Sahade v Bischoff

1. [1]

   BASTEN JA: This appeal involved an unedifying brawl between two neighbours in Wolseley Road, Point Piper, which resulted in unsuccessful prosecutions by the police, followed by civil proceedings for assault, trespass and malicious prosecution. Having reviewed the evidence, including the CCTV footage and the audio recording and the stills extracted from it, I agree with Gleeson JA that the appellants and cross-appellants have failed to demonstrate error on the part of the trial judge. I also agree with the orders proposed by Gleeson JA.

2. [2]

   GLEESON JA: In the afternoon of 21 May 2012 there was an altercation between the appellants (respectively Mr Sahade and Mr Smith) and the first respondent (Mr Bischoff) at a property at Wolseley Road, Point Piper, where Mr Sahade and Mr Bischoff and the second respondent (Mrs Bischoff) occupied separate residences. Two CCTV cameras pointed directly onto the open driveway and courtyard area of the common property where most of the altercation occurred. Police attended the property shortly after Mrs Bischoff called the Rose Bay Police Station for assistance. Having viewed the CCTV footage and obtained statements, the police arrested Mr Sahade and Mr Smith.

3. [3]

   Mr Sahade and Mr Smith were each charged later that evening with two assault offences. In July 2012, they were charged with a further offence of assault occasioning actual bodily harm in company. The charges against Mr Smith were later withdrawn and dismissed in the Local Court in December 2012. The charges against Mr Sahade were dismissed in the Local Court in April 2013.

4. [4]

   Following the dismissal of the charges, Mr Sahade and Mr Smith commenced proceedings in the District Court against the Bischoffs claiming damages for malicious prosecution. Mr Sahade also claimed damages against Mr Bischoff for five alleged assaults and batteries. The Bischoffs brought a cross-claim against Mr Sahade for trespass to their property. After a hearing lasting 8 days, the primary judge dismissed the claims of all parties: Sahade v Bischoff (District Court (NSW), McLoughlin DCJ, 10 October 2014, unrep).

5. [5]

   In a second judgment, the primary judge determined that he was wrong (as a matter of law) in finding in his first judgment that actual damage was required to be proven in a claim for trespass to land before an award of damages could be made. He set aside the verdict in favour of Mr Sahade on the Bischoffs’ cross-claim and awarded damages against Mr Sahade for trespass in the amount of $500. His Honour also made costs orders in favour of the Bischoffs. He ordered Mr Sahade and Mr Smith to pay 80% of the Bischoffs’ costs of the statement of claim on an ordinary basis and Mr Sahade to pay 50% of the Bischoffs’ costs of the cross-claim on an ordinary basis: Sahade v Bischoff (District Court (NSW), McLoughlin DCJ, 29 January 2015, unrep).

6. [6]

   Mr Sahade and Mr Smith have appealed.

7. [7]

   The Bischoffs have sought leave to cross-appeal against the award of damages against Mr Sahade and the costs orders made against Mr Sahade and Mr Smith. Leave to appeal is required insofar as the judgment or order involves a matter at issue amounting to or of a value of less than $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r). Leave to appeal is also required insofar as the judgment or order is as to costs only: s 101(2)(c).

8. [8]

   An understanding of this dispute is assisted by an outline of the relevant facts concerning the altercation.

Relevant facts

1. [9]

   Mr Sahade resides at Wolseley Road, Point Piper, in a separate residence situated at the rear of a property which overlooks Sydney Harbour. Mr and Mrs Bischoff reside in unit 2 of a separate building, comprising two units, which fronts Wolseley Road. The two buildings are part of a strata scheme and share a common open driveway and courtyard area off Wolseley Road. At the bottom of the driveway there is a turning circle and open garages. There is a set of stairs and an inclinator that runs from the turning circle down the side of the property furthest from the off-street driveway to access Mr Sahade’s residence.

2. [10]

   Mr Bischoff had installed CCTV on the front building where he resided which pointed directly onto the open driveway area. There were two cameras, one pointing to the turning circle and garages which included the porch area and entrance to Mr and Mrs Bischoff’s unit; the other pointing to the inclinator leading to Mr Sahade’s residence.

3. [11]

   The police facts sheet for the charges against Mr Sahade noted that Mr Sahade and Mr Bischoff had been involved in a number of disputes over construction works at the building, most of which related to the common property. (Those disputes included the stairs which Mr Sahade had installed, it seems without relevant planning permission, to facilitate access to his residence.) Police had been in attendance at the property in relation to those disputes on Saturday 19 May and Sunday 20 May 2012.

4. [12]

   The police facts sheet also noted that the CCTV cameras recorded both visual and audio. The incident “captured” on the CCTV footage was described in the facts sheet in the following terms.

5. [13]

   On Monday 21 May 2012, Mr Sahade and Mr Smith were in the open driveway area of the common property when Mrs Bischoff returned home in her car at about 4.25pm. Mr Smith was a carpenter hired by Mr Sahade to undertake certain work at the property. Mr Smith was using a large sledgehammer to break away part of the staircase situated on the common property, next to the open driveway area. After Mrs Bischoff had parked and alighted from her car, she approached Mr Sahade and Mr Smith. She began taking photographs of the demolition work to the staircase, and of Mr Sahade and Mr Smith, using the camera on her mobile telephone. Mr Sahade immediately began taking photographs of Mrs Bischoff with his own mobile telephone. Shortly thereafter, Mr Bischoff walked out to the open driveway area.

6. [14]

   The facts sheet continued, referring to Mr Bischoff as the “victim”, Mr Sahade as the “accused” and Mr Smith as the “co-accused” (spelling and grammatical errors in original):

7. [15]

   The conduct referred to in the emphasised parts of the preceding paragraph was the subject of the assault occasioning actual bodily harm and the assault in company charges against Mr Sahade and Mr Smith (see [21] and [28] below). This conduct may be conveniently referred to as the “incident at the wall”.

8. [16]

   The facts sheet continued:

9. [17]

   The conduct referred to in the emphasised part of the preceding paragraph was the subject of the common assault charge against each of Mr Sahade and Mr Smith (see [21] below). It may be conveniently referred to as the “incident at the portico entrance”.

10. [18]

    The facts sheet continued:

11. [19]

    Two matters should be added to the above narrative. First, shortly after the police arrived at the property, the audio on the CCTV records a police officer saying words to the effect:

12. [20]

    Secondly, the audio on the CCTV records Senior Constable Mitchell Lucock saying words to the effect:

13. [21]

    Mr Sahade and Mr Smith were placed under arrest at the property and taken to Waverley Police Station. Each refused the opportunity to participate in a electronically recorded interview. The police obtained signed statements from each of Mr and Mrs Bischoff. Later that evening, Mr Sahade and Mr Smith were each charged with two offences – assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW), and common assault, contrary to s 61 of the Crimes Act. The maximum penalty for the s 59(1) offence is 5 years imprisonment (unless dealt with summarily). The maximum penalty for the s 61 offence is 2 years imprisonment.

14. [22]

    On 16 July 2012, Mr Sahade and Mr Smith were each charged with a further offence of assault occasioning actual bodily harm while in company, contrary to s 59(2) of the Crimes Act. The maximum penalty for that offence is 7 years imprisonment.

15. [23]

    In each case, the prosecutor named on the relevant Court Attendance Notice was Senior Constable Lucock.

16. [24]

    Mr and Mrs Bischoff each gave signed statements to the police on 21 May 2012. Mr Bischoff’s statement included the following description of the incident at the wall and the incident at the portico entrance:

17. [25]

    Mrs Bischoff’s statement described the two incidents the subject of the police charges as follows:

18. [26]

    Mrs Bischoff gave a further signed statement to the police on 31 May 2012 which supplemented her earlier statement, relevantly, as follows:

19. [27]

    On 5 December 2012, the charges against Mr Smith were withdrawn and dismissed on the first day of his trial in the Local Court.

20. [28]

    The charges against Mr Sahade proceeded to a hearing in the Local Court. The transcript of the Local Court proceedings records that the following particulars were given by the prosecution:

    1. (1)

       as to the assault occasioning actual bodily harm (Sequence 1): that Mr Sahade pushed Mr Bischoff against the wall and punched him a number of times to the head and to the ribs;

    2. (2)

       as to the assault in company (Sequence 3): the allegation of the same assault as in Sequence 1, but done in company with Mr Smith.

    3. (3)

       as to the common assault charge (Sequence 2): that Mr Sahade punched Mr Bischoff under the porch area or portico at the entrance to the Bischoffs’ unit (This should be taken to be a reference to what occurred inside the Bischoffs’ residence, as set out in paragraph 14 of Mr Bischoff’s statement: see [24] above).

