Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Riechelmann v McCabe [2024] NSWCA 37 Hearing dates: 1 November 2023 Date of orders: 23 February 2024 Decision date: 23 February 2024 Before: Mitchelmore JA; Kirk JA; Stern JA Decision: (1) Appeal allowed.
(2) The respondent is to pay the appellant’s costs of the appeal.
(3) Order 3 made by the District Court on 21 February 2023 is set aside and the following orders are made in lieu thereof:
(a) Judgment for the cross-claimant against the cross-defendant on the Cross-claim in the sum of $136,000;
(b) The cross-defendant is to pay interest on the judgment sum from 21 February 2023 pursuant to s 101 of the Civil Procedure Act 2005 (NSW).
(4) As regards costs of the proceedings in the District Court, orders 2 and 3 made by that Court on 20 July 2023 in relation to costs of the cross-claim are set aside, and in lieu thereof it is ordered that the cross-defendant pays the cross-claimant’s costs of the cross-claim.
(5) Liberty to the parties to apply for any variation or addition to these orders within 14 days.
(6) Mr McCabe has 14 days to show cause why this Court’s judgment and the papers in this Court should not be referred to the Legal Services Commissioner.
Catchwords: TORTS – Trespass to the person – Assault – Battery – Claim based on distinct accounts of alleged strangulation
APPEAL – From findings of fact – Credibility of witnesses – Appeal of factual decision turning on witness testimony following long hearing – Importance of contemporary evidence
Legislation Cited: Evidence Act 1995 (NSW) s 140(2)
Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Muriniti v Kalil [2022] NSWCA 109
Texts Cited: David Rolph, Contempt (Federation Press, 2023)
Category: Principal judgment Parties: Julie Riechelmann (Appellant)
David Terance McCabe (Respondent)Representation: Counsel:
Solicitors:
J Morris SC with M Bridger (Appellant)
J W Dodd (Respondent)
De Luca-Leonardo Solicitor (Appellant)
McCabe Partners Lawyers (Respondent)
File Number(s): 2023/88479 Publication restriction: N/A Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Civil
- Citation:
- Date of Decision:
- 21 February 2023
- Before:
- Dicker DCJ
- File Number(s):
- 2018/365976
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant and the respondent have a history of conflict involving a number of verbal and physical altercations. The respondent commenced civil proceedings against the appellant for damages for trespass, battery, assault and property damage arising out of those altercations. The appellant cross-claimed against the respondent for assault and battery in relation to an incident on 31 March 2018, for which the respondent had also…
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- AGLC
- Riechelmann v McCabe [2024] NSWCA 37
- Case
- [2024] NSWCA 37
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge erred in their findings of fact, particularly concerning the credibility of witnesses, and whether the evidence supported the conclusions reached. The appeal specifically challenged the factual determinations made after a lengthy hearing, with a focus on the importance of contemporary evidence in assessing witness testimony.
The Court of Appeal allowed the appeal, finding that the primary judge's factual findings were not supported by the evidence. The Court set aside the District Court's judgment and orders, substituting its own. The Court ordered judgment for the cross-claimant (McCabe) against the cross-defendant (Riechelmann) on the cross-claim in the sum of $136,000, with interest. The Court also made orders regarding the costs of both the appeal and the District Court proceedings, generally ordering the cross-defendant to pay the cross-claimant's costs. Furthermore, Mr McCabe was given 14 days to show cause why the Court's judgment and the case papers should not be referred to the Legal Services Commissioner.
Orders
Orders of the court
(1) Appeal allowed.
(2) The respondent is to pay the appellant’s costs of the appeal.
(3) Order 3 made by the District Court on 21 February 2023 is set aside and the following orders are made in lieu thereof:
(a) Judgment for the cross-claimant against the cross-defendant on the Cross-claim in the sum of $136,000;
(b) The cross-defendant is to pay interest on the judgment sum from 21 February 2023 pursuant to s 101 of the Civil Procedure Act 2005 (NSW).
(4) As regards costs of the proceedings in the District Court, orders 2 and 3 made by that Court on 20 July 2023 in relation to costs of the cross-claim are set aside, and in lieu thereof it is ordered that the cross-defendant pays the cross-claimant’s costs of the cross-claim.
(5) Liberty to the parties to apply for any variation or addition to these orders within 14 days.
(6) Mr McCabe has 14 days to show cause why this Court’s judgment and the papers in this Court should not be referred to the Legal Services Commissioner.
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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