Croucher v Cachia

1. [1]

   BEAZLEY P: Having had the opportunity to read in draft the reasons of Leeming JA, I agree with those reasons and with his Honour’s proposed orders. I would also emphasise the wisdom in his Honour’s proposed order that the parties mediate their dispute. Whatever might be the ultimate outcome of the proceedings, it is apparent that both parties will be involved in substantial legal costs which may not be recoverable in full from the unsuccessful party. The impact this is likely to have only needs to be stated to be appreciated.

2. [2]

   WARD JA: I have had the advantage of reading in advance the comprehensive reasons of Leeming JA, with which I agree. I also agree with the orders that his Honour has proposed.

3. [3]

   LEEMING JA: An altercation between two neighbours led to one, Mr Dennis Cachia, being seriously injured by the gardening shears wielded by the other, Mr Ronald Croucher. That in turn led to a six day trial in the District Court, on alternative causes of action in battery and negligence. Mr Croucher has appealed against the judgment obtained by Mr Cachia. I have concluded that the appeal should be allowed and the matter remitted for retrial, unless the parties can resolve their dispute consensually.

4. [4]

   The grounds of appeal are conveniently divided into two categories: legal and factual. First, it will be seen in what follows that the legal issues arising were numerous and not all were straightforward. The primary judge did not deal with some of those issues, and there were deficiencies in the way others were addressed. I have concluded that some of these grounds should be accepted.

5. [5]

   Secondly, there was a sustained challenge to the primary judge’s findings of fact and failure to “grapple” with the diametrically opposed cases presented by the parties. I have rejected this challenge. However, reflective of the failure fully to identify the legal issues, there was a failure to find facts sufficient to resolve all aspects of those legal issues.

6. [6]

   One matter should be emphasised at the outset. The primary judge was not assisted as well as she might have been by the parties in litigation which bristled with legal complexity. There were deficiencies and ambiguities in the pleadings on both sides. There was no mention of the legal issues – most of which sprang from Mr Croucher’s defence – in the short opening given by counsel then appearing for him. There were no oral closing submissions. The parties served very lengthy written documents after the hearing, which failed to highlight the critical matters. Indeed, the legal issues which were prominent on appeal were either not mentioned at all in Mr Croucher’s submissions below, or were deeply buried in them. By way of illustration, the principal points of law raised on appeal were not mentioned in opening and were only to be found in paragraphs 144, 147 and 148 of the 51 single-spaced pages of the defendant’s written submissions.

7. [7]

   Nothing in these reasons should encourage such an approach to litigation. I think it is plain that the course adopted, which denied to the primary judge the benefit of oral submissions in a complex trial, in which allegations of serious wrongdoing were advanced by each party against the other, hindered the just, quick and cheap identification and resolution of the real issues in the proceedings. Not every trial warrants oral submissions after the conclusion of the evidence (especially if there must be a delay occasioned by obtaining transcript). But this was no ordinary trial.

8. [8]

   These reasons adopt a slightly unusual order. They do so (a) because there must be a retrial, (b) because the legal issues will recur between the parties and perhaps also between other parties, but (c) mostly because the deficiencies in findings of fact are the consequence of the failure adequately to identify the legal issues. The course I have taken involves providing an initial limited overview of the factual background and findings of primary fact, then dealing with the issues of law which arose, and then returning to the challenges to the primary findings of fact.

Uncontroversial factual background

1. [9]

   On the afternoon of 2 January 2012, Mrs Vicki Cachia made a triple-0 call because her husband, Mr Cachia, had been injured following an altercation with their neighbour, Mr Croucher. Police arrived at the Panania address shortly thereafter, and found Mr Croucher hosing Mr Cachia’s blood from Mr Croucher’s driveway towards the boundary. He stopped doing so upon being requested by a police officer.

2. [10]

   Mr Cachia had been wounded by Mr Croucher’s gardening shears. The most serious injuries were to his right thumb and left elbow. There was no dispute that he had lost a deal of blood. He was taken by ambulance to hospital.

3. [11]

   There was no dispute that Mr Cachia had been trimming the hedge adjoining the boundary in his front yard. Some years before, Mr Croucher had erected a metal dividing fence on the boundary, which had been a sustained source of irritation between the neighbours. Both neighbours had planted hedging on their respective sides of the dividing fence. There was a small gap between the metal fence and the hedge on the Cachias’ land where Mr Cachia was working.

4. [12]

   It was also common ground that Mrs Cachia was also in the front yard, closer to the house, working on the garden, and saw most of the altercation, although her view was, in part, obstructed.

5. [13]

   Finally, it was also common ground that Mr Croucher, who had not been gardening, picked up his own gardening shears and walked to the nature strip at the boundary of the properties where the dividing fence ended and looked along the fence at Mr Cachia. In a trial where wildly divergent evidence was given, all witnesses agreed that Mr Cachia asked words to the effect, “Am I doing it right?” and Mr Croucher replied words to the effect, “Yes, but don’t let all your trimmings fall into my side” and Mr Cachia said, “Fuck off”.

6. [14]

   An altercation ensued, resulting in injuries being sustained by Mr Cachia. The two men were found to have ended up “at or near” the nature strip in front of Mr Croucher’s house.

Overview of the real issues and their resolution

1. [15]

   It will be necessary in what follows to turn to the details of the evidence and the findings of fact made by the primary judge. It suffices presently, for the purpose of identifying the real issues in this litigation, to note the essential aspects of Mr Croucher’s case and her Honour’s rejection of it.

2. [16]

   Mr Croucher maintained that Mr Cachia had hacked some of the hedge on Mr Croucher’s land with his shears, in response to which Mr Croucher cut some dead twigs off Mr Cachia’s bush. Mr Croucher said that Mr Cachia threw down his shears in anger and ran at him, shouting “I’ve been waiting a long time to fucking punch you out”. Mr Croucher said that Mr Cachia did push him and punch him repeatedly and that he had been attempting to defend himself with his shears.

3. [17]

   The primary judge rejected much of Mr Croucher’s case. Her Honour found that after the uncontroversial exchange of oral unpleasantries referred to above, Mr Croucher cut three healthy branches from Mr Cachia’s hedge, in response to which Mr Cachia threw his own shears to the ground, and strode towards Mr Croucher moving his arms in a “shooing” motion. Her Honour found that Mr Croucher retreated, and in the course of doing so he thrust his own shears towards Mr Cachia, opening and shutting them. The men moved sideways, ending up on Mr Croucher’s driveway at or near the nature strip. It was during that time that Mr Cachia was injured.

4. [18]

   On two occasions, her Honour stated that Mr Croucher was behaving recklessly (“there was a reckless battery of the plaintiff by the defendant” and “the defendant was reckless in the use of the shears”). However, shortly before both of those statements, her Honour stated that the tort of battery had been established (“the actions of the defendant amount to a battery” and “I have found an intentional assault took place”). I mention this because, as will be seen immediately below, Mr Croucher’s state of mind when the gardening shears in his hands caused serious injury to Mr Cachia was a, and perhaps the, central issue in the litigation.

The pleaded causes of action and their elements

1. [19]

   Mr Cachia alleged two causes of action in his statement of claim: battery (paras 1-10) and negligence (paras 11-17). It is convenient at the outset to bear in mind the different elements of those torts, the different defences, and the different ways they were affected by statute.

2. [20]

   Battery is one of three forms of trespass to the person, the others being assault and false imprisonment. While it is conveniently and conventionally labelled as an “intentional tort”, in contrast with negligence, such labels can obscure the necessary analysis of (a) the elements of the tort and (b) how the tort is affected by statute. As it is put in Clerk & Lindsell on Torts (20th ed, 2010, Sweet & Maxwell) at 986, “in this context ‘intention’ has a very particular meaning”.

3. [21]

   A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was “utterly without fault”. The requisite direct contact will be present if the defendant uses an instrument (such as gardening shears): Darby v Director of Public Prosecutions [2004] NSWCA 431; 61 NSWLR 558 at [73].

4. [22]

   Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It was in those circumstances that a unanimous High Court said in Williams v Milotin (1957) 97 CLR 465 at 474 that “[i]t happens in this case that the actual facts will or may fulfil the requirements of each cause of action” (ie battery and negligence).

5. [23]

   Within the allegations concerning battery, Mr Cachia’s pleading alleged that “[t]he attack was intentional and designed to inflict serious injury” (para 7). That allegation was, strictly speaking, unnecessary in order to establish liability (although, arguably, the allegation was intended to engage s 3B(1)(a) of the Civil Liability Act thereby permitting the award of damages at common law including exemplary damages – see below). It is clear law in this country that trespass to the person caused by a blow does not require the plaintiff to prove anything about intention. I cannot put the point more clearly than did Jacobs JA, with Manning and Moffitt JJA agreeing, in Timmins v Oliver (unreported, New South Wales Court of Appeal, 12 October 1972). Jacobs JA was writing three months after the commencement of the Supreme Court Act 1970 (NSW) which would bring to an end common law issue pleading refined by Baron Parke which had been said by Cotton LJ, shortly after it had been abolished a century earlier in England, in Spedding v Fitzpatrick (1888) 38 Ch D 410 at 414, to “conceal as much as possible what was going to be proved at the trial”. Jacobs JA rejected a demurrer to two bare declarations alleging that the plaintiff had sustained injuries from the defendants driving a motor boat against him, saying:

6. [24]

   The fact that the onus lay on the defendant, and the nature of what was required to be proven, was explained by Windeyer J in McHale v Watson (1964) 111 CLR 384 and by Street CJ (with whom Ferguson and James JJ agreed) in Blacker v Waters (1928) 28 SR (NSW) 406 at 410, in both cases tracing the matter back to Weaver v Ward (1616) Hob 134; 80 ER 284. There it was said that no man may be excused of a trespass “except it may be judged utterly without his fault”. The position in this respect is essentially unchanged four centuries later.

