to overlook the plaintiff’s failure to file a statement of particulars and to proceed to make findings in relation to damages notwithstanding this omission.

58. I understand that the medical evidence, consisting of a hospital attendance note and a medical certificate, may also be non-compliant with service rules. As reliance upon these documents was withdrawn, this is not an issue I need to consider further.

Claims for hurt to feelings and damage to reputation

59. The plaintiff complains that his reputation suffered damage as a result of his being assaulted and that he suffered hurt to feelings. In the absence of any evidence of physical or other injury, great weight was placed on these heads of damage.

60. These are heads of damage more commonly found in defamation actions rather than personal injury claims. Can a plaintiff include a claim solely or substantially for hurt to feelings if he or she is a victim of an assault, or acts of misfeasance of office, or arising out of the circumstances of a motor vehicle accident?

61. An action for defamation can readily be brought for the circumstances in which one person assaults another in the street, particularly where a crowd gathers (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 189-190 (assault and defamatory words on a plane) or the police carry out a public arrest (Moses v State of New South Wales (No. 3) [2010] NSWDC 243 – plaintiff wrestled to the ground by police and arrested outside his father’s home). In the present case, however, only assault and battery (and trespass to the person) are claimed.

62. Where a party brings a claim where the sole or principal damage is to reputation and hurt to feelings, it should generally be framed in terms of a defamation action, in the interests of coherence in the law, and not as some other claim where the exercise of balancing the parties’ rights is performed on a non-defamation basis. In Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at 335 [28], Gleeson CJ stated:

“Furthermore, as in Sullivan v Moody, this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation, and the same need to preserve legal coherence. In the events that occurred, Mrs Tame's reputation was not harmed. But suppose it had been. Then the law would have engaged in an exercise of balancing the rights and responsibilities of Mrs Tame and Acting Sergeant Beardsley by reference to considerations many of which would be rendered irrelevant by the application of the law of negligence.”

63. There are a number of reasons why neither party in these proceedings would wish to be a party to defamation proceedings, only one of which is that certificates of conviction could have been tendered under s 42 of the Defamation Act.

64. That is not to say that a plaintiff in a claim for assault cannot rely upon these heads of damage. However, while feelings of humiliation, hurt to feelings and damage to reputation are matters about which the victim of an assault or trespass to the person may give evidence, these need to be seen in context of the plaintiff and defendant being as “guilty” (in the non-legal sense) as each other of the conduct in question, judging by the witness statements and videos. Any damage to reputation should take into account that members of the community would have been, and appeared to have been, frightened and alarmed by their behaviour, especially where the plaintiff was shouting that the defendant had a gun. The videos show significant police resources were deployed in relation to the gun allegation and that would have been frightening to the bystanders as the assault itself (the defendant claimed that over 70 police attended). In circumstances where the defendant and plaintiff were each trying to attack the other in a public place before concerned onlookers, the plaintiff’s claims for compensation for humiliation, hurt to feelings and reputational damage are difficult, if not impossible to maintain.

General damages

65. The plaintiff seeks an award of $110,000 inclusive of aggravated and exemplary damages.

66. The defendant submits that only nominal damages should be awarded, although Mr Sukkar’s submissions appear to suggest a derisory rather than a nominal award.

67. Derisory damages are awards in the form of the lowest coin of the realm, and were a feature in some of the notable defamation jury trials during the nineteenth and twentieth centuries. In Spautz v Dempsey (Supreme Court (NSW), Young J, 29 April 1993, unrep), Young J awarded two cents damages, although the smallest coin of the realm was five cents. More recently, courts have shown a willingness to award $0: Dank v Nationwide News Pty Ltd [2016] NSWSC 295; Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 at [283] – [287]. No interest can be awarded if the damages are $0.

68. I have rejected all but one of the claims brought by the plaintiff. The plaintiff himself was the subject of adverse findings of fact before the magistrate as to events in relation to the main incident in the carpark at the shopping centre. I have made adverse findings against the plaintiff as a result of the evidence in the videos, witness statements and police material. Members of the public were concerned by the conduct of both parties, not just the defendant. The plaintiff’s conduct on that day does not warrant anything other than a derisory award. In the circumstances I propose to award $0.

Aggravated damages

69. The plaintiff has not provided any particulars in the statement of claim for the award of exemplary damages. The plaintiff’s closing submissions refer to the ‘humiliation” of these events occurring in the carpark which gave a public element to the plaintiff’s assault. The plaintiff still does not identify the conduct impugned.

