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 CA 40194/2009 Jarrod HALL (first appellant) David HALL (second appellant) Justin van der POEL (respondent) PARTIES: CA 40195/2009 Jarrod HALL (first appellant) David HALL (second appellant) Edward van der POEL (respondent) FILE NUMBER(S): CA 40194/09; 40195/09 COUNSEL: T F ROBERTSON SC/J LAZARUS/D PETRUSHNKO (appellants) C HART (respondents) SOLICITORS: Conditsis & Associates Lawyers (appellants) Bale Boshev Lawyers (respondents) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 316/07; DC 317/07 LOWER COURT JUDICIAL OFFICER: Sidis DCJ LOWER COURT DATE OF DECISION: 26 March 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Van Der Poel v Hall [2009] NSWDC 50 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40194/09 CA 40195/09 DC 316/07 DC 317/07 HODGSON JA McCOLL JA BASTEN JA 24 DECEMBER 2009 HALL v van der POEL Judgment 1 HODGSON JA: These appeals arise out of proceedings concerning events that occurred on 19 September 2004 at Forresters Beach. In one proceeding, Edward van der Poel (Poel Snr) sued David Hall (Hall Snr), his son Jarrod Hall (Hall Jnr) and Geoffrey Barnett (Barnett) for assault. In the other proceeding, Poel Snr's son Justin van der Poel (Poel Jnr) sued the same defendants for assault. Barnett was not served, and the proceedings went ahead against the other two defendants (although Barnett did give evidence at the hearing). 2 In Poel Snr's proceedings, Sidis DCJ gave judgment for Poel Snr against Hall Snr and Hall Jnr in the sum of $98,154.95; and in Poel Jnr's proceedings, the primary judge gave judgment for Poel Jnr against Hall Snr and Hall Jnr for $25,000. In each case, costs were also awarded against both defendants. 3 Hall Snr and Hall Jnr appealed from the decision in each case. No application was made to have the appeals dismissed as incompetent, on the basis that they did not involve an amount of $100,000 or more (s 101(2)(r) Supreme Court Act 1970); and in the circumstance that the two proceedings and the two appeals were heard together as a single matter, I do not think the Court should now take that course of its own motion: cf NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210 at [23]-[25]. Circumstances 4 I will commence with a brief account of the facts that are either common ground or clearly established. 5 In the early hours of Sunday 19 September 2004, Mitchell Hall, the son of Hall Snr and brother of Hall Jnr, came home injured. Hall Jnr was told that those injuries had been inflicted by the brothers Matthew Finigan and Mark Finigan; and it would seem that he passed this information on to Hall Snr. 6 At about 1.30pm on 19 September 2004, Hall Jnr arrived at the Finigan home at Forresters Beach in his car, together with his friend Barnett and Dane van Emden (Emden). Hall Jnr parked his car about 20 metres to the south of the Finigan property, and he and his two friends walked towards that property. Hall Jnr and Barnett went on to the front door of the Finigan house, but Emden stopped about half way between the car and the Finigan property. 7 Hall Snr arrived in his own car at about the time Hall Jnr and Barnett reached the front door of the Finigan house. 8 The door of the house was opened by the father of the brothers Matthew and Mark Finigan (Finigan Snr). Matthew was not at home. Finigan Snr called his son Mark (Finigan Jnr) to the door. Finigan Jnr then walked down to the bottom of the stairs at the front of the house with Hall Jnr and Barnett. 9 Almost immediately, Finigan Jnr and Hall Jnr became involved in a scuffle. Finigan Snr then ran down the stairs and intervened. 10 At about this time, Hall Snr left his car, which was parked opposite the Poel residence (which was next to the Finigan residence), and he too intervened. 11 Poel Snr and Poel Jnr had been having lunch on the veranda of their home. They had heard a noise coming from the Finigan property and ran towards it. Poel Snr called out to stop what was going on, and Barnett, who was the closest of the Hall group to Poel Snr, responded verbally. Poel Snr had a piece of timber in his hands, and he struck Barnett with it. There was a dispute in the evidence as to whether or not this was in response to Barnett advancing threateningly at Poel Snr and/or throwing punches. 12 Barnett then went to Hall Jnr's car and got a cricket bat, and he returned to where Poel Snr was. Meanwhile Hall Snr became physically involved with Poel Snr, and attempted to disarm him. Barnett struck Poel Snr with the cricket bat. Poel Jnr went to the aid of Poel Snr, and also became physically involved, particularly with Barnett and Hall Jnr. 13 Shortly afterwards, Hall Snr left in his car, and Hall Jnr and his friends left in Hall Jnr's car. A neighbour (or perhaps Poel Snr's wife) had called the police, and they arrived a little later. The call to the police was noted at about 1.38 pm, and their arrival at the scene at about 1.40 pm. An ambulance also attended, but Poel Snr and Poel Jnr did not go with the ambulance but went back to their home. 14 Poel Snr made a statement to the police on that occasion, and signed a note of that statement in a police notebook. That statement read as follows: 4. About 1.20pm on Sunday the 19th of September 2004 I was at my house at 41 Malkana Avenue Forresters Beach. I heard screams and yelling coming from my neighbour's house next door. My son Justin and I ran over and saw my neighbour Mark (Snr) fighting with a guy about 30 years old. I said, "Hey guys what are you doing, break it up" The younger guy started throwing punches at me. I punched him lightly in the eye. I was standing on my property. 