Sahade v Bischoff

Solicitors: Oliveri Lawyers (Appellants / Cross-respondents) Carroll & O'Dea Lawyers (Respondents / Cross-applicants) File Number(s): 2014/327602 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 10 October 2014 Before: McLoughlin DCJ File Number(s): 2013/112435

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

1. BASTEN JA: This appeal involved an unedifying brawl between two neighbours in Wolseley Road, Point Piper, which resulted in unsuccessful prosecutions by the police, followed by civil proceedings for assault, trespass and malicious prosecution. Having reviewed the evidence, including the CCTV footage and the audio recording and the stills extracted from it, I agree with Gleeson JA that the appellants and cross-appellants have failed to demonstrate error on the part of the trial judge. I also agree with the orders proposed by Gleeson JA.
2. GLEESON JA: In the afternoon of 21 May 2012 there was an altercation between the appellants (respectively Mr Sahade and Mr Smith) and the first respondent (Mr Bischoff) at a property at Wolseley Road, Point Piper, where Mr Sahade and Mr Bischoff and the second respondent (Mrs Bischoff) occupied separate residences. Two CCTV cameras pointed directly onto the open driveway and courtyard area of the common property where most of the altercation occurred. Police attended the property shortly after Mrs Bischoff called the Rose Bay Police Station for assistance. Having viewed the CCTV footage and obtained statements, the police arrested Mr Sahade and Mr Smith.
3. Mr Sahade and Mr Smith were each charged later that evening with two assault offences. In July 2012, they were charged with a further offence of assault occasioning actual bodily harm in company. The charges against Mr Smith were later withdrawn and dismissed in the Local Court in December 2012. The charges against Mr Sahade were dismissed in the Local Court in April 2013.
4. Following the dismissal of the charges, Mr Sahade and Mr Smith commenced proceedings in the District Court against the Bischoffs claiming damages for malicious prosecution. Mr Sahade also claimed damages against Mr Bischoff for five alleged assaults and batteries. The Bischoffs brought a cross-claim against Mr Sahade for trespass to their property. After a hearing lasting 8 days, the primary judge dismissed the claims of all parties: Sahade v Bischoff (District Court (NSW), McLoughlin DCJ, 10 October 2014, unrep).
5. In a second judgment, the primary judge determined that he was wrong (as a matter of law) in finding in his first judgment that actual damage was required to be proven in a claim for trespass to land before an award of damages could be made. He set aside the verdict in favour of Mr Sahade on the Bischoffs' cross-claim and awarded damages against Mr Sahade for trespass in the amount of $500. His Honour also made costs orders in favour of the Bischoffs. He ordered Mr Sahade and Mr Smith to pay 80% of the Bischoffs' costs of the statement of claim on an ordinary basis and Mr Sahade to pay 50% of the Bischoffs' costs of the cross-claim on an ordinary basis: Sahade v Bischoff (District Court (NSW), McLoughlin DCJ, 29 January 2015, unrep).
6. Mr Sahade and Mr Smith have appealed.
7. The Bischoffs have sought leave to cross-appeal against the award of damages against Mr Sahade and the costs orders made against Mr Sahade and Mr Smith. Leave to appeal is required insofar as the judgment or order involves a matter at issue amounting to or of a value of less than $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r). Leave to appeal is also required insofar as the judgment or order is as to costs only: s 101(2)(c).
8. An understanding of this dispute is assisted by an outline of the relevant facts concerning the altercation.

Relevant facts

1. Mr Sahade resides at Wolseley Road, Point Piper, in a separate residence situated at the rear of a property which overlooks Sydney Harbour. Mr and Mrs Bischoff reside in unit 2 of a separate building, comprising two units, which fronts Wolseley Road. The two buildings are part of a strata scheme and share a common open driveway and courtyard area off Wolseley Road. At the bottom of the driveway there is a turning circle and open garages. There is a set of stairs and an inclinator that runs from the turning circle down the side of the property furthest from the off-street driveway to access Mr Sahade's residence.
2. Mr Bischoff had installed CCTV on the front building where he resided which pointed directly onto the open driveway area. There were two cameras, one pointing to the turning circle and garages which included the porch area and entrance to Mr and Mrs Bischoff's unit; the other pointing to the inclinator leading to Mr Sahade's residence.

The police facts sheet

1. The police facts sheet for the charges against Mr Sahade noted that Mr Sahade and Mr Bischoff had been involved in a number of disputes over construction works at the building, most of which related to the common property. (Those disputes included the stairs which Mr Sahade had installed, it seems without relevant planning permission, to facilitate access to his residence.) Police had been in attendance at the property in relation to those disputes on Saturday 19 May and Sunday 20 May 2012.
2. The police facts sheet also noted that the CCTV cameras recorded both visual and audio. The incident "captured" on the CCTV footage was described in the facts sheet in the following terms.

21 May 2012

1. On Monday 21 May 2012, Mr Sahade and Mr Smith were in the open driveway area of the common property when Mrs Bischoff returned home in her car at about 4.25pm. Mr Smith was a carpenter hired by Mr Sahade to undertake certain work at the property. Mr Smith was using a large sledgehammer to break away part of the staircase situated on the common property, next to the open driveway area. After Mrs Bischoff had parked and alighted from her car, she approached Mr Sahade and Mr Smith. She began taking photographs of the demolition work to the staircase, and of Mr Sahade and Mr Smith, using the camera on her mobile telephone. Mr Sahade immediately began taking photographs of Mrs Bischoff with his own mobile telephone. Shortly thereafter, Mr Bischoff walked out to the open driveway area.
2. The facts sheet continued, referring to Mr Bischoff as the "victim", Mr Sahade as the "accused" and Mr Smith as the "co-accused" (spelling and grammatical errors in original): A few seconds later, the victim approaches both Celia BISCHOFF and the accused, and says words to the effect of, "Celia, leave it be." The victim walks slightly around Celia BISCHOFF so that he is in between the accused and her. At this point, the accused steps forward and lashes out with his left arm. The victim takes a hold of the accuseds left arm, before stepping backwards and freeing himself. The victim steps back, and again the accused moves towards him, lashing out with his arms. Celia BISCHOFF at this point beging to use her mobile telephone to take photographs of the accused and victim. The accused then attempts to rip the mobile telephone from the hands of Celia BISCHOFF, but is unsuccessful. The accused yells, "I'll fucking deck you", then immediately after, "You're fucking dead." The accused takes a fighting stance, then suddenly lunges forwards at the victim, throwing punches. The victim moves backwards, and at this point, Celia BISCHOFF begins screaming for help. The accused yells at the victim as he forces him backwards, the only audile words from the accused being, "Fuck". The accused forces the victim down onto the ground, onto his hands and knees. The victim is able to stand back up, however the accused holds him in a headlock. At this point, the co-accused grabs onto the victim from behind, and jointly the accused and co-accused force the victim onto the ground so that he is laying on his back. The victim manages to free himself, stands up, pushes the accused away and walks backwards away from the accused. The accused continues to advance towards the victim, and throws two punches with his left hand towards the head of the victim. The victim is continually backing off during this time. The accused and co-accused then take a hold of the victim and force him against a wall. The victim at this point has both of his hands up against the wall. The accused continues to throw punches at the victim, whilst the victim is yelling, "Stop it." [Emphasis added.]
3. The conduct referred to in the emphasised parts of the preceding paragraph was the subject of the assault occasioning actual bodily harm and the assault in company charges against Mr Sahade and Mr Smith (see [21] and [28] below). This conduct may be conveniently referred to as the "incident at the wall".
4. The facts sheet continued: The victim moves off the wall, and once again, continues to walk backwards away from the accused and co-accused. The accused takes a hold of the victims shirt, and attempts to prevent the victim from walking away. The accused then lets go of the victim, and he walks over and picks up what he believes is his mobile telephone. The accused and victim both have the exact same type of black Apple iPhone 4. The victim walks towards the front door of his residence, and the accused moves himself directly in front of the victim. The victim states, if "If you make one more comment about my wife." to which the accused replies in German. The accused then states, "Come on, do you want to go?" before then punching the accused to the head once again with his left hand. The accused advances forwards, and again says, "Do you want to go" and "You stupid prick." Once again, the victim is backing away from the accused. The co-accused at this time is standing next to the accused. At this point, the accused believes the victim is in possession of his phone. The accused attempts to grab the telephone, however the victim keeps possession of the mobile telephone believing it is his. The victim retreats into his doorway, and the accused and co-accused follow. The accused moves into the doorway and takes a hold of the victim. The victim then says, "Dont touch me again" and "Stop touching me." The victim moves backwards inside the door, and the accused follows. The victim yells out, "Get out of my house," and at this time, the co-accused also enters the house. The accused proceeds to punch the victim in the head again, and Celia BISCHOFF begins to scream, "Help, hes beating him up, he's beating him up." The co-accused holds the victim whilst the accused punches him to the head. [Emphasis added.]
5. The conduct referred to in the emphasised part of the preceding paragraph was the subject of the common assault charge against each of Mr Sahade and Mr Smith (see [21] below). It may be conveniently referred to as the "incident at the portico entrance".
6. The facts sheet continued: The accused takes possession of the mobile telephone, and he and the co-accused then leave the victims residence and go and stand in the open driveway area. … Before Police arrived at the location, the accused and co-accused pace back and forwards in the open driveway area, and the accused attempts to make a number of phone calls. During this time, the co-accused says to the accused, "We'll say he went at you and I seen it." A short time later, Police arrived at the location. Police spoke with the accused, who at this time had a small amount of blood in his nose. Police spoke with the co-accused who did not have visible injuries. Police spoke with the victim, who had a swollen nose covered in blood, grazing on his eyebrow, and he complained of very sore and tender ribs. He was also holding a handkerchief that was completely stained with what appeared to be blood. Police then viewed the entire incident from the CCTV cameras in the victims residence. [Emphasis added.]
7. Two matters should be added to the above narrative. First, shortly after the police arrived at the property, the audio on the CCTV records a police officer saying words to the effect: … this is the third time I've been here in the last three days … if youse two can't deal with it yourselves, now we're here … and this has happened, we'll get to the bottom of this today.
8. Secondly, the audio on the CCTV records Senior Constable Mitchell Lucock saying words to the effect: I'm Senior Constable Lucock, and I'm from Rose Bay Police Station [inaudible] for assault. … I've been down and I've seen the footage. I've seen the whole thing from the start to the end and before it even started, [inaudible] I can hear what you're saying I can hear what people are saying, and I've watched the whole thing. Now do you understand that?

