Sica v Brophy - [2020] NSWCA 181

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sica v Brophy [2020] NSWCA 181
Hearing dates: 24 April 2020
Decision date: 20 August 2020
Before: Basten JA at [1];
Payne JA at [2];
McCallum JA at [5]
Decision:
Appeal dismissed with costs

Catchwords:
TORTS — Defences — Self-defence — factual contest as to whether elements of defence under s 52 of the Civil Liability Act 2002 established
APPEALS — From finding of fact — Credibility of witnesses — where primary judge had advantage of seeing principal witnesses give evidence
CIVIL PROCEDURE — Court of Appeal — requirement in r 51.36(2) of the UCPR to include a statement setting out the findings of fact challenged and the findings contended for — where appellant’s grounds of appeal predominantly challenged primary judge’s findings of fact but failed to comply

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 52, 53
Evidence Act 1995 (NSW), s 136
Uniform Civil Procedure Rules 2005 (NSW), r 51.36(2)

Cases Cited:
Dearman v Dearman (2008) 7 CLR 549 at 561; [1908] HCA 84
Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; [1993] HCA 78
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339
Owners of Steamship Hontestroom v Owners of Steamship Sagaporack [1927] AC 37
South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69

Category: Principal judgment
Parties: Adriano Sica (Appellant)
Travis Brophy (Respondent)
Representation:
Counsel:
B Dooley SC, L Katsinas (Appellant)
A Williams (Respondent)
Solicitors:
Kalpaxis Legal (Appellant)
Danny Eid Lawyers (Respondent)

File Number(s): 2019/216946
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

14 June 2019

Before:

Olsson SC DCJ

File Number(s):

2018/074839

Judgment

BASTEN JA: I agree with McCallum JA.
PAYNE JA: The Uniform Civil Procedure Rules 2005 (NSW) r 51.36(2) (UCPR) requires in every appeal a statement to be filed accompanying the written submissions identifying the findings of fact which are challenged and the alternative findings contended for. In South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [135], Leeming JA (with whom Basten and Meagher JJA agreed) remarked that it was:

"… not for this Court, in order to resolve a factual challenge advanced by an appellant, to trawl through the entirety of the record in order to collect and then evaluate the relevant evidence … Based on the limited submissions advanced on appeal, I would not conclude that the finding of the primary judge is one which should be disturbed on appeal.".

It is of particular importance, especially in a fact intensive matter such as the present appeal, that the procedure required by the UCPR is adhered to. That procedure does not represent a procedural option.
I have read the reasons of McCallum JA in draft. I agree with the orders proposed by her…

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 Sica v Brophy

Details

AGLC: Sica v Brophy [2020] NSWCA 181
Case: [2020] NSWCA 181
Decision Date: 20 August 2020

CaseChat Overview and Summary

The Court of Appeal of New South Wales, comprising Basten, Payne and McCallum JJA, heard an appeal in *Sica v Brophy*. The dispute concerned a claim in tort, where the appellant, Mr. Sica, sought to challenge findings of fact made by the primary judge. The central issue revolved around the defence of self-defence, as provided for under section 52 of the *Civil Liability Act 2002* (NSW).

The primary legal issues before the Court of Appeal were whether the primary judge erred in their findings of fact regarding the elements of self-defence, and whether the appellant had adequately complied with the procedural requirements for challenging findings of fact on appeal. Specifically, the Court considered the appellant's grounds of appeal, which predominantly challenged the primary judge's factual determinations, and assessed them against the requirements of rule 51.36(2) of the Uniform Civil Procedure Rules 2005 (NSW).

The Court of Appeal found that the primary judge had the advantage of observing the principal witnesses give evidence, which weighed heavily in assessing their credibility. Furthermore, the Court noted that the appellant's grounds of appeal failed to comply with the procedural requirement to set out the specific findings of fact being challenged and the findings contended for by the appellant. Consequently, the appeal was dismissed. The appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Sica v Brophy [2020] NSWCA 181
Hearing dates:	24 April 2020
Decision date:	20 August 2020
Before:	Basten JA at [1]; Payne JA at [2]; McCallum JA at [5]
Decision:	Appeal dismissed with costs
Catchwords:	TORTS — Defences — Self-defence — factual contest as to whether elements of defence under s 52 of the Civil Liability Act 2002 established APPEALS — From finding of fact — Credibility of witnesses — where primary judge had advantage of seeing principal witnesses give evidence CIVIL PROCEDURE — Court of Appeal — requirement in r 51.36(2) of the UCPR to include a statement setting out the findings of fact challenged and the findings contended for — where appellant’s grounds of appeal predominantly challenged primary judge’s findings of fact but failed to comply
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 52, 53 Evidence Act 1995 (NSW), s 136 Uniform Civil Procedure Rules 2005 (NSW), r 51.36(2)
Cases Cited:	Dearman v Dearman (2008) 7 CLR 549 at 561; [1908] HCA 84 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; [1993] HCA 78 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339 Owners of Steamship Hontestroom v Owners of Steamship Sagaporack [1927] AC 37 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69
Category:	Principal judgment
Parties:	Adriano Sica (Appellant) Travis Brophy (Respondent)
Representation:	Counsel: B Dooley SC, L Katsinas (Appellant) A Williams (Respondent) Solicitors: Kalpaxis Legal (Appellant) Danny Eid Lawyers (Respondent)
File Number(s):	2019/216946
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 14 June 2019 Before: Olsson SC DCJ File Number(s): 2018/074839