Croucher v Cachia

[2016] NSWCA 132

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Croucher v Cachia [2016] NSWCA 132

Hearing dates:

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

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3A, 3B, 5, 21, 27, 52, 53, 54
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Crimes Act 1900 (NSW), ss 59, 61
Evidence Act 1995 (NSW), s 140
Suitors’ Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1
Barton v Armstrong [1969] 2 NSWR 451
Blacker v Waters (1928) 28 SR (NSW) 406
Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427
Carter v Walker [2010] VSCA 340; 32 VR 1
Darby v Director of Public Prosecutions [2004] NSWCA 431; 61 NSWLR 558
Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; 85 NSWLR 335
Dean v Phung [2012] NSWCA 223
EPS Constructions Pty Ltd v Mass Holdings Pty Ltd [2015] NSWCA 317
Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81
Fox v Percy [2003] HCA 22; 214 CLR 118
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186
Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1
Hayer v Kam [2014] NSWSC 126
Katter v Melhem [2015] NSWCA 213; 90 NSWLR 164
Keith v Gal [2013] NSWCA 339
McHale v Watson (1964) 111 CLR 384
Miller v Miller [2011] HCA 9; 242 CLR 446
Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77
Norton v Hoare [No 1] (1913) 17 CLR 310
Pateman v Higgin (1957) 97 CLR 521
Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 90 NSWLR 1
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241
Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73; 89 NSWLR 104
Rixon v Star City Pty Ltd [2001] NSWCA 265; 53 NSWLR 98
Sangha v Baxter [2009] NSWCA 78
Shimokawa v Lewis [2009] NSWCA 266
Smith v Jenkins (1970) 119 CLR 397
Spedding v Fitzpatrick (1888) 38 Ch D 410
State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168
State of New South Wales v McMaster [2015] NSWCA 228; 328 ALR 309
Stingel v Clark [2006] HCA 37; 226 CLR 442
Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517
Timmins v Oliver (unreported, New South Wales Court of Appeal, 12 October 1972)
Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan [2001] NSWCA 381; 53 NSWLR 343
Vines v Djordjevitch (1955) 91 CLR 512
Weaver v Ward (1616) Hob 134; 80 ER 284
White v Johnson [2015] NSWCA 18; 87 NSWLR 779
Williams v Milotin (1957) 97 CLR 465
Wilson v Peisley (1975) 50 ALJR 207
Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277

Texts Cited:

Clerk & Lindsell on Torts (20th ed, 2010, Sweet & Maxwell)
J Fleming, The Law of Torts (9th ed, 1998, LBC Information Services)
J Goudkamp and M Zou, “The Defence of Illegality in Tort Law: Beyond Judicial Redemption?” (2015) 74 Cambridge Law Journal 13
P Handford, “Intentional Negligence: A Contradiction in Terms?” (2010) 32 Sydney Law Review 29
J Jolowicz, “Forms of Action – Causes of Action – Trespass and Negligence” [1964] Cambridge Law Journal 200
P Trindade et al, The Law of Torts in Australia (4th ed, 2007, Oxford University Press)
D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, 2013, Lawbook Co)

Category:

Principal judgment

Parties:

Ronald James Croucher (Appellant)
Dennis Peter Cachia (Respondent)

Representation:

Counsel:
D Campbell SC, PM Barham (Appellant)
SE McCarthy, SH Hartford Davis (Respondent)

  Solicitors:
Nyman Gibson Miralis (Appellant)
AC Lawyers (Respondent)

File Number(s):

2015/164957

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

18 May 2015

Before:

Norton SC DCJ

File Number(s):

2013/275470

Headnote

[This headnote is not to be read as part of the judgment]

An altercation between two neighbours led to one, Mr Dennis Cachia, being seriously injured by the gardening shears wielded by the other, Mr Ronald Croucher. Mr Cachia brought actions in battery and negligence in the alternative. Mr Croucher denied that he intentionally or negligently injured Mr Cachia. He maintained that Mr Cachia pushed and punched him repeatedly, and that he had been attempting to defend himself with his shears when Mr Cachia was injured.

The primary judge rejected much of Mr Croucher’s case. Her Honour found that after an oral exchange, Mr Croucher cut three healthy branches from Mr Cachia’s hedge, in response to which Mr Cachia threw his own shears to the ground, and strode towards Mr Croucher moving his arms in a “shooing” motion. Her Honour found that Mr Croucher retreated, and in the course of doing so he thrust his own shears towards Mr Cachia, opening and shutting them. It was during that time that Mr Cachia was injured. Her Honour concluded that the tort of battery had been established, that self-defence was not made out, and that Mr Cachia was entitled to common law damages.

Mr Croucher appealed alleging both errors of law and failures in the primary judge’s findings of fact.

Held by Leeming JA, Beazley P and Ward JA agreeing, allowing the appeal and remitting the matter for retrial:

1.   A defendant who directly causes physical contact with a plaintiff (including by using an instrument) will commit a battery unless the defendant proves the absence of intent and negligent on the defendant’s part, that is, that the defendant was “utterly without fault”: at [21], [24]-[26].

Weaver v Ward

(1616) Hob 134; 80 ER 284, Blacker v Waters (1928) 28 SR (NSW) 406, McHale v Watson (1964) 111 CLR 384, Darby v Director of Public Prosecutions [2004] NSWCA 431; 61 NSWLR 558, Stingel v Clark [2006] HCA 37; 226 CLR 442, applied

J Fleming, The Law of Torts (9th ed, 1998, LBC Information Services), P Handford, “Intentional Negligence: A Contradiction in Terms?” (2010) 32 Sydney Law Review 29, considered

2. Trespass to the person caused by a blow does not require the plaintiff to prove anything about intention: at [23].

Timmins v Oliver (unreported, New South Wales Court of Appeal, 12 October 1972), applied

3. The facts of a case may fulfil the requirements of a cause of action in both battery and in negligence: at [22].

Williams v Milotin (1957) 97 CLR 465, applied

4. Sections 3B(1)(a) and 21 of the Civil Liability Act 2002 (NSW) do not operate upon the particular cause of action pleaded, but instead upon the particular act which gives rise to the civil liability and the intent of the person doing that act. It is therefore necessary to look at the character of the underlying conduct, rather than whether the claim is in respect of an “intentional tort”: at [33]-[35], [117].

State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168, Dean v Phung [2012] NSWCA 223, White v Johnson [2015] NSWCA 18; 87 NSWLR 779, applied

5. Sections 52 and 53 of the Civil Liability Act 2002 (NSW) depend upon whether the conduct to which the defendant was responding was (or would have been) “unlawful”. “Unlawful” extends to conduct which is merely tortious as opposed to criminal: at [42].

State of New South Wales v McMaster [2015] NSWCA 228; 328 ALR 309, applied

6.   There is a tortious assault where the act of a person causes another person reasonably to apprehend a threat of force or violence: [42], [99]

Barton v Armstrong [1969] 2 NSWR 451, State of New South Wales v McMaster [2015] NSWCA 228; 328 ALR 309, Rixon v Star City Pty Ltd [2001] NSWCA 265; 53 NSWLR 98, applied

7. Although not all batteries involve intentional or reckless conduct by the defendant, no error of law is demonstrated by a finding that a reckless defendant has committed the tort of battery: at [83].

Carter v Walker [2010] VSCA 340; 32 VR 1, P Trindade et al, The Law of Torts in Australia (4th ed, 2007, Oxford University Press), J Fleming, The Law of Torts (9th ed, 1998, LBC Information Services), considered

8. A subjective state of mind may be inferred from circumstances other than the person’s own statement as to his or her perceptions: at [104].

Sangha v Baxter [2009] NSWCA 78, applied

9. Where the absence of a reasonable response is dispositive of a question of self-defence under s 52 of the Civil Liability Act 2002 (NSW), it is necessary to consider the application of s 53: at [110].

10. Where there is a real conflict in evidence, it is necessary to engage with, or grapple or wrestle with the cases presented by each party. It is not sufficient to set out the conflicting evidence and conclude, without analysis, that the judge prefers one body of evidence to another: at [124].

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, Keith v Gal [2013] NSWCA 339, Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77, applied

11. The fact that some matters were not addressed at all, or that there were errors in the way in which other matters were addressed, is not of itself sufficient to establish error. Ultimately there must be a qualitative evaluation of what the primary judge has done, having regard to (a) the inherently incomplete nature of his or her reasons, (b) the advantages he or she enjoyed hearing the evidence as the trial unfolded, (c) the matters that were given emphasis at trial and (d) the number and nature of errors identified on appeal: at [125].

Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77, applied

12. Not every matter put in issue has to be resolved lest there be an incomplete assessment of witnesses’ credit. It is sufficient to assess key aspects of the conflicting evidence on the most important issues: at [128].

13. It does not follow from the fact that part of the evidence of a witness is rejected that other aspects must also be rejected. That is so even if it be found that the witness was lying: at [129].

Sangha v Baxter [2009] NSWCA 78, applied

14. An appellate court will not disturb a primary judge’s award of damages for personal injury unless it is convinced that he or she has acted on a wrong principle of law or that he or she has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered: at [193].

Wilson v Peisley (1975) 50 ALJR 207, Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; 85 NSWLR 335, Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 90 NSWLR 1, applied

Judgment

1. BEAZLEY P: Having had the opportunity to read in draft the reasons of Leeming JA, I agree with those reasons and with his Honour’s proposed orders. I would also emphasise the wisdom in his Honour’s proposed order that the parties mediate their dispute. Whatever might be the ultimate outcome of the proceedings, it is apparent that both parties will be involved in substantial legal costs which may not be recoverable in full from the unsuccessful party. The impact this is likely to have only needs to be stated to be appreciated.

2. WARD JA: I have had the advantage of reading in advance the comprehensive reasons of Leeming JA, with which I agree. I also agree with the orders that his Honour has proposed.

3. LEEMING JA: An altercation between two neighbours led to one, Mr Dennis Cachia, being seriously injured by the gardening shears wielded by the other, Mr Ronald Croucher. That in turn led to a six day trial in the District Court, on alternative causes of action in battery and negligence. Mr Croucher has appealed against the judgment obtained by Mr Cachia. I have concluded that the appeal should be allowed and the matter remitted for retrial, unless the parties can resolve their dispute consensually.

4. The grounds of appeal are conveniently divided into two categories: legal and factual. First, it will be seen in what follows that the legal issues arising were numerous and not all were straightforward. The primary judge did not deal with some of those issues, and there were deficiencies in the way others were addressed. I have concluded that some of these grounds should be accepted.

5. Secondly, there was a sustained challenge to the primary judge’s findings of fact and failure to “grapple” with the diametrically opposed cases presented by the parties. I have rejected this challenge. However, reflective of the failure fully to identify the legal issues, there was a failure to find facts sufficient to resolve all aspects of those legal issues.

6. One matter should be emphasised at the outset. The primary judge was not assisted as well as she might have been by the parties in litigation which bristled with legal complexity. There were deficiencies and ambiguities in the pleadings on both sides. There was no mention of the legal issues – most of which sprang from Mr Croucher’s defence – in the short opening given by counsel then appearing for him. There were no oral closing submissions. The parties served very lengthy written documents after the hearing, which failed to highlight the critical matters. Indeed, the legal issues which were prominent on appeal were either not mentioned at all in Mr Croucher’s submissions below, or were deeply buried in them. By way of illustration, the principal points of law raised on appeal were not mentioned in opening and were only to be found in paragraphs 144, 147 and 148 of the 51 single-spaced pages of the defendant’s written submissions.

