Saad v Fares

Case [2015] NSWCA 385

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Saad v Fares [2015] NSWCA 385
Hearing dates:25 November 2015
Decision date: 04 December 2015
Before: Beazley P at [1];
Leeming JA at [2];
Emmett AJA at [51]
Decision:

(1) Grant leave to appeal against the judgments obtained by the second, third, fourth and fifth respondents.

 

(2) Appeal allowed.

 

(3) The verdicts and judgments entered on 24 June 2014 in favour of each of the respondents, and any orders as to costs, be set aside.

 

(4) Each proceeding be remitted to the District Court for retrial.

 (5) The costs of the appeal be each parties’ costs of the remitted proceedings at first instance.
Catchwords:

APPEALS – finding that defendants’ witnesses had fabricated evidence – obligation to give reasons – trial judge failed to give reasons – retrial ordered

PERSONAL INJURY – statutory liability for bodily injury caused by dog – Companion Animals Act 1998, s 25 – occupiers liability for negligence – whether evidence capable of sustaining finding of negligence by occupier who was not present at time of attack
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B-5E
Companion Animals Act 1998 (NSW), ss 25, 34
District Court Act 1973 (NSW), s 127
Evidence Act 1995 (NSW), s 140
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited: Browne v Dunn (1893) 6 R 67
Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186
Hatziandoniou v Ruddy (No 2) [2015] NSWCA 277
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Simon v Condran [2013] NSWCA 388; 85 NSWLR 768
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Category:Principal judgment
Parties: Caroline Saad (First Appellant)
Fadi Saad (Second Appellant)
Donna Saad (Third Appellant)
Jisele Fares (First Respondent)
Raymond Fares (Second Respondent)
Monica Fares by her tutor Raymond Fares (Third Respondent)
Justine Fares by her tutor Raymond Fares (Fourth Respondent)
James Fares by his tutor Raymond Fares (Fifth Respondent)
Representation:

Counsel:
M J Cranitch SC, C K Stewart (Appellants)
D J Hanna (Respondents)

  Solicitors:
Margiotta Solicitors & Attorneys (Appellants)
Lamrock Solicitors (Respondents)
File Number(s):2014/214712
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Civil
Date of Decision:
24 June 2014
Before:
Delaney DCJ
File Number(s):
2012/35990; 2013/89874; 2013/89927; 2013/89982; 2013/9000

Judgment

  1. BEAZLEY P: I agree with the orders proposed by Leeming JA for the reasons given by him.

  2. LEEMING JA: Three appellants, Caroline, Fadi and Donna Saad, who are siblings, appeal from a series of judgments against them in the District Court of New South Wales obtained by Jisele and Raymond Fares, and three of their children, Monica, Justine and James. Without conveying any disrespect, it will be convenient to refer to the…

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AGLC
Saad v Fares [2015] NSWCA 385
Case
[2015] NSWCA 385
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim for damages for bodily injury arising from a dog attack. The appellant, Mr Saad, alleged that the respondents, Mr and Mrs Fares and their children, were liable for his injuries under both the *Companion Animals Act 1998* (NSW) and in negligence. The primary judge found in favour of the respondents, dismissing Mr Saad's claim. Mr Saad appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in failing to provide adequate reasons for his findings, particularly concerning the credibility of witnesses and the application of the *Companion Animals Act*, and whether the evidence was capable of sustaining a finding of negligence against the occupiers of the property where the attack occurred, even though they were not present at the time. The court also considered the implications of the primary judge's finding that the appellant's witnesses had fabricated evidence.

The Court of Appeal allowed the appeal, finding that the primary judge had failed to provide sufficient reasons for his decision, which prevented a proper understanding of how he reached his conclusions, especially regarding the assessment of witness credibility and the application of the statutory provisions. The court held that the primary judge's finding that the appellant's witnesses had fabricated evidence was a serious matter that required clear and cogent reasons, which were absent. Consequently, the court set aside the original verdicts and judgments and ordered a retrial of each proceeding in the District Court.

Orders

Orders of the court

(1) Grant leave to appeal against the judgments obtained by the second, third, fourth and fifth respondents.

(2) Appeal allowed.

(3) The verdicts and judgments entered on 24 June 2014 in favour of each of the respondents, and any orders as to costs, be set aside.

(4) Each proceeding be remitted to the District Court for retrial.

(5) The costs of the appeal be each parties’ costs of the remitted proceedings at first instance.

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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