7. [25]

   As Gummow J said in Stingel v Clark [2006] HCA 37; 226 CLR 442 at [47]:

8. [26]

   True it is that English law has diverged in this respect, although not without contemporaneous criticism (notably J Jolowicz, “Forms of Action – Causes of Action – Trespass and Negligence” [1964] Cambridge Law Journal 200), but it remains the law in Australia until the High Court determines otherwise. I am aware that this has been criticised by some, notably Professor Fleming. But what that distinguished legal academic called a “misplaced cult of historicism”, I would regard as nothing other than the ordinary operation of legal precedent: see J Fleming, The Law of Torts (9th ed, 1998, LBC Information Services) at 27, a passage reproduced in the 10th edition at 29. More generally, there is no reason for Australian common law to reflect the orderly division seen in systems deriving from Roman law: see P Handford, “Intentional Negligence: A Contradiction in Terms?” (2010) 32 Sydney Law Review 29 at 32-33, and for the same point made in a different context, see Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81 at [46]-[51]. Negligence is centuries younger than trespass to the person. There is no good reason for confining the scope of trespass to intentional acts now, decades after what Gleeson CJ, McHugh, Gummow and Hayne JJ called the “imperial march of modern negligence” (Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [48]), in order to achieve the profoundly anhistoric result that the torts cease to overlap.

9. [27]

   Misconceptions concerning these basal matters caused confusion throughout the trial and appeal. One example arises directly from Mr Cachia’s pleading. It will be seen that a submission was advanced on appeal by Mr Croucher to the effect that the way the case was pleaded precluded a finding of recklessness by him. The foundation of the submission was paragraph 7 of the statement of claim, which pleaded no material fact and was, strictly speaking, unnecessary to his cause of action.

10. [28]

    The statement of claim also sought both “aggravated and exemplary damages from the defendant with respect to the defendant’s intentional infliction of injury and damage upon the plaintiff” (para 17). In respect of exemplary damages, the following particulars were given in paragraph 18 (the pleading drew no distinction between allegations and particulars):

11. [29]

    It will be seen here that the statement of claim treated the “intentional infliction of injury and damage” as embracing allegations of intentional or alternatively reckless conduct by Mr Croucher. This is also relevant to a ground raised at the commencement of the appeal, as to whether a finding of recklessness was available on the pleadings.

12. [30]

    Sections 3B(1)(a) and 21 of the Civil Liability Act 2002 (NSW) relevantly provide:

13. [31]

    The consequence of s 3B(1)(a) (noting that no question of sexual assault or sexual misconduct arises in this litigation) is that a key question is whether Mr Croucher is liable “in respect of an intentional act that is done by the person with intent to cause injury or death”. If so, then various limiting provisions on damages in the Act, including the prohibition upon exemplary damages in s 21, cease to apply.

14. [32]

    The primary judge did not mention s 3B(1)(a). Her Honour adopted the approach which appears to have been common ground between the parties that the effect of s 3B(1)(a) was that most of the provisions of the Civil Liability Act did not apply to the alleged battery (irrespective of how it was established), but did apply to the alleged negligence (irrespective of how it was established). It may be that paragraph 7 of the pleading was drafted with a view to achieving those results, although if so it would have been preferable to refer to the section in terms and not to depart from the statutory language.

15. [33]

    There is some subtlety in the application of s 3B(1)(a) and s 21. It will be seen that s 3B(1)(a) does not operate upon the particular cause of action, but instead upon the particular act which gives rise to the civil liability and the intent of the person doing that act (I pass over the question whether and if so how s 3B(1)(a) applies to intentional omissions to act). This was the point made by Basten JA in Dean v Phung [2012] NSWCA 223 at [10]: “the statutory scheme is not identified by reference to a particular cause of action”.

16. [34]

    A cause of action in battery may be established where the defendant’s conduct is either intentional or alternatively merely negligent. The former would engage s 3B(1)(a) and the latter would not. In other words, the language of “intentional tort” is an unsafe guide to whether s 3B(1)(a) is engaged; it is necessary instead to look at the character of the underlying conduct, as explained in White v Johnson [2015] NSWCA 18; 87 NSWLR 779 at [132].

17. [35]

    Not only is s 3B(1)(a) directed to the character of the conduct rather than the nature of the cause of action; the same is true of s 21, even though that section refers to “negligence”. It is to be recalled that “negligence” is defined in s 5 more broadly than the tort to mean “failure to exercise reasonable care and skill”. That definition is expressed to be only for the purposes of Part 1A. An identical definition is likewise given in s 27 for the purposes of Part 3. Section 21 is in Part 2, in which Part “negligence” is not defined. However, it has been held that s 21 is to be read as extending to all cases, however pleaded, where damages are awarded flowing from a failure to exercise reasonable care and skill: State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168 at [118] (Ipp JA) and [200]-[209] (Basten JA). (I shall put to one side how s 21 applies to the circumstances identified by Gleeson CJ, McHugh, Gummow and Hayne JJ in Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [22]: “there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff”.)

18. [36]

    The question as to whether Mr Croucher acted with reckless disregard to Mr Cachia’s safety was highly relevant, notwithstanding the state of the pleadings, in at least the following three ways.

    1. (1)

       First, it would inform the assessment of a defence of self-defence.

    2. (2)

       Secondly, it was capable of giving rise to an issue whether s 3B(1)(a) of the Civil Liability Act excluded most of the provisions of the Act, including those limiting the amount of compensatory damages.

    3. (3)

       Thirdly, it was directly relevant to the question of exemplary damages, if indeed s 3B(1)(a) was engaged so as to disapply s 21 of the Civil Liability Act. In that event, whether it was appropriate for Mr Croucher to be punished for his conduct, and if so in what amount, was directly relevant to whether his conduct was intentional or merely reckless.

19. [37]

    Mr Croucher’s defence alleged that he did not intentionally injure Mr Cachia. It alleged that Mr Cachia’s injuries were sustained in his assault upon Mr Croucher, and it denied that Mr Croucher was negligent.

20. [38]

    As well as putting in issue much of the conduct, Mr Croucher’s defence pleaded a number of special defences. I pass over various defences under the Civil Liability Act which formed no part of this appeal. His defence also alleged contributory negligence. This plea was confined to the cause of action in negligence, and so I shall also pass over the question whether it could extend to the tort of battery: see Sangha v Baxter [2009] NSWCA 78 at [147] and the cases there cited.

21. [39]

    Mr Croucher also said that the injuries suffered by Mr Cachia “were occasioned at a time when the plaintiff was committing both a tort and a crime when the plaintiff entered onto the defendant’s land with the intention of and in the act of committing a trespass to land and a battery upon the [defendant]” (para 19 of his defence), such that he was entitled to defend himself. He relied on the ex turpi causa non oritur actio maxim to preclude Mr Cachia from bringing the proceedings or recovering damages. Although this was the first special defence pleaded, it was not at the forefront of his submissions at trial and was not pressed on appeal, and rightly so. To the extent that the maxim had any application, it would be preserved by s 3A of the Civil Liability Act (see below). However, it is sufficient for the purposes of this appeal to observe that six Justices of the High Court of Australia reaffirmed what Windeyer J had demonstrated in Smith v Jenkins (1970) 119 CLR 397, namely that “it is greatly to be doubted that the maxim, properly understood, has any application in tort”: see Miller v Miller [2011] HCA 9; 242 CLR 446 at [13]. As was there stated at [56], the law in England has followed a different path, and one which has attracted strong criticism (for example, J Goudkamp and M Zou, “The Defence of Illegality in Tort Law: Beyond Judicial Redemption?” (2015) 74 Cambridge Law Journal 13).

22. [40]

    Mr Croucher also pleaded ss 52, 53 and 54 of the Civil Liability Act, all of which are found in Part 7 of that Act. Accordingly, those provisions were not excluded by s 3B(1)(a). Instead they fell within the limited exception of provisions which were not disapplied in the event that s 3B(1)(a) was engaged.

23. [41]

    Sections 52 and 53 address self-defence. Those two sections are as follows:

24. [42]

    Sections 52 and 53 depend upon whether the conduct to which the defendant was responding was (or would have been) “unlawful”. In State of New South Wales v McMaster [2015] NSWCA 228; 328 ALR 309 it was held that unlawful extended to conduct which was merely tortious, as opposed to criminal (see at [200]-[204] per Beazley P, with whom McColl and Meagher JJA agreed). I think that McMaster is probably to be read as meaning that tortious conduct in this context does not merely mean that the elements of a tort have been established, but also that no defence has been made out. This gives rise to complexities, which were not the subject of any submissions when the appeal was argued, once it is observed that in most cases when self-defence is invoked there will have been an assault in the technical tortious sense. There is a tortious assault where the act of a person causes another person reasonably to apprehend a threat of force or violence: see Barton v Armstrong [1969] 2 NSWR 451 at 455 and State of New South Wales v McMaster at [205].

