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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
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.