7. Nothing in these reasons should encourage such an approach to litigation. I think it is plain that the course adopted, which denied to the primary judge the benefit of oral submissions in a complex trial, in which allegations of serious wrongdoing were advanced by each party against the other, hindered the just, quick and cheap identification and resolution of the real issues in the proceedings. Not every trial warrants oral submissions after the conclusion of the evidence (especially if there must be a delay occasioned by obtaining transcript). But this was no ordinary trial.

8. These reasons adopt a slightly unusual order. They do so (a) because there must be a retrial, (b) because the legal issues will recur between the parties and perhaps also between other parties, but (c) mostly because the deficiencies in findings of fact are the consequence of the failure adequately to identify the legal issues. The course I have taken involves providing an initial limited overview of the factual background and findings of primary fact, then dealing with the issues of law which arose, and then returning to the challenges to the primary findings of fact.

Uncontroversial factual background

9. On the afternoon of 2 January 2012, Mrs Vicki Cachia made a triple-0 call because her husband, Mr Cachia, had been injured following an altercation with their neighbour, Mr Croucher. Police arrived at the Panania address shortly thereafter, and found Mr Croucher hosing Mr Cachia’s blood from Mr Croucher’s driveway towards the boundary. He stopped doing so upon being requested by a police officer.

10. Mr Cachia had been wounded by Mr Croucher’s gardening shears. The most serious injuries were to his right thumb and left elbow. There was no dispute that he had lost a deal of blood. He was taken by ambulance to hospital.

11. There was no dispute that Mr Cachia had been trimming the hedge adjoining the boundary in his front yard. Some years before, Mr Croucher had erected a metal dividing fence on the boundary, which had been a sustained source of irritation between the neighbours. Both neighbours had planted hedging on their respective sides of the dividing fence. There was a small gap between the metal fence and the hedge on the Cachias’ land where Mr Cachia was working.

12. It was also common ground that Mrs Cachia was also in the front yard, closer to the house, working on the garden, and saw most of the altercation, although her view was, in part, obstructed.

13. Finally, it was also common ground that Mr Croucher, who had not been gardening, picked up his own gardening shears and walked to the nature strip at the boundary of the properties where the dividing fence ended and looked along the fence at Mr Cachia. In a trial where wildly divergent evidence was given, all witnesses agreed that Mr Cachia asked words to the effect, “Am I doing it right?” and Mr Croucher replied words to the effect, “Yes, but don’t let all your trimmings fall into my side” and Mr Cachia said, “Fuck off”.

14. An altercation ensued, resulting in injuries being sustained by Mr Cachia. The two men were found to have ended up “at or near” the nature strip in front of Mr Croucher’s house.

Overview of the real issues and their resolution

15. It will be necessary in what follows to turn to the details of the evidence and the findings of fact made by the primary judge. It suffices presently, for the purpose of identifying the real issues in this litigation, to note the essential aspects of Mr Croucher’s case and her Honour’s rejection of it.

16. Mr Croucher maintained that Mr Cachia had hacked some of the hedge on Mr Croucher’s land with his shears, in response to which Mr Croucher cut some dead twigs off Mr Cachia’s bush. Mr Croucher said that Mr Cachia threw down his shears in anger and ran at him, shouting “I’ve been waiting a long time to fucking punch you out”. Mr Croucher said that Mr Cachia did push him and punch him repeatedly and that he had been attempting to defend himself with his shears.

17. The primary judge rejected much of Mr Croucher’s case. Her Honour found that after the uncontroversial exchange of oral unpleasantries referred to above, Mr Croucher cut three healthy branches from Mr Cachia’s hedge, in response to which Mr Cachia threw his own shears to the ground, and strode towards Mr Croucher moving his arms in a “shooing” motion. Her Honour found that Mr Croucher retreated, and in the course of doing so he thrust his own shears towards Mr Cachia, opening and shutting them. The men moved sideways, ending up on Mr Croucher’s driveway at or near the nature strip. It was during that time that Mr Cachia was injured.

18. On two occasions, her Honour stated that Mr Croucher was behaving recklessly (“there was a reckless battery of the plaintiff by the defendant” and “the defendant was reckless in the use of the shears”). However, shortly before both of those statements, her Honour stated that the tort of battery had been established (“the actions of the defendant amount to a battery” and “I have found an intentional assault took place”). I mention this because, as will be seen immediately below, Mr Croucher’s state of mind when the gardening shears in his hands caused serious injury to Mr Cachia was a, and perhaps the, central issue in the litigation.

The pleaded causes of action and their elements

19. Mr Cachia alleged two causes of action in his statement of claim: battery (paras 1-10) and negligence (paras 11-17). It is convenient at the outset to bear in mind the different elements of those torts, the different defences, and the different ways they were affected by statute.

20. Battery is one of three forms of trespass to the person, the others being assault and false imprisonment. While it is conveniently and conventionally labelled as an “intentional tort”, in contrast with negligence, such labels can obscure the necessary analysis of (a) the elements of the tort and (b) how the tort is affected by statute. As it is put in Clerk & Lindsell on Torts (20th ed, 2010, Sweet & Maxwell) at 986, “in this context ‘intention’ has a very particular meaning”.

21. A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was “utterly without fault”. The requisite direct contact will be present if the defendant uses an instrument (such as gardening shears): Darby v Director of Public Prosecutions [2004] NSWCA 431; 61 NSWLR 558 at [73].

22. Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It was in those circumstances that a unanimous High Court said in Williams v Milotin (1957) 97 CLR 465 at 474 that “[i]t happens in this case that the actual facts will or may fulfil the requirements of each cause of action” (ie battery and negligence).

23. Within the allegations concerning battery, Mr Cachia’s pleading alleged that “[t]he attack was intentional and designed to inflict serious injury” (para 7). That allegation was, strictly speaking, unnecessary in order to establish liability (although, arguably, the allegation was intended to engage s 3B(1)(a) of the Civil Liability Act thereby permitting the award of damages at common law including exemplary damages – see below). It is clear law in this country that trespass to the person caused by a blow does not require the plaintiff to prove anything about intention. I cannot put the point more clearly than did Jacobs JA, with Manning and Moffitt JJA agreeing, in Timmins v Oliver (unreported, New South Wales Court of Appeal, 12 October 1972). Jacobs JA was writing three months after the commencement of the Supreme Court Act 1970 (NSW) which would bring to an end common law issue pleading refined by Baron Parke which had been said by Cotton LJ, shortly after it had been abolished a century earlier in England, in Spedding v Fitzpatrick (1888) 38 Ch D 410 at 414, to “conceal as much as possible what was going to be proved at the trial”. Jacobs JA rejected a demurrer to two bare declarations alleging that the plaintiff had sustained injuries from the defendants driving a motor boat against him, saying:

“Nothing more has ever been required in an action based on trespass than an allegation of the battery and it is too late in the day to change this now. ... Can we as the curtain falls for the last time on declarations in trespass which have held the stage for centuries say that the play has all this time been played wrongly and according to a bad script? I think not.”

24. The fact that the onus lay on the defendant, and the nature of what was required to be proven, was explained by Windeyer J in McHale v Watson (1964) 111 CLR 384 and by Street CJ (with whom Ferguson and James JJ agreed) in Blacker v Waters (1928) 28 SR (NSW) 406 at 410, in both cases tracing the matter back to Weaver v Ward (1616) Hob 134; 80 ER 284. There it was said that no man may be excused of a trespass “except it may be judged utterly without his fault”. The position in this respect is essentially unchanged four centuries later.

25. As Gummow J said in Stingel v Clark [2006] HCA 37; 226 CLR 442 at [47]:

“[I]n McHale v Watson, Windeyer J demonstrated that, contrary to the view taken by Diplock J in Fowler v Lanning, in an action for trespass to the person by a blow or missile it was for the defendant to aver and prove the absence of intent and negligence on the defendant’s part, rather than for the plaintiff to aver and prove that the defendant acted either intentionally or negligently.”

Gummow J dissented in the result, but the statement of principle reproduced above is uncontroversial. Further, “negligence” means, in this somewhat unfamiliar context, an absence of fault on the part of the defendant (this is another way in which “negligent” bears a variety of meanings, depending upon the context: see Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167 at [39]-[41]).

26. True it is that English law has diverged in this respect, although not without contemporaneous criticism (notably J Jolowicz, “Forms of Action – Causes of Action – Trespass and Negligence” [1964] Cambridge Law Journal 200), but it remains the law in Australia until the High Court determines otherwise. I am aware that this has been criticised by some, notably Professor Fleming. But what that distinguished legal academic called a “misplaced cult of historicism”, I would regard as nothing other than the ordinary operation of legal precedent: see J Fleming, The Law of Torts (9th ed, 1998, LBC Information Services) at 27, a passage reproduced in the 10th edition at 29. More generally, there is no reason for Australian common law to reflect the orderly division seen in systems deriving from Roman law: see P Handford, “Intentional Negligence: A Contradiction in Terms?” (2010) 32 Sydney Law Review 29 at 32-33, and for the same point made in a different context, see Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81 at [46]-[51]. Negligence is centuries younger than trespass to the person. There is no good reason for confining the scope of trespass to intentional acts now, decades after what Gleeson CJ, McHugh, Gummow and Hayne JJ called the “imperial march of modern negligence” (Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [48]), in order to achieve the profoundly anhistoric result that the torts cease to overlap.

27. Misconceptions concerning these basal matters caused confusion throughout the trial and appeal. One example arises directly from Mr Cachia’s pleading. It will be seen that a submission was advanced on appeal by Mr Croucher to the effect that the way the case was pleaded precluded a finding of recklessness by him. The foundation of the submission was paragraph 7 of the statement of claim, which pleaded no material fact and was, strictly speaking, unnecessary to his cause of action.

28. The statement of claim also sought both “aggravated and exemplary damages from the defendant with respect to the defendant’s intentional infliction of injury and damage upon the plaintiff” (para 17). In respect of exemplary damages, the following particulars were given in paragraph 18 (the pleading drew no distinction between allegations and particulars):

“The defendant’s conduct in attacking the plaintiff with the garden shears involved a deliberate intentional or reckless disregard of the plaintiff’s interest, and conscious wrongdoing in the contumelious disregard of the plaintiff’s rights. It was conduct of a character warranting punishment in that the defendant displayed a cruel and reckless disregard for the plaintiff’s welfare and indifference to his plight.”

29. It will be seen here that the statement of claim treated the “intentional infliction of injury and damage” as embracing allegations of intentional or alternatively reckless conduct by Mr Croucher. This is also relevant to a ground raised at the commencement of the appeal, as to whether a finding of recklessness was available on the pleadings.

30. Sections 3B(1)(a) and 21 of the Civil Liability Act 2002 (NSW) relevantly provide:

“3B Civil liability excluded from Act

(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person – the whole Act except:

(i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and

(ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and ...

21 Limitation on exemplary, punitive and aggravated damages

In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.”

31. The consequence of s 3B(1)(a) (noting that no question of sexual assault or sexual misconduct arises in this litigation) is that a key question is whether Mr Croucher is liable “in respect of an intentional act that is done by the person with intent to cause injury or death”. If so, then various limiting provisions on damages in the Act, including the prohibition upon exemplary damages in s 21, cease to apply.

32. The primary judge did not mention s 3B(1)(a). Her Honour adopted the approach which appears to have been common ground between the parties that the effect of s 3B(1)(a) was that most of the provisions of the Civil Liability Act did not apply to the alleged battery (irrespective of how it was established), but did apply to the alleged negligence (irrespective of how it was established). It may be that paragraph 7 of the pleading was drafted with a view to achieving those results, although if so it would have been preferable to refer to the section in terms and not to depart from the statutory language.

