Mai v Nguyen

1. [1]

   MITCHELMORE JA: I agree with Kirk JA.

2. [2]

   KIRK JA: The appellant, Mr Van Mai, claimed that the respondent, Ms Thi Than Thuy Nguyen, falsely imprisoned him in one of the restaurants that he owned between 10pm on 12 June 2018 and 9am the next morning, and that she assaulted and battered him in that restaurant on 16 June 2018. The batteries were said to be stabbing his head with a fork and fracturing his right index finger. His claims were dismissed by the primary judge, Weber DCJ.

3. [3]

   The appellant now appeals with respect to the dismissal of his claim for assault and battery. No appeal is brought with respect to the false imprisonment claim. There are eight grounds of appeal. The first ground, and arguably the second, have some merit, but in neither case has it been established that any error deprived the appellant of the possibility of a successful outcome. None of grounds 3-7 is made out. Ground 8 relates to assessment of damages and does not need to be determined. The appeal should be dismissed with costs. I will address the grounds in turn after first setting out the context in which the appeal is brought.

Context

1. [4]

   Each of the parties gave evidence below by way of an affidavit and each was cross-examined. There was medical evidence tendered but no doctors were required for cross-examination. There were also some police records tendered, amongst other documents.

2. [5]

   The parties had had a complex relationship. At the time of the two incidents in question the appellant was aged 60 and the respondent was 52. They met in early January 2018. Soon thereafter the respondent began doing some work for the appellant in his restaurants. They became friendly. The respondent regularly drove the appellant to work. They sometimes dined together. In May 2018 the appellant agreed to buy from the respondent a house she owned in Perth and which she was keen to sell. Her evidence was that they travelled to Perth together to inspect the property at her expense.

3. [6]

   There is no dispute that they had a heated argument on the nights of both 12/13 June and 16 June 2018 at the appellant’s Newtown restaurant. According to the respondent the arguments related to three matters: the appellant had gone back on his agreement to buy the Perth house; the appellant owed the respondent money for wages; and the appellant had gone back on an agreement to marry the respondent’s cousin in Vietnam because he wanted payment of $100,000 before the marriage went ahead. The appellant said that the third reason was a recent invention but nothing in the appeal turns on that point. The respondent accepted that in both arguments she was “hot-tempered”. She never disputed that in the second incident she damaged some property at the appellant’s restaurant.

4. [7]

   At 8:58am on the morning of 13 June 2018 the appellant sent a text to the respondent saying “Hi Tina, my apology for what we discussed the whole night, thank you Tina”. That text tended to undermine his claim that he had just been falsely imprisoned.

5. [8]

   It is clear from the medical evidence that the appellant did suffer an injury to his right index finger around the time of the incident on 16 June 2018. Notably, he saw a general practitioner the next day, and again on 19 June 2018. For both appointments there is a record of swelling on the right hand. The injury was subsequently diagnosed as a fracture. At the end of 2020 the appellant had minor surgery on his finger.

6. [9]

   That being said, the contemporaneous medical evidence casts some doubt on how the fracture was caused. He saw a hand surgeon, Dr Kapila, on 9 July 2018, some three weeks after the incident on 16 June 2018. According to a letter from Dr Kapila to the appellant’s GP sent that day the appellant had said he had been assaulted in his restaurant, but that he “is not sure how he injured his right hand”. Similarly, a physiotherapist wrote a letter dated 3 August 2018 saying he had been seeing the appellant since 10 July 2018. The letter referred to an incident at the restaurant on 16 June 2018 and said:

7. [10]

   Subsequently the appellant gave more inculpatory versions of events to various medical practitioners, as he did in his evidence in the court below. For example, according to a report of a psychiatrist retained to give a report on his behalf the appellant had said, during an examination on 18 October 2021, that the respondent “grabbed his right hand fracturing his index finger and stabbed his forehead with a fork causing a laceration”. Unlike in his contemporaneous accounts, this version involves a clear attribution of causation – it was caused by the respondent grabbing his index finger – albeit that the mechanism of injury was still not described in any detail. The appellant made the point that the contemporaneous records do indicate he claimed to have been assaulted. If anything, however, that puts in stark relief the fact that he later said that the finger injury was caused by his assailant in the assault, whilst in the contemporaneous records he indicated he was not sure how that injury occurred.