21. [29]

    At the conclusion of the prosecution case on 9 April 2013, the magistrate dismissed the common assault charge against Mr Sahade (Sequence 2) on the ground that no prima facie case had been established. The magistrate dismissed the assault in company charge (Sequence 3) on the ground that Mr Sahade was not operating in concert or in company with a common purpose with Mr Smith. The magistrate also dismissed the charge of assault occasioning actual bodily harm (Sequence 1) before also dismissing that charge.

Nature of the case in the District Court

1. [30]

   Mr Sahade’s pleaded case in the District Court was that Mr Bischoff assaulted and beat him on five occasions during the altercation on 21 May 2012 as follows:

2. [31]

   Mr Sahade asserted that he sustained various injuries including a swollen and bloody nose; bruises and abrasions; fractured upper left canine porcelain veneer tooth; and fractured right seventh rib. He claimed damages, including exemplary damages and aggravated damages.

3. [32]

   Mr Bischoff made limited admissions in his defence concerning the circumstances of the altercation and otherwise denied the alleged assaults. He pleaded that he had responded in self-defence to attempts by Mr Sahade to strike him with closed fists and open hands.

4. [33]

   The limited admission by Mr Bischoff related to the first alleged assault. Mr Bischoff accepted that he had raised his palm towards Mr Sahade and inadvertently touched him on his left forearm when Mr Sahade stretched his arm out towards Mr Bischoff. Mr Bischoff asserted that he held off, but did not grab, Mr Sahade’s arm. He further asserted that he otherwise made contact with Mr Sahade whilst he was attempting to evade and defend himself against attacks on him by Mr Sahade.

5. [34]

   In addition, Mr Sahade and Mr Smith both alleged that the Bischoffs knowingly made false and misleading statements to the police claiming that Mr Bischoff was assaulted by Mr Sahade and claiming that Mr Smith held Mr Bischoff down whilst Mr Sahade assaulted Mr Bischoff. It was further alleged that each of the Bischoffs was substantially and sufficiently involved in the procurement, institution and/or maintenance of the criminal charges to be a prosecutor in respect of those charges; that the proffering of the charges against Mr Sahade and Mr Smith was done maliciously and without reasonable and probable cause, and further, was not done in good faith.

6. [35]

   Each of the Bischoffs denied that he or she was relevantly a prosecutor in respect of the charges brought by the police against Mr Sahade and Mr Smith. They also denied that they had proffered the charges against Mr Sahade and Mr Smith maliciously and without reasonable and probable cause and not in good faith.

Issues on appeal

1. [36]

   There are three parts of the appeal. Mr Smith is only concerned with the second part.

2. [37]

   The first part concerns a challenge to his Honour’s findings with respect to Mr Sahade’s involvement in the altercation, when dismissing the assault claims against Mr Bischoff (grounds 3, 6 and 7), the injuries alleged to have been suffered by Mr Sahade (ground 1), and his Honour’s conclusions with respect to what is shown on the CCTV footage and the photographic stills (ground 8). There is also a challenge to the credit finding with respect to Mr Smith (ground 5).

3. [38]

   The second part concerns a challenge to his Honour’s findings when dismissing the malicious prosecution claims. Those findings were that each of the Bischoffs: (a) was not, relevantly, a prosecutor; and (b) had not acted maliciously and without reasonable and probable cause in providing statements to the police (grounds 10 and 11).

4. [39]

   The third part concerns a challenge by Mr Sahade to the costs order with respect to the cross-claim (ground 13). Mr Sahade accepted that this ground requires leave, as it was not included in his original notice of appeal.

5. [40]

   The appellants did not press the malicious prosecution claim against the Bischoffs insofar as it related to the charge of common assault against each of Mr Sahade and Mr Smith concerning the incident at the portico entrance (tcpt CA at 10, lines 34-39). The appellants also did not press grounds 2, 4, 9 and 12.

The primary judge’s reasons

1. [41]

   The primary judge was confronted with conflicting oral testimony of the parties concerning the altercation and its aftermath. He was assisted by the objective evidence contained in the CCTV footage, photo stills and mobile phone camera video recordings. He expressly took into account that it was well-known to all parties that the CCTV cameras would record sound. This was relevant insofar as the audio recording captured some self-serving statements, particularly by Mr Sahade and Mr Smith, that did not reflect the visual images recorded on the CCTV.

2. [42]

   His Honour reviewed the evidence of Mr Smith, Mr Sahade and Mr and Mrs Bischoff. He found each witness to be unreliable and gave reasons why he did not accept their evidence, except where CCTV evidence supported it. His Honour made some findings in the course of reviewing the parties’ evidence, later summarising his factual findings based on the CCTV footage.

3. [43]

   His Honour rejected Mr Smith’s evidence in chief that Mr Bischoff grabbed Mr Sahade by the wrist and pulled him off the stairs. He accepted Mr Smith’s evidence in cross-examination where he agreed that Mr Sahade moved forward off the stairs and came into contact with the outstretched hands of Mr Bischoff.

4. [44]

   His Honour also accepted part of Mr Smith’s evidence concerning the fourth incident, which followed Mr Sahade and Mr Bischoff wrestling on the ground. This was that whilst initially Mr Sahade was on top, Mr Bischoff got on top and on rising:

5. [45]

   His Honour made a separate finding that Mr Smith gave untruthful evidence that he had spent the evening at Mr Sahade’s premises when giving evidence, although not necessarily in Mr Sahade’s company. This finding is the subject of ground 5 although, as will appear, it goes nowhere.

6. [46]

   His Honour found that Mr Sahade’s evidence was unreliable in a number of respects, including the extent of damage to his mobile phone caused by the incident; that he was only going forward to prevent further assaults from Mr Bischoff; that he was pulled from the top of the inclinator by Mr Bischoff; and that he was not aggressive.

7. [47]

   As to the fourth incident, his Honour accepted that as Mr Sahade was getting up off the ground there may well have been a right hand punch by Mr Bischoff to the left hand side of his face, which his Honour had earlier found was thrown in self-defence by Mr Bischoff.

8. [48]

   Having viewed the CCTV footage, his Honour did not accept Mrs Bischoff’s evidence of kicking by Mr Sahade while he was wrestling with Mr Bischoff on the ground. His Honour found that if there was contact between Mr Sahade’s feet or legs and Mr Bischoff, it occurred when they were struggling on the ground and was not intentional. He also found that Mrs Bischoff’s statement to police (concerning kicking) was wrong, however he did not consider it was deliberately wrong, given, as she described, the altercation was all a shock to her. His Honour continued:

9. [49]

   His Honour rejected some of Mr Bischoff’s evidence because, as already mentioned, he considered that Mr Bischoff did throw some punches at Mr Sahade, and that one or two of them may have contacted.

10. [50]

    Having noted that he had viewed the CCTV footage on a number of occasions, including in slow motion, his Honour made the following findings in relation to the altercation and the trespass by Mr Sahade.

11. [51]

    In the extract of his Honour’s reasons set out above, reference has been added to the first four alleged assaults by Mr Bischoff (set out in [30] above), described as the first to fourth incidents respectively. It seems that his Honour did not make an express finding with respect to the fifth incident, other than when finding that any contact by Mr Bischoff was in self-defence.

Submissions

1. [52]

   Mr Sahade contended that the primary judge’s factual findings were erroneous in a number of respects and do not accord with the CCTV footage and the photographic stills.

2. [53]

   In oral argument, counsel for Mr Sahade focused on the fourth incident which followed Mr Sahade and Mr Bischoff wrestling on the ground. Although Mr Sahade did not abandon his challenge to the findings concerning the other alleged assaults, no oral submissions were made in support of those challenges.

3. [54]

   The Bischoffs submitted that the conclusion to be drawn from the CCTV footage is that from the time of their initial exchange of words until Mr Bischoff moves into his unit, there is always movement forward by Mr Sahade while he is on his feet, and retreating by Mr Bischoff while he is on his feet, albeit towards the end of the altercation they are still standing.

4. [55]

   Counsel for Mr Bischoff emphasised that selected extracts of the CCTV footage contained in individual photographs gave an incomplete picture of the events that occurred during the altercation.

5. [56]

   In written submissions, Mr Sahade submitted that his Honour applied the incorrect test and incorrect onus for the defence of self-defence, being the test and onus under the criminal law in ss 418 and 419 of the Crimes Act 1900 (NSW). After the Court drew to counsel’s attention the terms of ss 52 and 53 of the Civil Liability Act 2002 (NSW), counsel for Mr Sahade accepted that these provisions governed the defence of self-defence in the present case. Counsel maintained the submission that his Honour applied the incorrect onus.