33. There is some subtlety in the application of s 3B(1)(a) and s 21. It will be seen that s 3B(1)(a) does not operate upon the particular cause of action, but instead upon the particular act which gives rise to the civil liability and the intent of the person doing that act (I pass over the question whether and if so how s 3B(1)(a) applies to intentional omissions to act). This was the point made by Basten JA in Dean v Phung [2012] NSWCA 223 at [10]: “the statutory scheme is not identified by reference to a particular cause of action”.

34. A cause of action in battery may be established where the defendant’s conduct is either intentional or alternatively merely negligent. The former would engage s 3B(1)(a) and the latter would not. In other words, the language of “intentional tort” is an unsafe guide to whether s 3B(1)(a) is engaged; it is necessary instead to look at the character of the underlying conduct, as explained in White v Johnson [2015] NSWCA 18; 87 NSWLR 779 at [132].

35. Not only is s 3B(1)(a) directed to the character of the conduct rather than the nature of the cause of action; the same is true of s 21, even though that section refers to “negligence”. It is to be recalled that “negligence” is defined in s 5 more broadly than the tort to mean “failure to exercise reasonable care and skill”. That definition is expressed to be only for the purposes of Part 1A. An identical definition is likewise given in s 27 for the purposes of Part 3. Section 21 is in Part 2, in which Part “negligence” is not defined. However, it has been held that s 21 is to be read as extending to all cases, however pleaded, where damages are awarded flowing from a failure to exercise reasonable care and skill: State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168 at [118] (Ipp JA) and [200]-[209] (Basten JA). (I shall put to one side how s 21 applies to the circumstances identified by Gleeson CJ, McHugh, Gummow and Hayne JJ in Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [22]: “there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff”.)

36. The question as to whether Mr Croucher acted with reckless disregard to Mr Cachia’s safety was highly relevant, notwithstanding the state of the pleadings, in at least the following three ways.

1. First, it would inform the assessment of a defence of self-defence.

2. Secondly, it was capable of giving rise to an issue whether s 3B(1)(a) of the Civil Liability Act excluded most of the provisions of the Act, including those limiting the amount of compensatory damages.

3. Thirdly, it was directly relevant to the question of exemplary damages, if indeed s 3B(1)(a) was engaged so as to disapply s 21 of the Civil Liability Act. In that event, whether it was appropriate for Mr Croucher to be punished for his conduct, and if so in what amount, was directly relevant to whether his conduct was intentional or merely reckless.

Mr Croucher’s defence

37. Mr Croucher’s defence alleged that he did not intentionally injure Mr Cachia. It alleged that Mr Cachia’s injuries were sustained in his assault upon Mr Croucher, and it denied that Mr Croucher was negligent.

38. As well as putting in issue much of the conduct, Mr Croucher’s defence pleaded a number of special defences. I pass over various defences under the Civil Liability Act which formed no part of this appeal. His defence also alleged contributory negligence. This plea was confined to the cause of action in negligence, and so I shall also pass over the question whether it could extend to the tort of battery: see Sangha v Baxter [2009] NSWCA 78 at [147] and the cases there cited.

39. Mr Croucher also said that the injuries suffered by Mr Cachia “were occasioned at a time when the plaintiff was committing both a tort and a crime when the plaintiff entered onto the defendant’s land with the intention of and in the act of committing a trespass to land and a battery upon the [defendant]” (para 19 of his defence), such that he was entitled to defend himself. He relied on the ex turpi causa non oritur actio maxim to preclude Mr Cachia from bringing the proceedings or recovering damages. Although this was the first special defence pleaded, it was not at the forefront of his submissions at trial and was not pressed on appeal, and rightly so. To the extent that the maxim had any application, it would be preserved by s 3A of the Civil Liability Act (see below). However, it is sufficient for the purposes of this appeal to observe that six Justices of the High Court of Australia reaffirmed what Windeyer J had demonstrated in Smith v Jenkins (1970) 119 CLR 397, namely that “it is greatly to be doubted that the maxim, properly understood, has any application in tort”: see Miller v Miller [2011] HCA 9; 242 CLR 446 at [13]. As was there stated at [56], the law in England has followed a different path, and one which has attracted strong criticism (for example, J Goudkamp and M Zou, “The Defence of Illegality in Tort Law: Beyond Judicial Redemption?” (2015) 74 Cambridge Law Journal 13).

40. Mr Croucher also pleaded ss 52, 53 and 54 of the Civil Liability Act, all of which are found in Part 7 of that Act. Accordingly, those provisions were not excluded by s 3B(1)(a). Instead they fell within the limited exception of provisions which were not disapplied in the event that s 3B(1)(a) was engaged.

41. Sections 52 and 53 address self-defence. Those two sections are as follows:

“52 No civil liability for acts in self-defence

(1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding:

(a) was unlawful, or

(b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

(3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only:

(a) to protect property, or

(b) to prevent criminal trespass or to remove a person committing criminal trespass.

53 Damages limitations apply even if self-defence not reasonable response

(1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that:

(a) the circumstances of the case are exceptional, and

(b) in the circumstances of the case, a failure to award damages would be harsh and unjust.

(2) If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award:

(a) Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B (1) (a), and

(b) no damages may be awarded for non-economic loss.”

42. Sections 52 and 53 depend upon whether the conduct to which the defendant was responding was (or would have been) “unlawful”. In State of New South Wales v McMaster [2015] NSWCA 228; 328 ALR 309 it was held that unlawful extended to conduct which was merely tortious, as opposed to criminal (see at [200]-[204] per Beazley P, with whom McColl and Meagher JJA agreed). I think that McMaster is probably to be read as meaning that tortious conduct in this context does not merely mean that the elements of a tort have been established, but also that no defence has been made out. This gives rise to complexities, which were not the subject of any submissions when the appeal was argued, once it is observed that in most cases when self-defence is invoked there will have been an assault in the technical tortious sense. There is a tortious assault where the act of a person causes another person reasonably to apprehend a threat of force or violence: see Barton v Armstrong [1969] 2 NSWR 451 at 455 and State of New South Wales v McMaster at [205].

43. Further, the onus of establishing the elements of self-defence lies on the defendant: Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 at [162]; contrast the position in crime. That accords with ordinary principles of ordinary statutory construction: see Vines v Djordjevitch (1955) 91 CLR 512 at 519-520. I am conscious that the matters mentioned in the previous paragraph may give rise, at least in theory, to some more precise questions as to the onus of establishing aspects within the “unlawful” element of statutory self-defence. However, the present case seems most unlikely to turn on onus, and I should not be understood as expressing any view on such questions, which, once again, were not the subject of argument.

44. Once a plaintiff’s conduct has been found to be unlawful, s 52 prescribes two necessary and sufficient conditions to establish a defence of self-defence: demonstrating the requisite subjective belief on the part of the defendant, and also that the defendant’s conduct was a reasonable response to the circumstances as perceived by him or her. One should be cautious before labelling the second limb of the test as “objective”, because it contains both subjective and objective elements: Sangha v Baxter at [151]; I shall refer below to the “reasonable response limb” of the defence.

45. In the event that the only reason for the defence under s 52 being unavailable is that the reasonable response limb was not satisfied, then s 53 imposes a prohibition upon ordering damages, which can be lifted if the court is satisfied that the circumstances are exceptional and that it would be harsh and unjust not to order damages, in which case damages are available, but calculated on a special basis.

42. Self-defence is also available as a defence to battery at common law. The common law defence is preserved alongside ss 52 and 53 by s 3A(1):

“3A Provisions relating to operation of Act

(1) A provision of this Act that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or law.”

In State of New South Wales v McMaster at [210] (Beazley P, McColl and Meagher JJA agreeing on this issue), this Court held that self-defence at common law was preserved.

47. Mr Croucher’s defence did not invoke self-defence at common law, nor was it raised on appeal, and so may be passed over. However, Mr Croucher’s defence took full advantage of both statutory defences. It alleged that the complete defence of self-defence in s 52 applied. Alternatively, in the event that Mr Croucher’s conduct was not a reasonable response, it alleged that the circumstances were not exceptional and that it would not be harsh or unjust not to award damages, in accordance with s 53.

48. It is necessary to reproduce paragraph 24 of the defence in its terms:

“In the premises of paragraph 19 the defendant pleads the provisions of Part 7 of the Civil Liability Act 2002 (‘CLA’), in particular sections 52, 53 and 54 and says that the actions of the plaintiff were criminal and that the defendant’s response was reasonable in the circumstances as he saw them and that his conduct was necessary to protect himself from the plaintiff.”

It will be seen that paragraph 19, which was invoked at the outset, alleges that Mr Cachia’s conduct was both a tort and a crime, but that the balance of paragraph 24 asserted only that Mr Cachia’s actions were criminal. That gave rise to another pleading point, this time advanced by Mr Cachia, debated on appeal – how to resolve the reference in paragraph 19 of Mr Croucher’s defence to tort and crime with the narrower allegation of crime in paragraph 24 when s 52 is first invoked.

49. Mr Croucher also alleged that Mr Cachia’s actions constituted a serious offence, being breaches of ss 59 and 61 of the Crimes Act 1900 (NSW) (common assault and assault occasioning actual bodily harm) and s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (stalking or intimidation with intent to cause fear of physical or mental harm), and invoked s 54 of the Civil Liability Act. That section provides:

“54 Criminals not to be awarded damages

(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that:

(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and

(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.”

50. A serious offence is an offence punishable by imprisonment for six months or more. The onus lies on the defendant: Presidential Security Services of Australia Pty Ltd v Brilley at [124]. It will be seen from the reference to the civil standard of proof in paragraph (a) that the prohibition in s 54 applies even if it is not possible to prove the elements of the offence to the criminal standard. It is not necessary to analyse the relationship between s 54 and autrefois acquit.

51. The prohibition in s 54(1) does not apply if the conduct of the defendant is itself an offence: s 54(2). In circumstances such as the present where it is plain that Mr Cachia suffered actual bodily harm, it seems clear therefore that the availability of s 54 will be inter-related with questions of self-defence.

The issues

52. The real issues emerging from the pleadings, therefore, required precise findings as to the circumstances in which Mr Croucher wounded Mr Cachia:

1. what was Mr Croucher’s state of mind when his shears caused injury to Mr Cachia – was his conduct intentional, or reckless, or was he merely “negligent” (in the special sense that word is used in this context), or was he entirely without fault?

2. was Mr Croucher responding to conduct on the part of Mr Cachia which was tortious or criminal, and therefore “unlawful” for the purposes of statutory self-defence?

3. if yes to (2), did Mr Croucher perceive that what he did was necessary to protect himself or his property and was it a reasonable response to the circumstances as perceived by him?

4. if yes to (2) and Mr Croucher’s response was not a reasonable response, although Mr Croucher believed it was necessary to protect himself or his property, then were the circumstances of the case exceptional and would a failure to award damages to Mr Cachia be harsh and unjust?

The trial and the reasons of the primary judge

53. The trial was listed for three days. It lasted for six days. There were very short openings, and very long cross-examinations of Mr and Mrs Cachia (most of days 1-4) and Mr and Mrs Croucher (most of days 5 and 6). The parties supplied lengthy written submissions after the hearing. There were no closing addresses.

54. The first 125 paragraphs of the reasons of the primary judge summarise the evidence adduced at trial and the submissions made by the defendant directed to inconsistencies in the evidence of Mr and Mrs Cachia. They are descriptive, rather than evaluative, and need not be summarised for present purposes.

55. There followed, under the heading “Credit Findings”, 12 paragraphs of reasoning to which it will be necessary to turn when dealing with Mr Croucher’s submission that the primary judge failed to “grapple” with his case. Speaking generally, the primary judge accepted the accounts of Mr and Mrs Cachia, and rejected much of Mr Croucher’s evidence.