8. [11]

   As for the claimed fork stab to his head, the GP’s letter dated 17 June 2018 recorded that he had said a woman “physically attacked him” at his restaurant the night before. The letter recorded that he had “sustained a 2mm skin tear to middle of the forehead – the wound is clean and now covered with dry scab”. The letter from another GP dated two days later said that examination “revealed [a] minor scratch on the forehead”.

9. [12]

   In terms of the police evidence, the appellant attended Campsie police station around 3:30am on Friday 15 June 2018 to make a report relating to the first incident. The following entry was made by a police officer in the COPS system:

10. [13]

    The entry makes no mention of false imprisonment, despite the serious nature of any such conduct.

11. [14]

    With respect to the second incident, there is a relatively detailed COPS entry which subsequently became a statement of facts for court purposes. The entry included the following:

12. [15]

    The respondent was charged with causing damage to property. In due course she pleaded guilty. No conviction was recorded when the matter was dealt with at Newtown Local Court.

13. [16]

    The appellant had signed a handwritten record in the notebook of the police officer who investigated the second incident. It was signed at 10pm on the day in question, being just over an hour after the argument. In that statement, after referring to the cutlery and plates being pushed off two tables, the following was said:

14. [17]

    On that account the appellant did not mention being stabbed by a fork in the forehead. He instead referred to a hit to the left side of his face and said he did not know with what he had been hit. He also indicated he did not know how his hand had been hurt, consistently with the early medical documents.

15. [18]

    The investigating police officer himself prepared a statement, for the purpose of the criminal charge against the respondent, in which he said that the appellant indicated that he did not need any medical attention. The officer said that he did not notice any visible injuries to the appellant.

16. [19]

    The two parties gave quite different accounts from each other in their evidence in the proceedings below. The appellant’s evidence on the claimed false imprisonment was sparse. The respondent denied any such imprisonment.

17. [20]

    As for the second incident, the relevant extent of his affidavit evidence about the claimed assault and battery was as follows, after having described an argument about money:

18. [21]

    The respondent denied that version of events. She relevantly said the following in her affidavit, after referring to the argument:

19. [22]

    In summary, in relation to the second incident, there was little doubt that the appellant fractured his finger around that time. The earlier records indicate that he did not know how this occurred, although he said that it was in connection with the incident. Yet he gave definite evidence in court that this was because the respondent had twisted his hand. In relation to the claim he had been stabbed with a fork, there is no reference to this in the early records. The contemporaneous medical evidence refers to a minor scratch on the forehead. The appellant’s statement to the police referred to him being hit on the left side of his face, where he was not sure with what he had been hit. Yet his affidavit gave a clear account of being stabbed in the forehead with a fork. Such an event might have been thought memorable. When the appellant was asked in cross-examination about the absence of his current allegations being in the police records he attributed this to the police simply not recording what he had told them.

20. [23]

    In this context, resolution of the dispute turned in substance on which of the parties was to be believed.

21. [24]

    After hearing and receiving the evidence the primary judge stood the matter over for written and oral submissions. Each side provided detailed written submissions. The oral submissions were very short. His Honour then delivered an immediate ex tempore judgment.

22. [25]

    The reasons for the primary judge were brief, being as follows:

23. [26]

    The primary judge thus did not accept the evidence of the appellant – “at all” – saying “I do not accept the plaintiff as a witness of truth”. His Honour gave reasons for that view, but there is little reason to doubt that his conclusion was also based upon what he said and heard. The appellant accepted the applicability of the principles set out in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [20]-[31] and Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]. Importantly, although the appellant does suggest that the primary judge did not give adequate reasons for concluding that he did not believe the appellant’s version of events in light of the contemporaneous records, the adverse credit finding has not been challenged.