The arrest and charges

1. Mr Sahade and Mr Smith were placed under arrest at the property and taken to Waverley Police Station. Each refused the opportunity to participate in a electronically recorded interview. The police obtained signed statements from each of Mr and Mrs Bischoff. Later that evening, Mr Sahade and Mr Smith were each charged with two offences - assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW), and common assault, contrary to s 61 of the Crimes Act. The maximum penalty for the s 59(1) offence is 5 years imprisonment (unless dealt with summarily). The maximum penalty for the s 61 offence is 2 years imprisonment.
2. On 16 July 2012, Mr Sahade and Mr Smith were each charged with a further offence of assault occasioning actual bodily harm while in company, contrary to s 59(2) of the Crimes Act. The maximum penalty for that offence is 7 years imprisonment.
3. In each case, the prosecutor named on the relevant Court Attendance Notice was Senior Constable Lucock.

The Bischoffs' witness statements

1. Mr and Mrs Bischoff each gave signed statements to the police on 21 May 2012. Mr Bischoff's statement included the following description of the incident at the wall and the incident at the portico entrance: 10. I have walked around the back of Celia and stood between her and Anthony. I put my hand out, with my palm facing him and attempted to distance Celia and Anthony, however Anthony said, "Don't touch me..." however he started to lash out at me with both fist clenched and he was swinging punches at me. I heard Celia began to scream out. 11. As Anthony continued to lash out at me, I have trying to push him away, as well as defending myself which ended up in Anthony getting me in a head lock and throwing me on the ground where he continued to lash out at me with his fists. It seemed to me that the other male was holding me down. I can remember that he was saying, "Stop fighting." 12. I was on the ground and I was not fighting, nor was I the aggressor at any stage. I recall this other male continuing to tell me to stop fighting. As the barrage of Anthony's fists continued, I remember walking towards the wall of my house and putting my hands against it. This other male was still telling me to stop fighting, and I said, "Look who's fighting here" as my hands were pressed against the wall. 13. Anthony has continued to punch me as I stood motionless against the wall. Anthony has walked away into the porch. I heard Anthony say, "Where is my phone?" I thought to myself that same question. I looked down and saw a mobile phone that appeared to be mine (an Apple Iphone 4 with no protective case) and picked it up. Anthony said, "That's mine" and tried to wrestle it out of my hand. During this wrestle, I managed to press the main button to see that title screen picture was. I eventually managed to press the main button and I saw that this phone was not mine and gave it up to Anthony. 14. Anthony continued verbal me and I began to walk into my house, too which Anthony followed onto the top landing. Fearing that I was going to be assaulted again, I turned towards the wall and covered my head. As I was in this position I felt several strong blows to the left side of my ribs that continued for several seconds. I felt the punching stop and turned out. I saw that Anthony had now stepped aside. I straightened the carpet runner that was preventing the front door from closing, and then closed the door. [Emphasis added.]
2. Mrs Bischoff's statement described the two incidents the subject of the police charges as follows: 15. I then saw Anthony raise his right arm and punch toward Eckart's face area. I don't know if it connected with Eckart or not. I noticed Eckart put his arms up and appear to try and defend himself but somehow Eckart and Anthony fell to the ground and I saw Anthony's worker had joined and he looked like he was trying to hold Eckart down. 16. It was all a shock to me and remember calling out to the neighbours for help. I yelled "Toni, Toni, Toni Ryan." I called this out several times. While I was yelling out all three were still wrestling on the ground. I saw the worker appear to be still holding down Eckart while I saw Anthony kicking and punching Eckart but I don't know exactly how many times or with what leg or fist he was using. 17. I had grave fear for Eckart so I ran inside to the bottom of our staircase and grabbed the landline phone and rang Rose Bay Police straight away. I noticed our security technician standing in our dining room talking on his mobile phone. After I made my call to police he told me that he had also called police because he had seen what was happening through the security screen he was working on. 18. While still at the bottom of the stairs I could hear the scuffle still continuing up stairs. I looked up the top of the stairwell and I could see Eckart being shoved into the entrance foyer while he had his arms covering his head and face. I could see Anthony's worker on the left side of Eckart and he looked like he was trying to hold Eckart while I could see Anthony punching Eckart to his right rib area at least twice. While they were in the foyer area the scuffle would have went for about 10 seconds before Anthony and his worker walked out and Eckart came down the stairs toward me. [Emphasis added.]
3. Mrs Bischoff gave a further signed statement to the police on 31 May 2012 which supplemented her earlier statement, relevantly, as follows: 5. After Paragraph 16, once Eckart had stood up from the ground, I remember Eckart putting his hands up onto the wall of our building, and stood facing it. The worker stood behind Eckart and Anthony punched Eckart to the left side. I began screaming out, "Help, they are attacking him." [Emphasis added.]