Factual findings on liability

56. Under the heading “Factual Findings on Liability”, her Honour then made findings of fact, at [138]-[146], as to how the incident occurred. Although some are subject to Mr Croucher’s challenge, it is convenient to reproduce her Honour’s resolution of the conflicts in the evidence in its entirety. They give a full description of the basis on which the primary judge analysed the legal issues arising on the pleadings, as well as illustrating how her Honour engaged with the conflicting evidence at trial:

“138. Mrs Cachia was working on the hedge near the house and her husband was standing between the hedge and the fence closer to the road.

139. The defendant came out of his house, spoke to Mrs Cachia and then went and picked up his shears. The defendant then carried the shears onto the nature strip and stood near the letterbox.

140. The plaintiff asked the defendant if he was doing it to his liking and a verbal argument developed between the two. The defendant remained on the nature strip but moved further to the plaintiff’s side of the fence. From a position in front of the hedge the defendant cut 3 pieces from the plaintiff’s hedge with his shears. This was the cutting motion Mrs Cachia saw when she stood up.

141. I find the plaintiff did not cut the defendant’s hedge first as Mrs Cachia did not hear the conversation the defendant alleges took place when that was happening, the plaintiff denies it and the defendant made no mention of it to the police when they arrived. The defendant admits he cut the hedge but maintains it was smaller, dead branches. I accept Mrs Cachia’s explanation that the 3 branches she photographed were healthy and vigorous branches and would not have been cut by her husband and thus on the balance of probabilities they were cut by the defendant.

142. The plaintiff then told the defendant to fuck off and stepped out of the hedge onto his lawn, threw his shears to the ground and strode towards the defendant moving his arms in a shooing motion. I accept Mrs Cachia’s oral evidence that the defendant did not stand like a statue in front of his letterbox and his movement was merely a detail which was not included in her statement. The defendant, who was on the nature strip on the plaintiff’s side of the fence snipping the hedge, took some steps back with his shears up and then thrust the shears at the plaintiff opening and closing them. The plaintiff was injured by these actions. The two men then moved in a sideways motion as described by Mrs Cachia towards the defendant’s property with the defendant being closest to the street. While this was happening the defendant continued to thrust and open and shut his shears. It is likely the plaintiff perceived these thrusting motions as the defendant coming towards him.

143. The altercation ended on the defendant’s driveway at, or near, the nature strip after the plaintiff had been injured and after Mrs Cachia had yelled at them to stop. By this time the plaintiff was bleeding profusely.

144. I do not accept the plaintiff said that he had been waiting a long time to punch the defendant as Mrs Cachia did not hear any such words, the plaintiff denied it and the defendant did not tell the police when they arrived that the plaintiff had threatened to punch him. I do not accept that the plaintiff shoulder charged the defendant nor that he continually deliberately hit or punched him through open shears. Exhibit B shows evidence of at least 3 other surface cuts to the plaintiff apart from the 3 deep cuts on the arm and the laceration of the thumb. These were severe lacerations which suggest a sharp implement used with some strength rather than accidental contact.

145. I reject the defendant’s evidence that the plaintiff ran at him and that he grabbed his wrist or chopped his right arm or wrist. I reject the defendant’s evidence that the plaintiff punched the shears and caused them to hit the defendant’s pelvis and that the plaintiff threw a punch through open shears which connected with the defendant’s chest. The defendant did complain of an injury to his general practitioner a couple of days later but the GP recorded there was no visible bruising and the doctor’s diagnosis is based on the history given to him by the defendant. On the following day the doctor again noted ‘no external bruising.’ If the defendant was a frail old man who had been viciously attacked by the plaintiff the defendant would have sought medical assistance from the police or at least told them he was injured.

146. I find the incident took place on the nature strip and the defendant’s driveway near where it passes through the nature strip. The plaintiff did not pursue the defendant through his property and such blood as can be seen on the photographs is on the defendant’s property as a result of being hosed there from where the attack took place. When Senior Constable Cross arrived the defendant was standing on the driveway where it crosses the nature strip hosing (Exhibit A12, Exhibit A11), and the blood was, even after the hosing, near the front of the hedge (Exhibit 12).”

Battery

57. Her Honour found that the conduct amounted to a battery. There are aspects of her reasons for doing so which are, with respect, somewhat unclear.

58. There was no doubt that Mr Cachia was injured by coming directly into contact with Mr Croucher’s gardening shears. The critical question was Mr Croucher’s state of mind. Her Honour reproduced at [149] the elements of battery as outlined in Carter v Walker [2010] VSCA 340; 32 VR 1. At [150], her Honour stated that the requisite intention was that the defendant must have intended the consequences of contact with the plaintiff, although the defendant need not know that the contact was unlawful, and need not have intended to cause harm or damage, and need not have had hostile intent or an angry state of mind.

59. There followed two differently worded findings which were the subject of submissions on appeal. At [151] her Honour said:

“I have found that the plaintiff did not shoulder charge the defendant and thus it follows that, subject to any available defence, the actions of the defendant amount to a battery.”

60. However, at [153], her Honour said:

“I find that the evidence is sufficiently probative to establish that there was a reckless battery of the plaintiff by the defendant.”

61. At [154]-[166] her Honour dealt with self-defence under the Civil Liability Act and the plaintiff’s alleged criminality under s 54. In relation to s 54, her Honour said that on the factual findings she had made Mr Cachia was not involved in any conduct which would amount to a serious offence: at [160].

62. The primary judge dealt with self-defence at [161]-[166]. Her Honour first observed that s 52 depended on the plaintiff’s conduct being unlawful, and noted that “[o]n the findings I have made there is no unlawful conduct on the part of the plaintiff”. In explanation, or summary, of that conclusion, her Honour said:

“The plaintiff strode towards the defendant after having disarmed himself by throwing away his shears. His purpose in striding towards the defendant and making a shooing motion while telling him to fuck off was to prevent the defendant from further damaging the hedge. The defendant’s oral evidence suggests that the initial injuries to the plaintiff were accidentally caused when he was pushed off balance ...”

63. However, her Honour went on to deal with the other aspects of s 52. Her Honour observed that the onus of proving self-defence lay on the defendant (at [162]) and, by reference to Presidential Security Services of Australia Pty Ltd v Brilley, referred to the two limbs of the inquiry (at [163]-[164]). Her Honour then said if Mr Croucher’s conduct had been no more than merely holding his shears up as a barrier, that might have satisfied both limbs of the test: at [165]. However, at [166], her Honour said:

“I have found, however, that the defendant did more than simply hold his shears up as a barrier between himself and the plaintiff. I have found that he opened and closed them and thrust them towards the plaintiff. The defendant denies he did this and thus there is no evidence as to whether he thought it reasonable or not. On the second limb of the test I find that what the defendant did was not a reasonable response to the circumstances as he perceived them and thus the defence of self-defence is not made out. I accept that the defendant is 20 years older than the plaintiff but I do not accept that he was frail or handicapped in any way. I have found that he opened and closed the blades of the shears while thrusting them at the plaintiff. The plaintiff was unarmed. In those circumstances even if the defendant believed that the plaintiff was intending to attack him his response of using the shears as a weapon rather than a shield is not a reasonable response in the circumstances.”

64. Her Honour did not deal with s 53.

Negligence

65. Her Honour observed that because she had found an “intentional assault took place” the question of negligence did not directly arise. Passing over how her Honour addressed statutory defences which were not agitated on appeal, her Honour regarded duty as clear and, after a brief analysis of s 5B, concluded that there was breach in opening and shutting gardening shears while close to another person and thrusting them at that person.

66. Her Honour rejected a defence of contributory negligence. Her Honour concluded at [171] that:

“My findings of intentional [sic] tort are on the basis that the defendant was reckless in his use of the shears and it is clear that using the shears in this way gave rise to a foreseeable risk of injury.”

Possibly, that passage contains a typographical error, and “intentional” should read “unintentional”. This was the conclusion of her Honour’s reasons dealing with negligence.

Damages

67. Her Honour assessed damages at common law and under the Civil Liability Act in the amounts of $236,031.04 and $135,948.54 respectively, and gave a judgment in the amount of the former. I will return to how those amounts were calculated when dealing with the challenge to them in grounds 11 and 12 of the appeal.

68. Finally, in rejecting the application for exemplary damages, her Honour stated that she had not found that Mr Croucher had acted “in a high-handed fashion or with malice, although there is an element of the defendant’s conduct which suggests there was a reckless disregard for the welfare of the plaintiff”: at [225].

Issues arising in the appeal

69. Mr Croucher’s notice of appeal seeks orders that the judgment be set aside and there be a new trial. That comes about in two ways. First, at the purely factual level, Mr Croucher contends that there was a failure in the process of finding primary fact. That may be seen in ground 9 (a failure to “grapple” with the competing parties’ cases) and grounds 2, 4 and 5 (challenges to the findings that Mr Cachia was on Mr Croucher’s land, to the failure to find that Mr Croucher did not intentionally, recklessly or negligently cut Mr Cachia, to the finding that Mr Cachia had not committed a serious offence, and to the finding that Mr Croucher was not acting in self-defence).

70. Secondly, at the level of legal analysis, at the forefront of Mr Croucher’s amended notice of appeal (for which leave was granted at the hearing over the opposition of Mr Cachia), there were complaints about the failure properly to consider self-defence under s 52 and the failure to consider self-defence under s 53 at all (grounds 4A, 4B and 5).

71. All of these grounds, if made out, gave rise to issues which could not be determined by this Court. Mr Cachia did not contend to the contrary.

72. There were also grounds of appeal directed to challenging the finding of no contributory negligence and to aspects of the calculation of damages (grounds 10-13). These were the subject of minimal submissions by Mr Croucher. Three grounds (grounds 6-8) were abandoned prior to the hearing of the appeal. Ground 1 was conclusionary.

73. In what follows, I have found it convenient largely to follow the order proposed by senior counsel for Mr Croucher:

“I think I said at the very beginning this morning, the recklessness point and this 52 53 point is really the guts of it, as far as I’m concerned. I know we had the arguments about fact finding issues, because if I succeed on one of the first two points, then the judgment can’t stand, and your Honours wouldn’t have to make a final decision about the fact finding process.”

Ground 3 – the finding of recklessness

74. Ground 3 of the notice of appeal alleged error “in finding that there was a reckless battery of the respondent by the appellant constituting an intentional tort (judgment paragraphs [153] and [171])”. That ground, as developed orally and in supplementary submissions, had a number of elements.

Was a finding of recklessness open on the pleadings?

75. First, Mr Croucher contended that the finding by the primary judge that Mr Croucher had assaulted Mr Cachia recklessly was not open on the pleadings. “The first criticism we make of her Honour with respect to those central findings on the intention[al] tort question, is that it was not open to the Court to make the finding that was made”.

76. That complaint had not been previously articulated in Mr Croucher’s written submissions. By way of explanation for this and other departures, senior counsel for Mr Croucher candidly acknowledged that he had only recently been briefed on the appeal. I do not doubt that that was the position. But it does not cure the potential unfairness which arises when new points are raised without proper notice on appeal. Mr Cachia was given leave, when he said he would prefer to deal with it by supplementary submission, to do so (transcript, 2 March 2016, pp 72-73).

77. I would reject Mr Croucher’s submission. As noted at the outset, the pleading of intention on which the submission is based was unnecessary to establish the tort, and departed from the language of s 3B(1)(a). I would accept that an allegation which is strictly unnecessary can nevertheless shrink the matters in issue in litigation. However, the allegation supporting the claim for exemplary damages expressly pleaded intentional and reckless conduct in the alternative. Indeed, on a fair reading of paragraphs 17 and 18 of the statement of claim, I would regard “intentional” conduct as including references to conduct which was reckless. A finding of recklessness was amply within the scope of the pleadings.