Ground 1: failure to determine assault claim

1. [27]

   The first ground of appeal is that the primary judge failed to exercise jurisdiction by reason of a failure to determine the appellant’s assault claim, as opposed to his claim for battery. The appellant did make a distinct claim for assault. A particular in his short statement of claim was that “[i]mmediately prior to, and or during, the batteries particularised above, the plaintiff suffered an apprehension of an immediate battery and was thereby assaulted”. Although this particular referred to the batteries particularised – being the stabbing to the head and broken finger – that was done in order to identify a point in time. The assault was alleged to have occurred prior to those batteries. The claim was mentioned in the appellant’s opening: “the smashing of items on that date constitutes, in civil law, an assault in the sense of creating an immediate apprehension of a battery”. And it was separately addressed in his closing written submissions. The appellant there said that an assault was established based just on the admission made in the respondent’s defence that she “did damage property at the restaurant such as dishes and kitchen items as a result of the argument”.

2. [28]

   His Honour did not address the assault claim in distinct terms. At the start of his reasons he said “[t]he plaintiff alleges two causes of action, being: 1) false imprisonment; and, 2) battery”. He later said that “the plaintiff has been totally unable to prove his case, in false imprisonment and battery”. His Honour did use the word “assault” when referring to the police investigating the appellant’s allegation of assault made on 16 June 2018. However, as the appellant submitted, this usage seemed to involve the criminal and common usage where “assault” encompasses battery. His Honour was not addressing the appellant’s claim in the tort of assault.

3. [29]

   It is possible that his Honour overlooked the assault claim. More likely is that his Honour treated it as intertwined with and dependent upon the battery claim. In any event, given that it was a distinct claim for a distinct tort his Honour should have addressed it. Ground 1 is thus made out.

4. [30]

   The appellant seeks a retrial. The appellant accepted that if he only succeeded on this ground then there would be no basis to order a retrial on the battery allegations. An order for a retrial may only be made if it appears to this Court that some substantial wrong or miscarriage has been occasioned: Uniform Civil Procedure Rules 2005 (NSW), r 51.53.

5. [31]

   The allegation that the respondent caused property damage was expressly admitted. That of itself does not establish an assault. As the appellant correctly explained in his submissions to the Court below, to make out the tort of assault it is necessary to establish that the claimant apprehended an imminent battery: eg Rixon v Star City Pty Ltd [2001] NSWCA 265; (2001) 53 NSWLR 98 at [56]-[59]. The appellant said in his affidavit that:

6. [32]

   The appellant did not give evidence in terms that the property damage of itself caused him a relevant apprehension of imminent battery prior to the respondent touching him by pulling him back (where that action would itself have been a battery). Counsel for the appellant accepted as much. It is possible that such an apprehension might be inferred from the appellant having started to run out of the restaurant, but the point really should have been addressed expressly if it was to be relied upon as a distinct basis for a claim.

7. [33]

   In any case, acceptance of him having such an apprehension would depend upon accepting his evidence on the issue. The primary judge concluded he was not a witness of truth and on that basis rejected his claims. As noted, that adverse credit finding has not been challenged. In this context, the judge’s apparent oversight in addressing the distinct assault claim did not deprive the appellant of the possibility of a successful outcome: note Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 at [36]-[39]. The same result would have followed if his Honour had addressed the issue in express terms. No substantial wrong or miscarriage has occurred by reason of the oversight in addressing the assault aspect of the claim. This ground does not provide a sufficient basis to order a retrial of the assault claim.

Ground 2: inappropriate judicial notice about breaking of finger

1. [34]

   The second ground is that the primary judge inappropriately substituted his own medical knowledge on matters of causation. The complaint was directed primarily to these statements:

2. [35]

   His Honour’s conclusion here implicitly involved two elements: that the respondent was slight and not strong (his Honour had earlier described her as “a slight woman”), and that breaking a finger is something not readily done. The first was based upon an impression formed by what the primary judge observed. The appellant accepted that his Honour was entitled to take into account the physical attributes of the persons concerned. The appellant’s complaint is about the second element, which he treats as a matter of medical causation. That is one way of characterising the issue.