Subsequent dismissal of all charges

1. On 5 December 2012, the charges against Mr Smith were withdrawn and dismissed on the first day of his trial in the Local Court.
2. The charges against Mr Sahade proceeded to a hearing in the Local Court. The transcript of the Local Court proceedings records that the following particulars were given by the prosecution: 1. as to the assault occasioning actual bodily harm (Sequence 1): that Mr Sahade pushed Mr Bischoff against the wall and punched him a number of times to the head and to the ribs; 2. as to the assault in company (Sequence 3): the allegation of the same assault as in Sequence 1, but done in company with Mr Smith. 3. as to the common assault charge (Sequence 2): that Mr Sahade punched Mr Bischoff under the porch area or portico at the entrance to the Bischoffs' unit (This should be taken to be a reference to what occurred inside the Bischoffs' residence, as set out in paragraph 14 of Mr Bischoff's statement: see [24] above).
3. At the conclusion of the prosecution case on 9 April 2013, the magistrate dismissed the common assault charge against Mr Sahade (Sequence 2) on the ground that no prima facie case had been established. The magistrate dismissed the assault in company charge (Sequence 3) on the ground that Mr Sahade was not operating in concert or in company with a common purpose with Mr Smith. The magistrate also dismissed the charge of assault occasioning actual bodily harm (Sequence 1) before also dismissing that charge.

Assault

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

• first, by grabbing his left wrist and pulling him towards him;
• secondly, by striking him in the face with his right fist;
• thirdly, by wrestling with him on the floor;
• fourthly, by striking him again in the face with his right fist; and
• fifthly, by attempting to strike him in the face with his left fist which was blocked by Mr Sahade.

1. Mr Sahade asserted that he sustained various injuries including a swollen and bloody nose; bruises and abrasions; fractured upper left canine porcelain veneer tooth; and fractured right seventh rib. He claimed damages, including exemplary damages and aggravated damages.
2. Mr Bischoff made limited admissions in his defence concerning the circumstances of the altercation and otherwise denied the alleged assaults. He pleaded that he had responded in self-defence to attempts by Mr Sahade to strike him with closed fists and open hands.
3. The limited admission by Mr Bischoff related to the first alleged assault. Mr Bischoff accepted that he had raised his palm towards Mr Sahade and inadvertently touched him on his left forearm when Mr Sahade stretched his arm out towards Mr Bischoff. Mr Bischoff asserted that he held off, but did not grab, Mr Sahade's arm. He further asserted that he otherwise made contact with Mr Sahade whilst he was attempting to evade and defend himself against attacks on him by Mr Sahade.

Malicious prosecution

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

Issues on appeal

1. There are three parts of the appeal. Mr Smith is only concerned with the second part.
2. The first part concerns a challenge to his Honour's findings with respect to Mr Sahade's involvement in the altercation, when dismissing the assault claims against Mr Bischoff (grounds 3, 6 and 7), the injuries alleged to have been suffered by Mr Sahade (ground 1), and his Honour's conclusions with respect to what is shown on the CCTV footage and the photographic stills (ground 8). There is also a challenge to the credit finding with respect to Mr Smith (ground 5).
3. The second part concerns a challenge to his Honour's findings when dismissing the malicious prosecution claims. Those findings were that each of the Bischoffs: (a) was not, relevantly, a prosecutor; and (b) had not acted maliciously and without reasonable and probable cause in providing statements to the police (grounds 10 and 11).
4. The third part concerns a challenge by Mr Sahade to the costs order with respect to the cross-claim (ground 13). Mr Sahade accepted that this ground requires leave, as it was not included in his original notice of appeal.
5. The appellants did not press the malicious prosecution claim against the Bischoffs insofar as it related to the charge of common assault against each of Mr Sahade and Mr Smith concerning the incident at the portico entrance (tcpt CA at 10, lines 34-39). The appellants also did not press grounds 2, 4, 9 and 12.

The primary judge's reasons

1. The primary judge was confronted with conflicting oral testimony of the parties concerning the altercation and its aftermath. He was assisted by the objective evidence contained in the CCTV footage, photo stills and mobile phone camera video recordings. He expressly took into account that it was well-known to all parties that the CCTV cameras would record sound. This was relevant insofar as the audio recording captured some self-serving statements, particularly by Mr Sahade and Mr Smith, that did not reflect the visual images recorded on the CCTV.
2. His Honour reviewed the evidence of Mr Smith, Mr Sahade and Mr and Mrs Bischoff. He found each witness to be unreliable and gave reasons why he did not accept their evidence, except where CCTV evidence supported it. His Honour made some findings in the course of reviewing the parties' evidence, later summarising his factual findings based on the CCTV footage.

Mr Smith

1. His Honour rejected Mr Smith's evidence in chief that Mr Bischoff grabbed Mr Sahade by the wrist and pulled him off the stairs. He accepted Mr Smith's evidence in cross-examination where he agreed that Mr Sahade moved forward off the stairs and came into contact with the outstretched hands of Mr Bischoff.
2. His Honour also accepted part of Mr Smith's evidence concerning the fourth incident, which followed Mr Sahade and Mr Bischoff wrestling on the ground. This was that whilst initially Mr Sahade was on top, Mr Bischoff got on top and on rising: … threw a further punch which would appear probably did make contact with Mr Sahade, but in my view again relates to self-defence from the aggressive movements forward by Mr Sahade as he came across the courtyard towards Mr Bischoff.
3. His Honour made a separate finding that Mr Smith gave untruthful evidence that he had spent the evening at Mr Sahade's premises when giving evidence, although not necessarily in Mr Sahade's company. This finding is the subject of ground 5 although, as will appear, it goes nowhere.

Mr Sahade

1. His Honour found that Mr Sahade's evidence was unreliable in a number of respects, including the extent of damage to his mobile phone caused by the incident; that he was only going forward to prevent further assaults from Mr Bischoff; that he was pulled from the top of the inclinator by Mr Bischoff; and that he was not aggressive.
2. As to the fourth incident, his Honour accepted that as Mr Sahade was getting up off the ground there may well have been a right hand punch by Mr Bischoff to the left hand side of his face, which his Honour had earlier found was thrown in self-defence by Mr Bischoff.

Mrs Bischoff

1. Having viewed the CCTV footage, his Honour did not accept Mrs Bischoff's evidence of kicking by Mr Sahade while he was wrestling with Mr Bischoff on the ground. His Honour found that if there was contact between Mr Sahade's feet or legs and Mr Bischoff, it occurred when they were struggling on the ground and was not intentional. He also found that Mrs Bischoff's statement to police (concerning kicking) was wrong, however he did not consider it was deliberately wrong, given, as she described, the altercation was all a shock to her. His Honour continued: … I am quite certain that from the time of initial contact, that she was emotional and in shock, and as such is not an accurate recorder of that which occurred.

