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Ass'ad v Nasra

Ass'ad v Nasra

Case [2024] NSWDC 100 8 April 2024

Assault

Battery

Trespass to the Person

False Imprisonment

Compensatory Damages

Aggravated & Exemplary Damages

Tort Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ass'ad v Nasra

Details

AGLC: Ass'ad v Nasra [2024] NSWDC 100
Case: [2024] NSWDC 100
Decision Date: 08 April 2024

CaseChat Overview and Summary

The proceedings before the court were between Ass'ad and Nasra, arising from an altercation that occurred following a dispute over the terms of a property sale. Nasra sold a house to Ass'ad, and subsequently claimed there was an oral agreement that Ass'ad would share any profits from a resale. Ass'ad denied this agreement, and the disagreement culminated in a physical confrontation in the street. Both parties were charged by the police, with Nasra being fined but Ass'ad receiving no conviction. Ass'ad then brought proceedings against Nasra for damages, claiming assault, battery, trespass to the person and false imprisonment, and sought aggravated and exemplary damages.

The court had to determine whether Nasra's actions constituted the torts claimed by Ass'ad. The legal issues included whether the force used by Nasra was excessive and whether it was justified as self-defence. The court considered the evidence and submissions from both parties, including the circumstances surrounding the encounter and the prior dispute. The court also needed to assess the proportionality of Ass'ad's response to any initial aggression by Nasra.

After evaluating the evidence, the court found that the force used by Nasra was not excessive and that Ass'ad's actions were proportionate in response to Nasra's conduct. The court concluded that Nasra's actions did not amount to the torts claimed by Ass'ad and therefore dismissed the claim. The court awarded Ass'ad nominal and derisory damages of $0, reflecting the absence of serious injury or harm. The court also made orders regarding the costs of the proceedings, providing that each party bear their own costs and that there be no order as to costs, with liberty to apply within seven days.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Ass'ad v Nasra [2024] NSWDC 100

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 27 of 28 shown

Doueihi v State of New South Wales (No 3)
[2022] NSWSC 1403 Para 54

…e 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 referrin…
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd
[2022] NSWCA 150 Para 67

…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.…
State of New South Wales v Ouhammi
[2019] NSWCA 225 Para 41

…s 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…
King v Muriniti
[2018] NSWCA 98 Para 37

…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].…
The Nominal Defendant v Cordin
[2017] NSWCA 6 Para 10

…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 contemp…
Cheng v Farjudi
[2016] NSWCA 316 Para 71

…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. Essential…
Coote v Kelly
[2016] NSWSC 1447 Para 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 re…
Dank v Nationwide News Pty Ltd
[2016] NSWSC 295 Para 67

…s, 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 damag…
Farjudi v Cheng
[2015] NSWDC 297 Para 37

…eedings 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 bo…
Woolworths Limited v Perrins
[2015] QCA 207 Para 5

…e 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] NSWC…
Tilden v Gregg
[2015] NSWCA 164 Para 37

…re 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].…
Attorney General in and for the State of New South Wales v Markisic
[2014] NSWSC 1596 Para 36

…iples 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 tendere…
Holt v TCN Channel Nine Pty Ltd
[2014] NSWCA 90 Para 83

…e 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].…
Fahd v Kenneally
[2011] NSWCA 419 Para 32

…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 e…
Styles v Clayton Utz (No 3)
[2011] NSWSC 1452 Para 52

…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:…
Moses v State of New South Wales (No. 3)
[2010] NSWDC 243 Para 61

…) 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 tre…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 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 hour…
Goodrich Aerospace Pty Ltd v Arsic
[2006] NSWCA 187 Para 5

…15] 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.…
Ruddock v Taylor
[2005] HCA 48 Para 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…
Ainsworth v Burden
[2005] NSWCA 174 Para 36

…ent 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]).…
O'Neill v Foster
[2004] NSWSC 906 Para 43

…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.…
Goldie v Commonwealth (No 2)
[2004] FCA 156 Para 42

…n, 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].…
Tame v New South Wales
[2002] HCA 35 Para 62

…her 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:…
Rixon v Star City Pty Ltd
[2001] NSWCA 265 Para 40

…anied 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…
Gray v Motor Accident Commission
[1998] HCA 70 Para 71

…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…
Monti-Haitsma Enterprises Pty Limited v Lord
[1988] NSWCA 95 Para 9

…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.…
Lamb v Cotogno
[1987] HCA 47 Para 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…

Legislation cited in this decision · 7

Uniform Civil Procedure Rules 2005 (NSW)
15.12, 15.7, 15.8, 42.35 4 mentions (from Para 52)
Crimes (Sentencing Procedure) Act 1999 (NSW)
10(1)(a), 9 3 mentions (from Para 18)
Evidence Act 1995 (Cth)
140, 91 3 mentions (from Para 4)
Civil Liability Act 2005 (NSW)
1 mention (from Para 53)
Crimes Act 1900 (ACT)
93C(1) 1 mention (from Para 1)
Defamation Act 2005 (TAS)
42 1 mention
Summary Offences Act 1988 (NSW)
4(1) 1 mention (from Para 2)

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…