Hall v van der Poel

Case [2009] NSWCA 436

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Hall v van der Poel  [2009] NSWCA 436

FILE NUMBER(S):
40194/09
40195/09

HEARING DATE(S):
27 November 2009

JUDGMENT DATE:
24 December 2009

PARTIES:
CA 40194/2009
Jarrod HALL  (first appellant)
David HALL  (second appellant)
Justin van der POEL  (respondent) 

CA 40195/2009
Jarrod HALL  (first appellant)
David HALL  (second appellant)
Edward van der POEL  (respondent)

JUDGMENT OF:
Hodgson JA McColl JA Basten JA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 316/07, DC 317/07

LOWER COURT JUDICIAL OFFICER:
Sidis DCJ

LOWER COURT DATE OF DECISION:
26 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Van Der Poel v Hall [2009] NSWDC 50

COUNSEL:
T F ROBERTSON SC/J LAZARUS/D PETRUSHNKO  (appellants)
C HART  (respondents)

SOLICITORS:
Conditsis & Associates Lawyers  (appellants) 
Bale Boshev Lawyers  (respondents)

CATCHWORDS:
TORTS – Trespass to the person – Assault – Prior to assault on plaintiff, plaintiff uses weapon to strike an associate of defendants – No finding by primary judge as to whether this was in self-defence – Whether this material to primary judge’s findings that assault on plaintiff was within a common purpose of the defendants and others, that it was not in self-defence, and that exemplary damages were warranted. 
PROCEDURE – Appeal – New trial – Findings of fact not made by primary judge – Whether substantial miscarriage of justice thereby occasioned – Whether new trial should be ordered. 

LEGISLATION CITED:
Civil Liability Act 2002 ss 52-54
Civil Procedure Act 2005 (NSW) s 56
Supreme Court Act 1970 s 75A, s 101
Uniform Civil Procedure Rules 2005 (NSW) r 51.53

CATEGORY:
Principal judgment

CASES CITED:
Alchin v Daley [2009] NSWCA 418
Balenzuela v De Gail [1959] HCA 1; 101 CLR 226 at 235
Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280
The Commonwealth v Brisbane Milling Co Ltd [1916] HCA 39; 21 CLR 559
Fox v Percy [2003] HCA 22; 214 CLR 118
Hare v Harmer [2009] NSWCA 68
HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640
Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; 237 CLR 268
Musgrove v McDonald [1905] HCA 50; 3 CLR 132
Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728
NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210
Tory v Megna [2007] NSWCA 13
Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan [1931] HCA 34; 46 CLR 73
The Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816

TEXTS CITED:

DECISION:
(1)  Appeal allowed. 
(2)  Orders below set aside. 
(3)  Respondent to pay the appellants’ costs of the appeal, and to have a certificate under the Suitors’ Fund Act 1951 if otherwise eligible. 
(4)  Order that there be a new trial, with the costs of the first trial in the discretion of the judge hearing the second trial.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40194/09

Continue reading Hall v van der Poel

Sign in free to access the full text

Details
AGLC
Hall v van der Poel [2009] NSWCA 436
Case
[2009] NSWCA 436
Decision Date

CaseChat Overview and Summary

The appeal concerned an assault on Mr Van der Poel Snr and Mr Van der Poel Jnr by Mr Barnett, who was found to be acting in pursuit of a common purpose with Mr Hall Snr and Mr Hall Jnr. The primary judge found that the common purpose was to assault or intimidate the Finigan brothers as revenge for an earlier assault on Mitchell Hall. The dispute arose from the primary judge's findings of fact and the subsequent orders made in favour of the plaintiffs.

The legal issues before the Court of Appeal included whether the primary judge erred in her findings of fact regarding the common purpose of the defendants, and whether the assault on the plaintiffs was not in self-defence. Further, the court considered whether the primary judge’s failure to make specific findings on the credit of the plaintiffs and the self-defence aspect of Mr Van der Poel Snr striking Mr Barnett with a piece of timber, constituted a substantial miscarriage of justice, potentially warranting a new trial.

The Court of Appeal allowed the appeal, setting aside the orders of the primary judge. The court reasoned that the primary judge had made findings of fact that were not adequately supported by the evidence, particularly concerning the common purpose and the lack of self-defence. The court found that the primary judge’s approach to the evidence, including her rejection of much of the defendants' evidence due to inconsistencies, and her finding it unnecessary to consider the plaintiffs' evidence on credit, led to a substantial miscarriage of justice. The court noted that the primary judge had not made findings on whether Mr Van der Poel Snr's actions in striking Mr Barnett with timber were in self-defence, which was a material consideration.