25. [43]

    Further, the onus of establishing the elements of self-defence lies on the defendant: Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 at [162]; contrast the position in crime. That accords with ordinary principles of ordinary statutory construction: see Vines v Djordjevitch (1955) 91 CLR 512 at 519-520. I am conscious that the matters mentioned in the previous paragraph may give rise, at least in theory, to some more precise questions as to the onus of establishing aspects within the “unlawful” element of statutory self-defence. However, the present case seems most unlikely to turn on onus, and I should not be understood as expressing any view on such questions, which, once again, were not the subject of argument.

26. [44]

    Once a plaintiff’s conduct has been found to be unlawful, s 52 prescribes two necessary and sufficient conditions to establish a defence of self-defence: demonstrating the requisite subjective belief on the part of the defendant, and also that the defendant’s conduct was a reasonable response to the circumstances as perceived by him or her. One should be cautious before labelling the second limb of the test as “objective”, because it contains both subjective and objective elements: Sangha v Baxter at [151]; I shall refer below to the “reasonable response limb” of the defence.

27. [45]

    In the event that the only reason for the defence under s 52 being unavailable is that the reasonable response limb was not satisfied, then s 53 imposes a prohibition upon ordering damages, which can be lifted if the court is satisfied that the circumstances are exceptional and that it would be harsh and unjust not to order damages, in which case damages are available, but calculated on a special basis.

28. [46]

    Self-defence is also available as a defence to battery at common law. The common law defence is preserved alongside ss 52 and 53 by s 3A(1):

29. [47]

    Mr Croucher’s defence did not invoke self-defence at common law, nor was it raised on appeal, and so may be passed over. However, Mr Croucher’s defence took full advantage of both statutory defences. It alleged that the complete defence of self-defence in s 52 applied. Alternatively, in the event that Mr Croucher’s conduct was not a reasonable response, it alleged that the circumstances were not exceptional and that it would not be harsh or unjust not to award damages, in accordance with s 53.

30. [48]

    It is necessary to reproduce paragraph 24 of the defence in its terms:

31. [49]

    Mr Croucher also alleged that Mr Cachia’s actions constituted a serious offence, being breaches of ss 59 and 61 of the Crimes Act 1900 (NSW) (common assault and assault occasioning actual bodily harm) and s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (stalking or intimidation with intent to cause fear of physical or mental harm), and invoked s 54 of the Civil Liability Act. That section provides:

32. [50]

    A serious offence is an offence punishable by imprisonment for six months or more. The onus lies on the defendant: Presidential Security Services of Australia Pty Ltd v Brilley at [124]. It will be seen from the reference to the civil standard of proof in paragraph (a) that the prohibition in s 54 applies even if it is not possible to prove the elements of the offence to the criminal standard. It is not necessary to analyse the relationship between s 54 and autrefois acquit.

33. [51]

    The prohibition in s 54(1) does not apply if the conduct of the defendant is itself an offence: s 54(2). In circumstances such as the present where it is plain that Mr Cachia suffered actual bodily harm, it seems clear therefore that the availability of s 54 will be inter-related with questions of self-defence.

The issues

1. [52]

   The real issues emerging from the pleadings, therefore, required precise findings as to the circumstances in which Mr Croucher wounded Mr Cachia:

   1. (1)

      what was Mr Croucher’s state of mind when his shears caused injury to Mr Cachia – was his conduct intentional, or reckless, or was he merely “negligent” (in the special sense that word is used in this context), or was he entirely without fault?

   2. (2)

      was Mr Croucher responding to conduct on the part of Mr Cachia which was tortious or criminal, and therefore “unlawful” for the purposes of statutory self-defence?

   3. (3)

      if yes to (2), did Mr Croucher perceive that what he did was necessary to protect himself or his property and was it a reasonable response to the circumstances as perceived by him?

   4. (4)

      if yes to (2) and Mr Croucher’s response was not a reasonable response, although Mr Croucher believed it was necessary to protect himself or his property, then were the circumstances of the case exceptional and would a failure to award damages to Mr Cachia be harsh and unjust?

The trial and the reasons of the primary judge

1. [53]

   The trial was listed for three days. It lasted for six days. There were very short openings, and very long cross-examinations of Mr and Mrs Cachia (most of days 1-4) and Mr and Mrs Croucher (most of days 5 and 6). The parties supplied lengthy written submissions after the hearing. There were no closing addresses.

2. [54]

   The first 125 paragraphs of the reasons of the primary judge summarise the evidence adduced at trial and the submissions made by the defendant directed to inconsistencies in the evidence of Mr and Mrs Cachia. They are descriptive, rather than evaluative, and need not be summarised for present purposes.

3. [55]

   There followed, under the heading “Credit Findings”, 12 paragraphs of reasoning to which it will be necessary to turn when dealing with Mr Croucher’s submission that the primary judge failed to “grapple” with his case. Speaking generally, the primary judge accepted the accounts of Mr and Mrs Cachia, and rejected much of Mr Croucher’s evidence.

4. [56]

   Under the heading “Factual Findings on Liability”, her Honour then made findings of fact, at [138]-[146], as to how the incident occurred. Although some are subject to Mr Croucher’s challenge, it is convenient to reproduce her Honour’s resolution of the conflicts in the evidence in its entirety. They give a full description of the basis on which the primary judge analysed the legal issues arising on the pleadings, as well as illustrating how her Honour engaged with the conflicting evidence at trial:

5. [57]

   Her Honour found that the conduct amounted to a battery. There are aspects of her reasons for doing so which are, with respect, somewhat unclear.

6. [58]

   There was no doubt that Mr Cachia was injured by coming directly into contact with Mr Croucher’s gardening shears. The critical question was Mr Croucher’s state of mind. Her Honour reproduced at [149] the elements of battery as outlined in Carter v Walker [2010] VSCA 340; 32 VR 1. At [150], her Honour stated that the requisite intention was that the defendant must have intended the consequences of contact with the plaintiff, although the defendant need not know that the contact was unlawful, and need not have intended to cause harm or damage, and need not have had hostile intent or an angry state of mind.

7. [59]

   There followed two differently worded findings which were the subject of submissions on appeal. At [151] her Honour said:

8. [60]

   However, at [153], her Honour said:

9. [61]

   At [154]-[166] her Honour dealt with self-defence under the Civil Liability Act and the plaintiff’s alleged criminality under s 54. In relation to s 54, her Honour said that on the factual findings she had made Mr Cachia was not involved in any conduct which would amount to a serious offence: at [160].

10. [62]

    The primary judge dealt with self-defence at [161]-[166]. Her Honour first observed that s 52 depended on the plaintiff’s conduct being unlawful, and noted that “[o]n the findings I have made there is no unlawful conduct on the part of the plaintiff”. In explanation, or summary, of that conclusion, her Honour said:

11. [63]

    However, her Honour went on to deal with the other aspects of s 52. Her Honour observed that the onus of proving self-defence lay on the defendant (at [162]) and, by reference to Presidential Security Services of Australia Pty Ltd v Brilley, referred to the two limbs of the inquiry (at [163]-[164]). Her Honour then said if Mr Croucher’s conduct had been no more than merely holding his shears up as a barrier, that might have satisfied both limbs of the test: at [165]. However, at [166], her Honour said:

12. [64]

    Her Honour did not deal with s 53.

13. [65]

    Her Honour observed that because she had found an “intentional assault took place” the question of negligence did not directly arise. Passing over how her Honour addressed statutory defences which were not agitated on appeal, her Honour regarded duty as clear and, after a brief analysis of s 5B, concluded that there was breach in opening and shutting gardening shears while close to another person and thrusting them at that person.

14. [66]

    Her Honour rejected a defence of contributory negligence. Her Honour concluded at [171] that:

15. [67]

    Her Honour assessed damages at common law and under the Civil Liability Act in the amounts of $236,031.04 and $135,948.54 respectively, and gave a judgment in the amount of the former. I will return to how those amounts were calculated when dealing with the challenge to them in grounds 11 and 12 of the appeal.

16. [68]

    Finally, in rejecting the application for exemplary damages, her Honour stated that she had not found that Mr Croucher had acted “in a high-handed fashion or with malice, although there is an element of the defendant’s conduct which suggests there was a reckless disregard for the welfare of the plaintiff”: at [225].

Issues arising in the appeal

1. [69]

   Mr Croucher’s notice of appeal seeks orders that the judgment be set aside and there be a new trial. That comes about in two ways. First, at the purely factual level, Mr Croucher contends that there was a failure in the process of finding primary fact. That may be seen in ground 9 (a failure to “grapple” with the competing parties’ cases) and grounds 2, 4 and 5 (challenges to the findings that Mr Cachia was on Mr Croucher’s land, to the failure to find that Mr Croucher did not intentionally, recklessly or negligently cut Mr Cachia, to the finding that Mr Cachia had not committed a serious offence, and to the finding that Mr Croucher was not acting in self-defence).

2. [70]

   Secondly, at the level of legal analysis, at the forefront of Mr Croucher’s amended notice of appeal (for which leave was granted at the hearing over the opposition of Mr Cachia), there were complaints about the failure properly to consider self-defence under s 52 and the failure to consider self-defence under s 53 at all (grounds 4A, 4B and 5).

3. [71]

   All of these grounds, if made out, gave rise to issues which could not be determined by this Court. Mr Cachia did not contend to the contrary.

4. [72]

   There were also grounds of appeal directed to challenging the finding of no contributory negligence and to aspects of the calculation of damages (grounds 10-13). These were the subject of minimal submissions by Mr Croucher. Three grounds (grounds 6-8) were abandoned prior to the hearing of the appeal. Ground 1 was conclusionary.

