Hall v van der Poel

Hall v van der Poel - [2009] NSWCA 436 - NSWCA 2009 case summary — Zoe

[17]

Circumstances 4 I will commence with a brief account of the facts that are either common ground or clearly established. 5 In the early hours of Sunday 19 September 2004, Mitchell Hall, the son of Hall Snr and brother of Hall Jnr, came home injured. Hall Jnr was told that those injuries had been inflicted by the brothers Matthew Finigan and Mark Finigan; and it would seem that he passed this information on to Hall Snr. 6 At about 1.30pm on 19 September 2004, Hall Jnr arrived at the Finigan home at Forresters Beach in his car, together with his friend Barnett and Dane van Emden (Emden). Hall Jnr parked his car about 20 metres to the south of the Finigan property, and he and his two friends walked towards that property. Hall Jnr and Barnett went on to the front door of the Finigan house, but Emden stopped about half way between the car and the Finigan property. 7 Hall Snr arrived in his own car at about the time Hall Jnr and Barnett reached the front door of the Finigan house. 8 The door of the house was opened by the father of the brothers Matthew and Mark Finigan (Finigan Snr). Matthew was not at home. Finigan Snr called his son Mark (Finigan Jnr) to the door. Finigan Jnr then walked down to the bottom of the stairs at the front of the house with Hall Jnr and Barnett. 9 Almost immediately, Finigan Jnr and Hall Jnr became involved in a scuffle. Finigan Snr then ran down the stairs and intervened. 10 At about this time, Hall Snr left his car, which was parked opposite the Poel residence (which was next to the Finigan residence), and he too intervened. 11 Poel Snr and Poel Jnr had been having lunch on the veranda of their home. They had heard a noise coming from the Finigan property and ran towards it. Poel Snr called out to stop what was going on, and Barnett, who was the closest of the Hall group to Poel Snr, responded verbally. Poel Snr had a piece of timber in his hands, and he struck Barnett with it. There was a dispute in the evidence as to whether or not this was in response to Barnett advancing threateningly at Poel Snr and/or throwing punches. 12 Barnett then went to Hall Jnr's car and got a cricket bat, and he returned to where Poel Snr was. Meanwhile Hall Snr became physically involved with Poel Snr, and attempted to disarm him. Barnett struck Poel Snr with the cricket bat. Poel Jnr went to the aid of Poel Snr, and also became physically involved, particularly with Barnett and Hall Jnr. 13 Shortly afterwards, Hall Snr left in his car, and Hall Jnr and his friends left in Hall Jnr's car. A neighbour (or perhaps Poel Snr's wife) had called the police, and they arrived a little later. The call to the police was noted at about 1.38 pm, and their arrival at the scene at about 1.40 pm. An ambulance also attended, but Poel Snr and Poel Jnr did not go with the ambulance but went back to their home. 14 Poel Snr made a statement to the police on that occasion, and signed a note of that statement in a police notebook. That statement read as follows: 4. About 1.20pm on Sunday the 19th of September 2004 I was at my house at 41 Malkana Avenue Forresters Beach. I heard screams and yelling coming from my neighbour's house next door. My son Justin and I ran over and saw my neighbour Mark (Snr) fighting with a guy about 30 years old. I said, "Hey guys what are you doing, break it up" The younger guy started throwing punches at me. I punched him lightly in the eye. I was standing on my property.

[101]