6. [57]

   Counsel for the Bischoffs submitted, without reference to authority, that Mr Sahade had the onus of proof under s 52(2) of the Civil Liability Act of establishing that Mr Bischoff did not believe that his conduct was necessary to defend himself (tcpt CA at 55, line 29-56, line 6).

7. [58]

   It is convenient first to consider the correct test for self-defence before addressing the challenges to his Honour’s factual findings.

Relevant principles – self-defence

1. [59]

   Sections 52 of the Civil Liability Act provides relevantly:

2. [60]

   Section 52 of the Civil Liability Act is in similar terms to s 418 of the Crimes Act. This reflects the legislative history of the Home Invasion (Occupants Protection) Act 1998 (NSW) which partially codified the criminal law defence of self-defence and also provided civil immunity for occupants of dwelling houses who acted in self-defence in accordance with the provisions of that Act. The Home Invasion (Occupants Protection) Act was repealed in 2001 and at the same time ss 418 to 423 were inserted into the Crimes Act by the Crimes Amendment (Self-defence) Act 2001 (NSW). Under s 419 of the Crimes Act, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

3. [61]

   A similar immunity from civil liability in appropriate cases of self-defence was enacted by s 52 of the Civil Liability Act. Under s 52, the onus of proof is on the defendant to plead and prove, on the balance of probabilities, that the conduct was carried out in self-defence: Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 at [162].

4. [62]

   There are three elements of the defence under s 52 that are relevant to the present case:

   1. (1)

      the conduct of the other person (Mr Sahade) must have been unlawful;

   2. (2)

      the person (Mr Bischoff) must have believed the conduct was necessary to defend himself; and

   3. (3)

      the conduct must have been a reasonable response in the circumstances.

5. [63]

   In State of New South Wales v McMaster [2015] NSWCA 228 at [203]-[204], Beazley P (McColl and Meagher JJA agreeing) concluded that the reference to “unlawful” conduct is not confined to criminal conduct but extends to conduct which is tortious, for example, a civil assault. The appellants did not seek to argue to the contrary.

6. [64]

   Reference should also be made to s 53 of the Civil Liability Act which provides:

7. [65]

   The effect of s 53 is that ordinarily no award for damages can be made if the defence of self-defence is not available only because the defendant’s conduct was not a reasonable response to the circumstances as perceived by the defendant. However, this is subject to an exception where the Court is satisfied that the circumstances of the case are exceptional and a failure to award damages would be harsh and unjust. Even where the exception applies, s 53(2) limits the recovery of damages.

8. [66]

   The onus of proof of establishing circumstances sufficient to make out the exception to the damages limitation would seem to be on the plaintiff since the provision operates to prevent a court awarding damages against the defendant, unless the Court is satisfied of the two matters required to make out the exception.

The primary judge did not err in his approach to the defence of self-defence

1. [67]

   Having summarised his factual findings, his Honour concluded in the passage set out at [50] above, that Mr Sahade’s claim for assault must fail because he was not satisfied, on the balance of probability, that Mr Sahade was assaulted in the manner as alleged in the statement of claim, nor that he suffered the injuries alleged. His Honour continued:

2. [68]

   Mr Sahade submitted that this passage revealed error because the reference to Mr Sahade proving that Mr Bischoff’s conduct was intentional or reckless, and that it was for Mr Sahade to prove the absence of lawful excuse, involved a reversal of the onus of proof of the defence of self-defence (tcpt CA at 41, lines 19-28).

3. [69]

   The difficulty with this submission is that it seeks to read one passage of his Honour’s reasons in isolation. His Honour continued immediately after this passage as follows:

4. [70]

   Taken in context I do not read his Honour’s reasons as incorrectly reversing the onus of proof of the defence of self-defence under s 52 of the Civil Liability Act. Importantly, although his Honour did not expressly refer to s 52 of the Civil Liability Act, the findings he made addressed the elements of self-defence which Mr Bischoff needed to establish.

5. [71]

   First, it is either implicit in his Honour’s finding that Mr Bischoff acted in self-defence or it inexorably follows from that finding that his Honour was satisfied that Mr Sahade’s conduct was unlawful, at least as a civil assault. As Taylor J said in Barton v Armstrong [1969] 2 NSWR 451 at 454-455 “[t]he essence of assault is the expectation raised in the mind of the victim of physical contact from threat of the defendant”. The tort is made out where an act of a person causes another person to reasonably apprehend a threat of force or violence: Barton v Armstrong at 455; State of New South Wales v McMaster at [205].

6. [72]

   His Honour found that Mr Sahade aggressively moved off the stairs towards Mr Bischoff, he turned on Mrs Bischoff aggressively and then moved aggressively toward Mr Bischoff and there was “some degree of violence” by Mr Sahade.

7. [73]

   It was accepted in State of New South Wales v McMaster at [207]-[209], that it is sufficient for a civil assault that the conduct is negligent; it is not necessary to establish that the conduct was intentional or reckless, as is required for the conduct to be criminal. In the present case, Mr Sahade’s conduct was, in my view, at least negligent. This may be seen from his Honour’s description of Mr Sahade’s aggressive conduct and the statements he made to Mr Bischoff, as recorded on the CCTV audio, which included before the second incident “…you’re a goner...”, “I swear I’ll fucking deck you” and “You’re a fucking goner”. Mr Bischoff’s statement to the police also described in paragraph 14, after the incident at the wall, included Mr Bischoff “[f]earing that I was going to be assaulted again”.

8. [74]

   Secondly, his Honour accepted that Mr Bischoff believed that his conduct was necessary in order for him to defend himself. Thirdly, he found that Mr Bischoff’s conduct was a reasonable response in the circumstances as perceived by him.

Mr Sahade’s factual challenges

1. [75]

   For the purposes of considering the challenges to his Honour’s factual findings, I have viewed the CCTV footage, including in slow motion, the footage of the incidents captured on the mobile phones of Mr Sahade and Mrs Bischoff, together with the still photographs from the CCTV footage.

2. [76]

   It should be noted that the CCTV footage appears as a series of frozen frames, rather than a flowing moving image. Each frame of the footage is separated by a couple of seconds, with the result being that what is depicted on screen is frozen for a couple of seconds, until the next frame shows what has occurred a couple of seconds later. What occurs between frames is a matter of inference to be drawn from the audio accompanying the film, and what occurred in the frames preceding and following.

3. [77]

   It is appropriate to address the five incidents in order, as this provides the relevant context for the subsequent incidents. It must be accepted, however, that the primary judge had the very considerable advantage of seeing the relevant witnesses give their oral evidence and was thus able to bring to bear aspects of judgment and appraisal that are simply unavailable to this Court: Fox v Percy [2003] HCA 22; 214 CLR 118 at [23].

4. [78]

   The first incident occurred near the wooden stairs near the inclinator to Mr Sahade’s premises, where Mr Sahade and Mr Smith were working. Upon arriving home in her car, Mrs Bischoff walked over to the stairs and began videoing, using her mobile phone, the work being carried out by Mr Sahade and Mr Smith. Mr Sahade responded by videoing Mrs Bischoff using his own mobile phone. A short time later Mr Bischoff walked over to where Mrs Bischoff was standing and told her, in effect, to ignore Mr Sahade. Mr Sahade replied with a very derogatory comment in German directed to Mrs Bischoff. Mr Bischoff handed what appears to be his mobile phone and glasses to his wife. What happened next was controversial. After watching the CCTV footage in slow motion, the primary judge found that Mr Bischoff did not reach out and grab Mr Sahade’s arm. He found that the Mr Sahade projected himself forward coming into contact with Mr Bischoff’s outstretched hand.

5. [79]

   His Honour’s finding based on the CCTV footage was supported by his separate findings concerning the evidence of Mr Smith and Mr Sahade. As already mentioned, his Honour found that Mr Smith agreed in cross-examination that Mr Sahade had moved forward off the stairs and came into contact with the outstretched hands of Mr Bischoff. In addition, his Honour rejected the evidence of Mr Sahade that he was pulled off the top of the inclinator stairs by Mr Bischoff, and that he was not aggressive.

6. [80]

   Mr Sahade contends that his Honour should have found that Mr Bischoff rapidly stepped around his wife and grabbed the wrist of Mr Sahade pulling him forward. Reference was made to a still photo taken from the CCTV footage.

7. [81]

   Having reviewed the CCTV footage, I am satisfied that his Honour’s finding as to the incident at the stairs was not erroneous. The CCTV footage shows Mr Sahade moving forward off the top of the stairs with his left arm extended outwards and his left fist clenched. Mr Bischoff takes a step backwards with his right foot. Mr Bischoff’s right arm is bent in front of him and is pushing in a downwards direction on Mr Sahade’s extended left forearm to deflect Mr Sahade’s arm from contacting with him. I would reject the challenge to his Honour’s factual finding.

