Hall v van der Poel [2009] NSWCA 436

New South Wales Court of Appeal

CITATION: Hall v van der Poel [2009] NSWCA 436

HEARING DATE(S): 27 November 2009

JUDGMENT DATE: 24 December 2009

JUDGMENT OF: Hodgson JA at 1; McColl JA at 52; Basten JA at 53

(1) Appeal allowed. DECISION: (2) Orders below set aside. (3) Respondent to pay the appellants' costs of the appeal, and to have a certificate under the Suitors' Fund Act 1951 if otherwise eligible. (4) Order that there be a new trial, with the costs of the first trial in the discretion of the judge hearing the second trial.

CATCHWORDS: TORTS – Trespass to the person – Assault – Prior to assault on plaintiff, plaintiff uses weapon to strike an associate of defendants – No finding by primary judge as to whether this was in self-defence – Whether this material to primary judge's findings that assault on plaintiff was within a common purpose of the defendants and others, that it was not in self-defence, and that exemplary damages were warranted. - PROCEDURE – Appeal – New trial – Findings of fact not made by primary judge – Whether substantial miscarriage of justice thereby occasioned – Whether new trial should be ordered.

Civil Liability Act 2002 ss 52-54 LEGISLATION CITED: Civil Procedure Act 2005 (NSW) s 56 Supreme Court Act 1970 s 75A, s 101 Uniform Civil Procedure Rules 2005 (NSW) r 51.53

CATEGORY: Principal judgment

Alchin v Daley [2009] NSWCA 418 Balenzuela v De Gail [1959] HCA 1; 101 CLR 226 at 235 Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280 The Commonwealth v Brisbane Milling Co Ltd [1916] HCA 39; 21 CLR 559 Fox v Percy [2003] HCA 22; 214 CLR 118 Hare v Harmer [2009] NSWCA 68 CASES CITED: HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640 Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; 237 CLR 268 Musgrove v McDonald [1905] HCA 50; 3 CLR 132 Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210 Tory v Megna [2007] NSWCA 13 Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan [1931] HCA 34; 46 CLR 73 The Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816