5. The younger guy ran towards a car. The older father came fro[m] my neighbour's driveway onto my property and started throwing punches at my head. I grabbed him and fell to the ground. I saw the younger guy that punched me running towards me with a cricket bat. The younger guy was [sic] the bat trying to hit me. I held the father on top of me so I wouldn't get hit with the bat. The younger guy hit me in the back with the cricket bat. My son Justin grabbed the younger guy with the bat in a headlock. I got up and went straight inside. I saw the father get back into a dark four-wheel drive and drive off. 6. My wife called the police. As a result of the hit with the bat 'I have a large red mark on the right side of my back. It's very sore. I was assaulted while I was on my own property. I never left my property. I did not give anyone permission to assault me. 15 Poel Snr made a further statement at Gosford Police Station on 21 October 2004, in the following terms: 1. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false, or do not believe to be true. 2. I have not told any lies in this statement. 3. I am 55 years of age. 4. About 1.20pm on Sunday the 19th of September 2004 I was at my house at 41 Malkana Avenue Forresters Beach. I was sitting on the veranda with my son Justin. I heard screams and yelling coming from my neighbour's house next door. My son Justin and I ran over and saw my neighbours Mark FINIGAN (Snr) and Mark FINIGAN (Jnr) being assaulted by about 4 people. Both FINIGANS were lying on their driveway and were being kicked by about 4 guys. Justin and I ran over to the edge of our property. I said, "Hey guys what are you doing, break it up" The younger guy about 18 years old solid build yelled at us, "Do you want to have a go to[o], do you?" He then came towards me onto my property and started throwing punches at me. I punched him lightly in the right ear. I was standing on my property. The other guys left the FINIGANS and came onto my property. 5. The younger guy ran towards a car that was parked past the FINIGANS house. The older father who I earlier saw on top of Mark FINIGAN (Snr) came onto my property. He said, "You're not going anywhere". He then started throwing punches at my head. I saw the younger guy that punched me running towards me with a cricket bat. The younger guy was waving the bat in the air. I grabbed the father and pulled him towards me to prevent me from being hit with the cricket bat. I pulled his shirt over his head and we fell to the ground. The younger guy yelled at me, "You're going to get it, you cunt." He then tried to hit me in the head with the bat numerous times. I held the father on top on me so I wouldn't get hit with the bat. The younger guy hit me in the middle of the back with the cricket bat. I immediately felt pain and had trouble breathing. My son Justin grabbed the younger guy with the bat from underneath and tried to get the bat of[f] him to prevent me from being hit. I saw the younger guy swinging the cricket bat at Justin. Justin and the younger guy fell to the ground. The FINIGANS came over and they separated Justin and the younger guy. 6. I got up and felt extreme pain in my back. They all ran back towards the car. I saw the father get back into a dark four-wheel drive a[n]d drive off. I went back into my house in case they came back. Justin picked up the bat and came inside with me. The police and an ambulance arrived and spoke to me. The police took photos of the injuries to my back. The female police officer took the cricket bat. 7. As a result of the hit with the cricket bat I have a large red mark on the right side of my back. On Tuesday the 21 st of September 2004 I went to my doctor at Wamberal Surgery. He sent me to Erina Radiology to have X rays on my back. I have one fractured rib in my back. I was assaulted while I was on my own property. 16 On 16 March 2005, Barnett pleaded guilty to assaulting Poel Snr thereby occasioning him actual bodily harm. Decision of primary judge 17 Early in her judgment, the primary judge said this: 8 I had no doubt that none of the parties or their witnesses was fully frank with the court and it was therefore necessary to scrutinise the evidence in detail. 9 The issues involved in determining liability were: 1 Whether Mr Hall Snr and Mr Hall Jnr were jointly liable for Mr Barnett's conduct because they attended upon the Finigan property in pursuit of a common purpose to assault or intimidate the Finigan brothers by way of revenge for the assault they believed had been directed towards Mitchell Hall. 2 If not, whether their conduct involved individual intentional assaults against Mr Van der Poel Snr or Mr Van der Poel Jnr. 18 Subsequently, she said this on the matter of the credit of Poel Snr and Poel Jnr: 67 A great deal was said by the defendants concerning the credit of the plaintiffs and the extent to which I should accept their evidence. Indeed, the major part of the defendants' 92 pages of submissions addressed this topic. It will be noted that I found it unnecessary to consider any of the evidence relied upon by the plaintiffs in deciding the issue of common purpose except to note that Mr Van der Poel Snr agreed that he struck Mr Barnett with a piece of timber and that his description of the timber indicated that it was of smaller dimension than suggested by the defendants and their witnesses. 