5. [73]

   In what follows, I have found it convenient largely to follow the order proposed by senior counsel for Mr Croucher:

Ground 3 – the finding of recklessness

1. [74]

   Ground 3 of the notice of appeal alleged error “in finding that there was a reckless battery of the respondent by the appellant constituting an intentional tort (judgment paragraphs [153] and [171])”. That ground, as developed orally and in supplementary submissions, had a number of elements.

2. [75]

   First, Mr Croucher contended that the finding by the primary judge that Mr Croucher had assaulted Mr Cachia recklessly was not open on the pleadings. “The first criticism we make of her Honour with respect to those central findings on the intention[al] tort question, is that it was not open to the Court to make the finding that was made”.

3. [76]

   That complaint had not been previously articulated in Mr Croucher’s written submissions. By way of explanation for this and other departures, senior counsel for Mr Croucher candidly acknowledged that he had only recently been briefed on the appeal. I do not doubt that that was the position. But it does not cure the potential unfairness which arises when new points are raised without proper notice on appeal. Mr Cachia was given leave, when he said he would prefer to deal with it by supplementary submission, to do so (transcript, 2 March 2016, pp 72-73).

4. [77]

   I would reject Mr Croucher’s submission. As noted at the outset, the pleading of intention on which the submission is based was unnecessary to establish the tort, and departed from the language of s 3B(1)(a). I would accept that an allegation which is strictly unnecessary can nevertheless shrink the matters in issue in litigation. However, the allegation supporting the claim for exemplary damages expressly pleaded intentional and reckless conduct in the alternative. Indeed, on a fair reading of paragraphs 17 and 18 of the statement of claim, I would regard “intentional” conduct as including references to conduct which was reckless. A finding of recklessness was amply within the scope of the pleadings.

5. [78]

   Mr Cachia then put in issue whether a finding of recklessness was in fact made. Although her Honour stated at [153] and [171] that Mr Croucher was reckless in his use of the shears and that there had been a reckless battery, those statements followed statements at [151] that “the actions of the defendant amount to a battery” and at [167] that “I have found an intentional assault took place”, statements which were stressed by Mr Cachia.

6. [79]

   Two other aspects of the judgment bear on this point. Her Honour cited as authoritative a proposition taken from Carter v Walker [2010] VSCA 340; 32 VR 1 at [215] that:

7. [80]

   The whole of that proposition is qualified by “it may be”, and the portion concerning recklessness is further qualified by “perhaps also”. Plainly the Victorian Court of Appeal treated recklessness in this respect as being contestable or unsettled. But there is no further legal analysis in her Honour’s judgment to explain why, if her Honour’s findings turned upon recklessness and she was applying the proposition stated by the Victorian Court of Appeal, she regarded recklessness as sufficient. This might, on one view, suggest that her Honour in fact did not make a finding of recklessness for the purpose of establishing the tort, and that her Honour’s findings were directed only to rejecting a (statutory) defence of self-defence.

8. [81]

   There is also the reference at [225], dealing with exemplary damages, concerning an element of Mr Croucher’s conduct “which suggests there was a reckless disregard for the welfare of the plaintiff”.

9. [82]

   Nevertheless, I have concluded that her Honour did find that Mr Croucher was reckless when he wounded Mr Cachia. I do not consider Mr Cachia’s reading of the passages in her Honour’s reasons which are directed to encapsulating the basis on which her Honour had ruled as one that is available as a fair reading of the reasons as a whole. Even if the reference at [225] is equivocal, the earlier statements are not. I do not consider that the repeated references to recklessness can be disregarded in the manner suggested by Mr Cachia.

10. [83]

    Ultimately, I think that her Honour regarded battery as an intentional tort, and regarded the mental elements as being satisfied by a finding of recklessness. As I have endeavoured to explain, that seems to have reflected the common approach adopted by the parties, although it is one which imposes a more burdensome threshold for a plaintiff than Australian law demands. But although not all batteries involve intentional or reckless conduct by the defendant, no error of law is demonstrated by a finding that a reckless defendant has committed the tort of battery.

11. [84]

    I should say that the doubt expressed in the proposition in Carter v Walker is sourced from the equivocation in P Trindade et al, The Law of Torts in Australia (4th ed, 2007, Oxford University Press) at 41-43. Much of the doubt there expressed derives from the view of Professor Fleming that battery is reserved for intentional conduct. As I have already indicated, that view is not sound, at least as a matter of Australian law: binding authority holds that a reckless or even a negligent defendant may be found to have committed battery.

12. [85]

    Finally, Mr Croucher contended that because of the seriousness of the finding of recklessness, the requirements of s 140(2) of the Evidence Act 1995 (NSW) had to be met. I did not understand this to be developed in oral submissions, but he submitted in writing that in light of the “significant discrepancies” in the evidence of Mr and Mrs Cachia, and “the vague evidence as to when and where the injuries occurred”, the primary judge could not have been satisfied to the requisite standard. Alternatively, the primary judge, if so satisfied, was required to have explained how she had reached that state of satisfaction.

13. [86]

    In State of New South Wales v McMaster at [191], Beazley P said:

14. [87]

    I think that senior counsel for Mr Croucher was correct not to emphasise this part of his case in oral submissions. I agree with him that the finding that Mr Croucher had recklessly injured Mr Cachia with his shears was a sufficiently serious matter to attract the operation of s 140(2) of the Evidence Act. However, Mr Croucher accepted that he was aware (as he must have been) that he was holding a gardening tool with two open blades which were sharp:

15. [88]

    As will be seen in more detail when dealing with ground 9, Mr Croucher maintained that he did not open and shut the shears, but rather that Mr Cachia had placed his arm through the gap between them. Even so, I fail to see how it was not open to the primary judge to be comfortably satisfied that Mr Croucher foresaw that Mr Cachia could be injured by coming into contact with the open blades, and yet ignored that risk. That is sufficient to sustain a conclusion of recklessness. It was after all quite plain (not least, from the photographs taken that day) that Mr Cachia had been cut twice seriously, and on some four other occasions superficially.

Grounds 4A, 4B and 5 – self-defence

1. [89]

   As noted earlier, the statutory defences in ss 52 and 53 of self-defence are available irrespective of the operation of s 3B(1)(a), and so it is convenient to turn immediately to them.

2. [90]

   Ground 5 of Mr Croucher’s appeal contended that there was error “in finding that [Mr Croucher] was not acting in self-defence or that his actions were excessive (judgment paragraph [166])”. In his written submissions, this was developed in a single paragraph, which largely turned on the claimed deficiencies in the findings of fact.

3. [91]

   Ground 4A asserted error in the rejection of the defence under s 52 by failing to consider and conclude that Mr Cachia’s conduct was unlawful, and failures in relation to both limbs of the defence. Ground 4B asserted a failure to consider the defence under s 53. No complaint was made about these matters in the written submissions filed in advance of the hearing.

4. [92]

   As noted above, the elements of s 52 self-defence are that the plaintiff’s conduct be “unlawful”, the subjective belief of the defendant, and the defendant’s conduct being a reasonable response in the circumstances as perceived by the defendant. I deal with each in turn.

5. [93]

   The primary judge concluded that there was no unlawful conduct on the part of Mr Cachia: at [161] (reproduced above). In reaching that conclusion, her Honour did not explain expressly what was meant by “unlawful”. However, it seems clear that her Honour treated “unlawful” as meaning criminal. That emerges from the fact that the reasons were relevantly confined to a statement that Mr Cachia’s purpose “in striding towards [Mr Croucher] and making a shooing motion while telling him to fuck off was to prevent the defendant from further damaging the hedge”. Although it may be accepted that that was sufficient to support the conclusion that none of the crimes pleaded in Mr Croucher’s defence was being committed as Mr Cachia approached, Mr Croucher submitted that it did not address whether Mr Cachia was committing a civil assault as he approached.

6. [94]

   Against this, Mr Cachia submitted that a civil assault had not been pleaded, that the evidence at trial could not sustain the tort of assault, and that Mr Cachia would have had a good defence as a reasonable response to prevent Mr Croucher from further damaging the hedge. I deal with each response in turn.

7. [95]

   I would reject Mr Cachia’s submissions based on the pleadings. It is true, as was submitted on appeal, that the defence does not refer to the tort of assault (but rather trespass to land and battery), and that there is an apparent inconsistency between paragraph 19 of the defence (which refers to tort and crime) and paragraph 24 (which invokes paragraph 19 but then alleges that Mr Cachia’s conduct was criminal in support of the availability of the statutory defence). How are those two paragraphs to be reconciled?

8. [96]

   The tort of assault was squarely raised in the written submissions, without objection (Mr Cachia filed substantial submissions in reply). In his written submissions at trial (under the heading of self-defence), Mr Croucher said:

9. [97]

   Mr Cachia’s submissions at trial did not take the point that merely tortious conduct was outside the scope of either the pleaded defence or s 52.

10. [98]

    Mr Cachia’s acquiescence at trial is consistent with one of two possibilities. Either the allegation of intending to commit a battery was treated as encompassing a civil assault, or else to the extent necessary Mr Cachia must be taken to have permitted Mr Croucher to go slightly beyond his pleaded defence to make a submission based on civil assault. It is unnecessary to express a view as to which possibility is more likely, because in either case, I would reject Mr Cachia’s submission based on the state of the pleadings.