Mr Bischoff

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

Summary of factual findings

1. Having noted that he had viewed the CCTV footage on a number of occasions, including in slow motion, his Honour made the following findings in relation to the altercation and the trespass by Mr Sahade. Then what does the CCTV show? In full speed, you could come to a conclusion that Mr Bischoff had in fact reached out and grabbed Mr Sahade's arms. When viewed in slow movement, this is not so. Mr Sahade projects himself forward, coming into contact with Mr Bischoff's outstretched hand, and there is no doubt that at this time both are angry men [First incident]. Mr Sahade then turns on Mrs Bischoff aggressively, then moved aggressively towards Mr Bischoff. Mr Bischoff throws a punch some metres back from where the initial touching of the right arm, the forearm, had occurred, with Mr Sahade going forward [Second incident]. This immediately preceded that movement, projecting them both onto the courtyard. I am of the view that what occurred was then self-defence by Mr Bischoff, with Mr Sahade being aggressive, however not to the extent that there was violent assault on Mr Bischoff, but there was some degree of violence. Mr Bischoff did get the better of the wrestle on the ground, did get on top, and Mr Smith came in to intervene [Third incident], and that upon Mr Bischoff getting to his feet and Mr Sahade getting to his feet, there was a further punch thrown by Mr Bischoff [Fourth incident]. Whilst Mr Bischoff went to the wall voluntarily, he was assisted. But the assault that he attributed to Mr Sahade at the wall, in my view, did not take place. Although there was a raised arm shown, however it does not show any contact with that raised arm in Mr Bischoff's face. I could not be satisfied on probability that it did. It then shows a further altercation in the courtyard with Mr Sahade again throwing a punch, which again I cannot say on probability connected with the parties then going off, screaming for what would appear to be a considerable amount of time, perhaps as much as 11 or 12 seconds, but I cannot determine. It is at this time when it is alleged that Mr Sahade entered the premises and further assaulted Mr Bischoff. It is of some moment in the determination of these proceedings that the police did not charge Mr Sahade with any assault within the premises. The assaults with which he was charged related to outside the premises and not based on Mr Bischoff's statement. I cannot determine from the CCTV as to whether or not the phone was passed to Mr Sahade in the courtyard on probability. I have looked, attempting to be able to determine it on several occasions, but unsuccessfully. I am satisfied that Mr Sahade did enter the premises of the Bischoffs, although I cannot determine as to whether that was for the recovery of his phone, however I cannot be satisfied on probability that there was any damage suffered to the Bischoffs by such entry, and it was for a very short period of time. I come to that view because of the use of the word by Mr Smith of, "Come out, Anth," the period of time that Mr Smith and Mr Bischoff were absent from the CCTV, and Mr Sahade appears on screen before Mr Smith when next on the CCTV. It then follows that, in relation to the amended statement of claim, the first plaintiff's claim for assault must fail because I am not satisfied on probability that he was assaulted in the manner as alleged in the statement of claim, nor that he suffered the injuries alleged. Mr Sahade would need to prove that there was a striking or touching application of force by Mr Bischoff to him; that it was without his consent; that it was intentional or reckless and was without lawful excuse. In my view, any contact between Mr Bischoff's hand and Mr Sahade has come about with no intention by Mr Bischoff to assault Mr Sahade. I accept this was without Mr Sahade's consent. I do not accept it was reckless, bearing in mind the circumstances that I have found, and I accept that whenever it occurred Mr Bischoff believed it was necessary in order for him to defend himself, and whatever he did was a reasonable response in the circumstances as perceived by him. It also follows that as Mr Sahade has failed in his claim for assault, the claim for exemplary damages for the same must also fail, as does the claim for aggravated damage. [Emphasis added.]
2. In the extract of his Honour's reasons set out above, reference has been added to the first four alleged assaults by Mr Bischoff (set out in [30] above), described as the first to fourth incidents respectively. It seems that his Honour did not make an express finding with respect to the fifth incident, other than when finding that any contact by Mr Bischoff was in self-defence.

Factual challenges

1. Mr Sahade contended that the primary judge's factual findings were erroneous in a number of respects and do not accord with the CCTV footage and the photographic stills.
2. In oral argument, counsel for Mr Sahade focused on the fourth incident which followed Mr Sahade and Mr Bischoff wrestling on the ground. Although Mr Sahade did not abandon his challenge to the findings concerning the other alleged assaults, no oral submissions were made in support of those challenges.
3. The Bischoffs submitted that the conclusion to be drawn from the CCTV footage is that from the time of their initial exchange of words until Mr Bischoff moves into his unit, there is always movement forward by Mr Sahade while he is on his feet, and retreating by Mr Bischoff while he is on his feet, albeit towards the end of the altercation they are still standing.
4. Counsel for Mr Bischoff emphasised that selected extracts of the CCTV footage contained in individual photographs gave an incomplete picture of the events that occurred during the altercation.

Self-defence

1. In written submissions, Mr Sahade submitted that his Honour applied the incorrect test and incorrect onus for the defence of self-defence, being the test and onus under the criminal law in ss 418 and 419 of the Crimes Act 1900 (NSW). After the Court drew to counsel's attention the terms of ss 52 and 53 of the Civil Liability Act 2002 (NSW), counsel for Mr Sahade accepted that these provisions governed the defence of self-defence in the present case. Counsel maintained the submission that his Honour applied the incorrect onus.
2. Counsel for the Bischoffs submitted, without reference to authority, that Mr Sahade had the onus of proof under s 52(2) of the Civil Liability Act of establishing that Mr Bischoff did not believe that his conduct was necessary to defend himself (tcpt CA at 55, line 29-56, line 6).
3. It is convenient first to consider the correct test for self-defence before addressing the challenges to his Honour's factual findings.

Relevant principles - self-defence

1. Sections 52 of the Civil Liability Act provides relevantly: 52 No civil liability for acts in self-defence (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: (a) was unlawful, or (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass.
2. Section 52 of the Civil Liability Act is in similar terms to s 418 of the Crimes Act. This reflects the legislative history of the Home Invasion (Occupants Protection) Act 1998 (NSW) which partially codified the criminal law defence of self-defence and also provided civil immunity for occupants of dwelling houses who acted in self-defence in accordance with the provisions of that Act. The Home Invasion (Occupants Protection) Act was repealed in 2001 and at the same time ss 418 to 423 were inserted into the Crimes Act by the Crimes Amendment (Self-defence) Act 2001 (NSW). Under s 419 of the Crimes Act, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.
3. A similar immunity from civil liability in appropriate cases of self-defence was enacted by s 52 of the Civil Liability Act. Under s 52, the onus of proof is on the defendant to plead and prove, on the balance of probabilities, that the conduct was carried out in self-defence: Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 at [162].
4. There are three elements of the defence under s 52 that are relevant to the present case: 1. the conduct of the other person (Mr Sahade) must have been unlawful; 2. the person (Mr Bischoff) must have believed the conduct was necessary to defend himself; and 3. the conduct must have been a reasonable response in the circumstances.
5. In State of New South Wales v McMaster [2015] NSWCA 228 at [203]-[204], Beazley P (McColl and Meagher JJA agreeing) concluded that the reference to "unlawful" conduct is not confined to criminal conduct but extends to conduct which is tortious, for example, a civil assault. The appellants did not seek to argue to the contrary.
6. Reference should also be made to s 53 of the Civil Liability Act which provides: 53 Damages limitations apply even if self-defence not reasonable response (1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that: (a) the circumstances of the case are exceptional, and (b) in the circumstances of the case, a failure to award damages would be harsh and unjust. (2) If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award: (a) Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B(1)(a), and (b) no damages may be awarded for non-economic loss.
7. The effect of s 53 is that ordinarily no award for damages can be made if the defence of self-defence is not available only because the defendant's conduct was not a reasonable response to the circumstances as perceived by the defendant. However, this is subject to an exception where the Court is satisfied that the circumstances of the case are exceptional and a failure to award damages would be harsh and unjust. Even where the exception applies, s 53(2) limits the recovery of damages.
8. The onus of proof of establishing circumstances sufficient to make out the exception to the damages limitation would seem to be on the plaintiff since the provision operates to prevent a court awarding damages against the defendant, unless the Court is satisfied of the two matters required to make out the exception.

