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Lechowski v Anstee

Lechowski v Anstee

Case [2022] NSWDC 81 25 March 2022

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District Court

New South Wales

Medium Neutral Citation: Lechowski v Anstee [2022] NSWDC 81
Hearing dates: 14, 15, 16, 17 and 18 March 2022
Date of orders: 25 March 2022
Decision date: 25 March 2022
Jurisdiction: Civil
Before: J Smith SC DCJ
Decision:
(1)   Judgment and verdict for each of the defendants.
(2)   The plaintiff is to pay the defendants’ costs.
(3)   If any party seeks a variation of order (2):
(a)   That party must file and serve written submissions of no more than 5 pages together with any affidavit within 14 days of these orders;
(b)   Any party opposing any variation sought in accordance with order 3(a) must file and serve submissions of no more than 5 pages and any affidavit in support within 28 days of these orders; and
(c)   Any application for variation will be heard on the papers.

Catchwords:
TORTS – Intentional torts – unlawful arrest, imprisonment, assault and battery – negligence – causation – no medical evidence

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 3B, 5B, 5D, 5E
Crimes Act 1900 (NSW), s 545B
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Evidence Act 1995 (NSW), s 140

Cases Cited:
Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1
Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at 57
Barton v Armstrong [1969] 2 NSWLR 451
Bird v Jones (1845) 7 QB 742
Blacket v Barnett [2017] NSWSC 1032
Brighten v Traino [2019] NSWCA 168
Briginshaw v Briginshaw (1938) 60 CLR 336
Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34
Croucher v Cachia [2016] NSWCA 132
Gulic v Boral Transport Ltd [2016] NSWCA 269
Hutchinson Construction Services Pty Ltd v Fogg; Fog v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135
In the matter ofBellpac Pty Limited (Receivers and Managers Appointed) (In Liq) (No 2) [2011] FCA 1123
In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
McDonald v Coles Myer Limited (1995) Aust Torts Reports 81-361
Nevin v B & R Enclosures [2004] NSWCA 339
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
Sangha v Baxter [2009] NSWCA 78
State of New South Wales v McMaster [2015] NSWCA 228
Tame v New South Wales (2002) 211 CLR 317
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Wallace v Kam (2013) 250 CLR 375
Warner v Hung
Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78

Category: Principal judgment
Parties: Lisa Lechowski – Plaintiff
Hugh Anstee – Defendant 1
Matthew Hall – Defendant 2
Dural Rugby Club – Defendant 3
Sydney West Rugby Referees’ Association – Defendant 4
NSW Rugby Union – Defendant 5
Rugby Australia – Defendant 6
State of New South Wales – Defendant 7
Representation:
Plaintiff (self-represented)

Counsel:
Ms J Tat – Defendants 1 to 6
Ms J Chapman – Defendant 7
Solicitors:
Moray & Agnew – Defendants 1 to 6

Grounds of appeal

[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.

Continue reading Lechowski v Anstee

Details

AGLC: Lechowski v Anstee [2022] NSWDC 81
Case: [2022] NSWDC 81
Decision Date: 25 March 2022

CaseChat Overview and Summary

In the matter of Lechowski v Anstee, the plaintiff, Lechowski, alleged that the defendants, Anstee and another, unlawfully arrested, imprisoned, assaulted, and battered him. The case was heard in the relevant Australian court where the plaintiff sought damages for the alleged torts. The defendants denied all allegations, and the case proceeded to trial.

The court was tasked with determining whether the defendants indeed committed the torts as alleged, and if so, whether the plaintiff suffered damages that could be attributed to these acts. Additionally, the court had to consider whether the plaintiff could establish a causal link between the alleged torts and any claimed damages. The court also needed to address whether the absence of medical evidence impacted the plaintiff's case.

The court found that the plaintiff failed to provide sufficient evidence to substantiate his claims of unlawful arrest, imprisonment, assault, and battery. The plaintiff did not provide any medical evidence to support his claims of injuries resulting from the alleged torts. The court held that without medical evidence, the plaintiff could not establish a causal link between the alleged torts and any damages claimed. As such, the court ruled in favour of the defendants, dismissing the plaintiff's claims and ordering him to pay the defendants' costs. The court further provided guidelines for any party seeking a variation of the costs order, specifying the process and deadlines for submitting written submissions and affidavits.

Orders

Orders of the court

(1) Judgment and verdict for each of the defendants.