19 On that basis, she found it unnecessary to deal with the issue of their credit (par [68]). 20 The primary judge made the following findings of fact: 90 The result of these inconsistencies and discrepancies in the evidence was that I rejected much of the self serving evidence of the defendants and I found the facts to be as follows: 1 Mr Hall Snr checked on Mitchell at about 9.30 am. 2 Mr Hall Jnr was in the Hall residence at this time and remained there until shortly after 1 pm. 3 Mr Hall Snr rang Mr Barnett between 9.30 am and 10.30 am. 4 Mr Barnett, instead of driving to the gymnasium, went directly to the Hall residence. He was at the Hall residence until shortly after 1 pm. 5 Mr van Emden came to the Hall residence with Mr Hall Jnr and was in the house during the morning. He left with Mr Hall Jnr shortly after 1 pm. 6 Mr Hall Jnr told Mr Hall Snr during the morning that Matthew Finigan and Mark Finigan assaulted Mitchell. 7 There was therefore ample opportunity for discussion before they left to go to the Finigan property. 8 Mr Hall Jnr left to drive to the Finigan property shortly after 1 pm. 9 Mr Hall Snr left to drive to the Finigan property at the same time as Mr Hall Jnr or almost immediately after him. 10 Mr Hall Jnr and Mr Finigan Snr became engaged in a fight in the course of which they both fell to the ground. 11 The fight was substantial and it subsequently involved Mr Hall Snr. 12 After Mr Hall Jnr and Mr Finigan Snr stood to their feet they continued with Mr Hall Snr to shout at each other. 13 Mr Van der Poel Snr struck Mr Barnett with a piece of timber. 14 Mr Barnett knew that there was a cricket bat in the car. 15 Mr Barnett went directly to the car, retrieved the cricket bat and returned with the intention of striking Mr Van der Poel Snr with it. 15 Mr Hall Snr wrestled with Mr Van der Poel Snr in an attempt to disarm him. They fell to the ground and continued to wrestle. 17 Mr Hall Snr made no attempt to disarm Mr Barnett. 18 Mr Hall Jnr made no attempt to disarm Mr Barnett. 19 Mr van Emden made no attempt to disarm Mr Barnett. 20 Mr Barnett struck Mr Van der Poel Snr with the cricket bat while he remained on the ground. 21 Mr Barnett struck Mr Van der Poel Jnr with the cricket bat and held him in a headlock. ….. 94 I find therefore that the common purpose of the defendants, Mr Barnett and Mr van Emden when they went to the Finigan property on 19 September 2004 was to engage in the criminal activity of assault and intimidation of Mark Finigan and Matthew Finigan and in activity that would involve direct physical violence if it became necessary. 21 The primary judge rejected submissions that such violence as did occur between the Halls and the Finigans had ceased before the Poels came on to the scene, so that the interaction between the Halls and the Poels did not form part of the common purpose, in that even if physical violence had ceased, shouting and disputation was continuing and the defendants' purpose was not completed: judgment par [95]-[99]. 22 The primary judge found there was no evidence to support a claim of self-defence in respect of assaults on Poel Snr and Poel Jnr, relating this to the question of whether the violence was the result of the need to defend Mr Hall Jnr from Mr Finigan Snr: par [100]-[102]. 23 She rejected submissions that Barnett's attack with a cricket bat was outside the scope of the common purpose: par [103]-[107]. 24 Accordingly, the primary judge found Hall Snr and Hall Jnr responsible for what occurred in the course of the execution of the purpose common to them and Barnett. 25 The primary judge also made the following findings concerning individual intentional assaults: 108 There was clear evidence that Mr Hall Snr intentionally assaulted Mr Van der Poel Snr when he attempted to disarm him and then continued to wrestle with him after they fell to the ground. 109 I find that his purpose in this assault was not, as he stated, to protect Mr Van der Poel Snr from Mr Barnett. It was to protect Mr Barnett from the elderly Mr Van der Poel Snr. 110 In assaulting him in this manner Mr Hall Snr exposed Mr Van der Poel Snr to injury from the blows that he delivered. In addition he exposed him to the blows delivered by Mr Barnett with the cricket bat. 111 There was evidence that Mr Hall Jnr intentionally assaulted Mr Van der Poel Jnr after he intervened to protect Mr Van der Poel Snr. 112 In the circumstances I find that Mr Hall Snr and Mr Hall Jnr committed direct intentional assaults upon the plaintiffs. 26 As regards damages, the primary judge awarded Poel Snr general damages of $40,000, economic loss and expenses of $38,154.95, aggravated damages of $10,000 and exemplary damages of $10,000. 27 The primary judge awarded Poel Jnr general damages of $10,000, aggravated damages of $5,000 and exemplary damages of $10,000. Issues on appeal 28 The appellants rely on the following grounds of appeal in Poel Snr's case: 1 Her Honour erred in concluding (at [11], [107]) that it was sufficient for liability for the tortious acts of the third defendant to attach to the appellants that those acts occurred in the course of the execution of the common purpose pleaded at paragraph 1A of the amended statement of claim ("the pleaded common purpose"), whereas as a matter of law, the appellants could only be liable where the third defendant's tortious acts were in furtherance of the pleaded common purpose, as well as being executed in the course of that purpose. 