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

1. Having summarised his factual findings, his Honour concluded in the passage set out at [50] above, that Mr Sahade's claim for assault must fail because he was not satisfied, on the balance of probability, that Mr Sahade was assaulted in the manner as alleged in the statement of claim, nor that he suffered the injuries alleged. His Honour continued: Mr Sahade would need to prove that there was a striking or touching application of force by Mr Bischoff to him; that it was without his consent; that it was intentional or reckless and was without lawful excuse.
2. Mr Sahade submitted that this passage revealed error because the reference to Mr Sahade proving that Mr Bischoff's conduct was intentional or reckless, and that it was for Mr Sahade to prove the absence of lawful excuse, involved a reversal of the onus of proof of the defence of self-defence (tcpt CA at 41, lines 19-28).
3. The difficulty with this submission is that it seeks to read one passage of his Honour's reasons in isolation. His Honour continued immediately after this passage as follows: In my view, any contact between Mr Bischoff's hand and Mr Sahade has come about with no intention by Mr Bischoff to assault Mr Sahade. I accept this was without Mr Sahade's consent. I do not accept it was reckless, bearing in mind the circumstances that I have found, and I accept that whenever it occurred Mr Bischoff believed it was necessary in order for him to defend himself, and whatever he did was a reasonable response in the circumstances as perceived by him.
4. Taken in context I do not read his Honour's reasons as incorrectly reversing the onus of proof of the defence of self-defence under s 52 of the Civil Liability Act. Importantly, although his Honour did not expressly refer to s 52 of the Civil Liability Act, the findings he made addressed the elements of self-defence which Mr Bischoff needed to establish.
5. First, it is either implicit in his Honour's finding that Mr Bischoff acted in self-defence or it inexorably follows from that finding that his Honour was satisfied that Mr Sahade's conduct was unlawful, at least as a civil assault. As Taylor J said in Barton v Armstrong [1969] 2 NSWR 451 at 454-455 "[t]he essence of assault is the expectation raised in the mind of the victim of physical contact from threat of the defendant". The tort is made out where an act of a person causes another person to reasonably apprehend a threat of force or violence: Barton v Armstrong at 455; State of New South Wales v McMaster at [205].
6. His Honour found that Mr Sahade aggressively moved off the stairs towards Mr Bischoff, he turned on Mrs Bischoff aggressively and then moved aggressively toward Mr Bischoff and there was "some degree of violence" by Mr Sahade.
7. It was accepted in State of New South Wales v McMaster at [207]-[209], that it is sufficient for a civil assault that the conduct is negligent; it is not necessary to establish that the conduct was intentional or reckless, as is required for the conduct to be criminal. In the present case, Mr Sahade's conduct was, in my view, at least negligent. This may be seen from his Honour's description of Mr Sahade's aggressive conduct and the statements he made to Mr Bischoff, as recorded on the CCTV audio, which included before the second incident "…you're a goner...", "I swear I'll fucking deck you" and "You're a fucking goner". Mr Bischoff's statement to the police also described in paragraph 14, after the incident at the wall, included Mr Bischoff "[f]earing that I was going to be assaulted again".
8. Secondly, his Honour accepted that Mr Bischoff believed that his conduct was necessary in order for him to defend himself. Thirdly, he found that Mr Bischoff's conduct was a reasonable response in the circumstances as perceived by him.

Mr Sahade's factual challenges

1. For the purposes of considering the challenges to his Honour's factual findings, I have viewed the CCTV footage, including in slow motion, the footage of the incidents captured on the mobile phones of Mr Sahade and Mrs Bischoff, together with the still photographs from the CCTV footage.
2. It should be noted that the CCTV footage appears as a series of frozen frames, rather than a flowing moving image. Each frame of the footage is separated by a couple of seconds, with the result being that what is depicted on screen is frozen for a couple of seconds, until the next frame shows what has occurred a couple of seconds later. What occurs between frames is a matter of inference to be drawn from the audio accompanying the film, and what occurred in the frames preceding and following.
3. It is appropriate to address the five incidents in order, as this provides the relevant context for the subsequent incidents. It must be accepted, however, that the primary judge had the very considerable advantage of seeing the relevant witnesses give their oral evidence and was thus able to bring to bear aspects of judgment and appraisal that are simply unavailable to this Court: Fox v Percy [2003] HCA 22; 214 CLR 118 at [23].

The first incident

1. The first incident occurred near the wooden stairs near the inclinator to Mr Sahade's premises, where Mr Sahade and Mr Smith were working. Upon arriving home in her car, Mrs Bischoff walked over to the stairs and began videoing, using her mobile phone, the work being carried out by Mr Sahade and Mr Smith. Mr Sahade responded by videoing Mrs Bischoff using his own mobile phone. A short time later Mr Bischoff walked over to where Mrs Bischoff was standing and told her, in effect, to ignore Mr Sahade. Mr Sahade replied with a very derogatory comment in German directed to Mrs Bischoff. Mr Bischoff handed what appears to be his mobile phone and glasses to his wife. What happened next was controversial. After watching the CCTV footage in slow motion, the primary judge found that Mr Bischoff did not reach out and grab Mr Sahade's arm. He found that the Mr Sahade projected himself forward coming into contact with Mr Bischoff's outstretched hand.
2. His Honour's finding based on the CCTV footage was supported by his separate findings concerning the evidence of Mr Smith and Mr Sahade. As already mentioned, his Honour found that Mr Smith agreed in cross-examination that Mr Sahade had moved forward off the stairs and came into contact with the outstretched hands of Mr Bischoff. In addition, his Honour rejected the evidence of Mr Sahade that he was pulled off the top of the inclinator stairs by Mr Bischoff, and that he was not aggressive.
3. Mr Sahade contends that his Honour should have found that Mr Bischoff rapidly stepped around his wife and grabbed the wrist of Mr Sahade pulling him forward. Reference was made to a still photo taken from the CCTV footage.
4. Having reviewed the CCTV footage, I am satisfied that his Honour's finding as to the incident at the stairs was not erroneous. The CCTV footage shows Mr Sahade moving forward off the top of the stairs with his left arm extended outwards and his left fist clenched. Mr Bischoff takes a step backwards with his right foot. Mr Bischoff's right arm is bent in front of him and is pushing in a downwards direction on Mr Sahade's extended left forearm to deflect Mr Sahade's arm from contacting with him. I would reject the challenge to his Honour's factual finding.

The second incident

1. The second incident occurred after Mr Sahade had stepped off the top of the stairs and advanced towards Mr Bischoff who was retreating across the courtyard. His Honour found that Mr Bischoff threw a punch towards Mr Sahade a few metres back from where the initial incident occurred, that it probably did not connect, and that if there was contact, that this was a reasonable response and thrown in self-defence due to the aggressive moving forward of Mr Sahade.
2. Mr Sahade contends that his Honour should have found that Mr Bischoff punched Mr Sahade with a "right cross", that the punch was thrown after Mr Sahade attempted to move the camera that Mrs Bischoff was holding away from him, that this was not a reasonable response by Mr Bischoff as the punch was thrown before any moving forward by Mr Sahade and the punch was not thrown in self-defence. Reference was made to a still photo taken from the CCTV footage.
3. Reference to the CCTV footage shows that this incident occurred shortly after Mr Sahade lunged towards Mrs Bischoff who was videoing the incident on her mobile phone camera. Mr Bischoff stepped backwards and adopted what seems to be a defensive stance, putting a distance of one or two paces between Mr Sahade and himself. Mr Sahade advanced towards Mr Bischoff with both hands outstretched; his left hand made contact with Mr Bischoff's face and his right hand made contact with Mr Bischoff's upper chest region. Mr Bischoff can be seen leaning backwards, his right arm is raised and bent at the elbow, fist clenched. His forearm is about level with the height of Mr Sahade's face. As his Honour observed, it seems that Mr Bischoff's right forearm comes close to touching Mr Bischoff's face but one cannot be certain. There was no error in his Honour's finding that Mr Sahade was moving forward aggressively. Nor did his Honour err in finding that if Mr Bischoff's right arm contacted with Mr Sahade, it was in the course of Mr Bischoff protecting himself and attempting to fend off the advance of Mr Sahade. The finding that Mr Bischoff's response was reasonable and in self-defence was open to his Honour. No error has been demonstrated.