8. [82]

   The second incident occurred after Mr Sahade had stepped off the top of the stairs and advanced towards Mr Bischoff who was retreating across the courtyard. His Honour found that Mr Bischoff threw a punch towards Mr Sahade a few metres back from where the initial incident occurred, that it probably did not connect, and that if there was contact, that this was a reasonable response and thrown in self-defence due to the aggressive moving forward of Mr Sahade.

9. [83]

   Mr Sahade contends that his Honour should have found that Mr Bischoff punched Mr Sahade with a “right cross”, that the punch was thrown after Mr Sahade attempted to move the camera that Mrs Bischoff was holding away from him, that this was not a reasonable response by Mr Bischoff as the punch was thrown before any moving forward by Mr Sahade and the punch was not thrown in self-defence. Reference was made to a still photo taken from the CCTV footage.

10. [84]

    Reference to the CCTV footage shows that this incident occurred shortly after Mr Sahade lunged towards Mrs Bischoff who was videoing the incident on her mobile phone camera. Mr Bischoff stepped backwards and adopted what seems to be a defensive stance, putting a distance of one or two paces between Mr Sahade and himself. Mr Sahade advanced towards Mr Bischoff with both hands outstretched; his left hand made contact with Mr Bischoff’s face and his right hand made contact with Mr Bischoff’s upper chest region. Mr Bischoff can be seen leaning backwards, his right arm is raised and bent at the elbow, fist clenched. His forearm is about level with the height of Mr Sahade’s face. As his Honour observed, it seems that Mr Bischoff’s right forearm comes close to touching Mr Bischoff’s face but one cannot be certain. There was no error in his Honour’s finding that Mr Sahade was moving forward aggressively. Nor did his Honour err in finding that if Mr Bischoff’s right arm contacted with Mr Sahade, it was in the course of Mr Bischoff protecting himself and attempting to fend off the advance of Mr Sahade. The finding that Mr Bischoff’s response was reasonable and in self-defence was open to his Honour. No error has been demonstrated.

11. [85]

    The third incident involved Mr Sahade wrestling with Mr Bischoff on the floor of the courtyard in the driveway area. His Honour found that it was the movement forward of Mr Sahade after the second incident, and the force of it, as Mr Sahade moved forward, that propelled Mr Sahade and Mr Bischoff to the ground with Mr Sahade attempting to get Mr Bischoff into a headlock. His Honour also found that Mr Sahade was being aggressive, that Mr Bischoff did get the better of the wrestle on the ground, did get on top, and that Mr Smith came in to intervene. The relevant still photographs covered a time period of about 16 seconds

12. [86]

    Mr Sahade’s statement under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 51.36(2) did not contend for any particular finding of fact in relation to this incident. Nor did Mr Sahade’s written submissions specifically address this incident. The Court was invited to view the CCTV footage and photographic stills and accept Mr Sahade’s contention that this material objectively supported his claims of assault and battery. Having done so, I do not agree.

13. [87]

    It can be accepted that Mr Bischoff wrestled with Mr Sahade on the floor of the courtyard. This followed Mr Sahade’s attempt to put Mr Bischoff in a headlock whilst both men were standing and again when both men went to the ground with the assistance of Mr Smith. Mr Sahade was the aggressor, and Mr Smith assisted Mr Sahade in pushing Mr Bischoff to the ground. Mr Bischoff eventually got the better of the wrestle before Mr Smith intervened and pushed him backwards.

14. [88]

    No error has been demonstrated in his Honour’s finding that what occurred while Mr Bischoff was wrestling on the ground with Mr Sahade was self-defence.

15. [89]

    The incident occurred immediately after Mr Sahade and Mr Bischoff had been wrestling on the ground.

16. [90]

    His Honour found that on rising from the ground, Mr Bischoff threw a punch “which would appear probably did make contact with Mr Sahade”, but was in self-defence from the aggressive movements forward by Mr Sahade as he had come across the courtyard to Mr Bischoff.

17. [91]

    Mr Sahade contends that this finding is inconsistent with the CCTV footage. It was submitted that the footage shows a “right cross” by Mr Bischoff as he is rising from the floor of the courtyard. Reference is made to a still photo taken from the CCTV footage.

18. [92]

    The CCTV footage shows Mr Sahade and Mr Bischoff wrestling on the ground. When Mr Bischoff eventually got on top of Mr Sahade, Mr Smith intervenes and pushes Mr Bischoff backwards off Mr Sahade. That push resulted in Mr Bischoff moving backwards and rising to his feet. At this point, Mr Smith and Mr Bischoff are facing each other with Mr Sahade in between the two men, crouched and then rising to his feet also facing Mr Bischoff. Scuffling can be heard on the audio of the CCTV. Both Mr Sahade and Mr Smith can be seen to be moving forward towards Mr Bischoff. Mr Bischoff swings his right arm towards Mr Sahade. Mr Bischoff’s body is oriented sideways a little by the diagonal movement forward of his right foot. Mr Sahade’s head, which is facing towards Mr Bischoff, does not seem to move as a result of any contact with Mr Bischoff’s right arm or fist. In the footage that follows, Mr Bischoff can be seen to be retreating as Mr Sahade and Mr Smith continue their advance with arms outstretched.

19. [93]

    Contrary to Mr Sahade’s submissions, the punch which his Honour found probably made contact with Mr Sahade occurred when Mr Sahade was standing facing Mr Bischoff with Mr Smith behind him. Having regard to his Honour’s earlier findings concerning the aggressive movement forward of Mr Sahade across the courtyard towards Mr Bischoff, the circumstances of the wrestling on the ground, Mr Smith pushing Mr Bischoff backwards off Mr Sahade and Mr Sahade rising from the ground, there was no error in his Honour’s finding that Mr Bischoff was acting reasonably in self-defence due to the aggressive moving forward of Mr Sahade.

20. [94]

    The fifth incident occurred near the portico entrance to the Bischoffs’ premises. It is alleged that Mr Bischoff attempted to strike Mr Sahade in the face with his left fist which was blocked by Mr Sahade. Reference was made to a still photograph from the CCTV footage.

21. [95]

    Mr Sahade contends that the fifth incident occurred before the incident at the wall referred to at [15] above. That may be accepted, having regard to the time lapse as recorded on the still photograph in respect of the fifth incident (3.04) compared to the incident at the wall (which commenced at 3.08) and also the sequence of events recorded on the CCTV footage. The fifth incident occurred shortly after Mr Sahade and Mr Bischoff had been wrestling on the ground.

22. [96]

    The CCTV footage shows Mr Bischoff retreating towards the portico entrance with Mr Sahade and Mr Smith advancing towards him. Mr Bischoff stops near the portico and adopts a sideways stance appearing to stand his ground about 2 metres away from Mr Sahade, who continues to advance towards him. The next frame (which Mr Sahade relies on as identifying the alleged assault by Mr Bischoff), shows Mr Sahade’s outstretched left arm with his left hand hooked behind Mr Bischoff’s head and seems to be forcing Mr Bischoff’s head in a downwards direction. Mr Bischoff is leaning slightly backwards. His left arm is bent at the elbow, and is pushed away by Mr Sahade. Then Mr Sahade and Mr Bischoff become separated. Mr Smith places a hand on Mr Bischoff and Mr Sahade again advances. Mr Sahade and Mr Smith then both “propelled”, as his Honour found, Mr Bischoff to the wall of his residence.

23. [97]

    Contrary to the submissions of Mr Sahade, the CCTV footage and still photographs do not show a “left cross” by Mr Bischoff which was blocked by Mr Sahade. Mr Sahade advanced towards Mr Bischoff aggressively. Mr Sahade hooked his left hand behind Mr Bischoff’s head. Mr Bischoff raised his left arm to fend off Mr Sahade’s advance.

24. [98]

    Although his Honour did not expressly deal with the fifth incident in the summary of his factual findings, he made a global finding that he was not satisfied that Mr Bischoff had assaulted Mr Sahade in the manner alleged in the statement of claim, which included the fifth incident. His Honour found that any contact between Mr Bischoff’s hand and Mr Sahade came about with no intention by Mr Bischoff to assault Mr Sahade.

25. [99]

    If it were necessary to make a finding with respect to this incident, I would find that Mr Bischoff believed that his conduct was necessary to defend himself. Mr Bischoff gave evidence to this effect when cross-examined in relation to the photo of the fifth incident. He said that he raised his left arm to defend himself, to fend off Mr Sahade who kept charging at him. Mr Bischoff’s perception of the need to defend himself from Mr Sahade is consistent with the CCTV footage of this incident.