2 Her Honour erred in failing to find that the tortious acts of the third defendant were not in furtherance of the pleaded common purpose, and hence the appellants could not have been liable for those acts. 3 Her Honour erred in finding (at [94]) that in attending on the Finigan property on 19 September 2004 the appellants had the purpose of engaging in the criminal activity of assault and intimidation of the Finigans, in the absence of evidence of any agreement between the appellants and either of Mr van Emden or the third defendant, as distinct from an "ample opportunity for discussion". 4 Her Honour erred in finding (at [94]) that in attending on the Finigan property on 19 September 2004 the first appellant had the purpose of engaging in the criminal activity of assault and intimidation of the Finigans, particularly in circumstances where: a. the first appellant drove himself separately to the Finigans' property; b. there was no evidence that the first appellant did anything to facilitate the others in the execution of the pleaded common purpose; and c. there was no evidence that the first appellant was aware of the Finigans' reputation for violence. 5 Her Honour erred by failing to apply the Briginshaw standard and/or s.140 of the Evidence Act 1995 as part of the fact-finding exercise, other than her findings in relation to whether there was a common purpose to engage in criminal activity. 6 Her Honour erred in finding (at [99], [107]) that the tortious acts of the third defendant were within the scope of the pleaded common purpose, particularly in circumstances where: a. the tortious acts of the third defendant were perpetrated against the respondent and the second plaintiff, neither of whom was the object of the pleaded common purpose; b. the entry of the respondent into the fray, and the use by him of a piece of timber to strike the third defendant, could not have been reasonably contemplated or foreseen by either of the appellants; c. the use by the third respondent of a cricket bat to strike the respondent could not have been reasonably contemplated or foreseen by either of the appellants; d. there was no evidence that the cricket bat was placed in the car with any intention that it be used as a weapon; and e. the effect of her Honour's judgment in that regard (at [105]) was to reverse the onus of proof. 6A Her Honour erred in finding that the first appellant committed an intentional assault upon the respondent 6B Her Honour erred in finding that the injuries sustained by the respondent were caused by the first appellant's alleged assault. 7 Her Honour erred in finding (at [102]) that there was no evidence to support a defence of self-defence in relation to either the individual assault said to have been committed by the first appellant or the "common purpose" assault. 8 Her Honour erred in failing to find that the circumstances of the assaults justified a claim of self-defence at common law by both appellants. 9 Her Honour erred in failing to apply the provisions of s.52 of the Civil Liability Act 2002 ("CL Act"). 10 Her Honour erred in failing to find that the circumstances of the assaults justified both appellants being relieved of liability. pursuant to s.52 of the CL Act. 11 Her Honour erred in failing to make findings about the credit of either of the plaintiffs, despite the plaintiffs having made prior inconsistent statements to the Police contemporaneous with the alleged assault. 12 Her Honour erred in failing to find that the appellants were not liable for the tortious acts of the third defendant or, in the case of the first appellant, his alleged individual assault, by reason of the principle of ex turpi causa oritur non actio , in that the respondent had entered the fray of his own volition, and had deliberately, wilfully and unlawfully struck the third defendant with a piece of timber. 13 ….. 14 Her Honour erred in finding that the CL Act did not apply to the assessment of damages (at [113]), whereas ss.53 and 54 applied. 15 Her Honour erred by failing to find that, if s.52 of the CL Act would not have applied to relieve the appellants of liability only because their conduct (or the pleaded common purpose conduct) was not a reasonable response in the circumstances as perceived by the appellants (or the third defendant), she could not be satisfied that the circumstances of the case were exceptional and in those circumstances, a failure to award damages would be harsh and unjust, pursuant to s.53 of the CL Act. 16 Even if she could have been so satisfied, her Honour erred: (a) by awarding damages for non-economic loss in breach of s.53(2)(b) of the CL Act; (b) by not applying Part 2 (other than Division 3) of the CL Act; (c) ….. 17 In the alternative to para 16(c), her Honour erred in awarding the respondent aggravated damages. 18 In the alternative to para 16(c), her Honour erred in awarding the respondent exemplary damages. 19 Her Honour erred in failing to apply the provisions of s.54 of the CL Act to the award of damages by finding that the conduct of the' respondent constituted on the balance of probabilities a serious criminal offence which contributed materially to his injury or the risk of injury. 