The third incident

1. The third incident involved Mr Sahade wrestling with Mr Bischoff on the floor of the courtyard in the driveway area. His Honour found that it was the movement forward of Mr Sahade after the second incident, and the force of it, as Mr Sahade moved forward, that propelled Mr Sahade and Mr Bischoff to the ground with Mr Sahade attempting to get Mr Bischoff into a headlock. His Honour also found that Mr Sahade was being aggressive, that Mr Bischoff did get the better of the wrestle on the ground, did get on top, and that Mr Smith came in to intervene. The relevant still photographs covered a time period of about 16 seconds
2. Mr Sahade's statement under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 51.36(2) did not contend for any particular finding of fact in relation to this incident. Nor did Mr Sahade's written submissions specifically address this incident. The Court was invited to view the CCTV footage and photographic stills and accept Mr Sahade's contention that this material objectively supported his claims of assault and battery. Having done so, I do not agree.
3. It can be accepted that Mr Bischoff wrestled with Mr Sahade on the floor of the courtyard. This followed Mr Sahade's attempt to put Mr Bischoff in a headlock whilst both men were standing and again when both men went to the ground with the assistance of Mr Smith. Mr Sahade was the aggressor, and Mr Smith assisted Mr Sahade in pushing Mr Bischoff to the ground. Mr Bischoff eventually got the better of the wrestle before Mr Smith intervened and pushed him backwards.
4. No error has been demonstrated in his Honour's finding that what occurred while Mr Bischoff was wrestling on the ground with Mr Sahade was self-defence.

The fourth incident

1. The incident occurred immediately after Mr Sahade and Mr Bischoff had been wrestling on the ground.
2. His Honour found that on rising from the ground, Mr Bischoff threw a punch "which would appear probably did make contact with Mr Sahade", but was in self-defence from the aggressive movements forward by Mr Sahade as he had come across the courtyard to Mr Bischoff.
3. Mr Sahade contends that this finding is inconsistent with the CCTV footage. It was submitted that the footage shows a "right cross" by Mr Bischoff as he is rising from the floor of the courtyard. Reference is made to a still photo taken from the CCTV footage.
4. The CCTV footage shows Mr Sahade and Mr Bischoff wrestling on the ground. When Mr Bischoff eventually got on top of Mr Sahade, Mr Smith intervenes and pushes Mr Bischoff backwards off Mr Sahade. That push resulted in Mr Bischoff moving backwards and rising to his feet. At this point, Mr Smith and Mr Bischoff are facing each other with Mr Sahade in between the two men, crouched and then rising to his feet also facing Mr Bischoff. Scuffling can be heard on the audio of the CCTV. Both Mr Sahade and Mr Smith can be seen to be moving forward towards Mr Bischoff. Mr Bischoff swings his right arm towards Mr Sahade. Mr Bischoff's body is oriented sideways a little by the diagonal movement forward of his right foot. Mr Sahade's head, which is facing towards Mr Bischoff, does not seem to move as a result of any contact with Mr Bischoff's right arm or fist. In the footage that follows, Mr Bischoff can be seen to be retreating as Mr Sahade and Mr Smith continue their advance with arms outstretched.
5. Contrary to Mr Sahade's submissions, the punch which his Honour found probably made contact with Mr Sahade occurred when Mr Sahade was standing facing Mr Bischoff with Mr Smith behind him. Having regard to his Honour's earlier findings concerning the aggressive movement forward of Mr Sahade across the courtyard towards Mr Bischoff, the circumstances of the wrestling on the ground, Mr Smith pushing Mr Bischoff backwards off Mr Sahade and Mr Sahade rising from the ground, there was no error in his Honour's finding that Mr Bischoff was acting reasonably in self-defence due to the aggressive moving forward of Mr Sahade.

The fifth incident

1. The fifth incident occurred near the portico entrance to the Bischoffs' premises. It is alleged that Mr Bischoff attempted to strike Mr Sahade in the face with his left fist which was blocked by Mr Sahade. Reference was made to a still photograph from the CCTV footage.
2. Mr Sahade contends that the fifth incident occurred before the incident at the wall referred to at [15] above. That may be accepted, having regard to the time lapse as recorded on the still photograph in respect of the fifth incident (3.04) compared to the incident at the wall (which commenced at 3.08) and also the sequence of events recorded on the CCTV footage. The fifth incident occurred shortly after Mr Sahade and Mr Bischoff had been wrestling on the ground.
3. The CCTV footage shows Mr Bischoff retreating towards the portico entrance with Mr Sahade and Mr Smith advancing towards him. Mr Bischoff stops near the portico and adopts a sideways stance appearing to stand his ground about 2 metres away from Mr Sahade, who continues to advance towards him. The next frame (which Mr Sahade relies on as identifying the alleged assault by Mr Bischoff), shows Mr Sahade's outstretched left arm with his left hand hooked behind Mr Bischoff's head and seems to be forcing Mr Bischoff's head in a downwards direction. Mr Bischoff is leaning slightly backwards. His left arm is bent at the elbow, and is pushed away by Mr Sahade. Then Mr Sahade and Mr Bischoff become separated. Mr Smith places a hand on Mr Bischoff and Mr Sahade again advances. Mr Sahade and Mr Smith then both "propelled", as his Honour found, Mr Bischoff to the wall of his residence.
4. Contrary to the submissions of Mr Sahade, the CCTV footage and still photographs do not show a "left cross" by Mr Bischoff which was blocked by Mr Sahade. Mr Sahade advanced towards Mr Bischoff aggressively. Mr Sahade hooked his left hand behind Mr Bischoff's head. Mr Bischoff raised his left arm to fend off Mr Sahade's advance.
5. Although his Honour did not expressly deal with the fifth incident in the summary of his factual findings, he made a global finding that he was not satisfied that Mr Bischoff had assaulted Mr Sahade in the manner alleged in the statement of claim, which included the fifth incident. His Honour found that any contact between Mr Bischoff's hand and Mr Sahade came about with no intention by Mr Bischoff to assault Mr Sahade.
6. If it were necessary to make a finding with respect to this incident, I would find that Mr Bischoff believed that his conduct was necessary to defend himself. Mr Bischoff gave evidence to this effect when cross-examined in relation to the photo of the fifth incident. He said that he raised his left arm to defend himself, to fend off Mr Sahade who kept charging at him. Mr Bischoff's perception of the need to defend himself from Mr Sahade is consistent with the CCTV footage of this incident.
7. In my view, it should be accepted that Mr Bischoff's conduct in attempting to fend off the advancing Mr Sahade, who had pursued him following the wrestling on the ground, was a reasonable response in the circumstances as Mr Bischoff perceived them.

Other matters

1. The failure of Mr Sahade's challenges to his Honour's factual findings makes it unnecessary to address the related grounds of appeal. However, two matters should be noted. First, his Honour's finding that he was not satisfied that Mr Sahade had suffered the injuries alleged is to be understood in the context of his Honour having found the alleged assaults by Mr Bischoff had not occurred.
2. Secondly, the challenge to his Honour's credit finding in respect of Mr Smith does not assist Mr Sahade's case. His Honour's finding that Mr Smith's evidence was unreliable was not dependent upon the credit finding (which Mr Sahade challenged) that Mr Smith gave untruthful evidence that he had spent the evening at Mr Sahade's premises when giving evidence at the trial.
3. His Honour gave a number of reasons for finding that Mr Smith's evidence was unreliable: the inconsistency between Mr Smith's evidence in chief and in cross-examination concerning the first incident and Mr Sahade's aggressive forward movements; the threats of violence towards Mr Bischoff which Mr Smith had expressed to Mr Sahade several minutes before this incident; similar threats of violence expressed to Mr Sahade's son two days before the incident; and Mr Smith's comments recorded on the audio of the CCTV that he would say that Mr Bischoff, in effect, came at Mr Sahade. None of these reasons was challenged on appeal. Nor was it submitted that the finding that Mr Smith's evidence was unreliable was not open to his Honour.
4. Mr Sahade's challenge to his Honour's rejection of his claims of assault and battery by Mr Bischoff should be rejected.