Was a finding of recklessness made?

78. Mr Cachia then put in issue whether a finding of recklessness was in fact made. Although her Honour stated at [153] and [171] that Mr Croucher was reckless in his use of the shears and that there had been a reckless battery, those statements followed statements at [151] that “the actions of the defendant amount to a battery” and at [167] that “I have found an intentional assault took place”, statements which were stressed by Mr Cachia.

79. Two other aspects of the judgment bear on this point. Her Honour cited as authoritative a proposition taken from Carter v Walker [2010] VSCA 340; 32 VR 1 at [215] that:

“it may be that an act [constituting battery] should also be considered intentional if it is substantially certain the act will result in contact with the plaintiff; and perhaps also if the act is reckless with respect to contact with the plaintiff”.

80. The whole of that proposition is qualified by “it may be”, and the portion concerning recklessness is further qualified by “perhaps also”. Plainly the Victorian Court of Appeal treated recklessness in this respect as being contestable or unsettled. But there is no further legal analysis in her Honour’s judgment to explain why, if her Honour’s findings turned upon recklessness and she was applying the proposition stated by the Victorian Court of Appeal, she regarded recklessness as sufficient. This might, on one view, suggest that her Honour in fact did not make a finding of recklessness for the purpose of establishing the tort, and that her Honour’s findings were directed only to rejecting a (statutory) defence of self-defence.

81. There is also the reference at [225], dealing with exemplary damages, concerning an element of Mr Croucher’s conduct “which suggests there was a reckless disregard for the welfare of the plaintiff”.

82. Nevertheless, I have concluded that her Honour did find that Mr Croucher was reckless when he wounded Mr Cachia. I do not consider Mr Cachia’s reading of the passages in her Honour’s reasons which are directed to encapsulating the basis on which her Honour had ruled as one that is available as a fair reading of the reasons as a whole. Even if the reference at [225] is equivocal, the earlier statements are not. I do not consider that the repeated references to recklessness can be disregarded in the manner suggested by Mr Cachia.

83. Ultimately, I think that her Honour regarded battery as an intentional tort, and regarded the mental elements as being satisfied by a finding of recklessness. As I have endeavoured to explain, that seems to have reflected the common approach adopted by the parties, although it is one which imposes a more burdensome threshold for a plaintiff than Australian law demands. But although not all batteries involve intentional or reckless conduct by the defendant, no error of law is demonstrated by a finding that a reckless defendant has committed the tort of battery.

84. I should say that the doubt expressed in the proposition in Carter v Walker is sourced from the equivocation in P Trindade et al, The Law of Torts in Australia (4th ed, 2007, Oxford University Press) at 41-43. Much of the doubt there expressed derives from the view of Professor Fleming that battery is reserved for intentional conduct. As I have already indicated, that view is not sound, at least as a matter of Australian law: binding authority holds that a reckless or even a negligent defendant may be found to have committed battery.

Was there appellable error in making the finding of recklessness?

85. Finally, Mr Croucher contended that because of the seriousness of the finding of recklessness, the requirements of s 140(2) of the Evidence Act 1995 (NSW) had to be met. I did not understand this to be developed in oral submissions, but he submitted in writing that in light of the “significant discrepancies” in the evidence of Mr and Mrs Cachia, and “the vague evidence as to when and where the injuries occurred”, the primary judge could not have been satisfied to the requisite standard. Alternatively, the primary judge, if so satisfied, was required to have explained how she had reached that state of satisfaction.

86. In State of New South Wales v McMaster at [191], Beazley P said:

“An act is reckless where the person foresees the likelihood of causing injury or fear but nonetheless, in acting, ignores that risk: Vallance v The Queen (1961) 108 CLR 56 at 61 per Dixon CJ; Blackwell v The Queen [2011] NSWCA 93; 81 NSWLR 119 at [76]. An act will not be reckless if the person does not advert to the consequences of the conduct concerned: Macpherson v Brown (1975) 12 SASR 184 at 189.”

87. I think that senior counsel for Mr Croucher was correct not to emphasise this part of his case in oral submissions. I agree with him that the finding that Mr Croucher had recklessly injured Mr Cachia with his shears was a sufficiently serious matter to attract the operation of s 140(2) of the Evidence Act. However, Mr Croucher accepted that he was aware (as he must have been) that he was holding a gardening tool with two open blades which were sharp:

“Q. Was there something special about the sharpness of the blades of your shears?

A. No, nothing special. Yeah, they would be sharp.”

88. As will be seen in more detail when dealing with ground 9, Mr Croucher maintained that he did not open and shut the shears, but rather that Mr Cachia had placed his arm through the gap between them. Even so, I fail to see how it was not open to the primary judge to be comfortably satisfied that Mr Croucher foresaw that Mr Cachia could be injured by coming into contact with the open blades, and yet ignored that risk. That is sufficient to sustain a conclusion of recklessness. It was after all quite plain (not least, from the photographs taken that day) that Mr Cachia had been cut twice seriously, and on some four other occasions superficially.

Grounds 4A, 4B and 5 – self-defence

89. As noted earlier, the statutory defences in ss 52 and 53 of self-defence are available irrespective of the operation of s 3B(1)(a), and so it is convenient to turn immediately to them.

90. Ground 5 of Mr Croucher’s appeal contended that there was error “in finding that [Mr Croucher] was not acting in self-defence or that his actions were excessive (judgment paragraph [166])”. In his written submissions, this was developed in a single paragraph, which largely turned on the claimed deficiencies in the findings of fact.

91. Ground 4A asserted error in the rejection of the defence under s 52 by failing to consider and conclude that Mr Cachia’s conduct was unlawful, and failures in relation to both limbs of the defence. Ground 4B asserted a failure to consider the defence under s 53. No complaint was made about these matters in the written submissions filed in advance of the hearing.

92. As noted above, the elements of s 52 self-defence are that the plaintiff’s conduct be “unlawful”, the subjective belief of the defendant, and the defendant’s conduct being a reasonable response in the circumstances as perceived by the defendant. I deal with each in turn.

Was Mr Cachia’s conduct unlawful?

93. The primary judge concluded that there was no unlawful conduct on the part of Mr Cachia: at [161] (reproduced above). In reaching that conclusion, her Honour did not explain expressly what was meant by “unlawful”. However, it seems clear that her Honour treated “unlawful” as meaning criminal. That emerges from the fact that the reasons were relevantly confined to a statement that Mr Cachia’s purpose “in striding towards [Mr Croucher] and making a shooing motion while telling him to fuck off was to prevent the defendant from further damaging the hedge”. Although it may be accepted that that was sufficient to support the conclusion that none of the crimes pleaded in Mr Croucher’s defence was being committed as Mr Cachia approached, Mr Croucher submitted that it did not address whether Mr Cachia was committing a civil assault as he approached.

94. Against this, Mr Cachia submitted that a civil assault had not been pleaded, that the evidence at trial could not sustain the tort of assault, and that Mr Cachia would have had a good defence as a reasonable response to prevent Mr Croucher from further damaging the hedge. I deal with each response in turn.

95. I would reject Mr Cachia’s submissions based on the pleadings. It is true, as was submitted on appeal, that the defence does not refer to the tort of assault (but rather trespass to land and battery), and that there is an apparent inconsistency between paragraph 19 of the defence (which refers to tort and crime) and paragraph 24 (which invokes paragraph 19 but then alleges that Mr Cachia’s conduct was criminal in support of the availability of the statutory defence). How are those two paragraphs to be reconciled?

96. The tort of assault was squarely raised in the written submissions, without objection (Mr Cachia filed substantial submissions in reply). In his written submissions at trial (under the heading of self-defence), Mr Croucher said:

“The defendant was the subject of an assault by the plaintiff. Assault consists of intentionally creating in another person an apprehension of imminent harmful or other offensive conduct (Hall v Foneca [1983] WAR 309).”

97. Mr Cachia’s submissions at trial did not take the point that merely tortious conduct was outside the scope of either the pleaded defence or s 52.

98. Mr Cachia’s acquiescence at trial is consistent with one of two possibilities. Either the allegation of intending to commit a battery was treated as encompassing a civil assault, or else to the extent necessary Mr Cachia must be taken to have permitted Mr Croucher to go slightly beyond his pleaded defence to make a submission based on civil assault. It is unnecessary to express a view as to which possibility is more likely, because in either case, I would reject Mr Cachia’s submission based on the state of the pleadings.

99. I also do not accept that a finding that Mr Cachia was committing an assault was not available on the evidence. In addition to what was said in Barton v Armstrong, to which I have earlier referred, the elements of a civil assault were more elaborately stated by Sheller JA, with the agreement of Priestley and Heydon JJA, in Rixon v Star City Pty Ltd [2001] NSWCA 265; 53 NSWLR 98 at [56]-[58], in terms which emphasised the irrelevance of the defendant’s intention to carry out the threat:

“A traditional definition of assault is ‘an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect’; see Clerk & Lindsell 12-12. The irrelevance of the intention to carry the battery into effect is demonstrated by the act of presenting an unloaded firearm in such circumstances that if it had been loaded its discharge would have been likely to cause injury. Such an act is an assault unless the person at whom it is pointed knows that it is empty; see generally Clerk & Lindsell 12-13.

According to Fleming, The Law of Torts, 9th ed, at 31-32:

‘Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact. … there may be an assault without battery if the threat to inflict unlawful force is not in fact carried out. … Since the gist of assault lies in the apprehension of impending contact, the effect on the victim’s mind created by the threat is the crux, not whether the defendant actually had the intention or the means to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm.’

Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact; see, for example, Hall v Fonceca [1983] WAR 309. If the assault lies in creating an apprehension of impending contact, proof of the assault does not require proof of an intention to follow it up or carry it through.”

100. There was ample evidence to support a finding that Mr Croucher apprehended being struck by Mr Cachia. There was disputed evidence that Mr Cachia had said “I’ve been waiting a long time to fucking punch you out”, just as there was disputed evidence that Mr Cachia did in fact punch Mr Croucher. But what was critical on this issue was not whether Mr Cachia intended to apply force to Mr Croucher, but what Mr Croucher apprehended.

101. Even on the findings of the primary judge, when Mr Cachia threw his shears to the ground and strode towards him, Mr Croucher then “took some steps back with his shears up”. That is entirely consistent with an apprehension by Mr Croucher of impending contact.

102. It may well be that Mr Cachia had a good defence to what would otherwise be an assault, because it was in the protection of his property (that is to say, his hedge). The statutory defence only applied if Mr Cachia believed it was necessary to protect the unlawful destruction, damage or interference to his property: s 52(2)(c), and a defence might also have been available at common law (see Norton v Hoare [No 1] (1913) 17 CLR 310 at 321-322). But once again, these defences would have involved quite nuanced findings of Mr Cachia’s state of mind as he approached Mr Croucher.

Mr Croucher’s subjective response

103. Although the finding of absence of unlawful conduct would have been dispositive of self-defence, her Honour proceeded to deal with the remaining elements of it. Her Honour did not expressly state that she was doing so in the alternative.

104. Because the primary judge rejected the account given by Mr Croucher, her Honour rejected the first limb of self-defence. Her Honour said that “there is no evidence as to whether he thought it reasonable or not”. There are two difficulties with that approach. The first is that the question posed by s 52(2) is whether the defendant thought the conduct was necessary. The second is that the trial judge’s approach resembles that which was held to be erroneous in Sangha v Baxter. Basten JA said at [153]:

“[T]he defendant challenged the approach adopted by the trial judge in this passage on the basis that he was not precluded from relying upon the defence because Mr Nagra did not give relevant evidence as to his own perceptions. ... The principle remains good that a subjective state of mind may be inferred from circumstances other than the person’s own statement as to his perceptions.”

