02 March 2016; written submissions 10 and 14 March 2016
Decision date:
09 June 2016
Before:
Beazley P at [1]; Ward JA at [2]; Leeming JA at [3]
Decision:
1. Appeal allowed.
2. Set aside the judgment and orders made on 18 May 2015.
3. Mr Cachia to have a certificate under the Suitors’ Fund Act 1951 (NSW).
4. The parties are referred to court-annexed mediation. Such mediation is to occur by no later than 21 July 2016.
5. The parties are to attend upon the Registrar of the Equity Division of this Court forthwith to obtain a date for mediation.
6. After 21 July 2016, if the matter is unresolved at mediation, the parties are to file and serve on or before 4 August 2016 submissions not exceeding five pages in relation to the costs of the appeal, with a view to the question of costs being determined on the papers, and the balance of the matter is remitted to the District Court for a new trial on all issues save for the quantification of the heads of damages, such remitter to include determining the costs of the first trial before the primary judge.
Catchwords:
APPEAL – review of findings of primary fact – whether appellable error in failing to resolve all issues of fact and credit – whether failure to grapple with defendant's case – whether appellable error in findings as to damages – whether failure to make sufficient facts to determine all legal issues
TORTS – trespass to the person – negligence – elements of and relationship between – defendant found to have recklessly injured neighbour with gardening shears following altercation – relationship between trespass to the person and Civil Liability Act 2002 (NSW), s 3B(1)(a) where finding of recklessness – elements of self-defence under ss 52 and 53 of Civil Liability Act
[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.
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Details
AGLC
Croucher v Cachia [2016] NSWCA 132
Case
[2016] NSWCA 132
Decision Date
CaseChat Overview and Summary
The appeal in *Croucher v Cachia* concerned a dispute between neighbours where the respondent, Mr Cachia, was found to have recklessly injured the appellant, Mr Croucher, with gardening shears following an altercation. The appeal was heard by Beazley P, Ward and Leeming JJA in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the primary judge had made an appellable error in failing to resolve all issues of fact and credit, in failing to adequately grapple with the defendant's case, and in making findings as to damages. The court also considered the relationship between trespass to the person and the *Civil Liability Act 2002* (NSW), specifically section 3B(1)(a), in circumstances where recklessness was found, and the elements of self-defence under sections 52 and 53 of that Act.
The Court of Appeal found that the primary judge had erred in failing to resolve all issues of fact and credit, and in failing to adequately address the defendant's case. The court determined that the findings of fact were insufficient to determine all legal issues, particularly in relation to the defence of self-defence. Consequently, the appeal was allowed, the judgment of the primary judge was set aside, and the matter was remitted to the District Court for a new trial on all issues, except for the quantification of damages. The parties were also referred to court-annexed mediation.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the judgment and orders made on 18 May 2015.
3. Mr Cachia to have a certificate under the Suitors’ Fund Act 1951 (NSW).
4. The parties are referred to court-annexed mediation. Such mediation is to occur by no later than 21 July 2016.
5. The parties are to attend upon the Registrar of the Equity Division of this Court forthwith to obtain a date for mediation.
6. After 21 July 2016, if the matter is unresolved at mediation, the parties are to file and serve on or before 4 August 2016 submissions not exceeding five pages in relation to the costs of the appeal, with a view to the question of costs being determined on the papers, and the balance of the matter is remitted to the District Court for a new trial on all issues save for the quantification of the heads of damages, such remitter to include determining the costs of the first trial before the primary judge.