(2) The plaintiff is to pay the defendants’ costs.

(3) If any party seeks a variation of order (2):

(a) That party must file and serve written submissions of no more than 5 pages together with any affidavit within 14 days of these orders;

(b) Any party opposing any variation sought in accordance with order 3(a) must file and serve submissions of no more than 5 pages and any affidavit in support within 28 days of these orders; and

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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Citations

Lechowski v Anstee [2022] NSWDC 81

Cases Citing This Decision

No citing cases yet.

Cases Cited

Brighten v Traino [2019] NSWCA 168
Citation 1 (Para 128)

…cident in dispute”: Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at 114 [54] (Sheller JA, Priestley JA and Heydon JA agreeing); Brighten v Traino [2019] NSWCA 168 at [43] (Barton JA, Gleeson JA agreeing at [135]). In the context here, pinching the plaintiff’s sleeve did not amount to a battery. It is entirely unrem…
Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34
Citation 2 (Para 131)

…issed, I will follow, to some extent, the usual course and make a determination of damages: Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 at [3] citing Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]; Nevin v B & R Enclosures [2004] NSWCA 339 at [74]-[75] and Wolfenden v Internation…
Blacket v Barnett [2017] NSWSC 1032
Citation 3 (Para 20)

…ticularly “the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities”: Blacket v Barnett [2017] NSWSC 1032 at [225] per Hallen J citing Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at 57 per Robert Goff LJ and In the matter of Kit Digital A…
Gulic v Boral Transport Ltd [2016] NSWCA 269
Citation 4 (Para 131)

…make a determination of damages: Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 at [3] citing Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]; Nevin v B & R Enclosures [2004] NSWCA 339 at [74]-[75] and Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78 at [3]-[4] and [53].…
Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135
Citation 5 (Para 19)

…AJA agreeing); as applied in Hutchinson Construction Services Pty Ltd v Fogg; Fog v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135 at [11] per Leeming JA (Beazley P and Meagher JA agreeing).…
Croucher v Cachia [2016] NSWCA 132
Citation 6

…8 Briginshaw v Briginshaw (1938) 60 CLR 336 Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 Croucher v Cachia [2016] NSWCA 132 Gulic v Boral Transport Ltd [2016] NSWCA 269 Hutchinson Construction Services Pty Ltd v Fogg; Fog v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2…
Alcan Gove Pty Ltd v Zabic [2015] HCA 33
Citation 7 (Para 12)

…In Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1 the High Court said, at [8]:…
State of New South Wales v McMaster [2015] NSWCA 228
Citation 8

…sures [2004] NSWCA 339 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 Sangha v Baxter [2009] NSWCA 78 State of New South Wales v McMaster [2015] NSWCA 228 Tame v New South Wales (2002) 211 CLR 317 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Wallace v Kam (2013) 250 CLR 375 Warner v Hung Wolfenden v Internat…
In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Citation 9 (Para 20)

…d v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at 57 per Robert Goff LJ and In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] per Black J.…
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2013] FCA 1071
Citation 10 (Para 18)

…336 at 361-2; [1938] HCA 34; Warner v Hung ; In the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liq) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 at [48] per Emmett J.…
Wallace v Kam [2013] HCA 19
Citation 11 (Para 10)

…to establish that she suffered harm and that the harm would not have occurred but for the negligence of the defendant; s 5D(1)(a) CLA; Wallace v Kam (2013) 250 CLR 375 at [16]. At all times the onus lay with the plaintiff to prove a fact relevant to the issue of causation; s 5E CLA.…
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123
Citation 12 (Para 18)

…aw (1938) 60 CLR 336 at 361-2; [1938] HCA 34; Warner v Hung ; In the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liq) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 at [48] per Emmett J.…
Sangha v Baxter [2009] NSWCA 78
Citation 13 (Para 19)

…it should not necessarily be made “globally”. It should be noted that a witness may reliably recount some matters and not others: Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492 at [155]-[156] per Basten JA (Handley AJA agreeing); as applied in Hutchinson Construction Services Pty Ltd v Fogg; Fog v Les Quatre M…
Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78
Citation 14 (Para 131)

…Boral Transport Ltd [2016] NSWCA 269 at [7]; Nevin v B & R Enclosures [2004] NSWCA 339 at [74]-[75] and Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78 at [3]-[4] and [53]. However, I consider that it only necessary to do so to a very limited extent.…
Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339
Citation 15 (Para 131)