Was Mr Croucher’s response reasonable?

105. Next, her Honour turned to the final aspect of the test, and found that Mr Croucher’s conduct was not a reasonable response “and thus the defence of self-defence is not made out”. Her Honour did so on the basis that while merely holding the shears as a barrier might have been a reasonable response, thrusting and opening and shutting them was not.

106. On one reading, her Honour put to one side the issues of unlawful conduct and Mr Croucher’s subjective state of mind, and determined this defence by reason of the reasonableness of his response. Indeed, I would regard that as the most natural reading of this aspect of her Honour’s reasons. I do so for two reasons. The first is that if that is not so, then her Honour has misused the word “thus”. Her Honour said “I find that what the defendant did was not a reasonable response to the circumstances as he perceived them and thus the defence of self-defence is not made out”. If for that reason the defence of self-defence failed, then it would seem to follow that her Honour did not regard the other elements of the defence as dispositive. In other words, only if the second limb of the defence was regarded by her Honour as dispositive would “thus” be correct.

107. The second reason is that her Honour’s reasoning on this limb is relatively expansive, contrasting the use of the shears as a barrier with opening and shutting them and thrusting with them.

108. That said, I accept that it is less than clear whether, in rejecting self-defence, her Honour was (a) solely relying upon the reasonable response limb, or (b) relying on Mr Croucher’s failure to satisfy both limbs, or (c) relying on Mr Croucher’s failure to satisfy both limbs as well as her finding that there was no unlawful conduct.

These grounds are made out

109. For present purposes, Mr Croucher’s challenge to the factual findings relevant to this part of the reasons may be deferred. Notwithstanding the uncertainty about precisely how the primary judge rejected the defence of self-defence, I have concluded that on any view of her Honour’s reasons, material error is disclosed on the basis of the facts as found.

110. First, on what I regard to be the most natural reading of her Honour’s disposition of s 52, her Honour treated the reasonable response limb as dispositive. That discloses error, because it was necessary in those circumstances to deal with s 53, for only if satisfied under s 53 was Mr Cachia entitled to any damages, and even then, they would be calculated differently. But there is no suggestion in the judgment that her Honour paid any regard to the prohibition upon awarding damages imposed by s 53, nor to the discretionary power to lift the prohibition in the event that the circumstances were found to be exceptional and that a failure to award damages would be harsh or unjust.

111. Secondly, if her Honour also relied on the failure by Mr Croucher to show that Mr Cachia’s conduct was unlawful, that too shows material error, by confining attention to crime and not dealing with the lively possibility that he was committing an assault.

112. Thirdly, even if her Honour’s reasons are to be read as relying on each of the three elements of s 52, then her Honour has, in addition to the foregoing, applied the wrong test for Mr Croucher’s subjective state of mind, and proceeded on the unduly narrow approach that his state of mind could not be inferred from the circumstances of the case but could only be sourced in direct testimonial evidence.

113. In short, irrespective of whether there are one, two or three independent bases for her Honour’s rejection of statutory self-defence, error is disclosed on each basis. The result is that the rejection of the defence cannot stand. I would regard grounds 4A, 4B and 5 to be made out.

114. Although this Court can affirmatively find that the judgment discloses error, there are insufficient factual findings as to Mr Croucher’s state of mind for this Court to determine whether the defence should be made out, and so, regrettably, a retrial is necessary. There may appear to be an inconsistency between a finding of error and an inability on the part of this Court to form an affirmative view of its own. That result reflects the “natural limitations” of an appellate court proceeding on the record to which the High Court referred in Fox v Percy [2003] HCA 22; 214 CLR 118 at [23], especially, the very real disadvantage this Court has in not having heard the oral testimony of the witnesses in light of the contemporaneous documents and objective probabilities: see Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [17] and [84].

Section 3B(1)(a) of the Civil Liability Act

115. As noted above, s 3B(1)(a) excludes the applicability of many sections of the Civil Liability Act to “civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death”.

116. Her Honour appears to have proceeded implicitly on the basis that the cause of action in battery is one which engages s 3B(1)(a) and therefore is not subject to the limitations of the Civil Liability Act. Section 3B(1)(a) would undoubtedly apply if there were a finding that Mr Croucher had intended to injure Mr Cachia, but on balance I consider that the better reading of the judgment is that her Honour found merely that he was recklessly indifferent to the prospect that opening and shutting the shears and thrusting them at Mr Cachia would cause injury.

117. It is far from clear that conduct which is reckless, even if it amounts to an “intentional tort” such as battery, engages s 3B(1)(a). It is perfectly clear that a battery which involves merely negligent conduct will not engage s 3B(1)(a). This is because, as noted above, s 3B(1)(a) looks to the nature of the conduct found to occur, rather than to the cause of action which has been pleaded.

11. I remember Ron opening and closing his shears as he approached me. Ron was about five feet away from me. The shears got my left elbow and above the elbow and my right thumb. I don’t know what I was saying at the time. I remember I was ducking and weaving to avoid the shears and defend myself against the shears that Ron was holding. I don’t recall whether he was saying anything.

12. We ended up on his driveway which I think was because I was backing away from Ron to get away from the shears. I don’t know why he stopped attacking me but as soon as he did I could see that my left elbow was spurting blood and really bleeding profusely. I grabbed my left elbow with my right hand to try and stop the blood. At this stage I hadn’t even noticed that my thumb was bleeding. I yelled at Vicki to get me an ambulance. I remember Vicki running inside and then I remember Ron’s wife started abusing me. I can’t remember exactly what she said but I remember saying to her, ‘Get your facts right. He attacked me.’

13. I walked across to my house because I could hear Vicki yelling at the triple 0 operator hysterically. I paced around and around at the bottom of our stairs outside our home. Vicki kept telling me to sit down and then a police car arrived. One of the police officers got some bandages and told me to let go of my arm. He put the bandages on my arm to stop the bleeding and that is when I noticed my right thumb was swollen and cut. While we were waiting for the ambulance to arrive, I could see Ron standing on his driveway hosing it down. I had left a large amount of blood on his driveway. Two ambulance vehicles turned up and I was taken to Liverpool Hospital.

…

16. At no time did I deliberately assault Ron. If I did hit him it would only have been when I was flailing my arms about to defend myself.”

Contemporaneous statements by Mr Croucher

140. The police arrived at the premises before the ambulances. When they arrived, the senior constable saw Mr Croucher hosing the blood from his driveway towards the shrub area, and told him to stop doing so. He complied with her instructions. She rendered first aid to Mr Cachia and was told “[m]y neighbour’s cut me with his garden shears”. Another constable who attended with her remained with Mr Croucher. That constable did not give evidence. Mr Croucher gave evidence (three years later) that he had spoken to a male police officer, who asked what had happened. He said that “I got pushed over by him, I said, next door I said and I put my arms up and I was defending myself”.

141. Mr Croucher was taken to the police station and charged. He said that he did not seek any medical treatment and gave this evidence:

“They asked me if I wanted any medical treatment, I said no because I didn’t think they had what I wanted.”

142. Mr Croucher said that he tried to go to medical centres at Panania and Revesby on the following day but was unable to see a doctor, although he told the receptionists at both that he was in a lot of pain. His own doctor, Dr Mistry, returned from holidays on 4 January. The doctor’s notes record the following:

“[A]lleged to have been assaulted on Monday 2/1/2012 about 4pm by a neighbour. Stated while gardening trimming plant with shears – had argument with a neighbour – neighbour punched him on left anterior chest wall with a fist. Mr Croucher attempted to protect himself. The neighbour got injured (cut his arm on the blade of the shears) ... L[eft] anterior chest wall pain along parasternal area – along 4, 5th, 6th anterior ribs. Pain on inspiration. No haemostasis. … Left anterior chest wall no external visible bruising. Local tenderness along left anterior chest along 4, 5th, 6th rib anteriorally – chest clear[.] No other injury. D[iagnosis] bruised left anterior chest wall.”

143. The doctor requested a chest X-ray, which showed no rib fractures, and no constriction to the lungs on full expansion. There was an anterior wedge facture in the thoracic area with a reduction in vertical height, but no evidence as to whether that was before or after the incident, and senior counsel for Mr Croucher very properly confirmed that the symptoms complained of were not directly referable to an anterior wedge fracture (Transcript 2 March 2016, p 28).

144. Mr Croucher prepared a statement “just a few days” after the incident which he dictated to his wife. The statement was faxed to the solicitors on 18 January 2012 and was tendered in evidence in re-examination, it having been suggested to Mr Croucher that he had concocted his evidence. There was no application to cross-examine Mr Croucher on that statement. It also appears that Mrs Croucher gave a statement, but this was not tendered. Mr Croucher’s statement was as follows:

“On Monday Jan 2nd at about 4pm I came out of my house after getting a drink of water. Picking up my shears that I had left against the wall outside of my house walking up my driveway I noticed Vicki sitting under her bushes up close to her house. I did not speak to her. I walked to the last bush to trim. I stood in front of my letterbox looking down the boundary fence line. I saw Dennis trimming his bushes. He shouted at me ‘Am I doing it right’. I said [‘]ok but don’t let all your trimmings fall into my side’. He then told me to ‘fuck off. Fuck off into your house. Get off my fucking property’. Vicki shouted abuse also. I told her to shut up. I said I am on Council property.

He put his shears over the fence to my side hacking into my bushes and said ‘How about that’. I said ‘I can do the same’. I cut a couple of dead twigs off his bush. He then threw down his shears in rage ran at me from where he was trimming his bushes shouting ‘I’ve been waiting a long time to fucking punch you out’. I stepped back on my driveway to face him. I pulled my shears against my body. They were open from cutting his bush. He pushed me in the chest with his right shoulder pushing me off balance. I felt a punch to my left hip and a knock of some sort there as well. He threw a left hand punch at me through the shear blades. I put my hands up holding the shears to protect myself. His punch connected with my chest injuring me, also injuring himself on the blades. He then walked around me to the left of me. I turned to face my house. Seeing he was injured I thought he had finished attacking me so I walked about 1 step towards my house, lowering the shears and nearly closing them. Suddenly he started to attack me from my left side. I pushed my left shoulder against his right shoulder trying to push him away. He put his right hand and pulled on my left wrist pulling the shear blades open again. I nearly closed them again then I think I got an elbow or chop on my wrist which opened the blades again. There was a lot of pushing and jostling going on.

Vicki jumped up from behind the bushes screaming. She screamed out stop. He stopped right away.

I closed the shears and started to walk towards my house. My wife came out to see what was going on. She looked at Dennis and said ‘You didn’t like the fence so we put a creeper over it to hide the fence. You weren’t happy with that. You need to grow up Dennis.’

The attack was very fast, lasting only a couple of minutes.

I said to my wife, ‘I’m going in to wash the blood off my hands and wrists’. I asked her to pull the hose around to the front to wash the blood off my driveway. A police officer said, ‘Stop hosing. This is a crime scene.’ I said ‘Sorry I wasn’t thinking’.

I consulted my doctor about my painful chest. I thought I had a cracked rib. He sent me for an X-ray. I’m very sorry Dennis injured himself. This should never have happened” (minor typographical corrections made).”

145. All witnesses were cross-examined extensively (although Mr Croucher was not cross-examined upon the statement tendered in re-examination). It is not necessary to summarise the cross-examination in order to resolve this ground of appeal.