Failure to make credit findings 34 One notable feature of this case is that the first use of a weapon was by Poel Snr, and there was considerable conflict in the evidence concerning the circumstances of its use. 35 According to Poel Snr, it occurred within the bounds of his own property, when Barnett was advancing threateningly towards him and (on one version) was also throwing punches; after which Poel Snr struck Barnett on the chest in self-defence, using moderate force, with a baton about 1 x 1½ inches and one metre long, made of light wood. 36 According to Barnett, the incident occurred on the nature strip in front of the Finigan house, after the fighting there had cooled down, and Poel Snr ran towards him with a lump of wood. According to Barnett, he said words to the effect, "stay out of it, its nothing to do with you"; after which he stayed in the same position, and Poel Snr came up to him and hit him on the side of the head with a piece of wood causing him to fall to the ground. Barnett said the wood was big and thick, like a fence post, and it had nails at the top. 37 The primary judge made no finding as to the credit of Poel Snr; and she made no finding as to where Poel Snr was when he struck Barnett, or as to whether prior to that time Barnett advanced towards Poel Snr, or as to whether prior to that time Barnett threatened Poel Snr or threw punches at him. The primary judge made no finding as to the nature of the piece of wood wielded by Poel Snr; although there is a suggestion that she rejected Barnett's evidence about the size of the wood and the nails (judgment par [67] and [85]). However, in the light of the primary judge's statement that she made no findings about the credit of the plaintiffs and that she was sure none of the parties or witnesses was frank with the court, this cannot amount to a finding as to the nature of the piece of wood, nor as to the weight of the blow struck against Barnett. 38 Thus, the primary judge's findings did not exclude the allegation, supported by Barnett's evidence, that Poel Snr left his property at the time when the fighting with the Finigans had cooled down, and advanced up to Barnett who was standing on the nature strip and telling him to stay out of it, but not threatening him; and then struck him heavily with a substantial piece of wood. 39 If that were the case, it would not prevent Barnett's conduct in going away to get a cricket bat, and then returning and striking Poel Snr with the cricket bat causing him actual bodily harm, from amounting to the criminal offence to which Barnett pleaded guilty. But it would mean that Poel Snr's involvement with the Halls and the friends of Hall Jnr commenced with a serious assault by him upon Barnett, using a weapon. This in turn could be relevant to whether what happened thereafter was within any common purpose of the Halls and Barnett, and to the application of s 52 of the Civil Liability Act; and could also be relevant to questions of aggravated and exemplary damages. It would also be highly relevant to illegality and s 54 of the Civil Liability Act; but as mentioned earlier, these matters were not pleaded. 40 If one accepts that the Halls and Barnett did have the common purpose identified by the primary judge, in my opinion the question whether what happened in relation to Poel Snr was within that common purpose would be very materially affected if Poel Snr's involvement was initiated by his own criminal assault on Barnett, rather than by Barnett advancing threateningly upon Poel Snr and Poel Snr then striking Barnett in self-defence. 41 As regards s 52, if it were the case that Poel Snr had criminally assaulted Barnett with a weapon, that conduct would fall within the terms of s 52(1)(a), and efforts to disarm him could fall within s 52(2)(a). Hall Snr's evidence was that his intervention was to protect Poel Snr from retaliation from Barnett, and that evidence was rejected by the primary judge (judgment [109]). But Hall Snr also gave evidence that his intention was to disarm Poel Snr, and the primary judge found that his purpose was to protect Barnett from Poel Snr (judgment [109]); and although she found that Hall Snr's intervention exposed Poel Snr to injury from Barnett's attack (judgment [110]), the primary judge did not find that this was Hall Snr's intention. Thus the evidence and the findings could support an inference that Hall Snr intended to prevent Poel Snr using the weapon to assault Barnett again or to assault anyone else, and also believed it was necessary to disarm him in order to do so. 42 As regards aggravated and exemplary damages, if it were the case that Barnett's assault on Poel Snr was retaliation for a criminal assault by Poel Snr on Barnett, with a weapon, this would in my opinion be very material to a judgment as to whether the conduct of Barnett and the Halls towards Poel Snr could be considered truly contumelious as regards Poel Snr's rights. 