Irlam v Byrnes

Case [2022] NSWCA 81


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Irlam v Byrnes [2022] NSWCA 81
Hearing dates: 24 February 2022
Date of orders: 3 June 2022
Decision date: 03 June 2022
Before: Simpson AJA at [1]
N Adams J at [21]
Cavanagh J at [59]
Decision:

(1) Appeal allowed.

(2) Judgment of Acting Judge Craig QC of 24 December 2020 set aside.

(3) Judgment for the appellant in the sum of $132,279.16.

(4) The respondent to pay the appellant’s costs in the District Court.

(5) The respondent to pay the appellant’s costs in this Court.

(6) Should any other order for costs be sought, grant leave for the parties to approach the Chambers of Cavanagh J.

Catchwords:

JUDGMENTS AND ORDERS — Reasons — Uniform Civil Procedure Rules 2005 (NSW), r 36.2(2) — Delivery of reasons subsequent to delivery of judgment — Delay

APPEALS — From finding of fact — Impermissible inferences — Improper admission or rejection of evidence

TORTS — Intentional torts — Trespass to the person — Battery — Statutory defences — ss 52, 53 and 54 of the Civil Liability Act 2001 (NSW) — Whether contributory negligence is available as a defence to an intentional tort

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3B, 5R, 5S, 52-54

Civil Procedure Act 2005 (NSW), r 36.2

Damage by Aircraft Act 1999 (Cth), ss 10-11

Evidence Act 1995 (NSW), ss 55, 59, 76

Law Reform (Miscellaneous Provisions) Act 1965 (NSW), ss 8-9

Mental Health Act 1990 (NSW), s 24

Road Transport Act 2013 (NSW), s 117

Uniform Civil Procedure Rules 2005 (NSW)

Wrongs Act 1936-1972 (SA), s 27a

Cases Cited:

ACQ Pty Ltd v Cook (2008) 72 NSWLR 318; [2008] NSWCA 161

Amaca Pty Ltd v Booth (2011) 246 CLR 36; [2011] HCA 53

Australian Guarantee Corporation Ltd v Commissioners of the State Bank of Victoria [1989] VR 617

Bevan v Coolahan (2019) 101 NSWLR 86; [2019] NSWCA 217

Butterfield v Forrester (1809) 103 ER 926

Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132

Darby v Director of Public Prosecutions (2004) 61 NSWLR 558; [2004] NSWCA 431

Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294

Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252

Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322

Fagan v Metropolitan Police Commissioner [1969] QB 439

Fontin v Katapodis (1962) 108 CLR 177; [1962] HCA 63

Fox v Percy (2003) 214 CLR 418 [2003] HCA 22

Harrison v Melhem (2002) 72 NSWLR 380; [2002] NSWCA 67

Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Lim v Cho [2018] NSWCA 145 at [41]; 84 MVR 514

McHale v Watson (1964) 111…

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Irlam v Byrnes [2022] NSWCA 81
Case
[2022] NSWCA 81
Decision Date

CaseChat Overview and Summary

The appeal in *Irlam v Byrnes* concerned a dispute between the appellant, Mr Irlam, and the respondent, Mr Byrnes, heard in the Court of Appeal of New South Wales. The primary dispute revolved around an alleged intentional tort, specifically a battery, and the availability of certain statutory defences.

The Court of Appeal was required to determine several key legal issues. These included whether the trial judge had impermissibly inferred facts or improperly admitted or rejected evidence in reaching their decision. Crucially, the court had to consider whether contributory negligence could be raised as a defence to an intentional tort, and whether the provisions of the *Civil Liability Act 2001* (NSW), specifically sections 52, 53, and 54, applied to such claims. The court also considered the implications of the trial judge delivering reasons for judgment significantly after the initial judgment was pronounced, contrary to Uniform Civil Procedure Rules 2005 (NSW), r 36.2(2).

The Court of Appeal found that the trial judge had erred in law. It determined that contributory negligence was not available as a defence to an intentional tort, and that the statutory defences under the *Civil Liability Act 2001* (NSW) did not apply in this context. The court also noted the procedural irregularity concerning the late delivery of reasons.

Consequently, the appeal was allowed, the judgment of the District Court was set aside, and judgment was entered for the appellant, Mr Irlam, in the sum of $132,279.16. The respondent was ordered to pay the appellant's costs in both the District Court and the Court of Appeal.

Orders

Orders of the court

(1) Appeal allowed.

(2) Judgment of Acting Judge Craig QC of 24 December 2020 set aside.

(3) Judgment for the appellant in the sum of $132,279.16.

(4) The respondent to pay the appellant’s costs in the District Court.

(5) The respondent to pay the appellant’s costs in this Court.

(6) Should any other order for costs be sought, grant leave for the parties to approach the Chambers of Cavanagh J.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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