The primary judge's reasons

1. The primary judge found that while there was some unreliability in relation to the evidence of Mr Bischoff and Mrs Bischoff neither was substantially and sufficiently involved in the procurement, institution and/or maintenance of the criminal charges against Mr Sahade and Mr Smith to become prosecutors.
2. His Honour reasoned that it was the police who decided to charge Mr Sahade and Mr Smith, relying partly on the statements provided by the Bischoffs, but after they had interviewed all of the prospective witnesses and viewed the totality of the CCTV footage.
3. His Honour also found that in providing statements to the police, the Bischoffs did not act maliciously or without reasonable or probable cause. His Honour found, contrary to the appellants' case at trial, that the statements were not provided to mislead the police from discovering that Mr Bischoff was the aggressor and to avoid police prosecuting him. Nor was his Honour satisfied that the giving of the statements by the Bischoffs was not done in good faith.

The tort of malicious prosecution

1. The elements of the tort of malicious prosecution are set out in A v State of New South Wales [2007] HCA 10; 230 CLR 500 at [1]. See also Beckett v State of New South Wales [2013] HCA 17; 248 CLR 432 at [4]. In summary, the plaintiff must prove four things: (1) the prosecution was initiated by the defendant; (2) the prosecution terminated favourably to the plaintiff; (3) the defendant acted with malice in bringing or maintaining the prosecution; and (4) the prosecution was brought or maintained without reasonable and probable cause.
2. There was no issue in the present case as to the second element. What was put in issue at trial, and again on appeal by grounds 10 and 11, is whether the Bischoffs were prosecutors, and if so, whether they acted maliciously and without reasonable and probable cause in making certain statements to the police.
3. Counsel for the appellants acknowledged that if the first element of the tort was not established - that the Bischoffs were prosecutors - then the remaining elements did not arise for consideration (tcpt CA at 27, lines 6-10).
4. Although the focus of grounds 10 and 11 was the assertion that the Bischoffs had instigated the prosecutions by giving allegedly false statements to the police, counsel for the appellants also contended that the Bischoffs had maintained the prosecution against Mr Sahade by giving evidence before the Local Court. Counsel accepted that the Bischoffs' could not have maintained the prosecution against Mr Smith in respect of whom the prosecution was withdrawn (tcpt CA at 5, lines 1-3).
5. No objection was taken by counsel for the Bischoffs to the maintenance issue being outside the grounds of notice of appeal relied upon by Mr Sahade. I proceed on this basis. As has been already noted, his Honour dealt with the maintenance issue and found that the Bischoffs had not maintained the prosecutions against either Mr Sahade or Mr Smith at trial.

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

Instigation of a prosecution

1. In A v State of New South Wales at [34], the High Court pointed out that "[t]he identification of the appropriate defendant in a case of malicious prosecution is not always straightforward." The joint judgment continued: "[t]o incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion" (citing John G Fleming, The Law of Torts, (9th ed 1998, Law Book Company Information Services) at 676). Their Honours referred at [35] to Martin v Watson [1996] AC 74, a case involving a complaint made to the police: In Martin v Watson, a woman made an allegation that her neighbour had indecently exposed himself to her whilst standing on a ladder in his garden. She went to a police station and complained. A detective constable laid an information against the neighbour. At a hearing before the Magistrates' Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed. The House of Lords held that, since the facts relating to the alleged offence were solely within the complainant's knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her. The complainant had 'in substance procured the prosecution' [at 89]. The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation [at 89]. Lord Keith of Kinkel quoted with approval a statement by McMullin J in the Court of Appeal of New Zealand [Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 at 207-208], that a person may be regarded as the prosecutor if he puts the police in possession of information which virtually compels an officer to bring a charge.
2. Earlier Dixon J in Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 56; 53 CLR 343 at 379, in a passage which was referred to by Lord Keith in Martin v Watson at 81, referred to the criteria by which a complainant to the police may be said to have instigated the prosecution: It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority … . But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible … . The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him. [Citations omitted.]
3. Notwithstanding the reference by Dixon J to "joint wrongdoers" in the passage set out in the preceding paragraph, it is not a necessary condition for the effective pursuit of an action for malicious prosecution that the actual prosecutor himself or herself was party to the wrongdoing: Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 at [39]-[40] (Basten JA). His Honour noted that the authorities for this proposition included Commonwealth Life Assurance Society Ltd v Brain at 379 and 381-382 (Dixon J) and Mahon v Rahn (No 2) [2000] 1 WLR 2150 at [255].
4. In Mahon v Rahn (No 2) at [266], Brooke LJ (Mantell and Laws LJJ agreeing) noted that in Martin v Watson at 84, Lord Keith also relied on the Restatement of the Law, Torts, 2d (American Law Institute, 1977), s 653, which deals with the matter in this way: When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this section even though the information proves to be false and his belief was one that a reasonable man would not entertain. The exercise of the officer's discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings. If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information. In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official's decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false.
5. Brooke LJ drew a distinction (at [268]) between a "simple" case involving a complaint to the police, like Martin v Watson, and more complex cases in which the prosecuting authority is in receipt of evidence from a variety of sources and has to decide in the exercise of its discretion whether it is in possession of sufficient evidence to justify setting the law in motion against the defendant.
6. Brooke LJ posed the following questions for determination (at [269]) with respect to a "simple" case: (1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A's knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both?
7. It has been said that one should never assume that tainted evidence persuaded the police to prosecute: Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 at 199 (Richardson J). His Honour continued (at 199): In some very special cases, however, the prosecutor may in practical terms be obliged to act on apparently reliable and damning evidence supplied to the police.
8. These statements reflect public policy considerations that members of the community should be encouraged to aid the police in their function of investigating and prosecuting breaches of the criminal law without fear of being harassed by actions of malicious prosecution. This consideration, together with the independent discretion exercised by prosecutors, led Richardson J to conclude that the circumstances in which third parties are to be regarded as having instigated a prosecution should be "rare and exceptional" (at 199). It is unnecessary to go so far in the present case. It can be accepted that there is a need for caution even in a "simple" case in determining what persuaded the police to prosecute.

Maintenance of a prosecution

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

The Bischoffs did not instigate the prosecutions

1. The stated premises of grounds 10 and 11 are that the statements given by the Bischoffs to the police were false and objectively false by reference to the CCTV footage. These grounds asserted that his Honour should have found that the Bischoffs' statements were deliberately false.
2. Counsel for the appellants also contended that the police were not able to assess the truthfulness of the information provided by the Bischoffs and did not in fact do so (tcpt CA at 6, lines 19-27).

The allegedly false statements given to police

1. In oral argument, counsel for the appellants focussed on the parts of the written statements given by the Bischoffs in relation to the incident at the wall. (This incident was the subject of the first and third assault charges against Mr Smith and Mr Sahade.) Although joined in the one appeal, the claims of Mr Sahade and Mr Smith of malicious prosecution must be considered individually.
2. Reference was also made to Mrs Bischoff's "kicking" allegation against Mr Sahade, when Mr Sahade and Mr Bischoff were wrestling on the ground. This was relied upon by the appellants only in relation to Mrs Bischoff's credit. No charge was brought against Mr Sahade in respect of the kicking allegation. Nor was it suggested that this statement by Mrs Bischoff caused the police to instigate the prosecutions.