26. [100]

    In my view, it should be accepted that Mr Bischoff’s conduct in attempting to fend off the advancing Mr Sahade, who had pursued him following the wrestling on the ground, was a reasonable response in the circumstances as Mr Bischoff perceived them.

Other matters

1. [101]

   The failure of Mr Sahade’s challenges to his Honour’s factual findings makes it unnecessary to address the related grounds of appeal. However, two matters should be noted. First, his Honour’s finding that he was not satisfied that Mr Sahade had suffered the injuries alleged is to be understood in the context of his Honour having found the alleged assaults by Mr Bischoff had not occurred.

2. [102]

   Secondly, the challenge to his Honour’s credit finding in respect of Mr Smith does not assist Mr Sahade’s case. His Honour’s finding that Mr Smith’s evidence was unreliable was not dependent upon the credit finding (which Mr Sahade challenged) that Mr Smith gave untruthful evidence that he had spent the evening at Mr Sahade’s premises when giving evidence at the trial.

3. [103]

   His Honour gave a number of reasons for finding that Mr Smith’s evidence was unreliable: the inconsistency between Mr Smith’s evidence in chief and in cross-examination concerning the first incident and Mr Sahade’s aggressive forward movements; the threats of violence towards Mr Bischoff which Mr Smith had expressed to Mr Sahade several minutes before this incident; similar threats of violence expressed to Mr Sahade’s son two days before the incident; and Mr Smith’s comments recorded on the audio of the CCTV that he would say that Mr Bischoff, in effect, came at Mr Sahade. None of these reasons was challenged on appeal. Nor was it submitted that the finding that Mr Smith’s evidence was unreliable was not open to his Honour.

4. [104]

   Mr Sahade’s challenge to his Honour’s rejection of his claims of assault and battery by Mr Bischoff should be rejected.

The primary judge’s reasons

1. [105]

   The primary judge found that while there was some unreliability in relation to the evidence of Mr Bischoff and Mrs Bischoff neither was substantially and sufficiently involved in the procurement, institution and/or maintenance of the criminal charges against Mr Sahade and Mr Smith to become prosecutors.

2. [106]

   His Honour reasoned that it was the police who decided to charge Mr Sahade and Mr Smith, relying partly on the statements provided by the Bischoffs, but after they had interviewed all of the prospective witnesses and viewed the totality of the CCTV footage.

3. [107]

   His Honour also found that in providing statements to the police, the Bischoffs did not act maliciously or without reasonable or probable cause. His Honour found, contrary to the appellants’ case at trial, that the statements were not provided to mislead the police from discovering that Mr Bischoff was the aggressor and to avoid police prosecuting him. Nor was his Honour satisfied that the giving of the statements by the Bischoffs was not done in good faith.

The tort of malicious prosecution

1. [108]

   The elements of the tort of malicious prosecution are set out in A v State of New South Wales [2007] HCA 10; 230 CLR 500 at [1]. See also Beckett v State of New South Wales [2013] HCA 17; 248 CLR 432 at [4]. In summary, the plaintiff must prove four things: (1) the prosecution was initiated by the defendant; (2) the prosecution terminated favourably to the plaintiff; (3) the defendant acted with malice in bringing or maintaining the prosecution; and (4) the prosecution was brought or maintained without reasonable and probable cause.

2. [109]

   There was no issue in the present case as to the second element. What was put in issue at trial, and again on appeal by grounds 10 and 11, is whether the Bischoffs were prosecutors, and if so, whether they acted maliciously and without reasonable and probable cause in making certain statements to the police.

3. [110]

   Counsel for the appellants acknowledged that if the first element of the tort was not established – that the Bischoffs were prosecutors – then the remaining elements did not arise for consideration (tcpt CA at 27, lines 6-10).

4. [111]

   Although the focus of grounds 10 and 11 was the assertion that the Bischoffs had instigated the prosecutions by giving allegedly false statements to the police, counsel for the appellants also contended that the Bischoffs had maintained the prosecution against Mr Sahade by giving evidence before the Local Court. Counsel accepted that the Bischoffs’ could not have maintained the prosecution against Mr Smith in respect of whom the prosecution was withdrawn (tcpt CA at 5, lines 1-3).

5. [112]

   No objection was taken by counsel for the Bischoffs to the maintenance issue being outside the grounds of notice of appeal relied upon by Mr Sahade. I proceed on this basis. As has been already noted, his Honour dealt with the maintenance issue and found that the Bischoffs had not maintained the prosecutions against either Mr Sahade or Mr Smith at trial.

Liability of a complainant for the instigation or maintenance of a prosecution

1. [113]

   In A v State of New South Wales at [34], the High Court pointed out that “[t]he identification of the appropriate defendant in a case of malicious prosecution is not always straightforward.” The joint judgment continued: “[t]o incur liability, the defendant must play an active role in the conduct of the proceedings, as by ‘instigating’ or setting them in motion” (citing John G Fleming, The Law of Torts, (9th ed 1998, Law Book Company Information Services) at 676). Their Honours referred at [35] to Martin v Watson [1996] AC 74, a case involving a complaint made to the police:

2. [114]

   Earlier Dixon J in Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 56; 53 CLR 343 at 379, in a passage which was referred to by Lord Keith in Martin v Watson at 81, referred to the criteria by which a complainant to the police may be said to have instigated the prosecution:

3. [115]

   Notwithstanding the reference by Dixon J to “joint wrongdoers” in the passage set out in the preceding paragraph, it is not a necessary condition for the effective pursuit of an action for malicious prosecution that the actual prosecutor himself or herself was party to the wrongdoing: Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 at [39]-[40] (Basten JA). His Honour noted that the authorities for this proposition included Commonwealth Life Assurance Society Ltd v Brain at 379 and 381-382 (Dixon J) and Mahon v Rahn (No 2) [2000] 1 WLR 2150 at [255].

4. [116]

   In Mahon v Rahn (No 2) at [266], Brooke LJ (Mantell and Laws LJJ agreeing) noted that in Martin v Watson at 84, Lord Keith also relied on the Restatement of the Law, Torts, 2d (American Law Institute, 1977), s 653, which deals with the matter in this way:

5. [117]

   Brooke LJ drew a distinction (at [268]) between a “simple” case involving a complaint to the police, like Martin v Watson, and more complex cases in which the prosecuting authority is in receipt of evidence from a variety of sources and has to decide in the exercise of its discretion whether it is in possession of sufficient evidence to justify setting the law in motion against the defendant.

6. [118]

   Brooke LJ posed the following questions for determination (at [269]) with respect to a “simple” case:

7. [119]

   It has been said that one should never assume that tainted evidence persuaded the police to prosecute: Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 at 199 (Richardson J). His Honour continued (at 199):

8. [120]

   These statements reflect public policy considerations that members of the community should be encouraged to aid the police in their function of investigating and prosecuting breaches of the criminal law without fear of being harassed by actions of malicious prosecution. This consideration, together with the independent discretion exercised by prosecutors, led Richardson J to conclude that the circumstances in which third parties are to be regarded as having instigated a prosecution should be "rare and exceptional" (at 199). It is unnecessary to go so far in the present case. It can be accepted that there is a need for caution even in a “simple” case in determining what persuaded the police to prosecute.

9. [121]

   In State of New South Wales v Landini [2010] NSWCA 157, Macfarlan JA (Tobias JA and Sackville AJA agreeing) at [52]-[59] referred to the acts which are capable of constituting the "maintenance" of a prosecution for the purposes of the tort of malicious prosecution. It is unnecessary to repeat what is there stated. The common feature in the authorities is the requirement that the defendant take some positive conduct to maintain the prosecution, such as giving evidence in support of the prosecution, which was known to be false.

The Bischoffs did not instigate the prosecutions

1. [122]

   The stated premises of grounds 10 and 11 are that the statements given by the Bischoffs to the police were false and objectively false by reference to the CCTV footage. These grounds asserted that his Honour should have found that the Bischoffs’ statements were deliberately false.

2. [123]

   Counsel for the appellants also contended that the police were not able to assess the truthfulness of the information provided by the Bischoffs and did not in fact do so (tcpt CA at 6, lines 19-27).

3. [124]

   In oral argument, counsel for the appellants focussed on the parts of the written statements given by the Bischoffs in relation to the incident at the wall. (This incident was the subject of the first and third assault charges against Mr Smith and Mr Sahade.) Although joined in the one appeal, the claims of Mr Sahade and Mr Smith of malicious prosecution must be considered individually.