11. [99]

    I also do not accept that a finding that Mr Cachia was committing an assault was not available on the evidence. In addition to what was said in Barton v Armstrong, to which I have earlier referred, the elements of a civil assault were more elaborately stated by Sheller JA, with the agreement of Priestley and Heydon JJA, in Rixon v Star City Pty Ltd [2001] NSWCA 265; 53 NSWLR 98 at [56]-[58], in terms which emphasised the irrelevance of the defendant’s intention to carry out the threat:

12. [100]

    There was ample evidence to support a finding that Mr Croucher apprehended being struck by Mr Cachia. There was disputed evidence that Mr Cachia had said “I’ve been waiting a long time to fucking punch you out”, just as there was disputed evidence that Mr Cachia did in fact punch Mr Croucher. But what was critical on this issue was not whether Mr Cachia intended to apply force to Mr Croucher, but what Mr Croucher apprehended.

13. [101]

    Even on the findings of the primary judge, when Mr Cachia threw his shears to the ground and strode towards him, Mr Croucher then “took some steps back with his shears up”. That is entirely consistent with an apprehension by Mr Croucher of impending contact.

14. [102]

    It may well be that Mr Cachia had a good defence to what would otherwise be an assault, because it was in the protection of his property (that is to say, his hedge). The statutory defence only applied if Mr Cachia believed it was necessary to protect the unlawful destruction, damage or interference to his property: s 52(2)(c), and a defence might also have been available at common law (see Norton v Hoare [No 1] (1913) 17 CLR 310 at 321-322). But once again, these defences would have involved quite nuanced findings of Mr Cachia’s state of mind as he approached Mr Croucher.

15. [103]

    Although the finding of absence of unlawful conduct would have been dispositive of self-defence, her Honour proceeded to deal with the remaining elements of it. Her Honour did not expressly state that she was doing so in the alternative.

16. [104]

    Because the primary judge rejected the account given by Mr Croucher, her Honour rejected the first limb of self-defence. Her Honour said that “there is no evidence as to whether he thought it reasonable or not”. There are two difficulties with that approach. The first is that the question posed by s 52(2) is whether the defendant thought the conduct was necessary. The second is that the trial judge’s approach resembles that which was held to be erroneous in Sangha v Baxter. Basten JA said at [153]:

17. [105]

    Next, her Honour turned to the final aspect of the test, and found that Mr Croucher’s conduct was not a reasonable response “and thus the defence of self-defence is not made out”. Her Honour did so on the basis that while merely holding the shears as a barrier might have been a reasonable response, thrusting and opening and shutting them was not.

18. [106]

    On one reading, her Honour put to one side the issues of unlawful conduct and Mr Croucher’s subjective state of mind, and determined this defence by reason of the reasonableness of his response. Indeed, I would regard that as the most natural reading of this aspect of her Honour’s reasons. I do so for two reasons. The first is that if that is not so, then her Honour has misused the word “thus”. Her Honour said “I find that what the defendant did was not a reasonable response to the circumstances as he perceived them and thus the defence of self-defence is not made out”. If for that reason the defence of self-defence failed, then it would seem to follow that her Honour did not regard the other elements of the defence as dispositive. In other words, only if the second limb of the defence was regarded by her Honour as dispositive would “thus” be correct.

19. [107]

    The second reason is that her Honour’s reasoning on this limb is relatively expansive, contrasting the use of the shears as a barrier with opening and shutting them and thrusting with them.

20. [108]

    That said, I accept that it is less than clear whether, in rejecting self-defence, her Honour was (a) solely relying upon the reasonable response limb, or (b) relying on Mr Croucher’s failure to satisfy both limbs, or (c) relying on Mr Croucher’s failure to satisfy both limbs as well as her finding that there was no unlawful conduct.

21. [109]

    For present purposes, Mr Croucher’s challenge to the factual findings relevant to this part of the reasons may be deferred. Notwithstanding the uncertainty about precisely how the primary judge rejected the defence of self-defence, I have concluded that on any view of her Honour’s reasons, material error is disclosed on the basis of the facts as found.

22. [110]

    First, on what I regard to be the most natural reading of her Honour’s disposition of s 52, her Honour treated the reasonable response limb as dispositive. That discloses error, because it was necessary in those circumstances to deal with s 53, for only if satisfied under s 53 was Mr Cachia entitled to any damages, and even then, they would be calculated differently. But there is no suggestion in the judgment that her Honour paid any regard to the prohibition upon awarding damages imposed by s 53, nor to the discretionary power to lift the prohibition in the event that the circumstances were found to be exceptional and that a failure to award damages would be harsh or unjust.

23. [111]

    Secondly, if her Honour also relied on the failure by Mr Croucher to show that Mr Cachia’s conduct was unlawful, that too shows material error, by confining attention to crime and not dealing with the lively possibility that he was committing an assault.

24. [112]

    Thirdly, even if her Honour’s reasons are to be read as relying on each of the three elements of s 52, then her Honour has, in addition to the foregoing, applied the wrong test for Mr Croucher’s subjective state of mind, and proceeded on the unduly narrow approach that his state of mind could not be inferred from the circumstances of the case but could only be sourced in direct testimonial evidence.

25. [113]

    In short, irrespective of whether there are one, two or three independent bases for her Honour’s rejection of statutory self-defence, error is disclosed on each basis. The result is that the rejection of the defence cannot stand. I would regard grounds 4A, 4B and 5 to be made out.

26. [114]

    Although this Court can affirmatively find that the judgment discloses error, there are insufficient factual findings as to Mr Croucher’s state of mind for this Court to determine whether the defence should be made out, and so, regrettably, a retrial is necessary. There may appear to be an inconsistency between a finding of error and an inability on the part of this Court to form an affirmative view of its own. That result reflects the “natural limitations” of an appellate court proceeding on the record to which the High Court referred in Fox v Percy [2003] HCA 22; 214 CLR 118 at [23], especially, the very real disadvantage this Court has in not having heard the oral testimony of the witnesses in light of the contemporaneous documents and objective probabilities: see Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [17] and [84].

Section 3B(1)(a) of the Civil Liability Act

1. [115]

   As noted above, s 3B(1)(a) excludes the applicability of many sections of the Civil Liability Act to “civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death”.

2. [116]

   Her Honour appears to have proceeded implicitly on the basis that the cause of action in battery is one which engages s 3B(1)(a) and therefore is not subject to the limitations of the Civil Liability Act. Section 3B(1)(a) would undoubtedly apply if there were a finding that Mr Croucher had intended to injure Mr Cachia, but on balance I consider that the better reading of the judgment is that her Honour found merely that he was recklessly indifferent to the prospect that opening and shutting the shears and thrusting them at Mr Cachia would cause injury.

3. [117]

   It is far from clear that conduct which is reckless, even if it amounts to an “intentional tort” such as battery, engages s 3B(1)(a). It is perfectly clear that a battery which involves merely negligent conduct will not engage s 3B(1)(a). This is because, as noted above, s 3B(1)(a) looks to the nature of the conduct found to occur, rather than to the cause of action which has been pleaded.

4. [118]

   Basten JA referred to the “somewhat awkward terminology of s 3B” in State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168 at [197]. In Hayer v Kam [2014] NSWSC 126, when dealing with a strike out application, Hoeben CJ at CL expressed the view that, subject to authority, he would have accepted the submission that s 3B(1)(a) “excluded any reliance upon concepts such as ‘recklessness’”: at [38]-[39], a view which I regard as being not without force. However, even so his Honour regarded an allegation of recklessness as sufficiently arguable not to be struck out. It may also be noted that D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, 2013, Lawbook Co) at 55-56 notes that the position is unclear but expresses the view that “it would be consistent with the purpose of the exclusion that recklessness be sufficient for the purposes of s 3B(1)(a)”.

5. [119]

   I do not think that it is appropriate to determine this point. The point was not raised at trial at all. Ground 13, which was broad enough to extend to the point, was entirely undeveloped in Mr Croucher’s written submissions supplied before the appeal was heard. None of the cases mentioned in the previous paragraph was debated in oral submissions; instead they were addressed in supplementary written submissions filed after the hearing.

6. [120]

   Because Mr Croucher’s appeal must in any event be allowed, there is no utility in determining a point which was not fully argued and which can have no bearing on the outcome. The same approach was taken in Katter v Melhem [2015] NSWCA 213; 90 NSWLR 164 at [120] and the cases there cited.

Ground 9 – failure in fact finding by the primary judge

1. [121]

   Ground 9 was in the following terms:

2. [122]

   This ground was advanced in writing by reference to what had been said in EPS Constructions Pty Ltd v Mass Holdings Pty Ltd [2015] NSWCA 317 at [90] and Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73; 89 NSWLR 104 at [53]. The written submissions added:

3. [123]

   The written submissions then identified no fewer than 62 topics, by reference to Mr Croucher’s verbose written submissions at trial, of which it was said that either they were not dealt with at all, or inadequately. When invited (it was necessary to do so repeatedly) to identify the strongest points, the appellant ultimately identified five. All five were issues which were said not to have been dealt with adequately (“NDWA”), as opposed to not having been dealt with at all (“NDW”) (the abbreviations are the appellant’s). The five topics were:

   1. (1)

      “Blood location. NDWA: non sequitur in the finding”,

   2. (2)

      “Discrepancy between evidence and police statements as to position of appellant: Liability/cr. NDWA”,

   3. (3)

      “Precision of appellant’s evidence vs vagueness of Respondent and Mrs Cachia, the ‘blur’: liability/cr. NDW/NDWA”,

   4. (4)

      “The appellant would get a better view from the fence line, not near the cat in the photo and was not moving. liability/cr NDWA”, and

   5. (5)

      “Hedge attacked v clipped, discrepancy concerning how much cut off it, 4 or 5 vs 140 mm NDWA”.