20 Her Honour erred by failing to find that it was contrary to public policy to award damages for an injury which took place in the course of a fracas in which the respondent was a willing participant. 21 …… 29 The grounds in Poel Jnr's case did not include grounds 6A, 6B, 12, 13, 19 and 20 in the above grounds. However, they did include an additional ground 7, which was as follows: 7 Her Honour erred in finding (at [112]) that the second appellant committed an assault on the respondent, in the absence of evidence justifying that conclusion, or alternatively on the basis of evidence given by the plaintiffs in circumstances where her Honour failed to decide any issues relevant to the credit of either of the plaintiffs. 30 I note that in each appeal, the appellants seek a judgment in their favour. However, in my opinion, the only reasonable outcome of successful appeals would be a new trial. The appeal grounds raise no basis on which there could be judgment in favour of Hall Snr against Poel Snr, or Hall Jnr against Poel Jnr. A judgment in favour of Hall Snr against Poel Jnr, or in favour of Hall Jnr against Hall Snr, would require a finding by this Court that there was no relevant common purpose; and in my opinion it was open to the primary judge to find a relevant common purpose, although there could be debate as to the definition of that purpose. Accordingly, I will address the question whether grounds are made out for ordering a new trial. 31 I propose to focus on the matter raised in ground 11 of the appeal in Poel Snr's case, which is ground 12 in the appeal in Poel Jnr's case. This ground has some impact on other grounds, including ground 6 in both cases, ground 6A in the Poel Snr case, ground 7 in the Poel Jnr case, grounds 9 and 10 in the Poel Snr case (which are grounds 10 and 11 in the Poel Jnr case), and ground 15 in the Poel Snr case (which is ground 14 in the Poel Jnr case). 32 I note that the issues raised by grounds 12 and 19 in the Poel Snr case reflect matters which were not pleaded at first instance, namely illegality and s 54 of the Civil Liability Act 2002. However, s 52 of that Act was pleaded. Civil Liability Act 2002 33 The sections of the Civil Liability Act having some relevance to the appeals are ss 52 to 54: 52 No civil liability for acts in self-defence (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: (a) was unlawful, or (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass. 53 Damages limitations apply even if self-defence not reasonable response (1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that: (a) the circumstances of the case are exceptional, and (b) in the circumstances of the case, a failure to award damages would be harsh and unjust. (2) If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award: (a) Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B (1) (a), and (b) no damages may be awarded for non-economic loss. 54 Criminals not to be awarded damages (1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. (2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence). Note . Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence. (3) A serious offence is an offence punishable by imprisonment for 6 months or more. (4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981. (5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned. Failure to make credit findings 34 One notable feature of this case is that the first use of a weapon was by Poel Snr, and there was considerable conflict in the evidence concerning the circumstances of its use. 35 According to Poel Snr, it occurred within the bounds of his own property, when Barnett was advancing threateningly towards him and (on one version) was also throwing punches; after which Poel Snr struck Barnett on the chest in self-defence, using moderate force, with a baton about 1 x 1½ inches and one metre long, made of light wood. 36 According to Barnett, the incident occurred on the nature strip in front of the Finigan house, after the fighting there had cooled down, and Poel Snr ran towards him with a lump of wood. According to Barnett, he said words to the effect, "stay out of it, its nothing to do with you"; after which he stayed in the same position, and Poel Snr came up to him and hit him on the side of the head with a piece of wood causing him to fall to the ground. Barnett said the wood was big and thick, like a fence post, and it had nails at the top. 37 The primary judge made no finding as to the credit of Poel Snr; and she made no finding as to where Poel Snr was when he struck Barnett, or as to whether prior to that time Barnett advanced towards Poel Snr, or as to whether prior to that time Barnett threatened Poel Snr or threw punches at him. The primary judge made no finding as to the nature of the piece of wood wielded by Poel Snr; although there is a suggestion that she rejected Barnett's evidence about the size of the wood and the nails (judgment par [67] and [85]). However, in the light of the primary judge's statement that she made no findings about the credit of the plaintiffs and that she was sure none of the parties or witnesses was frank with the court, this cannot amount to a finding as to the nature of the piece of wood, nor as to the weight of the blow struck against Barnett. 