Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 Hearing dates: 16, 17, 18, 21 June 2021, 19 July 2021 Date of orders: 06 July 2022 Decision date: 06 July 2022 Before: Bell CJ, Gleeson JA, Brereton JA Decision: In proceedings 2020/310603 and proceedings 2020/311015 (Ms Clancy, Little Pigeon and Mr Bird’s appeals against A and B):
1. appeals allowed with costs;
2. set aside the orders of the primary judge;
3. in lieu thereof, order that proceedings 2013/375445 be dismissed with costs.
In proceedings 2020/310609 and 2020/310590 (Ms Clancy and Little Pigeon’s appeals against C and D):
1. appeals allowed with costs;
2. set aside the orders of the primary judge;
3. in lieu thereof, order that:
(a) proceedings 2013/375437 and 2020/65223 against the Second Defendant (Ms Clancy) be dismissed with costs;
(b) proceedings 2013/375437 and 2020/65223 against the Third Defendant (Little Pigeon) be dismissed other than in respect of the claims against Little Pigeon based upon vicarious liability, with those claims to be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause;
4. grant C and D a certificate under the Suitors’ Fund Act 1951 (NSW).
In proceedings 2020/311016 and 2020/311017 (Mr Bird’s appeals against C and D):
1. appeals allowed with costs;
2. set aside the orders of the primary judge;
3. in lieu thereof, order that:
(a) proceedings 2013/375437 and 2020/65223 against Mr Bird be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause;
4. grant C and D a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords: APPEALS – appeal by rehearing – functions of appellate court – orders on appeal – new trial – where appellate court has found error – court should resolve issue in order to avoid economic and emotional costs of re-trial to extent possible – torts – trespass to the person – battery – sexual assault against children – allegations attracting Briginshaw principles – where resolution of issue depends on questions of credibility of defendant – where plaintiffs entitled to test evidence and impugn credibility – whether appellate court should order a new trial
EVIDENCE – admissions – civil proceedings – torts – trespass to the person – battery – sexual assault against children – where defendant participated in recorded interview with police – where certain answers given in that interview said to constitute admissions to inappropriate sexual dealing with children – where tendency for inappropriate sexual dealing with children alleged against defendant – where Briginshaw principles applied – reliance not to be placed upon indirect inferences of slender and exiguous proof – whether defendant made admissions as found by the primary judge
EVIDENCE – admissions – civil proceedings – torts –…
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- Case
- [2022] NSWCA 119
- Decision Date
CaseChat Overview and Summary
The appellate court was required to determine several key legal issues. These included whether the primary judge erred in admitting certain disclosures by the plaintiffs as tendency evidence, particularly when some witnesses were unavailable for cross-examination. The court also had to consider the admissibility of Mr Bird's alleged admissions in his police interview, both as tendency evidence against him and as vicarious admissions against Ms Clancy. Furthermore, the court needed to assess whether the primary judge correctly applied the *Briginshaw* standard of proof to the tendency evidence and whether the claims of negligence against Ms Clancy and her company, Little Pigeon, were established. Finally, the court was asked to review the assessment of damages awarded to plaintiffs C and D.
The Court of Appeal allowed the appeals, setting aside the primary judge's orders. The court found that the primary judge had erred in admitting and relying upon certain tendency evidence, particularly where witnesses were unavailable for cross-examination and the evidence was marked by inconsistency and unreliability. The court held that the admissibility of one piece of tendency evidence could affect the probative value of others, and that the judge's reliance on specific evidence could not be separated from the remainder. Consequently, the court concluded that the plaintiffs' claims, particularly those based on the admitted tendency evidence, had not been established to the requisite standard.
In consequence of these findings, the appeals by Ms Clancy and Mr Bird were allowed with costs. The orders of the primary judge were set aside. In Ms Clancy's and Little Pigeon's appeals against C and D, the proceedings against Ms Clancy were dismissed with costs, and proceedings against Little Pigeon were dismissed except for claims based on vicarious liability, which were remitted for redetermination. In Mr Bird's appeals against C and D, his proceedings were remitted for redetermination. Certificates under the Suitors’ Fund Act 1951 (NSW) were granted to C and D in relation to their appeals.
Orders
Orders of the court
In proceedings 2020/310603 and proceedings 2020/311015 (Ms Clancy, Little Pigeon and Mr Bird’s appeals against A and B):
1. appeals allowed with costs;
2. set aside the orders of the primary judge;
3. in lieu thereof, order that proceedings 2013/375445 be dismissed with costs.
In proceedings 2020/310609 and 2020/310590 (Ms Clancy and Little Pigeon’s appeals against C and D):
1. appeals allowed with costs;
2. set aside the orders of the primary judge;
3. in lieu thereof, order that:
(a) proceedings 2013/375437 and 2020/65223 against the Second Defendant (Ms Clancy) be dismissed with costs;
(b) proceedings 2013/375437 and 2020/65223 against the Third Defendant (Little Pigeon) be dismissed other than in respect of the claims against Little Pigeon based upon vicarious liability, with those claims to be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause;
4. grant C and D a certificate under the Suitors’ Fund Act 1951 (NSW).
In proceedings 2020/311016 and 2020/311017 (Mr Bird’s appeals against C and D):
1. appeals allowed with costs;
2. set aside the orders of the primary judge;
3. in lieu thereof, order that:
(a) proceedings 2013/375437 and 2020/65223 against Mr Bird be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause;
4. grant C and D a certificate under the Suitors’ Fund Act 1951 (NSW).
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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