Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Sahade v Bischoff [2015] NSWCA 418 Hearing dates: 27 August 2015 Date of orders: 23 December 2015 Decision date: 23 December 2015 Before: Basten JA at [1];
Gleeson JA at [2];
Beech-Jones J at [203]Decision: (1) Grant leave to the appellants to file an amended notice of appeal in the form appearing in the Orange Book.
(2) Direct the appellants to file an amended notice of appeal within fourteen (14) days.
(3) Appeal dismissed.
(4) Leave to file an amended cross-summons refused.
(5) Cross-summons for leave to cross-appeal dismissed.
(6) Reserve all questions of costs in this Court.
(7) In default of agreement as to costs, direct:
(a) the appellants to file and serve within 28 days of the date of these orders their proposed short minutes of order on the issue of costs and any supporting affidavits, together with written submissions not to exceed 4 pages;
(b) the respondents to file and serve their proposed short minutes of order the issue of costs and any supporting affidavits, together with written submissions not to exceed 4 pages within 14 days after service of the appellants’ submissions contemplated by the previous order;
(c) the appellants to file and serve any written submissions in reply not to exceed 2 pages within 10 days after receiving the respondents’ submissions.
(8) Direct that the Court determine any issue as to costs on the papers.Catchwords: TORTS – assault – whether primary judge’s factual findings concerning alleged assaults by respondent erroneous – self-defence – whether primary judge correctly applied the test and onus for self-defence under s 52 of the Civil Liability Act 2002 (NSW)
TORTS – malicious prosecution – whether respondents instigated prosecution by making deliberately false statements to police concerning alleged assaults by the appellants – conduct recorded on CCTV – whether respondents maintained prosecution by giving evidence which they knew to be false at the first appellant’s criminal trial
DAMAGES – trespass – leave to appeal award of damages – whether primary judge erred in awarding general damages of $500 – whether primary judge’s assessment erroneous – whether there were circumstances justifying a substantial award of general damages – aggravated and exemplary damages – whether reasonably clear injustice arising from the refusal to award aggravated or exemplary damagesLegislation Cited: Civil Liability Act 2002 (NSW) ss 3B, 52, 53, Pt 2
Civil Procedure Act 2005 (NSW) s 98(1)
Crimes Act 1900 (NSW) ss 59, 61, 418, 419
Crimes Amendment (Self-defence) Act 2001 (NSW)
Home Invasion (Occupants Protection) Act 1998 (NSW)
Supreme Court Act 1970 (NSW) s 101(2)
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 51.36(2)Cases Cited: A v State of New South Wales [2007] HCA 10; 230 CLR 500
Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128; 80 NSWLR 652
Barton v Armstrong [1969] NSWR 451
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust…
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- AGLC
- Sahade v Bischoff [2015] NSWCA 418
- Case
- [2015] NSWCA 418
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the primary judge’s factual findings regarding the alleged assaults were erroneous. It also had to consider whether the primary judge correctly applied the test and onus for self-defence under section 52 of the *Civil Liability Act 2002* (NSW). Further issues included whether the respondent instigated or maintained a prosecution by making deliberately false statements to police and giving false evidence, and whether the primary judge erred in awarding general damages of $500 for trespass, and if circumstances justified a substantial award of general damages, including aggravated and exemplary damages.
The Court of Appeal ultimately dismissed the appeal. While granting leave to the appellants to file an amended notice of appeal, it refused leave to file an amended cross-summons and dismissed the cross-summons for leave to cross-appeal. All questions of costs were reserved, with directions given for the parties to file submissions and proposed orders regarding costs.
Orders
Orders of the court
(1) Grant leave to the appellants to file an amended notice of appeal in the form appearing in the Orange Book.
(2) Direct the appellants to file an amended notice of appeal within fourteen (14) days.
(3) Appeal dismissed.
(4) Leave to file an amended cross-summons refused.
(5) Cross-summons for leave to cross-appeal dismissed.
(6) Reserve all questions of costs in this Court.
(7) In default of agreement as to costs, direct:
(a) the appellants to file and serve within 28 days of the date of these orders their proposed short minutes of order on the issue of costs and any supporting affidavits, together with written submissions not to exceed 4 pages;
(b) the respondents to file and serve their proposed short minutes of order the issue of costs and any supporting affidavits, together with written submissions not to exceed 4 pages within 14 days after service of the appellants’ submissions contemplated by the previous order;
(c) the appellants to file and serve any written submissions in reply not to exceed 2 pages within 10 days after receiving the respondents’ submissions.
(8) Direct that the Court determine any issue as to costs on the papers.
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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