Similarities and differences in the contemporaneous accounts

146. It is convenient first to summarise what emerges from those relatively contemporaneous statements.

147. First, all statements are relatively detailed.

148. Secondly, the statements were diametrically opposed.

149. Thirdly, all the statements (including the histories taken from Mr Cachia in Liverpool Hospital and from Mr Croucher by his general practitioner) were prepared at a time when the prospect of a criminal prosecution was real and imminent. They were also made between parties with a lengthy history of antipathy and antagonism. All of the foregoing enhances the probability that some (and perhaps all) of the statements were self-serving and for that reason unreliable.

150. That said, and noting that it is self-evident that the ultimate findings of fact will turn upon an assessment of credibility under cross-examination, there is substantial corroboration between Mr and Mrs Cachia’s statements, which were found to have been prepared independently. There is also what I would regard as a high level of detail in Mrs Cachia’s statement, including about relatively peripheral matters, consistently with an attempt to give a full account of what she saw and heard earlier that day.

151. Naturally there were inconsistencies between the accounts given by each of Mr and Mrs Cachia, and the various accounts of Mr Cachia himself. For example, the reference that Mr Cachia “tried to grab the shears” in the history taken at Liverpool Hospital is not repeated in either later statement. The reference in Mr Cachia’s first statement to “I can’t remember if I pushed him or not” is not repeated in the second statement.

The resolution of primary facts by the primary judge

152. The primary judge was thus faced with diametrically opposed evidence as to what had happened immediately before Mr Cachia was injured. At some stage it was clear that Mr Croucher had ceased approaching Mr Cachia, for it was plain that by the end of the altercation, the men were located on Mr Croucher’s driveway. It was also plain that not only had Mr Cachia been badly cut twice, but also he had sustained more minor cuts to his arm. It was common ground that Mr Croucher had cut off two or three branches of the Cachia hedge, but it was disputed whether they were “dead twigs” as Mr Croucher contended, or living branches, and it was disputed whether his doing so was a response to Mr Cachia cutting branches of Mr Croucher’s hedge. Perhaps most importantly for present purposes, the way in which Mr Cachia advanced upon Mr Croucher was hotly contested, as was whether he had “run at him” and repeatedly punched him.

153. Her Honour approached the resolution of the factual dispute as follows.

154. First, her Honour stated that the history between Mr Croucher and Mr Cachia reflected poorly on the credit of both. Her Honour observed that Mr Cachia, although becoming agitated from time to time, appeared to be making genuine attempts to answer questions put to him, and that at times, understandably, he had difficulty comprehending those questions. Her Honour said that Mrs Cachia had the demeanour of “someone quietly and honestly answering the questions that were put to her”. In contrast, Mr Croucher’s demeanour was “somewhat belligerent” and Mrs Croucher “presented as someone who was very protective of her husband”.

155. However, having made those findings as to demeanour, her Honour acknowledged that “demeanour findings are of limited importance”. That reflects an appropriate recognition of the limitations on the fact-finding process: see Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [16]-[27].

156. Her Honour then turned to the contemporaneous documents and made the observation that the statements Mr and Mrs Cachia made on 2 January 2012 had been given at a time when there had been little, if any, opportunity for them to discuss what had happened (see further below).

157. Her Honour then contrasted what Mr Croucher had said to the police officers at the time, and his handwritten statement. She regarded the differences as significant. She said at [129]:

“At that time the defendant simply said that Mr Cachia ‘pushed him first’. He did not volunteer any information about shoulder charges, punches or the plaintiff cutting his hedge first. Similarly in his oral evidence the defendant stated that he informed a male police officer that he had been pushed but agreed he made no mention of the matters which appear in the handwritten statement and that he did not request medical attention. His explanation for that omission was that he did not think they would have what he wanted. This is not a compelling explanation as he did not explain what he wanted and, other than an X-ray, the defendant received no treatment.”

158. Her Honour observed that two matters reflected poorly on Mr Croucher’s credit: hosing the blood off his driveway and a statement made to the police, when seizing the shears, that they were his. Her Honour also stated that a suggestion that Mrs Croucher was anxious to engage Mr Cachia about the historical dispute regarding the fence, if it had happened, reflected poorly on her credit, and if it did not occur, it reflected poorly on the credit of both of Mr and Mrs Croucher.

159. Her Honour then addressed the objective probabilities and said at [131]:

“Even with the benefit of having seen the defendant demonstrate how he claims the injuries were occasioned to the plaintiff I find it improbable that they were sustained by the plaintiff shoulder charging and deliberately and repeatedly punching the defendant through the shears even after he was cut. The plaintiff suffered from numerous cuts and scratches which suggest a prolonged attack. I have difficulty understanding how the opening and closing of the shears could be caused by the plaintiff grabbing and pulling the defendant’s wrist.”

160. Her Honour regarded Mr Croucher’s explanation of his coming to be on the street with his shears but without his gloves and gardening box to be implausible. However, her Honour regarded Mrs Cachia as an honest and straightforward witness whose testimony was supported by the statement given by her to police on the day, and that:

“[s]uch differences as there are between her statement and her evidence, and the defendant suggests there are many, I find are matters of detail only and no more or less than what one would expect given the passage of time”.

161. The primary judge did not accept Mr Croucher’s submission that it was inexplicable that Mr Cachia could not remember the exact sequence of events, which had occurred three years previously and had resulted in serious injuries and significant blood loss to him. Her Honour did not regard Mr Cachia’s view that he regarded the nature strip on his side of the boundary (which he mowed) as his own as reflecting adversely on his credit, although there were aspects of his evidence which she rejected (for example, his evidence that he mowed the lawn twice a week). Her Honour concluded at [137]:

“I therefore accept Mrs Cachia’s evidence. I find the plaintiff made a statement to police on the night and did this without the opportunity of seeing his wife’s statement. I generally accept his evidence. Where his oral evidence conflicts with his wife’s I prefer her evidence.”

162. As will have been seen in the passage reproduced above containing the “Factual findings on liability”, her Honour attended to the inconsistencies in the evidence in the course of making findings of fact. In [141], her Honour accepted that some of Mr Cachia’s hedge had been cut by Mr Croucher, and resolved in light of Mrs Cachia’s testimony and the probabilities that they were healthy and vigorous rather than dead. In [142], she dealt with the failure by Mrs Cachia to mention that Mr Croucher moved back. Her Honour also resolved the discrepancy between Mr Cachia’s evidence that Mr Croucher was coming towards him with what had been said by the other witnesses, to the effect that it was likely that Mr Cachia perceived Mr Croucher’s thrusting and opening and shutting of his shears as Mr Croucher coming towards him. Her Honour rejected Mr Croucher’s claim that Mr Cachia had said he had been waiting a long time to punch him, on the basis that Mrs Cachia did not hear him say this, it was denied by Mr Cachia, and Mr Croucher did not say as much to the police. Her Honour rejected Mr Croucher’s claims that he was punched, on the basis that he did not seek medical assistance from the police, did not tell the police he was injured, and by reason of the absence of external bruising when he was examined by his general practitioner two days later.

Resolution of ground 9

163. First, as noted above, there was no need for the primary judge to reproduce and resolve each and every one of the litany of complaints advanced in the written submissions. Her Honour was entirely correct to refer to there being extensive submissions, and pass over the detail. I accept Mr Cachia’s submission that the trial judge “had to distinguish between the essentials and the peripherals”.

164. Secondly, it was open and entirely appropriate to her Honour to give weight to the contemporaneous accounts given by the parties, as opposed to their testimony more than three years later. Senior counsel appearing for Mr Croucher on the appeal properly acknowledged as much. That approach is consistent with the obvious limitations of human memory – particularly when subjected to the processes of litigation – and with the approach endorsed in Fox v Percy at [31].

165. Thirdly, it was inevitable that her Honour would in part be influenced by her observations of Mr and Mrs Cachia and Mr Croucher in the witness box. This appeal is an example where at least one of the contemporaneous statements made by those witnesses was materially erroneous, thereby heightening the importance of credit findings and limiting the scope for appellate intervention.

166. Fourthly, what has already been said of the reasoning adopted by the primary judge illustrates the opposite of a failure to grapple with the competing and contradictory evidence. In making each of the findings summarised above, her Honour was self-evidently conscious of the evidence adduced by the other side, and gave reasons for reconciling it. Mr Croucher is dissatisfied with the findings which were made. However, he bears a heavy burden of persuading this Court – which did not see the witnesses over six days – that the fact-finding process has miscarried.

167. The critical matters of primary fact were to determine how the injuries to Mr Cachia had come about, whether Mr Cachia had struck Mr Croucher, and in what circumstances and with what states of mind the two had come to blows. Notwithstanding the length of the trial and Mr Croucher’s written submissions, these were not enormously complicated matters.

168. What were said to be the strongest points made by Mr Croucher supporting his claim that the primary judge insufficiently grappled with the conflicting evidence? First, Mr Croucher placed much weight orally and in writing on the location of the blood stains. It is clear that Mr Cachia approached Mr Croucher (Mr Cachia was between the fence and his hedge, while Mr Croucher was standing at the end of the fence closest to the street). It is clear that the latter retreated (“took some steps back”), so much so that the altercation took place, at least in part, on Mr Croucher’s driveway. That seems to have been where Mr Cachia’s blood had dripped. The essential point lying behind the “blood location” submission was that there was objective evidence that the men were located on Mr Croucher’s driveway at or around the time Mr Cachia was wounded, and that had to be brought to bear especially in relation to self-defence. As it was put:

“As the objective evidence leads to the inevitable conclusion that the cutting of the plaintiff occurred in the driveway and not on the grass, the concrete, the bricks or the plaintiff’s garden, the plaintiff’s contention to the contrary cannot be accepted. This has a great effect on the credibility of both the plaintiff and Mrs Cachia and brings the defendant’s claim of self-defence squarely to the fore.”

169. The difficulty with this submission is that there was only a small distance between standing in front of Mr Cachia’s hedge and standing fully on Mr Croucher’s driveway. Save for his own (much narrower) garden bed adjoining the dividing fence, Mr Croucher’s driveway is adjacent to the boundary. It is no more than a step away from the grass in the nature strip outside Mr Cachia’s property to being fully on Mr Croucher’s driveway. For that reason alone I cannot accept the force of Mr Croucher’s submission that a great deal turned on where the cutting took place. What is more, there is no dispute that Mr Croucher hosed the blood from where it had fallen, prior to the arrival of the police, and in any event, the dripping of blood from Mr Cachia’s wounds would not have stopped instantaneously. It follows that the blood stains in Panania were quite different from the skidmarks which were treated in Fox v Percy at [38] as an “incontestable fact”. Precisely where Mr Croucher was located when the altercation began was the subject of conflicting recollections, but it was open to the primary judge to resolve it no further than she did.

170. It was said that “there is an enormous contradiction between the plaintiff’s wife having seen the defendant in the area of his own letterbox, but the plaintiff first observing him well away from the fence line”. I do not agree that the contradiction was “enormous”, nor that it required resolution by the primary judge. The letterbox was in the immediate vicinity of the fence.

171. The “issue” of whether the Cachia hedge was “attacked v clipped” turned on some photographs of clippings taken the following day, an estimate of the lengths of the clippings so cut compared to a brick, and a claim that Mrs Cachia could not be believed:

“[W]hat was purportedly cut is significantly greater than 4 or 5 inches, involves 3 pieces only and the plaintiff’s wife has miraculously and disingenuously attributed them to having been cut by the defendant, notwithstanding that her husband had been out trimming the hedge from the front beforehand, and she can have had no way of knowing at the time she took that photograph whether or not those pieces were cut by her husband or by the defendant, but was prepared to state that they had been cut by the defendant. Her evidence about that cannot be believed. It was a set up.”