4. [124]

   This ground draws upon the proposition that where there is a real conflict in the evidence, it is necessary to “engage with, or grapple or wrestle with the cases presented by each party”: see for recent examples Keith v Gal [2013] NSWCA 339 at [109]-[119] and Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [60]. The point of the metaphor is, as Ipp JA stated in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28], that it is not sufficient to set out the conflicting evidence and conclude, without analysis, that the judge prefers one body to another. As McColl JA said in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]:

5. [125]

   That said, the fact that some matters were not addressed at all, or that there were errors in the way in which other matters were addressed, is not of itself sufficient to establish error. Ultimately there must be a qualitative evaluation of what a primary judge has done, having regard to (a) the inherently incomplete nature of his or her reasons, (b) the advantages he or she enjoyed hearing the evidence as the trial unfolded, (c) the matters that were given emphasis at trial and (d) the number and nature of errors identified on appeal: see Murray v Sheldon Commercial Interiors Pty Ltd at [60]-[66].

6. [126]

   Mr Croucher did not seek to challenge any of those principles. How then did they apply to this case, where an enormous amount of attention was devoted by his counsel at trial to attacks on the credibility of Mr and Mrs Cachia and to discrepancies in their evidence?

7. [127]

   Three related aspects of Mr Croucher’s submissions should be firmly rejected at the outset. Part of Mr Croucher’s written submissions focussed upon dozens (I mean this literally) of minor inconsistencies which were not attended to by the primary judge. As noted above, he submitted that “[a]n enormous number of the credibility and liability issues were not dealt with in the judgment at all, or not dealt with adequately”. Then, by reference to the written submissions at trial, complaint was made of the failure by the primary judge to deal with issues described as “[w]ives ‘chatting’”, “[t]hat the appellant was abusive to tradesmen”, “[t]he inference that there had been problems before the new fence”, “[t]he respondent first raised the fence as an issue”, “[t]he displaced brick not being compatible with fastidiousness”, “[a]llegation of prior cross words between the ladies”, “[a]llegation of painting facade”, and “[a]llegation of slammed door”. The submissions prepared in advance of the appeal contain 62 “issues” many of which are as trivial and as unconnected with the facts in issue as the examples given.

8. [128]

   Credit was important in this case, but that does not mean that every matter put in issue had to be resolved by the primary judge lest there be an incomplete assessment of the witnesses’ credit. As will already have been seen from the passage of the reasons of the primary judge reproduced above, her Honour assessed key aspects of the conflicting evidence on the most important issues: see especially at [141] and [144]-[146].

9. [129]

   Further, and contrary to the tenor of Mr Croucher’s submissions at first instance and on appeal, it does not follow from the fact that part of the evidence of a witness is rejected that other aspects must also be rejected. That is so even if it be found that the witness was lying. It is as well to recall what was said in Sangha v Baxter at [155] and [156]:

10. [130]

    Not only was there no obligation upon the primary judge to resolve every factual issue raised by the parties, but also the appeal is not the occasion to re-run the trial.

11. [131]

    The way to advance a challenge to disputed factual findings on appeal will ordinarily be to commence with the reasons given by the primary judge with a view to identifying error in accordance with principles associated with Fox v Percy. The primary judge was critical of the length of Mr Croucher’s submissions at first instance, particularly insofar as “[p]ages were spent discussing unrelated and unproven disputes between the parties and the physical attributes of the plaintiff and the defendant”. The criticism was well-founded. It is at least as bad to rely upon such submissions on appeal. As Gleeson CJ said in Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 at [2], “The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.” The incorporation by reference of lengthy submissions at trial within the submissions made in support of an appeal may sometimes be appropriate where the question is one of construction, but it is unlikely to be helpful where the challenge is to disputed findings of fact.

12. [132]

    I have concluded that this ground does not succeed. In light of the foregoing, I do not consider it necessary to summarise the entirety of Mr Croucher’s submissions, including the challenges to 62 aspects of the evidence incorporated by reference. To do so would add inordinately to the length of these reasons, and to no useful end.

13. [133]

    The most effective way of demonstrating how the primary judge has not been shown to have failed to “grapple” with the competing evidence is to start with the relatively contemporaneous accounts from those who participated in or witnessed the altercation, in light of the objectively established facts and the apparent logic of events: Fox v Percy at [31], then to summarise how her Honour addressed the inconsistencies in the evidence, and finally to turn to what Mr Croucher regarded as the strongest points telling against the sufficiency of that reasoning process.

14. [134]

    This litigation was relatively unusual, because there were detailed accounts given by the parties and Mrs Cachia approximately contemporaneously with the altercation. Each of Mr and Mrs Cachia gave statements on the day of the incident. The primary judge found that those statements had been given at a time when there had been little, if any, opportunity for them to discuss what had happened (Mr Cachia was taken by ambulance to hospital, while Mrs Cachia was interviewed at the police station), and rejected a submission that they had spoken to each other prior to making their statements, on the sound basis that it had not been put to them during (an extremely lengthy) cross-examination.

15. [135]

    Mrs Cachia’s statement explained a history of verbal disputes between the neighbours, which had become more of a problem since the fence was erected. She said that Mr Croucher would usually come out of his house whenever she and her husband were in the front yard, and would stand and stare at them, or call them names. Her statement continued as follows:

16. [136]

    Mrs Cachia’s references to an “assault” are to be read as references to a physical assault as a matter of common parlance, rather than to a tortious assault.

17. [137]

    Ambulance records showed that the ambulance was booked at 16.56 and arrived at 17.25. Mr Cachia appears to have given a brief history to the ambulance officers, but the document in the appeal books is almost wholly illegible and no party placed reliance upon it. At Liverpool Hospital the resident medical officer recorded the following history:

18. [138]

    Either later that day or the following day, the police took a statement from Mr Cachia at Liverpool Hospital. The statement was relevantly in the following terms:

19. [139]

    Mr Cachia gave a further statement to the police on 13 January. He elaborated on the history of ill-feeling between the neighbours. He said “I do sometimes give it back to him verbally if he is being abusive but I do try not to swear at him.” He addressed the altercation as follows:

20. [140]

    The police arrived at the premises before the ambulances. When they arrived, the senior constable saw Mr Croucher hosing the blood from his driveway towards the shrub area, and told him to stop doing so. He complied with her instructions. She rendered first aid to Mr Cachia and was told “[m]y neighbour’s cut me with his garden shears”. Another constable who attended with her remained with Mr Croucher. That constable did not give evidence. Mr Croucher gave evidence (three years later) that he had spoken to a male police officer, who asked what had happened. He said that “I got pushed over by him, I said, next door I said and I put my arms up and I was defending myself”.

21. [141]

    Mr Croucher was taken to the police station and charged. He said that he did not seek any medical treatment and gave this evidence:

22. [142]

    Mr Croucher said that he tried to go to medical centres at Panania and Revesby on the following day but was unable to see a doctor, although he told the receptionists at both that he was in a lot of pain. His own doctor, Dr Mistry, returned from holidays on 4 January. The doctor’s notes record the following:

23. [143]

    The doctor requested a chest X-ray, which showed no rib fractures, and no constriction to the lungs on full expansion. There was an anterior wedge facture in the thoracic area with a reduction in vertical height, but no evidence as to whether that was before or after the incident, and senior counsel for Mr Croucher very properly confirmed that the symptoms complained of were not directly referable to an anterior wedge fracture (Transcript 2 March 2016, p 28).

24. [144]

    Mr Croucher prepared a statement “just a few days” after the incident which he dictated to his wife. The statement was faxed to the solicitors on 18 January 2012 and was tendered in evidence in re-examination, it having been suggested to Mr Croucher that he had concocted his evidence. There was no application to cross-examine Mr Croucher on that statement. It also appears that Mrs Croucher gave a statement, but this was not tendered. Mr Croucher’s statement was as follows:

25. [145]

    All witnesses were cross-examined extensively (although Mr Croucher was not cross-examined upon the statement tendered in re-examination). It is not necessary to summarise the cross-examination in order to resolve this ground of appeal.

26. [146]

    It is convenient first to summarise what emerges from those relatively contemporaneous statements.

27. [147]

    First, all statements are relatively detailed.

28. [148]

    Secondly, the statements were diametrically opposed.

29. [149]

    Thirdly, all the statements (including the histories taken from Mr Cachia in Liverpool Hospital and from Mr Croucher by his general practitioner) were prepared at a time when the prospect of a criminal prosecution was real and imminent. They were also made between parties with a lengthy history of antipathy and antagonism. All of the foregoing enhances the probability that some (and perhaps all) of the statements were self-serving and for that reason unreliable.

30. [150]

    That said, and noting that it is self-evident that the ultimate findings of fact will turn upon an assessment of credibility under cross-examination, there is substantial corroboration between Mr and Mrs Cachia’s statements, which were found to have been prepared independently. There is also what I would regard as a high level of detail in Mrs Cachia’s statement, including about relatively peripheral matters, consistently with an attempt to give a full account of what she saw and heard earlier that day.

31. [151]

    Naturally there were inconsistencies between the accounts given by each of Mr and Mrs Cachia, and the various accounts of Mr Cachia himself. For example, the reference that Mr Cachia “tried to grab the shears” in the history taken at Liverpool Hospital is not repeated in either later statement. The reference in Mr Cachia’s first statement to “I can’t remember if I pushed him or not” is not repeated in the second statement.