38 Thus, the primary judge's findings did not exclude the allegation, supported by Barnett's evidence, that Poel Snr left his property at the time when the fighting with the Finigans had cooled down, and advanced up to Barnett who was standing on the nature strip and telling him to stay out of it, but not threatening him; and then struck him heavily with a substantial piece of wood. 39 If that were the case, it would not prevent Barnett's conduct in going away to get a cricket bat, and then returning and striking Poel Snr with the cricket bat causing him actual bodily harm, from amounting to the criminal offence to which Barnett pleaded guilty. But it would mean that Poel Snr's involvement with the Halls and the friends of Hall Jnr commenced with a serious assault by him upon Barnett, using a weapon. This in turn could be relevant to whether what happened thereafter was within any common purpose of the Halls and Barnett, and to the application of s 52 of the Civil Liability Act; and could also be relevant to questions of aggravated and exemplary damages. It would also be highly relevant to illegality and s 54 of the Civil Liability Act; but as mentioned earlier, these matters were not pleaded. 40 If one accepts that the Halls and Barnett did have the common purpose identified by the primary judge, in my opinion the question whether what happened in relation to Poel Snr was within that common purpose would be very materially affected if Poel Snr's involvement was initiated by his own criminal assault on Barnett, rather than by Barnett advancing threateningly upon Poel Snr and Poel Snr then striking Barnett in self-defence. 41 As regards s 52, if it were the case that Poel Snr had criminally assaulted Barnett with a weapon, that conduct would fall within the terms of s 52(1)(a), and efforts to disarm him could fall within s 52(2)(a). Hall Snr's evidence was that his intervention was to protect Poel Snr from retaliation from Barnett, and that evidence was rejected by the primary judge (judgment [109]). But Hall Snr also gave evidence that his intention was to disarm Poel Snr, and the primary judge found that his purpose was to protect Barnett from Poel Snr (judgment [109]); and although she found that Hall Snr's intervention exposed Poel Snr to injury from Barnett's attack (judgment [110]), the primary judge did not find that this was Hall Snr's intention. Thus the evidence and the findings could support an inference that Hall Snr intended to prevent Poel Snr using the weapon to assault Barnett again or to assault anyone else, and also believed it was necessary to disarm him in order to do so. 42 As regards aggravated and exemplary damages, if it were the case that Barnett's assault on Poel Snr was retaliation for a criminal assault by Poel Snr on Barnett, with a weapon, this would in my opinion be very material to a judgment as to whether the conduct of Barnett and the Halls towards Poel Snr could be considered truly contumelious as regards Poel Snr's rights. 43 A new trial of these proceedings is most undesirable, and should not be ordered unless it appears to the Court that some substantial wrong or miscarriage has been occasioned: UCPR 51.53(1). It might be suggested that the materiality of the question whether Poel Snr's involvement commenced with a criminal assault by him on Barnett, to the issue of whether what happened thereafter was or was not within the common purpose of the Halls and Barnett, is insufficient to justify a new trial. However, my view is otherwise. It could also be suggested that the primary judge's decision can be upheld on an alternative basis, namely the basis that there were individual assaults committed by Hall Snr and Hall Jnr on Poel Snr and Poel Jnr. I will return to that question shortly. 44 Insofar as the failure to resolve the question whether Poel Snr's involvement commenced with a criminal assault by him on Barnett affects the question of aggravated and exemplary damages, it could be said that this could be dealt with by taking off those damages on the ground that they were not justified by findings made by the primary judge, and otherwise leaving the judgment undisturbed. 45 However, that would still leave the issue of s 52, in relation at least to the individual assaults by Hall Snr and Hall Jnr on Poel Snr and Poel Jnr. In my opinion, in circumstances where s 52 had been pleaded, it was a miscarriage for findings to be made against the Halls, without s 52 being considered in the context of findings made as to the circumstances of the intervention by Poel Snr. 46 In addition, I note that: (1) the primary judge made no finding of fact that could support a finding of an individual assault by Hall Snr on Poel Jnr, yet she made a conclusory finding to that effect (judgment [112]); (2) the primary judge made no finding that Hall Jnr's involvement exposed Poel Snr to injury from Barnett's attack (so that if Hall Jnr's liability arose only from his individual assault, there was no factual basis for making him liable for the totality of the damages); (3) the primary judge made no finding as to the extent, if any, to which Poel Snr's injuries from Barnett's attack were increased by reason of Hall Snr's involvement; and (4) the primary judge made no finding that any such increase was either intended or reasonably foreseeable by Hall Snr. 47 As regards (3) and (4), it could be argued that, in circumstances where Hall Snr knew that Barnett was advancing with a cricket bat, it must have been foreseeable that his intervention would make Poel Snr more vulnerable to Barnett's attack. However, the question must be considered having regard to Poel Snr's statement to the police that he held Hall Snr on top of him so he wouldn't get hit with the cricket bat, and to the confused evidence of Poel Snr as to just how Hall Snr's involvement affected his vulnerability to Barnett's attack. 