NUNN v HIPPI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and MEAGHER JJA 10 March 1994, 17 March 1994 [1994] NSWCA 245 JUDGES — reasons — obligation to state — claim for assault, malicious prosecution and unlawful imprisonment brought against police officer — held: Reasons and findings inadequate — new trial ordered. JUDGES — reasons — explanation of grounds for decision — claim of assault, false imprisonment and malicious prosecution brought against policeman and the State — trial judge (McLachlan DCJ) enters judgment for plaintiff for $12,000 — appeal and cross-appeal — complaint by appellant (defendant) that judgment is inconsistent with finding — complaint by cross-appellant (plaintiff) that judge failed to address claims of false imprisonment and malicious prosecution, and for exemplary damages and interest — held: (1) The reasons provided did not reveal the grounds for the judge's decision and did not contain adequate findings of fact to permit the Court of Appeal to determine the dispute for itself. Pettitt vy Dunkley [1971] 1 NSWLR 376 (CA); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA) applied; (2) Appeal and cross-appeal allowed and retrial ordered. Kirby P By the law of this State, judicial officers are obliged to support their orders by reasons which adequately expose the grounds for their decision. Pettitt v Dunkley [1971] 1 NSWLR 376 (CA); Soulemezis v Dudley (Holdings) Pty Ltd (1987) e 10 NSWLR 247 (CA). In the present proceedings, both the appellants (in the appeal) and the respondent, as cross-appellant (in the cross-appeal), complain that the learned trial judge (McLachlan DCJ) did not provide adequate reasons for entering judgment in favour of the plaintiff in the sum of $12,000. The appellants complain that the judgment in the claim of assault is inconsistent with the finding that it was "impossible to decide who threw the first punch". Because no other basis for the judgment has been disclosed, or sufficiently disclosed, the appellants ask for judgment in their favour. The respondent, as cross-appellant, also contends that the reasons were defective. They failed to explain the dismissal of the claims of false imprisonment and malicious prosecution which were before the court. They failed to indicate how the damages were calculated. They failed entirely to deal with the issue of exemplary damages (or aggravated damages) which had been the subject of submission and argument. They also failed to deal with a claimed entitlement to interest. Regretfully, I have reached the conclusion that the submissions of both parties are correct. The judgment cannot stand. This Court cannot substitute its own assessment of the matters left unresolved by the primary judge. Without appropriate findings of fact, and properly explained conclusions resting upon those findings, it would be erroneous in principle for this Court to attempt to reach conclusions of its own. This Court labours under the disadvantage, 2 UNREPORTED JUDGMENTS significant for this case, of not having seen the witnesses whose testimony is conventionally regarded as all important in disposing of a contest such as the present. The Court explored the possibility of seeking to resolve some of the issues raised by the appeal and cross-appeal. It did so in the hope of assisting in the proper conduct of a retrial and in avoiding further complaint. However, both parties agreed that the resolution of the several matters raised in the appeal and cross-appeal depends upon fact finding which is incomplete. I say that I have come to the foregoing conclusion regretfully, because the incident out of which this litigation arose occurred more than a decade ago, ie in December 1983. The trial occurred more than three years ago. Even with a Suitors' Fund Act Certificate, the burden of costs on the respondent, particularly, will be substantial. However, there is no way that a retrial can be avoided. It must be ordered. It might be hoped that, in the circumstances, the District Court would accede to a motion, in which all parties should join, that the hearing of the retrial be expedited. I agree with the orders proposed by Meagher JA. Clarke JA In this case McLachlan DCJ was confronted with a case in which the respondent sued on three separate causes of action and in the course of which there were material conflicts in the evidence. In the light of this conflict difficult questions arose for determination. Did the appellant assault the respondent? Was he acting in self defence? Did he use more force than was necessary? Had the respondent established that the appellant did not have reasonable and probable cause for bringing the prosecutions? Was the respondent entitled to exemplary damages? These were but the most prominent questions. His Honour did not answer them, although it may be that his Honour implicitly provided the answer to a few of them. Some, however, were not even considered. The reason why his Honour did not consider them seems to be that his Honour's determination that both parties were to blame rendered unnecessary a decision on those questions. In taking this approach his Honour erred in law. Neither party attempted, or could have attempted, to suggest otherwise. I agree with the orders proposed by Meagher JA. Meagher JA The plaintiff, Mr Hippi, sued the defendant, Constable Nunn, on three causes of action arising out of an incident which took place in the township of Drake in the mid-afternoon of 27 December 1983. The three causes of action were assault, false imprisonment, and malicious prosecution. The case was heard by his Honour Judge McLachlan who delivered judgment on 8 November 1990. Suffice it to say that on both the plaintiffs account and on the