Consequently, the Court of Appeal ordered a new trial. The costs of the appeal were ordered to be paid by the respondent, with the costs of the first trial to be determined by the judge presiding over the new trial.

Orders

Orders of the court

(1) Appeal allowed.

(2) Orders below set aside.

(3) Respondent to pay the appellants’ costs of the appeal, and to have a certificate under the Suitors’ Fund Act 1951 if otherwise eligible.

(4) Order that there be a new trial, with the costs of the first trial in the discretion of the judge hearing the second trial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 16 March 2005, Barnett pleaded guilty to assaulting Poel Snr thereby occasioning him actual bodily harm. Decision of primary judge Early in her judgment, the primary judge said this: 8I had no doubt that none of the parties or their witnesses was fully frank with the court and it was therefore necessary to scrutinise the evidence in detail.9The issues involved in determining liability were: 1 Whether Mr Hall Snr and Mr Hall Jnr were jointly liable for Mr Barnett’s conduct because they attended upon the Finigan property in pursuit of a common purpose to assault or intimidate the Finigan brothers by way of revenge for the assault they believed had been directed towards Mitchell Hall. 2 If not, whether their conduct involved individual intentional assaults against Mr Van der Poel Snr or Mr Van der Poel Jnr. Subsequently, she said this on the matter of the credit of Poel Snr and Poel Jnr: 67A great deal was said by the defendants concerning the credit of the plaintiffs and the extent to which I should accept their evidence. Indeed, the major part of the defendants’ 92 pages of submissions addressed this topic. It will be noted that I found it unnecessary to consider any of the evidence relied upon by the plaintiffs in deciding the issue of common purpose except to note that Mr Van der Poel Snr agreed that he struck Mr Barnett with a piece of timber and that his description of the timber indicated that it was of smaller dimension than suggested by the defendants and their witnesses. On that basis, she found it unnecessary to deal with the issue of their credit (par [68]). The primary judge made the following findings of fact: 90The result of these inconsistencies and discrepancies in the evidence was that I rejected much of the self serving evidence of the defendants and I found the facts to be as follows: 1 Mr Hall Snr checked on Mitchell at about 9.30 am. 2 Mr Hall Jnr was in the Hall residence at this time and remained there until shortly after 1 pm. 3 Mr Hall Snr rang Mr Barnett between 9.30 am and 10.30 am. 4 Mr Barnett, instead of driving to the gymnasium, went directly to the Hall residence. He was at the Hall residence until shortly after 1 pm. 5 Mr van Emden came to the Hall residence with Mr Hall Jnr and was in the house during the morning. He left with Mr Hall Jnr shortly after 1 pm. 6 Mr Hall Jnr told Mr Hall Snr during the morning that Matthew Finigan and Mark Finigan assaulted Mitchell. 7 There was therefore ample opportunity for discussion before they left to go to the Finigan property. 8 Mr Hall Jnr left to drive to the Finigan property shortly after 1 pm. 9 Mr Hall Snr left to drive to the Finigan property at the same time as Mr Hall Jnr or almost immediately after him. 10 Mr Hall Jnr and Mr Finigan Snr became engaged in a fight in the course of which they both fell to the ground. 11 The fight was substantial and it subsequently involved Mr Hall Snr. 12 After Mr Hall Jnr and Mr Finigan Snr stood to their feet they continued with Mr Hall Snr to shout at each other. 13 Mr Van der Poel Snr struck Mr Barnett with a piece of timber. 14 Mr Barnett knew that there was a cricket bat in the car. 15 Mr Barnett went directly to the car, retrieved the cricket bat and returned with the intention of striking Mr Van der Poel Snr with it. 15 Mr Hall Snr wrestled with Mr Van der Poel Snr in an attempt to disarm him. They fell to the ground and continued to wrestle. 17 Mr Hall Snr made no attempt to disarm Mr Barnett. 18 Mr Hall Jnr made no attempt to disarm Mr Barnett. 19 Mr van Emden made no attempt to disarm Mr Barnett. 20 Mr Barnett struck Mr Van der Poel Snr with the cricket bat while he remained on the ground. 21 Mr Barnett struck Mr Van der Poel Jnr with the cricket bat and held him in a headlock. …..94I find therefore that the common purpose of the defendants, Mr Barnett and Mr van Emden when they went to the Finigan property on 19 September 2004 was to engage in the criminal activity of assault and intimidation of Mark Finigan and Matthew Finigan and in activity that would involve direct physical violence if it became necessary.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.