48 It could also be said that the tenor of the primary judge's judgment shows that she did not consider that Poel Snr's involvement commenced with a criminal assault by him on Barnett. However, such a view cannot stand with the primary judge's express statement that she made no finding as to the credit of the plaintiffs; and in my opinion, any finding that depended on accepting the evidence of Poel Snr would require consideration of the false statements given by him to the police, which were inconsistent with his use of a weapon at any time. 49 Accordingly, in my opinion, the primary judge's failure to make findings as to the credit of the plaintiffs, and in particular to make findings as to the circumstances in which Poel Snr struck Barnett with a piece of wood, have given rise to a miscarriage; and in my opinion it is necessary that there be a new trial. 50 Finally, I note that, although I would not have allowed an appeal on the basis of illegality and s 54 of the Civil Liability Act, in circumstances where these were not pleaded, it does appear that, if Poel Snr's involvement commenced with a criminal assault by him on Barnett, s 54 could well afford a defence. In my opinion, this adds weight to the view that there has been a miscarriage of justice. Conclusion 51 For those reasons, in my opinion the following orders should be made in each appeal: (1) Appeal allowed. (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. 52 McCOLL JA: I agree with Hodgson JA. 53 BASTEN JA: For the reasons given by Hodgson JA, I agree that the appeal must be allowed and that there must be a new trial, as his Honour proposes. I would add to his Honour's reasons the following remarks directed to the submissions of counsel for the respondent. 54 Counsel submitted that it was not in the interests of the administration of justice, or the just, quick and cheap resolution of the real issues in the proceedings (as required by s 56 of the Civil Procedure Act 2005 (NSW)) to overturn a judgment of the District Court on the basis of some technical inadequacy in the manner in which her Honour had expressed her reasons. He contended, in effect, that the reasons for decision should "not be construed minutely and finely with an eye keenly attuned to the perception of error", to adopt the language of the Full Court of the Federal Court in Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280 at 287. That language, although used in respect of judicial review of an administrative decision, might be said to apply with equal force on an appeal from the judgment of an experienced trial judge, dealing with an assessment of evidence in the course of determining the relevant facts. Although the analogy is not entirely apt, counsel pointed out, correctly, that it would often be wrong to assume error where a trial judge has described the duty of the employer to an employee as being one to ensure the safety of the workplace, rather than being a duty to take reasonable care to ensure the safety of the workplace. 55 Counsel submitted that, implicit in her Honour's conclusions was a finding that Mr Van der Poel senior did not assault Mr Barnett, except to protect himself from a threatened attack and did so in a manner which did not justify Mr Barnett's action in fetching a cricket bat and using it to attack Mr Van der Poel. 56 Although the principle is sound, that submission does not adequately address the difficulties identified by Hodgson JA. In order to resolve the critical factual questions, her Honour had to choose between conflicting evidence. As explained by Hodgson JA at [34]-[40], it is by no means clear that her Honour in fact resolved those questions. 57 Accordingly, it is clear that the difficulties raised by the appellant were not limited to infelicities of expression in the course of giving reasons. Rather, the appellants demonstrated material errors which affected the outcome of the case. 58 The respondent's submissions may have been intended also to encompass a somewhat different proposition, but having a similar effect. Once error has been established, it is necessary for this Court to determine what steps should be taken in disposing of the appeal. Given the scope of an appeal by way of a rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW), it is open to this Court to make any finding and give any judgment which ought to have been made or given at trial: s 75A(10). Where this Court can rectify the error, it is usually inappropriate to grant a retrial. That follows in part from the requirement to facilitate the just, quick and cheap resolution of the real issues, in accordance with s 56. That purpose will not be effected by remitting a matter for further trial, where it is properly open to this Court to dispose of the matter itself: see Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 at [12]. However, it will often be difficult, if not impossible, for the Court to resolve such issues for itself where findings are required which properly depend on the credibility of witnesses, whom the Court has not heard. The proper course to be taken in such circumstances requires reference to the direction in the rules that the Court "shall not" order a new trial on any ground "unless it appears to the court that some substantial wrong or miscarriage has been thereby occasioned": Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), r 51.53. 