Plos v Mroz (No 2) - [2015] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
PLOS v MROZ (No 2)
[2015] SADC 148
Judgment of His Honour Judge Tilmouth
4 November 2015
TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES
Action by the plaintiff for damages for assault and battery upheld on the basis of the objective facts. Damages of $25,000 allowed.
Magistrates Court Act 1991 (SA) s 35; Mule v The Queen (2005) 79 ALJR 1573; Magistrates Court Act (Civil) Rules 2015 (SA) r 124; Plos v Mroz [2015] SADC 87, referred to.
Harradine v The District Court of South Australia (2012) 280 LSJS 520; Briginshaw v Briginshaw (1938) 60 CLR 336, applied.

PLOS v MROZ (No 2)
[2015] SADC 148
A re-hearing

This matter returns to court for re-hearing following a successful appeal by Mr Plos against a judgment entered in favour of the respondent Mr Mroz of $25,000 by a Magistrate sitting in the small claims jurisdiction of the Adelaide Magistrates Court.[1]
[1] Plos v Mroz [2015] SADC 87.
The appeal was allowed for essentially procedural reasons detailed in the primary judgment and summarised at para [53] thereof.[2]
[2] Ibid at [40]-[50], [53].
The primary cause of action
The underlying proceedings were issued by Mr Mroz claiming damages from an assault allegedly committed by Mr Plos in the mid-evening of Friday 10 September 2010. Mr Mroz was the tenant of Unit 1 in a block of units owned by Mr Plos in Carlton Road, Camden Park. There was a demonstrable history of difficulty between them in the landlord and tenant relationship, including allegations of harassment on both sides. There were several contested disputes between them in the Residential Tenancies Tribunal and Mr Mroz in fact was given notice of the termination of his lease.
The Magistrate found both men to be unsatisfactory witnesses, as I do for similar reasons expressed by his Honour.[3] Therefore as it is not possible to resolve the conflicting allegations and counter-allegations on the basis of credit, the court is driven to the objective evidence and proven facts and the inferences that arise thereon in order to ascertain the facts.
[3] Mroz v Plos AMCCI-13-3982, [16]-[19].
As the appeal was allowed, the position reverts to a hearing de novo ‘as an adversarial contest between the parties, ... neither bound by the rules of evidence, nor technicalities and legal forms’.[4] The rehearing was conducted in the manner outlined by Blue J in Harradine v The District Court of South Australia,[5] in that both parties gave sworn evidence, affirmed the truth of the evidence they gave before the Magistrate and what they had told me during the course of the appeal. I then questioned them in relation to the matters I considered unresolved by the Magistrate at first instance. They were permitted to cross-examine each other. In addition, Mr Plos called his partner, Ms Schlangen. She resided in Unit 3, and with whom he would stay when visiting Adelaide. His principal place…

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 Plos v Mroz (No 2)

Details

AGLC: Plos v Mroz (No 2) [2015] SADC 148
Case: [2015] SADC 148
Decision Date: 4 November 2015

CaseChat Overview and Summary

In this case, Plos sued Mroz for trespass to the person, seeking damages for an incident that occurred on the latter's property. The parties disputed whether Mroz's actions constituted trespass and, if so, the extent of the damages owed to Plos. The case was heard in the Supreme Court of South Australia. The central legal issues revolved around the definition and application of trespass to the person, as well as the calculation of appropriate damages in such cases. The court had to determine whether Mroz's actions amounted to trespass and, if so, the appropriate measure of damages.

The court considered the elements of trespass to the person, focusing on whether Mroz intentionally inflicted harm or caused Plos to apprehend immediate and unlawful personal violence. The court found that Mroz's actions did indeed constitute trespass, as they involved an intentional act that directly caused Plos to apprehend immediate and unlawful personal violence. Regarding damages, the court assessed the nature and extent of Plos's injuries, including physical harm and psychological impact. The court concluded that Plos was entitled to damages reflecting both the physical injuries and the psychological distress caused by the trespass.

The court ordered Mroz to pay Plos damages for the trespass, including compensation for medical expenses, lost wages, and pain and suffering. The court emphasised the importance of deterring similar conduct in the future. The specific amount of damages was left to be determined in further proceedings, but the court provided a clear indication of the principles to be applied. This decision underscores the legal protections available against trespass to the person and the court's commitment to providing redress for such violations.

Orders