Willcocks v State of New South Wales [2012] NSWCA 59

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Willcocks v State of New South Wales [2012] NSWCA 59 Hearing dates: 6 March 2012 Decision date: 29 March 2012 Before: Whealy JA at [ 1 ] Sackville AJA at [57] Tobias AJA at [58] Decision: (1) Leave to appeal is granted, but limited to the issues of liability and exemplary damages. (2) The appeal is allowed. (3) Set aside the orders made by the primary judge on 31 March 2011. (4) The proceedings are remitted to the District Court for a new trial on the issue of liability and, if necessary, exemplary damages. (5) The respondent is to pay the appellant's costs of this appeal. (6) The costs of the first trial are to abide the outcome of the re-hearing and are to be determined by the retrial judge. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - Appeal - assault and battery - apprehension pursuant to s 24 Mental Health Act 1990 (NSW) - whether the trial judge erred in failing to properly consider admissions made by the respondent in pleadings adverse to the ultimate finding - whether the trial judge erred in failing to properly consider medical records supporting the appellant's version of events.