Riechelmann v McCabe [2024] NSWCA 37

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 Vagg v McPhee [2013] NSWCA 29; (2013) 85 NSWLR 154 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Texts Cited: David Rolph, Contempt (Federation Press, 2023) Category: Principal judgment Parties: Julie Riechelmann (Appellant) David Terance McCabe (Respondent) Representation: Counsel: J Morris SC with M Bridger (Appellant) J W Dodd (Respondent)