172. I do not regard that submission as well-founded. Putting to one side the unhelpful hyperbole and sarcasm, it was open to her Honour, having seen Mrs Cachia at length, to accept her conclusion, based on what she knew about the gardening habits of her husband, that the healthy clippings (which appear to be in full flower) were cut by Mr Croucher.

173. Nor do I regard the submissions based on Mr Croucher’s evidence being precise and Mr and Mrs Cachia’s evidence being vague, or that Mrs Cachia’s view was obstructed, as sufficient to displace the findings made by the primary judge.

174. There is force in one aspect of Mr Croucher’s complaints. Mr Croucher emphasised Mrs Cachia’s evidence that her husband “kept walking towards [Mr Croucher]” and that she could see that it was “getting ugly”. That tended to support Mr Croucher’s case that Mr Cachia was threatening him, and went directly to self-defence. Mr Cachia’s “disarming” of himself by discarding the shears is not sufficient of itself to dispel the potential that his approach might be, and seem to be, filled with menace.

175. Corroborative of this was the evidence that Mr Cachia pushed Mr Croucher. There were two matters which bore upon this. One was that Mr Croucher said that he had said as much to one of the police officers who attended. There is also the curious passage in Mr Cachia’s first statement, “I can’t remember if I pushed him or not”. That statement was given very shortly after the altercation, in circumstances where Mr Croucher was facing criminal charges. There is every reason to think that Mr Cachia at that time was not prepared to deny that he had pushed Mr Croucher. Taken together, the foregoing illustrates the force of Mr Croucher’s submissions that he was being assaulted by Mr Cachia.

176. The question calling for reconciliation was the fact that Mr Cachia was approaching Mr Croucher, unarmed, and was being injured. What was in the minds of both men at that time? One possibility is that Mr Cachia was threatening Mr Croucher, in a way constituting a civil assault although falling short of punching him or shoulder charging him. But the findings made by the primary judge do not permit this Court to determine whether that was the case, and, if so, whether Mr Cachia had a defence. Although the primary judge rejected Mr Croucher’s case that he was shoulder charged and repeatedly punched, there was no rejection of a less violent but still physically threatening attack, which was, for the reasons just given, more soundly based in the evidence and the objective probabilities.

177. That said, I do not consider that there was any separate error by the primary judge in failing to “grapple” with the competing cases. That is precisely what the primary judge did, and repeatedly, throughout her Honour’s reasons. The deficiency I have referred to above is a direct consequence of the failure to identify all of the legal issues arising from the trial, and to make appropriately detailed findings of fact to resolve those issues.

178. In Murray v Sheldon Commercial Interiors Pty Ltd, this Court said at [70]:

“where there has been a fair attempt by a judicial officer who is plainly trying conscientiously to make findings of fact, not lightly is it to be inferred that the process has miscarried. Where points which are raised on appeal were not at the forefront of the submissions at trial, less weight is to be given to the failure by the primary judge expressly to have regard to them.”

That passage is substantially applicable to this appeal, in respect of the broader attack upon the fact finding process.

179. To reiterate, to the extent that there were deficiencies in the fact finding process, I consider that that was a consequence of a failure to identify the real issues that arose on the pleadings, which went to the question of self-defence. In fairness to the primary judge, and as noted at the outset, I do not regard Mr Croucher’s written or oral submissions at trial as having provided the Court with the assistance to which it was entitled.

180. I have dealt in the foregoing with the five principal challenges advanced on appeal by Mr Croucher, and indicated by way of representative sample why the remaining 57 challenges do not disclose appellable error by the primary judge. It is unnecessary to deal with them in these already over-long reasons in the detail with which they have been propounded.

Remaining grounds

181. Given that there must be a retrial, it is inappropriate to deal with the challenges to the findings of absence of contributory negligence and the question of serious offence, which are closely connected with the outstanding questions of self-defence.

182. The same consideration does not apply to grounds 11 and 12, which deal with aspects of quantum.

Ground 11 – Ms Eldridge and Dr Roberts

183. Ground 11 was that “the primary judge erred in equating ‘ill effects’ to a medical condition and otherwise rejecting the evidence of Dr Roberts”. The error identified in the written submissions was that:

“There was no adequate reasoning as to why the opinion of Ms Eldridge, who was not a ‘treating doctor’ was preferred over that of Dr Roberts, other than accepting the respondent. The significant discrepancies which Dr Roberts found were ignored”.

184. That was the entirety of what was said in writing in support of this ground. It was not addressed orally.

185. Mr Cachia was commendably detailed in his written response (I omit the references to the evidence and findings, all of which were accurate):

“The significance of ground 11 is obscure. That Ms Eldridge was the Respondent’s treating psychologist is clear from her report. Ms Eldridge diagnosed post-traumatic stress disorder, a diagnosis which her Honour accepted. That finding is not challenged. Instead the challenge is to the absence of reasons as to why Mr Eldridge’s opinion was preferred to Dr Roberts. But her Honour’s reasoning about Dr Roberts’ evidence was detailed and clear. The Appellant relied upon Dr Roberts’ difference of opinion with respect to diagnosis. Her Honour dealt with this point explicitly. Further, Dr Robert’s statement that no treatment was required was juxtaposed with her Honour’s findings that the plaintiff’s complaints were ‘genuine’, and that he had benefited from Ms Eldridge’s treatment. Her Honour plainly found Dr Roberts’ evidence unhelpful, and the Appellant has not identified any error in this regard. This Ground has no foundation.”

186. I agree. This ground is not made out. Indeed, in the absence of any response to Mr Cachia’s submissions, it should have been abandoned.

Ground 12 – damages

187. This ground is as follows:

“The primary judge erred in the awards of damages for general damages, past economic loss, future economic loss (plus concomitant superannuation) and future domestic assistance, all of which were excessive.”

188. This ground shares some of the characteristics of ground 11, in that the submissions made in support of it were wholly written, and wholly lacking in detail.

189. First, Mr Croucher’s written submissions invoked the submissions at trial (resembling much of the attack upon the challenge to fact finding). An appeal is not a re-run of the trial; instead, it was necessary for Mr Croucher to identify a basis which warranted appellate intervention.

190. Secondly, the submissions stated that Mr Cachia had sustained two bad cuts which had healed very well, leaving “some fine motor problem with his thumb and some reduced strength in his upper arm”. This submission did not come close to being a balanced statement of the evidence. The injuries were severe, involving inserting 28 metal staples into Mr Cachia’s arm and 32 stitches into his thumb under a general anaesthetic. There were ongoing physical and psychological symptoms, which affected many aspects of Mr Cachia’s professional and personal life. He gave evidence that he lost a job as a consequence, and (by way of example), could not tie a rope, could not make a fist, has a restricted range of movement in his thumb, struggled to open jars, and could no longer participate in surfing.

191. The primary judge addressed the medical evidence (which was voluminous and not the subject of cross-examination) in detail over six pages of her reasons. Her Honour had also noted that Mr Croucher had arranged for Mr Cachia to be assessed by an orthopaedic surgeon shortly prior to the trial, but had not tendered a report from that surgeon.

192. Thirdly, Mr Croucher’s submissions asserted that Mr Cachia would not meet the threshold for damages for non-economic loss, and then continued:

“Damages in the amounts contended for at trial should have been allowed if the respondent was to succeed on liability. The amounts awarded for general damages, or on a CLA basis for non-economic loss were not in the range. The buffers allowed for past and future economic loss were excessive. The superannuation amounts run with the amounts allowed.”

193. Mr Cachia submitted that where it has not been shown that there has been any error of principle or misapprehension of the facts, the question is whether there has been a “wholly erroneous” determination, pointing to Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; 85 NSWLR 335 at [41] and the authorities there cited. I agree. The applicable principle is as stated by Mason J in Wilson v Peisley (1975) 50 ALJR 207 at 214, recently applied in this Court in Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 90 NSWLR 1 at [232]:

“The settled rule, then, is that an appellate court will not disturb a primary judge’s award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered.”

194. The question is whether the assessment of general damages of $100,000 and the buffers of $40,000 and $65,000 were wholly erroneous, or whether, if the Civil Liability Act applied, the determination that the severity of the non-economic loss was 20% of a most extreme case was wholly erroneous, and whether the assessment of the buffers was wholly erroneous.

195. Mr Croucher articulated no submissions at all as to why those determinations were wholly erroneous. Especially in light of the deference that must be given to the primary judge who saw Mr Cachia over a number of days in court, I would not conclude that they are. I do not think it is necessary to address a ground which has been so casually advanced on appeal in any more detail. This ground is not made out.

Conclusion and orders

196. A new trial between these neighbours is obviously undesirable, but for the reasons above I have concluded that there is no alternative. This Court cannot reconcile the factual and legal issues between the diametrically opposed accounts of the events of 2 January 2012 in relation to self-defence.

197. Accordingly, the appeal must be allowed and the judgment of the primary judge set aside, as also must the order as to costs at first instance. There must, subject to the parties reaching agreement, be a new trial.

198. As a general proposition, if there is to be a new trial it should be of the whole case unless the Court thinks that more injustice would thereby be done: see Pateman v Higgin (1957) 97 CLR 521 at 527; Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan [2001] NSWCA 381; 53 NSWLR 343 at [45]-[48]; Shimokawa v Lewis [2009] NSWCA 266 at [191]. However, in the present case, given that (a) Mr Cachia has been cross-examined extensively on matters relating to damages, and (b) the general challenge to the finding of facts by the primary judge and the specific challenges to quantum brought by Mr Croucher have failed, this Court’s orders should to the extent possible reduce the issues dividing the parties. Given the length of the first trial, I think that this is a case where a new trial on all issues would lead to “more injustice by setting the matter at large again”.

199. The retrial should be on all issues save for the quantification of the various heads of Mr Cachia’s damages at common law and under the Civil Liability Act.

200. When it was raised at the hearing, senior counsel for both parties embraced the desirability of a mediation before any further trial. The Court was told that there has not, to date, been a formal mediation. The orders I propose for a court-annexed mediation will not involve the parties bearing the costs of the mediator.

201. Mr Cachia should have a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the trial. The costs already incurred at first instance should be left to the discretion of the judge who ultimately hears the remitted proceeding, so that it can be exercised in light of that hearing. That accords with what has been described as the “general rule”: Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427.

202. Mr Croucher has succeeded, in part, on appeal. However, his success was limited, and attended by some unsatisfactory features. Ground 8 was abandoned well in advance of the hearing. But grounds 6 and 7 (dealing with tendency evidence), to which around one third of the appellant’s submissions were directed, and to which Mr Cachia responded in writing in similar detail, were only abandoned on the afternoon before the hearing. At around the same time, an amended notice of appeal was foreshadowed, which led to the need for written submissions after the hearing by both parties. It will be seen from the foregoing that most of the submissions which have been addressed in these reasons were made orally by Mr Croucher for the first time, and responded to in writing by Mr Cachia. Grounds 11 and 12 dealing with quantum were not the subject of any substantive submissions. Mr Croucher’s substantial attack on the fact finding process in ground 9 has failed.

203. There is therefore much to be said in support of departing from the general rule in UCPR r 42.1 that costs follow the event. I would propose, however, that no order be made before the parties have had an opportunity to be heard as to the costs of the appeal. The orders I propose will defer the making of submissions as to costs until after the mediation. I do so in light of the fact that the costs of the appeal are relatively small, compared with the costs of the trial and of any re-trial, and because if the mediation succeeds, then it will not be necessary for the parties to make those submissions.

204. The formal orders I propose are:

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.

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Decision last updated: 09 June 2016