defendant's account there was a brawl between the two men involving the exchange of fisticuffs. On the plaintiff's account, the defendant committed an unpardonable act of aggression against him; on the defendant's account, the defendant was legitimately endeavouring to arrest the plaintiff on the charge of being guilty of conduct which would give reasonable people cause to be alarmed or seriously affronted (within the meaning of the Offences in Public Places Act, s5). On the plaintiff's account, the defendant threw the first punch; on the defendant's account the plaintiff did. Who is correct on these issues has not yet been decided. However, what is clear is that the plaintiff was arrested, the plaintiff was prosecuted and the plaintiff ended up in hospital for a week with a badly broken jaw. URJ NUNN v HIPPI (Meagher JA) 3 His Honour apparently concluded that the plaintiff should win on the first cause of action and entered a verdict in his favour in the sum of $12,000. Neither the reasons which led to the verdict nor the steps by which its quantum was determined are wholly clear. It is necessary in this regard to set out two passages from his Honour's judgment. The first is - "1. I do not believe that anyone is going to be able to decide who threw the first punch. "2. The plaintiff said in cross-examination that all he wanted to do by commencing this action was to clear his name. I say this to him - his name was cleared from the moment his Honour Judge Shillington quashed the two convictions. "3. Having assessed the evidence of the plaintiff and the constable, the conclusion I come to is that both were e to blame for what happened outside the store at Drake. I accept that the constable is a good worthy member of the Police Force but I find that he did overreact on that day. It should have been possible for him to quieten the plaintiff down before the punches started. As to the plaintiff, he concedes that he was upset at the time. No doubt that condition was aggravated by what the plaintiff believed to have been an unnecessary complaint since he says that he was doing nothing wrong. But he should not have either thrown the first punch or responded as he did - whatever happened. He must understand that the police have a duty to keep the peace and he must expect that - whatever action a police officer takes - he, the plaintiff, is far better off to play a non-aggressive role." The second is - "I believe, however, that I do not need to embark upon consideration of these causes of action because they must fail once I decide - as I do - that the plaintiff contributed to the incident by his actions and was partly to blame. "T declined to decide as to whether there was serious alarm and affront. I find that the plaintiff's attitude to the constable when first approached - saying the words "fuck off were objectionable and such as to put the constable on guard but that the constable did assault the plaintiff and applied unnecessary force." This led his Honour to find for the plaintiff on the first count and for the defendant on the remaining two counts. This judgment - which I feel constrained to say is lamentable - satisfies neither any test of logic nor the parties' legitimate expectation to have this quarrel adjudicated upon according to the law. Exactly what constituted the assault which his Honour found existed is unknown; how his Honour arrived at the figure of $12,000 is unknown. Why his Honour resisted the plaintiff's claim for punitive damages is unknown. Nor did a gentle reproof to both sides, coupled with a finding that the plaintiff contributed to the fracas, absolve his Honour from the necessity of considering the second and third counts. On any view, the question of whether the defendant had reasonable cause to arrest the plaintiff had to be determined, as did the question whether the defendant without reasonable and probable cause initiated the prosecutions against the plaintiff. His Honour failed to do so. Not surprisingly, his Honour's decision has attracted both an appeal and a cross-appeal. Both must succeed. Unfortunately, a by-product of the insufficiency of his Honour's findings will necessitate a new trial, which must be a real hardship for both parties, but particularly for the plaintiff. The orders which I propose are therefore as follows: 4 UNREPORTED JUDGMENTS 1. Appeal allowed. 2. Cross-appeal allowed. 3. Verdict and orders of his Honour Judge McLachlan set aside. 4. Order a new trial of the plaintiffs action upon all counts. 5. The respondents to pay the appellant's costs of the appeal but to have in respect thereof, a certificate under the Suitors' Fund Act, 1951. 6. The cross-respondents t pay the cross-appellant's costs of the cross-appeal but to have, in respect thereof, a certificate under the Suitors' Fund Act, 1951 if otherwise so qualified; and 7. Costs of the first trial to abide the outcome of the second. 1. Appeal allowed; 2 Cross-appeal allowed; 3. Verdict and orders of his Honour Judge McLachlan, set aside; 4. Order a new trial of the plaintiffs action upon all counts; 5. The respondent to pay the appellants' costs of the appeal but to have, in respect thereof, a certificate under the Suitors' Fund Act 1951; 6. The cross-respondents to pay the cross-appellant's costs of the cross-appeal but to have, in respect thereof, a certificate under the Suitors' Fund Act, 1951 if otherwise so qualified; and 7. Costs of the first trial to abide the outcome of the second. Counsel for the appellants (Cross-Respondents): P J Saidi Solicitors for the Appellant (Cross-Respondents): H K Roberts, Crown Solicitor Counsel for the Respondent (Cross-Appellant): B E Kinsella Solicitor for the Respondent (Cross-Appellant): Turner Freeman