59 As the terms of r 51.53 themselves indicate, the rule was concerned, historically, with new trials before a jury. It still has such operation, although in fewer cases than in the past: see Tory v Megna [2007] NSWCA 13. Its application in a civil proceeding heard without a jury now appears to be taken for granted, although its operation may differ from a case where a court, not being entrusted with the decision of questions of fact, "cannot substitute its judgment for that of the jury in purporting to decide whether a substantial wrong or miscarriage has occurred": Balenzuela v De Gail [1959] HCA 1; 101 CLR 226 at 235 (Dixon CJ). Clearly that reasoning cannot apply in circumstances where, as with an appeal by way of rehearing, the Court is indeed empowered to determine questions of fact. 60 Furthermore, where the Court has before it a written judgment, it may more readily ascertain whether there has been a substantial miscarriage of justice than is possible in circumstances where there is merely an inscrutable verdict, to be assessed by a court which has not heard the witnesses, on the basis of the transcript and the exhibits. (For an example of its application in relation to a civil judgment, see HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640 at [50] and [56].) 61 Historically, an application for a new trial after verdict was a procedure separate from an appeal. No appeal lay from a verdict, which was the act of a jury: although an appeal might lie from a judgment entered on the basis of a verdict, it would have been "useless to impeach the judgment if the verdict on which it was merely consequent must stand": The Commonwealth v Brisbane Milling Co Ltd [1916] HCA 39; 21 CLR 559 at 567 (Barton J); see also Musgrove v McDonald [1905] HCA 50; 3 CLR 132 at 149; Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan [1931] HCA 34; 46 CLR 73 at 110 (Dixon J); cf Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; 237 CLR 268 at [37]-[39] (French CJ). If it were originally with respect to an application for a new jury trial that the qualification requiring that the Court be satisfied that there had been a substantial miscarriage of justice arose, it is nevertheless clear that, however the power is to be applied in relation to a judgment supported by reasons, it now has that broader operation. 62 So far as the application of the principle is concerned, this Court is constrained by the fact that there were divergent accounts given by witnesses and this Court is in no position to evaluate the credibility of those witnesses: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [23] (Gleeson CJ, Gummow and Kirby JJ); The Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [133] (Hayne J). Waterways Authority is not supportive of the proposition that this Court should always be reticent in making findings of fact or should only make such findings where "the probative evidence on a particular issue points to only one conclusion": cf Hare v Harmer [2009] NSWCA 68 at [47]; Alchin v Daley [2009] NSWCA 418 at [55]. It does however, demand that caution be exercised in making findings of particular facts and then remitting the matter for a further hearing in respect of separate issues of fact: Waterways Authority at [20] (Gleeson CJ). As his Honour explained in terms apposite to the present case: "There remain for decision a number of unresolved questions which will depend upon the reliability of the evidence of other witnesses …. At a new trial, the trial judge will have to hear evidence, and make findings about, the circumstances of the accident. The evidence will not necessarily be the same as the evidence at the first trial. It could be significantly different. It is in the interests of justice that the judge hearing the second trial should be in a position to make a fresh appreciation of the whole of the relevant evidence, unconstrained by an artificially isolated assumption that reflects the first respondent's forensic success in the Court of Appeal." 63 There remains a theoretical possibility that this Court could remit the matter to the trial judge to complete the process which this Court finds to have been incomplete. However, that course was not proposed by either party, no doubt understandably. It would have the benefit of limiting the extent of any further hearing, but at an unacceptable cost. First, it would require the trial judge to make the credibility findings which her Honour had earlier eschewed, based on evidence given in October 2008. Further, it would require her Honour to have an open mind as to the ultimate outcome, in circumstances where she has already formed a firm judgment in that regard. 64 It follows that the only appropriate order is that proposed by Hodgson JA, namely that the matter be returned to the District Court for a retrial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.