32. [152]

    The primary judge was thus faced with diametrically opposed evidence as to what had happened immediately before Mr Cachia was injured. At some stage it was clear that Mr Croucher had ceased approaching Mr Cachia, for it was plain that by the end of the altercation, the men were located on Mr Croucher’s driveway. It was also plain that not only had Mr Cachia been badly cut twice, but also he had sustained more minor cuts to his arm. It was common ground that Mr Croucher had cut off two or three branches of the Cachia hedge, but it was disputed whether they were “dead twigs” as Mr Croucher contended, or living branches, and it was disputed whether his doing so was a response to Mr Cachia cutting branches of Mr Croucher’s hedge. Perhaps most importantly for present purposes, the way in which Mr Cachia advanced upon Mr Croucher was hotly contested, as was whether he had “run at him” and repeatedly punched him.

33. [153]

    Her Honour approached the resolution of the factual dispute as follows.

34. [154]

    First, her Honour stated that the history between Mr Croucher and Mr Cachia reflected poorly on the credit of both. Her Honour observed that Mr Cachia, although becoming agitated from time to time, appeared to be making genuine attempts to answer questions put to him, and that at times, understandably, he had difficulty comprehending those questions. Her Honour said that Mrs Cachia had the demeanour of “someone quietly and honestly answering the questions that were put to her”. In contrast, Mr Croucher’s demeanour was “somewhat belligerent” and Mrs Croucher “presented as someone who was very protective of her husband”.

35. [155]

    However, having made those findings as to demeanour, her Honour acknowledged that “demeanour findings are of limited importance”. That reflects an appropriate recognition of the limitations on the fact-finding process: see Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [16]-[27].

36. [156]

    Her Honour then turned to the contemporaneous documents and made the observation that the statements Mr and Mrs Cachia made on 2 January 2012 had been given at a time when there had been little, if any, opportunity for them to discuss what had happened (see further below).

37. [157]

    Her Honour then contrasted what Mr Croucher had said to the police officers at the time, and his handwritten statement. She regarded the differences as significant. She said at [129]:

38. [158]

    Her Honour observed that two matters reflected poorly on Mr Croucher’s credit: hosing the blood off his driveway and a statement made to the police, when seizing the shears, that they were his. Her Honour also stated that a suggestion that Mrs Croucher was anxious to engage Mr Cachia about the historical dispute regarding the fence, if it had happened, reflected poorly on her credit, and if it did not occur, it reflected poorly on the credit of both of Mr and Mrs Croucher.

39. [159]

    Her Honour then addressed the objective probabilities and said at [131]:

40. [160]

    Her Honour regarded Mr Croucher’s explanation of his coming to be on the street with his shears but without his gloves and gardening box to be implausible. However, her Honour regarded Mrs Cachia as an honest and straightforward witness whose testimony was supported by the statement given by her to police on the day, and that:

41. [161]

    The primary judge did not accept Mr Croucher’s submission that it was inexplicable that Mr Cachia could not remember the exact sequence of events, which had occurred three years previously and had resulted in serious injuries and significant blood loss to him. Her Honour did not regard Mr Cachia’s view that he regarded the nature strip on his side of the boundary (which he mowed) as his own as reflecting adversely on his credit, although there were aspects of his evidence which she rejected (for example, his evidence that he mowed the lawn twice a week). Her Honour concluded at [137]:

42. [162]

    As will have been seen in the passage reproduced above containing the “Factual findings on liability”, her Honour attended to the inconsistencies in the evidence in the course of making findings of fact. In [141], her Honour accepted that some of Mr Cachia’s hedge had been cut by Mr Croucher, and resolved in light of Mrs Cachia’s testimony and the probabilities that they were healthy and vigorous rather than dead. In [142], she dealt with the failure by Mrs Cachia to mention that Mr Croucher moved back. Her Honour also resolved the discrepancy between Mr Cachia’s evidence that Mr Croucher was coming towards him with what had been said by the other witnesses, to the effect that it was likely that Mr Cachia perceived Mr Croucher’s thrusting and opening and shutting of his shears as Mr Croucher coming towards him. Her Honour rejected Mr Croucher’s claim that Mr Cachia had said he had been waiting a long time to punch him, on the basis that Mrs Cachia did not hear him say this, it was denied by Mr Cachia, and Mr Croucher did not say as much to the police. Her Honour rejected Mr Croucher’s claims that he was punched, on the basis that he did not seek medical assistance from the police, did not tell the police he was injured, and by reason of the absence of external bruising when he was examined by his general practitioner two days later.

43. [163]

    First, as noted above, there was no need for the primary judge to reproduce and resolve each and every one of the litany of complaints advanced in the written submissions. Her Honour was entirely correct to refer to there being extensive submissions, and pass over the detail. I accept Mr Cachia’s submission that the trial judge “had to distinguish between the essentials and the peripherals”.

44. [164]

    Secondly, it was open and entirely appropriate to her Honour to give weight to the contemporaneous accounts given by the parties, as opposed to their testimony more than three years later. Senior counsel appearing for Mr Croucher on the appeal properly acknowledged as much. That approach is consistent with the obvious limitations of human memory – particularly when subjected to the processes of litigation – and with the approach endorsed in Fox v Percy at [31].

45. [165]

    Thirdly, it was inevitable that her Honour would in part be influenced by her observations of Mr and Mrs Cachia and Mr Croucher in the witness box. This appeal is an example where at least one of the contemporaneous statements made by those witnesses was materially erroneous, thereby heightening the importance of credit findings and limiting the scope for appellate intervention.

46. [166]

    Fourthly, what has already been said of the reasoning adopted by the primary judge illustrates the opposite of a failure to grapple with the competing and contradictory evidence. In making each of the findings summarised above, her Honour was self-evidently conscious of the evidence adduced by the other side, and gave reasons for reconciling it. Mr Croucher is dissatisfied with the findings which were made. However, he bears a heavy burden of persuading this Court – which did not see the witnesses over six days – that the fact-finding process has miscarried.

47. [167]

    The critical matters of primary fact were to determine how the injuries to Mr Cachia had come about, whether Mr Cachia had struck Mr Croucher, and in what circumstances and with what states of mind the two had come to blows. Notwithstanding the length of the trial and Mr Croucher’s written submissions, these were not enormously complicated matters.

48. [168]

    What were said to be the strongest points made by Mr Croucher supporting his claim that the primary judge insufficiently grappled with the conflicting evidence? First, Mr Croucher placed much weight orally and in writing on the location of the blood stains. It is clear that Mr Cachia approached Mr Croucher (Mr Cachia was between the fence and his hedge, while Mr Croucher was standing at the end of the fence closest to the street). It is clear that the latter retreated (“took some steps back”), so much so that the altercation took place, at least in part, on Mr Croucher’s driveway. That seems to have been where Mr Cachia’s blood had dripped. The essential point lying behind the “blood location” submission was that there was objective evidence that the men were located on Mr Croucher’s driveway at or around the time Mr Cachia was wounded, and that had to be brought to bear especially in relation to self-defence. As it was put:

49. [169]

    The difficulty with this submission is that there was only a small distance between standing in front of Mr Cachia’s hedge and standing fully on Mr Croucher’s driveway. Save for his own (much narrower) garden bed adjoining the dividing fence, Mr Croucher’s driveway is adjacent to the boundary. It is no more than a step away from the grass in the nature strip outside Mr Cachia’s property to being fully on Mr Croucher’s driveway. For that reason alone I cannot accept the force of Mr Croucher’s submission that a great deal turned on where the cutting took place. What is more, there is no dispute that Mr Croucher hosed the blood from where it had fallen, prior to the arrival of the police, and in any event, the dripping of blood from Mr Cachia’s wounds would not have stopped instantaneously. It follows that the blood stains in Panania were quite different from the skidmarks which were treated in Fox v Percy at [38] as an “incontestable fact”. Precisely where Mr Croucher was located when the altercation began was the subject of conflicting recollections, but it was open to the primary judge to resolve it no further than she did.

50. [170]

    It was said that “there is an enormous contradiction between the plaintiff’s wife having seen the defendant in the area of his own letterbox, but the plaintiff first observing him well away from the fence line”. I do not agree that the contradiction was “enormous”, nor that it required resolution by the primary judge. The letterbox was in the immediate vicinity of the fence.

51. [171]

    The “issue” of whether the Cachia hedge was “attacked v clipped” turned on some photographs of clippings taken the following day, an estimate of the lengths of the clippings so cut compared to a brick, and a claim that Mrs Cachia could not be believed:

52. [172]

    I do not regard that submission as well-founded. Putting to one side the unhelpful hyperbole and sarcasm, it was open to her Honour, having seen Mrs Cachia at length, to accept her conclusion, based on what she knew about the gardening habits of her husband, that the healthy clippings (which appear to be in full flower) were cut by Mr Croucher.

53. [173]

    Nor do I regard the submissions based on Mr Croucher’s evidence being precise and Mr and Mrs Cachia’s evidence being vague, or that Mrs Cachia’s view was obstructed, as sufficient to displace the findings made by the primary judge.

54. [174]

    There is force in one aspect of Mr Croucher’s complaints. Mr Croucher emphasised Mrs Cachia’s evidence that her husband “kept walking towards [Mr Croucher]” and that she could see that it was “getting ugly”. That tended to support Mr Croucher’s case that Mr Cachia was threatening him, and went directly to self-defence. Mr Cachia’s “disarming” of himself by discarding the shears is not sufficient of itself to dispel the potential that his approach might be, and seem to be, filled with menace.