3. [36]

   This Court has warned of the dangers of judges reasoning as though they had medical expertise which, however experienced they may be in litigation involving such matters, does not render them an expert: Strinic v Singh [2009] NSWCA 15; (2009) 74 NSWLR 419 at [59]. Basing a conclusion on such a basis may constitute a breach of the requirements of procedural fairness: ibid at [64]. That being said, finders of fact are entitled to bring some degree of practical judgment to bear with respect to matters such as how readily people may be injured. Section 144 of the Evidence Act 1995 (NSW) provides that proof is not required about knowledge not reasonably open to question and which is common knowledge in the relevant place or generally.

4. [37]

   There is room for argument as to whether a finding about how readily a finger may be broken is an issue of common knowledge not reasonably open to question. On the one hand some experience and understanding of how readily bones may be broken is commonplace. On the other, bones may tend to become more prone to breaking as people age, and there can in any case be variation between individuals. As the appellant submitted, there are dangers in generalising on this issue based on gender, age or build.

5. [38]

   It is not necessary here to resolve whether his Honour’s assessment exceeded permissible bounds. Even if it did, no substantial wrong or miscarriage has been occasioned. The conclusion impugned here was one of the reasons why the primary judge rejected the claim that the respondent had broken the appellant’s finger, but not the only one. His reasons also included the following:

   1. (1)

      The plaintiff had given no evidence as to the manner in which the finger came to be broken, other than to say that the plaintiff broke his finger by twisting his hand.

   2. (2)

      The investigating police officer had recorded that the appellant had no visible injuries. The primary judge considered that a freshly broken finger “inevitably would have been accompanied by swelling and bruising”.

   3. (3)

      The appellant had told the police that he did not need medical attention.

   4. (4)

      The plaintiff said he reported to the police being assaulted on 16 June 2018 but the police did not record it because they were too busy, which his Honour considered to be unlikely.

6. [39]

   More generally, the primary judge did not accept the appellant as a witness of truth including because he rejected the appellant’s false imprisonment claim for reasons which he explained and which are not challenged on appeal.

7. [40]

   Yet further reasons can be added to those given by the primary judge. First, as explained above, about one hour after the incident the appellant told the investigating police officer that “I’m not sure what happened to my hand, maybe I was protecting myself but it is very sore now”. That statement is consistent with some injury having occurred on that night, but is not consistent with the appellant’s evidence some years down the track that the respondent “twisted my hand and broke my finger”. Similarly, in the two months after the incident he told a hand surgeon and a physiotherapist that he was not sure how he had injured his hand.

8. [41]

   Secondly, as already noted, the appellant has not sought to challenge the adverse credit finding against him on this appeal. Were he to have done so not only would he have faced the difficulty of explaining away his no-longer-pursued and inherently implausible claim for false imprisonment, but he would also have had to explain how it was that he could give evidence that he had been stabbed in the forehead with a fork where no description of such (memorable) event had been recorded by the investigating police officer.

9. [42]

   The appellant complained that the second additional reason listed above at [38(2)] involved an inappropriate medical assessment insofar as the judge reached his own conclusion about how a broken finger would manifest. Again, it is not necessary to determine that issue. The other reasons enumerated more than suffice to support his Honour’s rejection of the appellant’s claim that the respondent had broken his finger. Even if the primary judge erred in making his own assessment of the respondent’s ability to break the appellant’s finger and of how a broken finger would manifest – matters which it is not necessary to decide – I do not consider that that would have deprived the appellant of the possibility of a successful outcome.