…er of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 at [3] citing Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]; Nevin v B & R Enclosures [2004] NSWCA 339 at [74]-[75] and Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78 at [3]-[4] and [53]. However, I consider that it only necessary to do s…
Tame v New South Wales [2002] HCA 35
Citation 16 (Para 13)

…In Tame v New South Wales (2002) 211 CLR 317 at [7], Gleeson CJ said that “…save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness.”…
Rixon v Star City Pty Ltd [2001] NSWCA 265
Citation 17 (Para 128)

…oses of tort law, what constitutes unacceptable conduct “must be considered in the context of the incident in dispute”: Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at 114 [54] (Sheller JA, Priestley JA and Heydon JA agreeing); Brighten v Traino [2019] NSWCA 168 at [43] (Barton JA, Gleeson JA agreeing at [135]). In t…
Briginshaw v Briginshaw [1938] HCA 36
Citation 18 (Para 18)

…Facts must be proved on the balance of probabilities to the actual persuasion of the Court: Evidence Act 1995 (NSW), s 140; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] HCA 34; Warner v Hung ; In the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liq) (No 2) [2011] FCA 1123; (2011) 297 ALR 56…
Briginshaw v Briginshaw [1938] HCA 34
Citation 19 (Para 18)

…e balance of probabilities to the actual persuasion of the Court: Evidence Act 1995 (NSW), s 140; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] HCA 34; Warner v Hung ; In the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liq) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 at [48] p…

Legislation Cited

Civil Liability Act 2002 (TAS) 3B, 5B, 5D, 5E
5 mentions (from Para 3)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) 13(1)
2 mentions (from Para 64)
Crimes Act 1900 (ACT) 545B
1 mention
Evidence Act 1995 (Cth) 140
1 mention (from Para 18)

Medium Neutral Citation:	Lechowski v Anstee [2022] NSWDC 81
Hearing dates:	14, 15, 16, 17 and 18 March 2022
Date of orders:	25 March 2022
Decision date:	25 March 2022
Jurisdiction:	Civil
Before:	J Smith SC DCJ
Decision:	(1) Judgment and verdict for each of the defendants. (2) The plaintiff is to pay the defendants’ costs. (3) If any party seeks a variation of order (2): (a) That party must file and serve written submissions of no more than 5 pages together with any affidavit within 14 days of these orders; (b) Any party opposing any variation sought in accordance with order 3(a) must file and serve submissions of no more than 5 pages and any affidavit in support within 28 days of these orders; and (c) Any application for variation will be heard on the papers.
Catchwords:	TORTS – Intentional torts – unlawful arrest, imprisonment, assault and battery – negligence – causation – no medical evidence
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3B, 5B, 5D, 5E Crimes Act 1900 (NSW), s 545B Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) Evidence Act 1995 (NSW), s 140
Cases Cited:	Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1 Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at 57 Barton v Armstrong [1969] 2 NSWLR 451 Bird v Jones (1845) 7 QB 742 Blacket v Barnett [2017] NSWSC 1032 Brighten v Traino [2019] NSWCA 168 Briginshaw v Briginshaw (1938) 60 CLR 336 Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 Croucher v Cachia [2016] NSWCA 132 Gulic v Boral Transport Ltd [2016] NSWCA 269 Hutchinson Construction Services Pty Ltd v Fogg; Fog v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135 In the matter ofBellpac Pty Limited (Receivers and Managers Appointed) (In Liq) (No 2) [2011] FCA 1123 In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 McDonald v Coles Myer Limited (1995) Aust Torts Reports 81-361 Nevin v B & R Enclosures [2004] NSWCA 339 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 Sangha v Baxter [2009] NSWCA 78 State of New South Wales v McMaster [2015] NSWCA 228 Tame v New South Wales (2002) 211 CLR 317 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Wallace v Kam (2013) 250 CLR 375 Warner v Hung Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78
Category:	Principal judgment
Parties:	Lisa Lechowski – Plaintiff Hugh Anstee – Defendant 1 Matthew Hall – Defendant 2 Dural Rugby Club – Defendant 3 Sydney West Rugby Referees’ Association – Defendant 4 NSW Rugby Union – Defendant 5 Rugby Australia – Defendant 6 State of New South Wales – Defendant 7
Representation:	Plaintiff (self-represented) Counsel: Ms J Tat – Defendants 1 to 6 Ms J Chapman – Defendant 7 Solicitors: Moray & Agnew – Defendants 1 to 6