43 A new trial of these proceedings is most undesirable, and should not be ordered unless it appears to the Court that some substantial wrong or miscarriage has been occasioned: UCPR 51.53(1). It might be suggested that the materiality of the question whether Poel Snr's involvement commenced with a criminal assault by him on Barnett, to the issue of whether what happened thereafter was or was not within the common purpose of the Halls and Barnett, is insufficient to justify a new trial. However, my view is otherwise. It could also be suggested that the primary judge's decision can be upheld on an alternative basis, namely the basis that there were individual assaults committed by Hall Snr and Hall Jnr on Poel Snr and Poel Jnr. I will return to that question shortly. 44 Insofar as the failure to resolve the question whether Poel Snr's involvement commenced with a criminal assault by him on Barnett affects the question of aggravated and exemplary damages, it could be said that this could be dealt with by taking off those damages on the ground that they were not justified by findings made by the primary judge, and otherwise leaving the judgment undisturbed. 45 However, that would still leave the issue of s 52, in relation at least to the individual assaults by Hall Snr and Hall Jnr on Poel Snr and Poel Jnr. In my opinion, in circumstances where s 52 had been pleaded, it was a miscarriage for findings to be made against the Halls, without s 52 being considered in the context of findings made as to the circumstances of the intervention by Poel Snr. 46 In addition, I note that: (1) the primary judge made no finding of fact that could support a finding of an individual assault by Hall Snr on Poel Jnr, yet she made a conclusory finding to that effect (judgment [112]); (2) the primary judge made no finding that Hall Jnr's involvement exposed Poel Snr to injury from Barnett's attack (so that if Hall Jnr's liability arose only from his individual assault, there was no factual basis for making him liable for the totality of the damages); (3) the primary judge made no finding as to the extent, if any, to which Poel Snr's injuries from Barnett's attack were increased by reason of Hall Snr's involvement; and (4) the primary judge made no finding that any such increase was either intended or reasonably foreseeable by Hall Snr. 47 As regards (3) and (4), it could be argued that, in circumstances where Hall Snr knew that Barnett was advancing with a cricket bat, it must have been foreseeable that his intervention would make Poel Snr more vulnerable to Barnett's attack. However, the question must be considered having regard to Poel Snr's statement to the police that he held Hall Snr on top of him so he wouldn't get hit with the cricket bat, and to the confused evidence of Poel Snr as to just how Hall Snr's involvement affected his vulnerability to Barnett's attack. 48 It could also be said that the tenor of the primary judge's judgment shows that she did not consider that Poel Snr's involvement commenced with a criminal assault by him on Barnett. However, such a view cannot stand with the primary judge's express statement that she made no finding as to the credit of the plaintiffs; and in my opinion, any finding that depended on accepting the evidence of Poel Snr would require consideration of the false statements given by him to the police, which were inconsistent with his use of a weapon at any time. 49 Accordingly, in my opinion, the primary judge's failure to make findings as to the credit of the plaintiffs, and in particular to make findings as to the circumstances in which Poel Snr struck Barnett with a piece of wood, have given rise to a miscarriage; and in my opinion it is necessary that there be a new trial. 50 Finally, I note that, although I would not have allowed an appeal on the basis of illegality and s 54 of the Civil Liability Act, in circumstances where these were not pleaded, it does appear that, if Poel Snr's involvement commenced with a criminal assault by him on Barnett, s 54 could well afford a defence. In my opinion, this adds weight to the view that there has been a miscarriage of justice.