4. [125]

   Reference was also made to Mrs Bischoff’s “kicking” allegation against Mr Sahade, when Mr Sahade and Mr Bischoff were wrestling on the ground. This was relied upon by the appellants only in relation to Mrs Bischoff’s credit. No charge was brought against Mr Sahade in respect of the kicking allegation. Nor was it suggested that this statement by Mrs Bischoff caused the police to instigate the prosecutions.

5. [126]

   Counsel for the appellants placed reliance on paragraphs 12 and 13 of Mr Bischoff’s statement (concerning Mr Sahade punching Mr Bischoff at the wall in the presence of Mr Smith). The critical statement in paragraph 13 was as follows:

6. [127]

   While this statement made no reference to Mr Smith being present at the wall, Mr Bischoff gave evidence to that effect during the Local Court prosecution against Mr Sahade. The alleged falsity of the statement concerns the reference to Mr Sahade punching Mr Bischoff at the wall.

7. [128]

   Counsel also referred to paragraph 14 (concerning a later incident inside Mr and Mrs Bischoff’s unit). This paragraph may be put aside as it related to the common assault charge against each of Mr Sahade and Mr Smith. As already noted, counsel for the appellants did not press the malicious prosecution claim with respect to this charge (see [40] above).

8. [129]

   Counsel for the appellants placed reliance on paragraphs 15, 16 and 18 of Mrs Bischoff’s first statement and paragraph 5 of her second statement.

9. [130]

   Paragraphs 15 and 16 concerned the “kicking” statement by Mrs Bischoff. The critical statement in paragraph 16 was as follows:

10. [131]

    Paragraph 5 of Mrs Bischoff’s second statement relating to the incident at the wall was follows:

11. [132]

    It was not suggested that Mrs Bischoff’s reference to the presence of the “worker”, Mr Smith, was false. The alleged falsity of this statement only concerned the reference to Mr Sahade punching Mr Bischoff to the left side.

12. [133]

    Reference was also made to paragraph 18 of Mrs Bischoff’s first statement, which like paragraph 14 of Mr Bischoff’s statement concerned a later incident under the portico entrance to the Bischoffs’ unit. As is noted above, the appellants did not ultimately rely on this conduct in relation to the malicious prosecution claims (tcpt CA at 10, lines 34-39).

13. [134]

    Counsel for the appellants accepted in oral argument that his Honour did not find that either Mr or Mrs Bischoff gave a deliberately false statement to the police concerning the incident at the wall, or the “kicking” allegation. The appellants’ argument on appeal was that the judge should have made such a finding.

14. [135]

    Three observations should be made. First, his Honour was best placed to assess the reliability and truthfulness of the parties having seen them give their evidence. That his Honour did not accept the reliability of parts of the Bischoffs’ statements to the police does not mean that their police statements were false. Nor, contrary to the appellants’ contentions, does the CCTV footage demonstrate that the Bischoffs’ statements were objectively false. The relevant footage is analysed below at [144]-[147].

15. [136]

    Secondly, this Court is not in a position to make a credit finding that the Bischoffs’ statements to the police were deliberately false. The best the appellants could achieve is a new trial on this part of the case, if it appears to the Court that some substantial miscarriage of the trial has occurred: UCPR r 51.53.

16. [137]

    Thirdly and importantly, the relevant facts were not so exclusively within the Bischoffs’ knowledge that it was virtually impossible for the police to exercise any independent discretion to prosecute the appellants.

17. [138]

    The incident at the wall was captured by the CCTV cameras and the police viewed the footage and obtained statements at the premises from the parties before charging Mr Sahade and Mr Smith later that night. The police were not compelled to lay the charges based on information exclusively in the Bischoffs’ knowledge. The present case is distinguishable from cases such as State of New South Wales v Abed [2014] NSWCA 419 where the only person who could directly testify about the alleged incident (an alleged break and entry into the complaint’s home and an assault) was the complainant herself. Here the police were able to test the truthfulness of the information in the Bischoffs’ statements against the CCTV footage.

18. [139]

    Further, it may be inferred that the police did form their own independent judgment as to what occurred, based on the CCTV footage. Importantly, in relation to the incident at the wall, the facts sheet records what the police observed and also heard on the audio from the CCTV footage in the following terms:

19. [140]

    In addition, shortly after arriving at the premises the police indicated that they would “get to the bottom of this today”. The context was that the police had been called to the premises for the third time in three days. The CCTV audio also records Senior Constable Lucock later informing the parties that he had viewed the CCTV footage of the whole altercation and could hear what was being said by the parties on the audio, before placing the appellants under arrest.

20. [141]

    In my view, his Honour did not err in concluding that the Bischoffs were not the prosecutors, in the sense of being the instigators of the prosecutions by the police.

The Bischoffs did not maintain the prosecution of Mr Sahade

1. [142]

   Mr Sahade’s contention that the Bischoffs maintained the prosecution requires acceptance of the proposition that they gave evidence before the Local Court which they knew was false. Mr Sahade again relies upon the CCTV footage to demonstrate what he asserted was the objective falsity of the Bischoffs’ statements to the police, which they adhered to in the Local Court prosecution.

2. [143]

   His Honour observed a raised arm of Mr Sahade on the CCTV footage; however he was not satisfied on the balance of probabilities that there was contact with Mr Bischoff’s face during the incident at the wall. Although this finding was confined to contact with Mr Bischoff’s face I would not read it so narrowly. His Honour should be taken not to have been satisfied that Mr Sahade made any contact with Mr Bischoff at the wall.

3. [144]

   Against this, the CCTV footage shows: (a) Mr Bischoff facing the wall of his residence with his hands raised above his head as in an act of surrender; (b) Mr Sahade and Mr Smith physically restraining Mr Bischoff at the wall; and (c) Mr Sahade’s right arm swinging towards Mr Bischoff on at least two occasions and making contact on a third occasion. The three actions by Mr Sahade are also partly captured in the photo stills of the CCTV footage.

4. [145]

   In the first incident, Mr Sahade can be seen on Mr Bischoff’s left side with Mr Smith on the right side holding Mr Bischoff who is facing the wall. Mr Sahade is standing sideways to Mr Bischoff, legs spread, his right arm is raised in a cocked position, fist clenched, making a downward movement towards the side of Mr Bischoff’s left side around the head or neck region.

5. [146]

   In the second incident, Mr Sahade can again be seen standing sideways to the left of Mr Bischoff whose head is facing right towards Mr Smith. Mr Sahade’s right arm is bent at the elbow, his fist is clenched and is very close to making contact with Mr Bischoff’s ribs.

6. [147]

   In the third incident, Mr Sahade’s right arm can be seen to have grabbed Mr Bischoff’s shirt by the left collar or sleeve near the shoulder region.

7. [148]

   Although the freeze-frame CCTV footage does not depict actual contact with Mr Bischoff on the first two occasions, it was well open to his Honour to reach the conclusion that Mr Bischoff’s statement to the police was not false having regard to the circumstances of the altercation, the nature of Mr Sahade’s actions and the closeness of his right arm and hand to making contact with Mr Bischoff’s left side.

8. [149]

   Counsel for the appellants pointed to certain evidence given by Mr and Mrs Bischoff in the Local Court prosecution against Mr Sahade as supporting a finding that their police statements were false.

9. [150]

   Reference was made to Mr Bischoff’s evidence in chief before the magistrate as follows:

10. [151]

    Counsel for the appellants accepted that the CCTV footage showed that Mr Bischoff had backed away, turned and faced the wall and put his hands up against the wall. Counsel submitted that the reference by Mr Bischoff to receiving “further good blows to [his] rib cage, two, three or four” was false evidence given by him in support of charges 1 and 3 against Mr Sahade (tcpt CA at 14, lines 20-22; 15, line 4) and charges 2 and 3 against Mr Smith (tcpt CA at 14, line 46; 15, line 4).

11. [152]

    At trial in the District Court, it was put to Mr Bischoff in cross-examination that his evidence before the magistrate that Mr Sahade punched him at the wall at least two, three or possibly four times was not true. Mr Bischoff responded that it was true. Cross-examination was then directed to raising doubt that Mr Bischoff was punched at the wall, because he did not fall or gasp or scream at the blows he said had been delivered by Mr Sahade to his rib cage. Mr Bischoff said “I didn’t fall. I might have bend” and “I did not scream”. It was also suggested to Mr Bischoff that he made no complaint at all that he was punched at the wall. Mr Bischoff replied that he had told the police. This answer was consistent with paragraph 13 of his police statement (set out above at [24]). Importantly, it was not suggested to Mr Bischoff in cross-examination that he gave evidence before the magistrate which he knew to be false. This is fatal to Mr Sahade’s contention that Mr Bischoff falsely maintained the prosecution against him in the Local Court.