Ground 3: claimed relevance of respondent’s “history of violence”

1. [43]

   Ground 3 complains that the primary judge failed to address the respondent’s “history of violence”. This complaint is based upon the fact that the appellant had served a tendency notice asserting some such tendency based on four claimed incidents involving the respondent. Two of those incidents were the events of 12-13 and 16 June 2018. Another involved the respondent getting angry at a Blue Haven Pools outlet about a product she had previously purchased. There was a police report from the shop owner alleging that she had swung the product around, connecting with his arm, and knocking over a display stand. She denied that allegation in cross-examination. The fourth incident was based upon a police record that a tenant of the respondent had rung them – and they had attended the premises in question – alleging that the respondent had been “verbally abusive” and had been banging on an infant’s bedroom door in connection with an attempt by the respondent to evict the tenant for non-payment of rent. The attending police “spoke with both parties and advised that if they had issues with the rental problems to go through tenancy tribunal”, beyond which they indicated no further police action was required.

2. [44]

   The claimed tendency was that the respondent had a tendency to act in a particular way, namely to initiate physical violence in the context of an argument and to cause malicious damage to property in the context of an argument. It was also said that she had tendency to have a particular state of mind, namely readily to become angry and develop feelings of aggression in response to perceived slights or disrespect.

3. [45]

   When the primary judge was informed of the tendency notice in the course of cross-examination of the respondent his immediate response was: “Oh, you can’t be serious”. I have some sympathy for this expostulation. If the claimed tendency was to have a tendency to assault people then the incident of 12-13 June does not establish that, and that is so even if the appellant’s evidence on that issue was accepted (where it was not). The incident with the tenant does not establish either tendency. And the interaction with the shop owner does little if anything to make it more likely that the respondent would break someone’s finger or stab them in the forehead with a fork, those being the facts in issue: cf TL v The King [2022] HCA 35; (2022) 275 CLR 83 at [31]. Counsel for the appellant accepted that the argument was “not the strongest” tendency claim.

4. [46]

   In any event, it was not necessary for the primary judge to address this tendency argument in circumstances where his Honour had concluded that he did not believe the appellant’s account about either incident for reasons that he explained. As the appellant himself submitted to the primary judge, he “does not by any means submit that this tendency on the defendant’s part in any way discharges, by itself, the onus which he carries, which is to comfortably persuade the court that Incident Two occurred” (footnotes omitted). Ground 3 is not made out.

Ground 4: disregarding appellant’s evidence when corroborated

1. [47]

   This ground complains that the primary judge disregarded the appellant’s evidence even when corroborated by admissions made by respondent and by other evidence. The appellant referred in particular to the appellant’s admission about smashing items, her acceptance that she had been hot-tempered, the appellant’s two contemporaneous complaints to police, and the medical evidence. The evidence has been discussed above (at [5]-[22]). It cannot be said that that evidence presents a compelling case in support of the appellant’s claim. As explained above at [22]-[23], the contemporaneous evidence did not positively support his claim and resolution of the dispute turned in substance on which of the parties was to be believed. His Honour made clear that he did not believe the appellant’s account and gave reasons for that conclusion. Those reasons sufficed to reject the appellant’s claim. Ground 4 is not made out.

Ground 5: respondent’s evidence and her credit

1. [48]

   The next ground complains that the primary judge failed to assess the respondent’s credit. The factual premise of the argument is made out – his Honour did not do so. But that does not establish error.

2. [49]

   As in many such matters, the case turned on two competing versions of events given by the parties. It is common in such cases for a judge to weigh up the testimony of each in resolving the dispute. But even if, say, the primary judge had concluded in this case that he did not accept some or all of the respondent’s evidence, that would not of itself suffice to discharge the burden of proof which the appellant bore. The onus would have remained on the claimant to make out his case on the balance of probabilities.

3. [50]

   It is thus not necessary in every case for a judge to reach a conclusion about whether or not they accept the version of events given by the party who does not bear the onus. If the judge is not persuaded based on the claimant’s case that suffices to reject it.

4. [51]

   The appellant submitted that a conclusion that a claimant cannot be believed does not address other contemporaneous evidence and admissions. However, as just addressed with respect to ground 4, this case hinged on whether or not the appellant was believed.