55. [175]

    Corroborative of this was the evidence that Mr Cachia pushed Mr Croucher. There were two matters which bore upon this. One was that Mr Croucher said that he had said as much to one of the police officers who attended. There is also the curious passage in Mr Cachia’s first statement, “I can’t remember if I pushed him or not”. That statement was given very shortly after the altercation, in circumstances where Mr Croucher was facing criminal charges. There is every reason to think that Mr Cachia at that time was not prepared to deny that he had pushed Mr Croucher. Taken together, the foregoing illustrates the force of Mr Croucher’s submissions that he was being assaulted by Mr Cachia.

56. [176]

    The question calling for reconciliation was the fact that Mr Cachia was approaching Mr Croucher, unarmed, and was being injured. What was in the minds of both men at that time? One possibility is that Mr Cachia was threatening Mr Croucher, in a way constituting a civil assault although falling short of punching him or shoulder charging him. But the findings made by the primary judge do not permit this Court to determine whether that was the case, and, if so, whether Mr Cachia had a defence. Although the primary judge rejected Mr Croucher’s case that he was shoulder charged and repeatedly punched, there was no rejection of a less violent but still physically threatening attack, which was, for the reasons just given, more soundly based in the evidence and the objective probabilities.

57. [177]

    That said, I do not consider that there was any separate error by the primary judge in failing to “grapple” with the competing cases. That is precisely what the primary judge did, and repeatedly, throughout her Honour’s reasons. The deficiency I have referred to above is a direct consequence of the failure to identify all of the legal issues arising from the trial, and to make appropriately detailed findings of fact to resolve those issues.

58. [178]

    In Murray v Sheldon Commercial Interiors Pty Ltd, this Court said at [70]:

59. [179]

    To reiterate, to the extent that there were deficiencies in the fact finding process, I consider that that was a consequence of a failure to identify the real issues that arose on the pleadings, which went to the question of self-defence. In fairness to the primary judge, and as noted at the outset, I do not regard Mr Croucher’s written or oral submissions at trial as having provided the Court with the assistance to which it was entitled.

60. [180]

    I have dealt in the foregoing with the five principal challenges advanced on appeal by Mr Croucher, and indicated by way of representative sample why the remaining 57 challenges do not disclose appellable error by the primary judge. It is unnecessary to deal with them in these already over-long reasons in the detail with which they have been propounded.

Remaining grounds

1. [181]

   Given that there must be a retrial, it is inappropriate to deal with the challenges to the findings of absence of contributory negligence and the question of serious offence, which are closely connected with the outstanding questions of self-defence.

2. [182]

   The same consideration does not apply to grounds 11 and 12, which deal with aspects of quantum.

3. [183]

   Ground 11 was that “the primary judge erred in equating ‘ill effects’ to a medical condition and otherwise rejecting the evidence of Dr Roberts”. The error identified in the written submissions was that:

4. [184]

   That was the entirety of what was said in writing in support of this ground. It was not addressed orally.

5. [185]

   Mr Cachia was commendably detailed in his written response (I omit the references to the evidence and findings, all of which were accurate):

6. [186]

   I agree. This ground is not made out. Indeed, in the absence of any response to Mr Cachia’s submissions, it should have been abandoned.

7. [187]

   This ground is as follows:

8. [188]

   This ground shares some of the characteristics of ground 11, in that the submissions made in support of it were wholly written, and wholly lacking in detail.

9. [189]

   First, Mr Croucher’s written submissions invoked the submissions at trial (resembling much of the attack upon the challenge to fact finding). An appeal is not a re-run of the trial; instead, it was necessary for Mr Croucher to identify a basis which warranted appellate intervention.

10. [190]

    Secondly, the submissions stated that Mr Cachia had sustained two bad cuts which had healed very well, leaving “some fine motor problem with his thumb and some reduced strength in his upper arm”. This submission did not come close to being a balanced statement of the evidence. The injuries were severe, involving inserting 28 metal staples into Mr Cachia’s arm and 32 stitches into his thumb under a general anaesthetic. There were ongoing physical and psychological symptoms, which affected many aspects of Mr Cachia’s professional and personal life. He gave evidence that he lost a job as a consequence, and (by way of example), could not tie a rope, could not make a fist, has a restricted range of movement in his thumb, struggled to open jars, and could no longer participate in surfing.

11. [191]

    The primary judge addressed the medical evidence (which was voluminous and not the subject of cross-examination) in detail over six pages of her reasons. Her Honour had also noted that Mr Croucher had arranged for Mr Cachia to be assessed by an orthopaedic surgeon shortly prior to the trial, but had not tendered a report from that surgeon.

12. [192]

    Thirdly, Mr Croucher’s submissions asserted that Mr Cachia would not meet the threshold for damages for non-economic loss, and then continued:

13. [193]

    Mr Cachia submitted that where it has not been shown that there has been any error of principle or misapprehension of the facts, the question is whether there has been a “wholly erroneous” determination, pointing to Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; 85 NSWLR 335 at [41] and the authorities there cited. I agree. The applicable principle is as stated by Mason J in Wilson v Peisley (1975) 50 ALJR 207 at 214, recently applied in this Court in Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 90 NSWLR 1 at [232]:

14. [194]

    The question is whether the assessment of general damages of $100,000 and the buffers of $40,000 and $65,000 were wholly erroneous, or whether, if the Civil Liability Act applied, the determination that the severity of the non-economic loss was 20% of a most extreme case was wholly erroneous, and whether the assessment of the buffers was wholly erroneous.

15. [195]

    Mr Croucher articulated no submissions at all as to why those determinations were wholly erroneous. Especially in light of the deference that must be given to the primary judge who saw Mr Cachia over a number of days in court, I would not conclude that they are. I do not think it is necessary to address a ground which has been so casually advanced on appeal in any more detail. This ground is not made out.

Conclusion and orders

1. [196]

   A new trial between these neighbours is obviously undesirable, but for the reasons above I have concluded that there is no alternative. This Court cannot reconcile the factual and legal issues between the diametrically opposed accounts of the events of 2 January 2012 in relation to self-defence.

2. [197]

   Accordingly, the appeal must be allowed and the judgment of the primary judge set aside, as also must the order as to costs at first instance. There must, subject to the parties reaching agreement, be a new trial.

3. [198]

   As a general proposition, if there is to be a new trial it should be of the whole case unless the Court thinks that more injustice would thereby be done: see Pateman v Higgin (1957) 97 CLR 521 at 527; Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan [2001] NSWCA 381; 53 NSWLR 343 at [45]-[48]; Shimokawa v Lewis [2009] NSWCA 266 at [191]. However, in the present case, given that (a) Mr Cachia has been cross-examined extensively on matters relating to damages, and (b) the general challenge to the finding of facts by the primary judge and the specific challenges to quantum brought by Mr Croucher have failed, this Court’s orders should to the extent possible reduce the issues dividing the parties. Given the length of the first trial, I think that this is a case where a new trial on all issues would lead to “more injustice by setting the matter at large again”.

4. [199]

   The retrial should be on all issues save for the quantification of the various heads of Mr Cachia’s damages at common law and under the Civil Liability Act.

5. [200]

   When it was raised at the hearing, senior counsel for both parties embraced the desirability of a mediation before any further trial. The Court was told that there has not, to date, been a formal mediation. The orders I propose for a court-annexed mediation will not involve the parties bearing the costs of the mediator.

6. [201]

   Mr Cachia should have a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the trial. The costs already incurred at first instance should be left to the discretion of the judge who ultimately hears the remitted proceeding, so that it can be exercised in light of that hearing. That accords with what has been described as the “general rule”: Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427.

7. [202]

   Mr Croucher has succeeded, in part, on appeal. However, his success was limited, and attended by some unsatisfactory features. Ground 8 was abandoned well in advance of the hearing. But grounds 6 and 7 (dealing with tendency evidence), to which around one third of the appellant’s submissions were directed, and to which Mr Cachia responded in writing in similar detail, were only abandoned on the afternoon before the hearing. At around the same time, an amended notice of appeal was foreshadowed, which led to the need for written submissions after the hearing by both parties. It will be seen from the foregoing that most of the submissions which have been addressed in these reasons were made orally by Mr Croucher for the first time, and responded to in writing by Mr Cachia. Grounds 11 and 12 dealing with quantum were not the subject of any substantive submissions. Mr Croucher’s substantial attack on the fact finding process in ground 9 has failed.

8. [203]

   There is therefore much to be said in support of departing from the general rule in UCPR r 42.1 that costs follow the event. I would propose, however, that no order be made before the parties have had an opportunity to be heard as to the costs of the appeal. The orders I propose will defer the making of submissions as to costs until after the mediation. I do so in light of the fact that the costs of the appeal are relatively small, compared with the costs of the trial and of any re-trial, and because if the mediation succeeds, then it will not be necessary for the parties to make those submissions.

9. [204]

   The formal orders I propose are:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the judgment and orders made on 18 May 2015.

   3. (3)

      Mr Cachia to have a certificate under the Suitors’ Fund Act 1951 (NSW).

   4. (4)

      The parties are referred to court-annexed mediation. Such mediation is to occur by no later than 21 July 2016.

   5. (5)

      The parties are to attend upon the Registrar of the Equity Division of this Court forthwith to obtain a date for mediation.

   6. (6)

      After 21 July 2016, if the matter is unresolved at mediation, the parties are to file and serve on or before 4 August 2016 submissions not exceeding five pages in relation to the costs of the appeal, with a view to the question of costs being determined on the papers, and the balance of the matter is remitted to the District Court for a new trial on all issues save for the quantification of the heads of damages, such remitter to include determining the costs of the first trial before the primary judge.