12. [153]

    Next, counsel for the appellants referred to the cross-examination of Mrs Bischoff before the magistrate concerning the circumstances in which she came to make her second statement, and in particular paragraph 5, dealing with the incident at the wall. Mrs Bischoff gave the following evidence in cross-examination:

13. [154]

    At the time of the incident at the wall, Mrs Bischoff was standing near the portico entrance to her residence. She had a sideways view of what was occurring. Mr Sahade was standing near the wall with his back facing her. Mr Bischoff was facing the wall standing between Mr Sahade and Mr Smith. An observer in Mrs Bischoff’s position looking at Mr Sahade’s actions from behind, could reasonably have concluded that Mr Sahade’s right arm made contact with Mr Bischoff’s left side.

14. [155]

    The cross-examination of Mrs Bischoff at trial put the matter no higher than that Mrs Bischoff had no recollection of seeing any punches thrown by Mr Sahade during the incident at the wall. Mrs Bischoff responded: “That’s incorrect”.

15. [156]

    Counsel for Mr Sahade accepted that Mrs Bischoff was not directly challenged at trial that she gave evidence before the Local Court concerning the incident at the wall which she knew to be was false (tcpt CA at 19, lines 20-31). That concession was properly made. This is fatal to Mr Sahade’s contention that Mrs Bischoff falsely maintained the prosecution against him in the Local Court.

16. [157]

    Nonetheless, counsel for the appellants sought to rely upon the “kicking” statement by Mrs Bischoff to challenge her credit generally. I turn to this challenge to her evidence.

17. [158]

    It was submitted that the “kicking” statement showed Mrs Bischoff’s general disposition to give false evidence to procure the outcome of the prosecution (tcpt CA at 16, lines 1-3). Counsel acknowledged that the primary judge made a finding to the contrary - that Mrs Bischoff’s “kicking” statement was not deliberately wrong. His Honour found that Mrs Bischoff was emotional and in shock, and as such was not an accurate recorder of that which occurred at the time.

18. [159]

    Reference was made to the cross-examination of Mrs Bischoff before the magistrate, where she was asked whether the kicking of Mr Sahade “was in the plural?”. She answered “I presume so, it’s hard to see the scuffle”. She also gave evidence that she saw Mr Bischoff being kicked on his “body” whilst he was on the ground.

19. [160]

    Reference was also made to the cross-examination of Mrs Bischoff at the District Court trial concerning her evidence given before the magistrate. When pressed on the issue of “kicking”, Mrs Bischoff gave the following evidence:

20. [161]

    Mrs Bischoff described the wrestling on the ground as a “melee”, she said that she could not recall Mr Bischoff being “kicked by Mr Sahade while he was on the ground”, though she saw Mr Sahade’s leg come in contact with her husband and “when a leg hits something I consider that kicking”. Mrs Bischoff denied that she had told the police she saw Mr Sahade kicking Mr Bischoff with the intention of influencing the police to take steps against Mr Sahade. She also denied that her statement to the police concerning the kicking was simply false.

21. [162]

    Counsel for the appellants submitted in this Court that Mrs Bischoff rather adroitly, and successfully, before his Honour redefined the expression “kicking” (tcpt CA at 21, lines 17-22). It can be seen from the CCTV footage, that Mr Sahade and Mr Bischoff were scuffling across the courtyard and wrestling on the ground. His Honour found that if there was contact between Mr Sahade’s feet or legs and Mr Bischoff, it occurred when they were struggling on the ground and was not intentional. Counsel for the appellants did not submit that his Honour’s finding that Mrs Bischoff’s “kicking” statement was not deliberately wrong, was erroneous by reason of incontrovertible facts or uncontested testimony or that the finding is glaringly improbable or contrary to compelling inferences: Fox v Percy at [28]-[29]. The appellants have not shown that the primary judge’s conclusion with respect to Mrs Bischoff’s evidence should be set aside.

22. [163]

    Accordingly, the appellants have failed to make out their contention that the Bischoffs maintained the prosecution against Mr Sahade by giving deliberately false evidence before the magistrate.

23. [164]

    In summary, the appellants have failed to show error by his Honour in finding that the Bischoffs were not prosecutors either in the sense of instigating the prosecutions against the appellants, or maintaining the prosecution in the Local Court against Mr Sahade. This conclusion is sufficient to dispose of the appeal against the rejection of the malicious prosecution claims. It is unnecessary to address the appellants’ separate challenges to his Honour’s findings that in providing the statements to the police the Bischoffs had not acted maliciously and without reasonable or probable cause.

C. Costs (ground 13)

1. [165]

   The primary judge awarded the Bischoffs 50% of their costs on the cross-claim. Mr Sahade sought leave at the hearing to add a further ground of appeal which asserted that his Honour erred in making this costs order (ground 13). The Bischoffs did not oppose the amendment to the notice of appeal and in these circumstances I grant leave to add ground 13.

2. [166]

   The parties did not direct argument as to whether leave to appeal was required in respect of ground 13, being an appeal from a judgment as to costs only: Supreme Court Act, s 101(2)(c). The unstated assumption of the appellants seems to have been that the amended notice of appeal otherwise included substantive grounds involving a matter in issue with a value not less than $100,000 and accordingly is not an appeal as to costs alone and does not require leave: Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 at [200]; Dasreef Pty Limited v Hawchar [2010] NSWCA 154 at [61] following Wheeler v Somerfield [1966] 2 QB 94. See also Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128; 80 NSWLR 652 at [129]; Dillon v Gosford City Council [2011] NSWCA 328 at [53]-[56].

3. [167]

   In the absence of argument to the contrary I am prepared to assume, without deciding, that leave to appeal is not required in respect of ground 13.

4. [168]

   To successfully challenge his Honour’s discretionary decision with respect to costs, it is necessary for Mr Sahade to establish error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499.

5. [169]

   It was not suggested that his Honour had applied incorrect principles, misunderstood the facts, took into account irrelevant considerations, or failed to take into account any relevant consideration. Mr Sahade relies upon the last kind of error identified in House v The King at 505, that the decision was “unreasonable or plainly unjust”, such that this Court may infer that in some way there has been a failure by the primary judge to exercise the discretion with respect to costs.

6. [170]

   Mr Sahade pointed to two matters. First, that the award of costs far exceeds the amount of the Bischoffs’ judgment on the cross-claim of $500. Secondly, that the Bischoffs’ cross-claim for aggravated and exemplary damages was unsuccessful. Mr Sahade submitted that no costs should have been awarded on the Bischoffs’ cross-claim. In my view, neither of these matters demonstrated that the costs order on the cross-claim was plainly unjust.

7. [171]

   The Court has a discretion to determine, relevantly, to what extent costs are to be paid: Civil Procedure Act 2005 (NSW), s 98(1). The general rule is that costs follow the event unless it appears to the Court that some other order should be made as to whole or any part of the costs: UCPR r 42.1.

8. [172]

   Here, the primary judge made an order for costs reflecting his assessment of the degree of success achieved by the Bischoffs on the cross-claim. It can be accepted that the award of general damages was very modest. Nonetheless, the Bischoffs succeeded in proving the trespass by Mr Sahade. That outcome warranted an order for some costs in their favour. Having heard the evidence and seen the trial unfold his Honour was best placed to make that assessment.

9. [173]

   It is not to the point, as Mr Sahade contended, that the Bischoffs’ costs might have been possibly capped if the Bischoffs’ cross-claim had been brought in the Local Court. The Bischoffs’ choice of jurisdiction for their claim was entirely reasonable in circumstances where Mr Sahade had commenced proceedings against them in the District Court in relation to essentially the same subject matter.

10. [174]

    No basis has been shown for interfering in his Honour’s discretionary decision with respect to the cross-claim.

The Bischoffs’ Cross-Appeal

1. [175]

   The Bischoffs sought leave to cross-appeal with respect to the award of damages of $500 for trespass and the costs orders in their favour. By their cross-summons, the Bischoffs sought an award of damages of $80,000. As already mentioned, leave to appeal is required insofar as the judgment involves a matter at issue of a value less than $100,000, or as to costs only: Supreme Court Act, s 101(2)(r) and (c).

2. [176]

   At the hearing, the Bischoffs sought leave to file an amended cross-summons seeking to increase the award of damages against Mr Sahade to $100,000. The proposed amendment reflected the position taken in the Bischoffs’ written submissions that the award of damages for trespass should be increased to $100,000 (not $80,000 as sought in the draft notice of cross-appeal) comprising general damages of $25,000, aggravated damages of $25,000 and exemplary damages of $50,000.