70. In Tilden v Gregg (at [65]), the Court of Appeal upheld the first instance trial judge’s refusal to award either aggravated or exemplary damages to the respondent by reason of his other conduct on the night, as well as the subsequent criminal conviction for the assault. I do not have any further information before me. In the circumstances, I do not propose to make any award for aggravated damages.

Exemplary damages

71. A question arises as to whether exemplary damages should be awarded where the defendant has been convicted of an offence arising from those events: Gray v Motor Accidents Commission (1998) 196 CLR 1 at [40] and [40]-[45]. These relevant principles were considered in Cheng v Farjudi [2016] NSWCA 316, where the Court considered whether “substantial” punishment occurs in cases where a very light penalty (as is the case here) was recorded. Essentially it is a factor (at [77] and [78]).

72. Another relevant factor in this case is the plaintiff’s role in the fracas. Although no conviction was recorded, his conduct may still be taken into account. As noted above, in Tilden v Gregg, the trial judge’s refusal (on the basis that the matter was not appropriate for such an award, given the history of discord between the parties and verbal provocation on the occasion of the assault) was upheld on appeal. In all the circumstances, I consider that substantial punishment arose from the imposition of the $400 fine on the defendant (I note the fine in Tilden v Gregg was $800).

73. Even if that were not the case, the total absence of proper particularisation of the basis upon which exemplary damages may be awarded would of itself be a reason for refusing to make such an order. A party is obliged to give particulars of the facts and circumstances relied upon to establish a claim for exemplary or aggravated damages: UCPR rr 15.7 and 15.8. All that is pleaded here is a bald claim.

Application by defendant to bring a cross-claim seeking damages for assault, battery and related claims

74. Shortly after the hearing commenced, counsel for the defendant sought leave to bring a cross-claim so that his client could bring a claim in more or less identical terms.

75. The defendant failed to comply with the procedures identified in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. There was no explanation for the delay in commencement, although notice had only been given to the plaintiff the evening before, outside office hours.

76. There are other difficulties. First, there are defects in the pleading (such as the inadequate pleas of aggravated and exemplary damages) and to permit the defendant to amend these where the plaintiff’s particulars require similar amendment would be unfair. Second, it would be necessary for a defence to be filed, and that may require taking instructions as to whether a defence would include a claim of self-defence. This would only increase the hearing time. Furthermore, to permit the bringing of such a cross-claim on the first day of the hearing would provoke public concern about fairness in the administration of justice: Aon at [30].

77. For the above reasons, I refused to grant leave to the defendant to bring a cross-claim.

Costs

78. In anticipation that the damages to be awarded would be small, the parties have provided me with written submissions as to the ambit of UCPR r 42.35. I was not addressed on other costs issues.

79. UCPR r 42.35 provides that if a plaintiff obtains a judgment of less than $40,000, an order for costs may be made, but will not ordinarily be made, unless the court is satisfied that the commencement and continuation of proceedings in this court was warranted.

80. The plaintiff points to the fact that he claimed damages totalling $110,000 and to the complexity of some of the legal questions, such as the availability of exemplary damages where the defendant has been convicted of an offence arising out of the actions the subject of a civil claim. The defendant submits that the legal issues were simple, the evidence documentary apart from the evidence of the parties and that the plaintiff’s failure to provide particulars had resulted in the plaintiff’s personal injury claim being withdrawn during the hearing.

81. The factual issues in these proceedings are issues which the Local Court routinely deals with. Some difficult legal issues have arisen, but largely as a result of pleading failures by the plaintiff. The range of damages likely to be awarded in these proceedings ran a high risk of falling below the threshold, especially if aggravated and exemplary damages were not awarded.

82. While I have found in favour of the defendant on liability for the main incident, these are proceedings which should have been commenced in the Local Court. Accordingly I do not propose to make any costs order in favour of the plaintiff.

83. If I have erred in holding that these proceedings do not involve issues of complexity, I would still have refused to make a costs order of any size in favour of the plaintiff, on the basis that the sum to be awarded ($0) is a derisory verdict: Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 at [88].

84. I was not addressed as to whether there were any offers made. I have granted liberty to apply, to be exercised in seven days, if offers have been made.

Orders:

1. Judgment for the plaintiff for $0.

2. Pursuant to UCPR r 42.35, no order as to costs is made, and each party is to bear his own costs.

3. Liberty to apply in relation to costs, such liberty to be exercised in seven days.

4. Exhibits retained until further order.

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Amendments

08 April 2024 - Typographical errors corrected in [34] and [36].

Decision last updated: 13 May 2025