[102]

Conclusion 51 For those reasons, in my opinion the following orders should be made in each appeal: (1) Appeal allowed. (2) Orders below set aside. (3) Respondent to pay the appellants' costs of the appeal, and to have a certificate under the Suitors' Fund Act 1951 if otherwise eligible. (4) Order that there be a new trial, with the costs of the first trial in the discretion of the judge hearing the second trial. 52 McCOLL JA: I agree with Hodgson JA. 53 BASTEN JA: For the reasons given by Hodgson JA, I agree that the appeal must be allowed and that there must be a new trial, as his Honour proposes. I would add to his Honour's reasons the following remarks directed to the submissions of counsel for the respondent. 54 Counsel submitted that it was not in the interests of the administration of justice, or the just, quick and cheap resolution of the real issues in the proceedings (as required by s 56 of the Civil Procedure Act 2005 (NSW)) to overturn a judgment of the District Court on the basis of some technical inadequacy in the manner in which her Honour had expressed her reasons. He contended, in effect, that the reasons for decision should "not be construed minutely and finely with an eye keenly attuned to the perception of error", to adopt the language of the Full Court of the Federal Court in Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280 at 287. That language, although used in respect of judicial review of an administrative decision, might be said to apply with equal force on an appeal from the judgment of an experienced trial judge, dealing with an assessment of evidence in the course of determining the relevant facts. Although the analogy is not entirely apt, counsel pointed out, correctly, that it would often be wrong to assume error where a trial judge has described the duty of the employer to an employee as being one to ensure the safety of the workplace, rather than being a duty to take reasonable care to ensure the safety of the workplace. 55 Counsel submitted that, implicit in her Honour's conclusions was a finding that Mr Van der Poel senior did not assault Mr Barnett, except to protect himself from a threatened attack and did so in a manner which did not justify Mr Barnett's action in fetching a cricket bat and using it to attack Mr Van der Poel. 56 Although the principle is sound, that submission does not adequately address the difficulties identified by Hodgson JA. In order to resolve the critical factual questions, her Honour had to choose between conflicting evidence. As explained by Hodgson JA at [34]-[40], it is by no means clear that her Honour in fact resolved those questions. 57 Accordingly, it is clear that the difficulties raised by the appellant were not limited to infelicities of expression in the course of giving reasons. Rather, the appellants demonstrated material errors which affected the outcome of the case. 58 The respondent's submissions may have been intended also to encompass a somewhat different proposition, but having a similar effect. Once error has been established, it is necessary for this Court to determine what steps should be taken in disposing of the appeal. Given the scope of an appeal by way of a rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW), it is open to this Court to make any finding and give any judgment which ought to have been made or given at trial: s 75A(10). Where this Court can rectify the error, it is usually inappropriate to grant a retrial. That follows in part from the requirement to facilitate the just, quick and cheap resolution of the real issues, in accordance with s 56. That purpose will not be effected by remitting a matter for further trial, where it is properly open to this Court to dispose of the matter itself: see Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 at [12]. However, it will often be difficult, if not impossible, for the Court to resolve such issues for itself where findings are required which properly depend on the credibility of witnesses, whom the Court has not heard. The proper course to be taken in such circumstances requires reference to the direction in the rules that the Court "shall not" order a new trial on any ground "unless it appears to the court that some substantial wrong or miscarriage has been thereby occasioned": Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), r 51.53. 59 As the terms of r 51.53 themselves indicate, the rule was concerned, historically, with new trials before a jury. It still has such operation, although in fewer cases than in the past: see Tory v Megna [2007] NSWCA 13. Its application in a civil proceeding heard without a jury now appears to be taken for granted, although its operation may differ from a case where a court, not being entrusted with the decision of questions of fact, "cannot substitute its judgment for that of the jury in purporting to decide whether a substantial wrong or miscarriage has occurred": Balenzuela v De Gail [1959] HCA 1; 101 CLR 226 at 235 (Dixon CJ). Clearly that reasoning cannot apply in circumstances where, as with an appeal by way of rehearing, the Court is indeed empowered to determine questions of fact. 60 Furthermore, where the Court has before it a written judgment, it may more readily ascertain whether there has been a substantial miscarriage of justice than is possible in circumstances where there is merely an inscrutable verdict, to be assessed by a court which has not heard the witnesses, on the basis of the transcript and the exhibits. (For an example of its application in relation to a civil judgment, see HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640 at [50] and [56].) 61 Historically, an application for a new trial after verdict was a procedure separate from an appeal. No appeal lay from a verdict, which was the act of a jury: although an appeal might lie from a judgment entered on the basis of a verdict, it would have been "useless to impeach the judgment if the verdict on which it was merely consequent must stand": The Commonwealth v Brisbane Milling Co Ltd [1916] HCA 39; 21 CLR 559 at 567 (Barton J); see also Musgrove v McDonald [1905] HCA 50; 3 CLR 132 at 149; Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan [1931] HCA 34; 46 CLR 73 at 110 (Dixon J); cf Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; 237 CLR 268 at [37]-[39] (French CJ). If it were originally with respect to an application for a new jury trial that the qualification requiring that the Court be satisfied that there had been a substantial miscarriage of justice arose, it is nevertheless clear that, however the power is to be applied in relation to a judgment supported by reasons, it now has that broader operation. 62 So far as the application of the principle is concerned, this Court is constrained by the fact that there were divergent accounts given by witnesses and this Court is in no position to evaluate the credibility of those witnesses: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [23] (Gleeson CJ, Gummow and Kirby JJ); The Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [133] (Hayne J). Waterways Authority is not supportive of the proposition that this Court should always be reticent in making findings of fact or should only make such findings where "the probative evidence on a particular issue points to only one conclusion": cf Hare v Harmer [2009] NSWCA 68 at [47]; Alchin v Daley [2009] NSWCA 418 at [55]. It does however, demand that caution be exercised in making findings of particular facts and then remitting the matter for a further hearing in respect of separate issues of fact: Waterways Authority at [20] (Gleeson CJ). As his Honour explained in terms apposite to the present case: "There remain for decision a number of unresolved questions which will depend upon the reliability of the evidence of other witnesses …. At a new trial, the trial judge will have to hear evidence, and make findings about, the circumstances of the accident. The evidence will not necessarily be the same as the evidence at the first trial. It could be significantly different. It is in the interests of justice that the judge hearing the second trial should be in a position to make a fresh appreciation of the whole of the relevant evidence, unconstrained by an artificially isolated assumption that reflects the first respondent's forensic success in the Court of Appeal." 63 There remains a theoretical possibility that this Court could remit the matter to the trial judge to complete the process which this Court finds to have been incomplete. However, that course was not proposed by either party, no doubt understandably. It would have the benefit of limiting the extent of any further hearing, but at an unacceptable cost. First, it would require the trial judge to make the credibility findings which her Honour had earlier eschewed, based on evidence given in October 2008. Further, it would require her Honour to have an open mind as to the ultimate outcome, in circumstances where she has already formed a firm judgment in that regard. 64 It follows that the only appropriate order is that proposed by Hodgson JA, namely that the matter be returned to the District Court for a retrial. **********

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