5. [52]

   The appellant complained that the judge did not take account of admissions that the respondent had made – in respect to which, implicitly, the appellant asserted her evidence should be accepted. He pointed to the smashing of objects, which I have addressed in dealing with ground 1. That did not establish the claimed batteries, nor, as discussed above, the claimed assault.

6. [53]

   He also referred to evidence given by the respondent in cross-examination where she said: “I actually cannot remember if I grabbed his hands or not, but when he actually tried to squeeze my breasts, I actually did push his hands away”. There is some irony in the appellant relying on this evidence as he had, below, vociferously objected to evidence going to a suggestion of sexual touching or harassment. The appellant cannot take one part of this sentence as proof of a battery whilst ignoring the other part of the sentence indicating why she said she pushed his hands away. And the evidence does not establish a battery of either kind alleged by the appellant. The appellant also accepted that it was not put to the primary judge that this evidence undermined the respondent’s credit.

7. [54]

   In this matter the fact that his Honour did not express a conclusion about the credit of the respondent does not disclose error. Ground 5 is not made out.

Ground 6: claimed misapplication of Briginshaw

1. [55]

   Ground 6 asserts that the primary judge misapplied the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The appellant did not dispute the primary judge’s view that the Briginshaw principle applied with respect to proving his allegations. The appellant’s own submissions below had referred to the principle. His complaint here is that “whilst the conduct alleged was grave, it was substantially admitted to by the respondent who pleaded guilty to part of the factual basis of the assault claim … [which] alone, was sufficient to uphold the assault case”. It was said that in light of the plea of guilty to the criminal charge, her admission in her defence about damaging property, and her “concessions in evidence” (presumably referring to what she said about pushing the respondent’s hand away), there was “more than a fair climate for the trial judge to find criminal conduct had occurred”.

2. [56]

   This argument is not really about misapplication of the Briginshaw principle. It is a claim that the admitted conduct was enough to discharge the appellant’s onus. It was not. The claimed link between the admitted property damage and the assault claim has been addressed in relation to ground 1. The “concession” about pushing his hand away was just addressed with respect to ground 5. The appellant also referred to his “relatively consistent histories”. The difficulties with his evidence in this regard were addressed above at [22]-[23] and with respect to ground 4. Ground 6 is not made out.

Ground 7: claimed inadequacy of reasons

1. [57]

   The appellant then argues that the primary judge failed to give adequate reasons for rejecting the appellant’s claims. In substance the arguments put with respect to this ground simply echoed the arguments made in relation to the preceding grounds. The complaint of inadequate reasons has force in relation to rejection of the appellant’s claim in the tort of assault, as addressed in relation to ground 1. But putting the complaint in that way does not overcome the difficulty faced by the appellant in establishing a substantial wrong or miscarriage. Nor does it do so to the extent there is any force in ground 2. The other grounds have not been made good.

2. [58]

   The appellant made a specific complaint that the primary judge did not address the contemporaneous evidence of his complaints in reaching a conclusion that the appellant was not a witness of truth. However, as explained above, although that evidence does make clear that he alleged he had been assaulted (no doubt encompassing battery), he did not report that he had been stabbed in the forehead by a fork. Nor did he report that the appellant had broken his finger by twisting his hand. It was thus not necessary for his Honour to address this evidence.

3. [59]

   The reasons given by the primary judge were brief. It is relevant that they were delivered promptly in an ex tempore judgment. Leaving aside the points made about grounds 1 and 2, the reasons were adequate to discharge the judicial duty to give reasons.

Ground 8: damages

1. [60]

   The appellant’s eighth ground is that his Honour failed to make contingent findings on damages. Given that none of the other grounds are appeal made out it is not necessary to address this issue.

Orders

1. [61]

   The orders of the Court should be as follows:

   1. (1)

      Appeal dismissed.

   2. (2)

      The appellant is to pay the respondent’s costs.

2. [62]

   GRIFFITHS AJA: I agree with Kirk JA.