3. [177]

   The cross-respondents, Mr Sahade and Mr Smith, opposed the grant of leave to cross-appeal and Mr Sahade also opposed the grant of leave to amend the cross-summons.

4. [178]

   Despite the increased claim for damages of $100,000, the Bischoffs’ amended cross-summons was advanced on the express basis that leave to appeal was required under the Supreme Court Act, s 101(2)(c) and (r). Counsel for the Bischoffs adhered to that position in oral argument (tcpt CA at 56, lines 22-28). It is appropriate to proceed on this basis.

Damages

1. [179]

   Ground 1 in the draft amended notice of cross-appeal does not identify any particular error of the primary judge in awarding $500 damages on the cross-claim. In their written submissions, the Bischoffs complained that the award of damages in that amount was an ineffective sanction for the trespass committed by Mr Sahade. Reference was made to Plenty v Dillon [1991] HCA 5; 171 CLR 635 at 654-655. It was submitted that a substantial award of damages was appropriate and that his Honour had failed to consider the claims for exemplary damages and aggravated damages.

2. [180]

   The primary judge found that Mr Sahade entered the home of the Bischoffs for a very short time and no damage was occasioned to the Bischoffs. He could not determine whether the entry into their home was for the recovery of Mr Sahade’s phone. It was common ground that Mr Sahade proceeded a metre or two inside their home and the period of entry was approximately 13 seconds (tcpt CA at 56, lines 39-40).

3. [181]

   The present case is distinguishable from cases such as Plenty v Dillon and New South Wales v Ibbett [2006] HCA 57; 229 CLR 638. In those cases the trespass was not only deliberate but attended by circumstances of aggravation, namely, the defendants entered as police officers in purported exercise of intrusive powers. In Plenty v Dillon the question of quantum of damages was remitted by the High Court. In New South Wales v Ibbett the High Court dismissed the State’s appeal against the decision of the majority of this Court (Spigelman CJ and Basten JA; Ipp JA dissenting) to uphold, relevantly, the trial judge’s award for trespass of $10,000 in general damages, $20,000 for aggravated damages and $20,000 for exemplary damages.

4. [182]

   The circumstance of aggravation which justified a substantial award of damages in Dillon v Plenty and New South Wales v Ibbett is absent from the present case. While Mr Sahade’s entry into the Bischoffs’ residence was a deliberate entry without consent, it was only for a very short period of time and the physical extent of the entry was quite small. The trespass would justify some modest damages in vindication of the Bischoffs’ right to exclude, but not any significant award.

5. [183]

   It was well open to his Honour in the circumstances to make a very modest award of general damages for the trespass. The Court should not interfere with his Honour’s assessment of general damages merely because, if placed in his Honour’s position, a slightly higher award (but not significantly higher) might have been made by another judge.

6. [184]

   The principles concerning the award of aggravated and exemplary damages were summarised by Sackville AJA in State of New South Wales v Zreika [2012] NSWCA 37 at [60]-[64]. It is unnecessary to repeat what was said there. In short, aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant’s wrongdoing. Exemplary damages are awarded to punish or deter the wrongdoer: New South Wales v Ibbett at [31] and [33], citing with approval Taylor J in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 at 129-130.

7. [185]

   With respect to aggravated damages, the Bischoffs’ cross-claim pleaded that the Bischoffs were seriously shocked, injured in their feelings and person, and humiliated by the trespass and that by reason of the trespass they remain in fear of further personal violence and intrusions upon their home by Mr Sahade.

8. [186]

   In State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 Hodgson JA noted that in cases where the wrongful conduct is trespass to land, for which damages for psychological injuries are not generally awarded, one can say that aggravated damages are compensatory damages for injury to the plaintiff's feelings by the manner of the trespass, which would not otherwise have been awarded: at [128].

9. [187]

   The primary judge found in the first judgment that “much of the emotional fraught and injuries [of] which Mrs Bischoff complains and the injuries of which Mr Bischoff complains would have been occasioned by that which occurred outside in the courtyard” and that “no damage has been established on probability by the defendant/cross-claimants in relation to the cross-claim”.

10. [188]

    On the re-opening application with respect to the cross-claim, the Bischoffs repeated their earlier submissions on damages. They did not submit that the primary judge should make different factual findings to those in his first judgment. The damages awarded by the primary judge were on the basis that there was an entry by Mr Sahade, hence a trespass without any circumstance of aggravation.

11. [189]

    With respect to exemplary damages, the onus was on the Bischoffs to prove that Mr Sahade acted in contumelious disregard of their rights: Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 8; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; 155 CLR 448 at 471 (Brennan J). The Bischoffs did not establish that Mr Sahade’s entry into their home was “malicious and out of spite” as alleged in their cross-claim. Nor did they obtain a finding that Mr Sahade did not enter their home to retrieve his phone which he believed that Mr Bischoff had taken,.

12. [190]

    Ordinarily, leave to appeal is only granted where there is an issue of principle or question of general public importance, or where it is reasonably clear that there has been an injustice which in the circumstances should be addressed. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong. The relevant principles are stated, and authorities referred to in Lee v New South Wales Crime Commission [2012] NSWCA 262; 224 A Crim R 94 at [12]; Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397. Where a disproportionate amount of time and cost will be involved, that is a factor tending against the grant of leave: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [37]-[39]. Where the amount in issue is below the threshold of $100,000, the need for restraint in granting applications for leave to appeal must also be kept firmly in mind: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69.

13. [191]

    In the present case, it was not suggested that any issue of principle or public importance was involved. Rather, the Bischoffs base their application for leave to appeal on the injustice or unfairness of the very modest damages awarded by his Honour. However, no unfairness has been established in circumstances where the challenge to his Honour’s assessment of general damages involves only a small amount and no arguable error has been demonstrated. The challenge to his Honour’s refusal to award aggravated or exemplary damages also involves relatively small amounts, which are disproportionate to the costs of the 8 day trial and the incurring of additional costs on appeal, and no arguable error has been shown in his Honour’s factual findings for rejecting these claims.

14. [192]

    Leave to cross-appeal with respect to damages should be refused.

Costs orders at trial

1. [193]

   The Bischoffs complain that the primary judge ordered Mr Sahade and Mr Smith to pay only 80% of their costs of the hearing of the amended statement of claim and that Mr Sahade pay only 50% of their costs of the cross-claim (grounds 2(a) and 2(b)).

2. [194]

   It was not suggested that these grounds raised any issue of principle or question of general importance. In their written submissions, the Bischoffs asserted that there was no proper basis for his Honour to “order otherwise” under UCPR r 42.1 and reduce their costs entitlement on the amended statement of claim. While accepting the discretionary nature of the determination as to costs, it was contended that his Honour’s costs decision was exceptional and this Court should intervene. That contention should be rejected.

3. [195]

   The primary judge gave reasons for reducing the Bischoffs’ costs in defending the amended statement of claim to 80% and their costs of the cross-claim to 50%. Those reasons included that the Bischoffs declined mediation on two occasions, and had also declined offers of settlement in circumstances where the Bischoffs’ ultimate success in the proceedings was not materially different from the offers. Most relevantly, the Bischoffs had declined an offer that both claims be discontinued and that there be no order as to costs.

4. [196]

   His Honour also took into account the Bischoffs’ failure to establish the totality of their allegations on the cross-claim. The Bischoffs submitted that the result of the litigation was a victory for the Bischoffs on all major issues on the claim and cross-claim, and that the judge misapprehended or misapplied the law. That submission is untenable.

5. [197]

   The Bischoffs failed on a substantial component of their cross-claim for damages for trespass and this was a relevant matter for his Honour to take into account. The Bischoffs failed to prove that an assault occurred inside their house, that the trespass was malicious and out of spite and that there should be an award of aggravated or exemplary damages. His Honour was best placed to assess the extent to which costs in favour of the Bischoffs as the successful party should be reduced because of their failure on particular issues.

6. [198]

   No basis has been demonstrated for interfering in the costs orders made at trial in favour of the Bischoffs. Leave to cross-appeal with respect to the cost orders should be refused.

Conclusion and orders

1. [199]

   The appeal by Mr Sahade and Mr Smith has failed and must be dismissed.

2. [200]

   The Bischoffs’ application for leave to amend the cross-summons should be refused and the cross-summons for leave to cross-appeal should be dismissed.

3. [201]

   The parties requested that whatever the outcome of the appeal and cross-summons, they be given an opportunity to make further submissions as to costs (tcpt CA at 59, lines 14-19). The orders which are proposed make provision in that regard.

4. [202]

   Accordingly, I propose the following orders:

5. [203]

   BEECH-JONES J: I agree with Gleeson JA and the orders his Honour proposes.