Mr Bischoff

1. Counsel for the appellants placed reliance on paragraphs 12 and 13 of Mr Bischoff's statement (concerning Mr Sahade punching Mr Bischoff at the wall in the presence of Mr Smith). The critical statement in paragraph 13 was as follows: Anthony has continued to punch me as I stood motionless against the wall.
2. While this statement made no reference to Mr Smith being present at the wall, Mr Bischoff gave evidence to that effect during the Local Court prosecution against Mr Sahade. The alleged falsity of the statement concerns the reference to Mr Sahade punching Mr Bischoff at the wall.
3. Counsel also referred to paragraph 14 (concerning a later incident inside Mr and Mrs Bischoff's unit). This paragraph may be put aside as it related to the common assault charge against each of Mr Sahade and Mr Smith. As already noted, counsel for the appellants did not press the malicious prosecution claim with respect to this charge (see [40] above).

Mrs Bischoff

1. Counsel for the appellants placed reliance on paragraphs 15, 16 and 18 of Mrs Bischoff's first statement and paragraph 5 of her second statement.
2. Paragraphs 15 and 16 concerned the "kicking" statement by Mrs Bischoff. The critical statement in paragraph 16 was as follows: I saw the worker appear to be still holding down Eckart [Mr Bischoff] while I saw Anthony [Sahade] kicking and punching Eckart but I don't know exactly how many times or with what leg or fist he was using.
3. Paragraph 5 of Mrs Bischoff's second statement relating to the incident at the wall was follows: The worker stood behind Eckart and Anthony punched Eckart to the left side.
4. It was not suggested that Mrs Bischoff's reference to the presence of the "worker", Mr Smith, was false. The alleged falsity of this statement only concerned the reference to Mr Sahade punching Mr Bischoff to the left side.
5. Reference was also made to paragraph 18 of Mrs Bischoff's first statement, which like paragraph 14 of Mr Bischoff's statement concerned a later incident under the portico entrance to the Bischoffs' unit. As is noted above, the appellants did not ultimately rely on this conduct in relation to the malicious prosecution claims (tcpt CA at 10, lines 34-39).
6. Counsel for the appellants accepted in oral argument that his Honour did not find that either Mr or Mrs Bischoff gave a deliberately false statement to the police concerning the incident at the wall, or the "kicking" allegation. The appellants' argument on appeal was that the judge should have made such a finding.
7. Three observations should be made. First, his Honour was best placed to assess the reliability and truthfulness of the parties having seen them give their evidence. That his Honour did not accept the reliability of parts of the Bischoffs' statements to the police does not mean that their police statements were false. Nor, contrary to the appellants' contentions, does the CCTV footage demonstrate that the Bischoffs' statements were objectively false. The relevant footage is analysed below at [144]-[147].
8. Secondly, this Court is not in a position to make a credit finding that the Bischoffs' statements to the police were deliberately false. The best the appellants could achieve is a new trial on this part of the case, if it appears to the Court that some substantial miscarriage of the trial has occurred: UCPR r 51.53.
9. Thirdly and importantly, the relevant facts were not so exclusively within the Bischoffs' knowledge that it was virtually impossible for the police to exercise any independent discretion to prosecute the appellants.
10. The incident at the wall was captured by the CCTV cameras and the police viewed the footage and obtained statements at the premises from the parties before charging Mr Sahade and Mr Smith later that night. The police were not compelled to lay the charges based on information exclusively in the Bischoffs' knowledge. The present case is distinguishable from cases such as State of New South Wales v Abed [2014] NSWCA 419 where the only person who could directly testify about the alleged incident (an alleged break and entry into the complaint's home and an assault) was the complainant herself. Here the police were able to test the truthfulness of the information in the Bischoffs' statements against the CCTV footage.
11. Further, it may be inferred that the police did form their own independent judgment as to what occurred, based on the CCTV footage. Importantly, in relation to the incident at the wall, the facts sheet records what the police observed and also heard on the audio from the CCTV footage in the following terms: The accused and co-accused then take a hold of the victim and force him against a wall. The victim at this point has both of his hands up against the wall. The accused continues to throw punches at the victim, whilst the victim is yelling, "Stop it."
12. In addition, shortly after arriving at the premises the police indicated that they would "get to the bottom of this today". The context was that the police had been called to the premises for the third time in three days. The CCTV audio also records Senior Constable Lucock later informing the parties that he had viewed the CCTV footage of the whole altercation and could hear what was being said by the parties on the audio, before placing the appellants under arrest.
13. In my view, his Honour did not err in concluding that the Bischoffs were not the prosecutors, in the sense of being the instigators of the prosecutions by the police.

The Bischoffs did not maintain the prosecution of Mr Sahade

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

Incident at the wall

1. His Honour observed a raised arm of Mr Sahade on the CCTV footage; however he was not satisfied on the balance of probabilities that there was contact with Mr Bischoff's face during the incident at the wall. Although this finding was confined to contact with Mr Bischoff's face I would not read it so narrowly. His Honour should be taken not to have been satisfied that Mr Sahade made any contact with Mr Bischoff at the wall.
2. Against this, the CCTV footage shows: (a) Mr Bischoff facing the wall of his residence with his hands raised above his head as in an act of surrender; (b) Mr Sahade and Mr Smith physically restraining Mr Bischoff at the wall; and (c) Mr Sahade's right arm swinging towards Mr Bischoff on at least two occasions and making contact on a third occasion. The three actions by Mr Sahade are also partly captured in the photo stills of the CCTV footage.
3. In the first incident, Mr Sahade can be seen on Mr Bischoff's left side with Mr Smith on the right side holding Mr Bischoff who is facing the wall. Mr Sahade is standing sideways to Mr Bischoff, legs spread, his right arm is raised in a cocked position, fist clenched, making a downward movement towards the side of Mr Bischoff's left side around the head or neck region.
4. In the second incident, Mr Sahade can again be seen standing sideways to the left of Mr Bischoff whose head is facing right towards Mr Smith. Mr Sahade's right arm is bent at the elbow, his fist is clenched and is very close to making contact with Mr Bischoff's ribs.
5. In the third incident, Mr Sahade's right arm can be seen to have grabbed Mr Bischoff's shirt by the left collar or sleeve near the shoulder region.
6. Although the freeze-frame CCTV footage does not depict actual contact with Mr Bischoff on the first two occasions, it was well open to his Honour to reach the conclusion that Mr Bischoff's statement to the police was not false having regard to the circumstances of the altercation, the nature of Mr Sahade's actions and the closeness of his right arm and hand to making contact with Mr Bischoff's left side.

Evidence before the Local Court

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

Mr Bischoff

1. Reference was made to Mr Bischoff's evidence in chief before the magistrate as follows: Q. What happened next? A. The timeframe might be five or 15 seconds, I don't know, there was a kerfuffle that continued and I then got to the wall of our property and at the wall of the property I put both my hands against the wall. Q. How did you get to the wall of the property? A. I was backing off from being pursued and to me it was one decision that, you know, I guess anyone of my age would think we are past talking to each other with fists. I moved backwards and I then put my hands against the property wall at which time this other person did again say, "Get away, stop fighting" and my comment was "What fighting, who is fighting here?" I got some serious blows delivered to my rib cage and I did not respond to that at any time. A little later he said: "I received further good blows into my ribcage", but "it was more to the left" and that there were "[t]wo, three, four".
2. Counsel for the appellants accepted that the CCTV footage showed that Mr Bischoff had backed away, turned and faced the wall and put his hands up against the wall. Counsel submitted that the reference by Mr Bischoff to receiving "further good blows to [his] rib cage, two, three or four" was false evidence given by him in support of charges 1 and 3 against Mr Sahade (tcpt CA at 14, lines 20-22; 15, line 4) and charges 2 and 3 against Mr Smith (tcpt CA at 14, line 46; 15, line 4).
3. At trial in the District Court, it was put to Mr Bischoff in cross-examination that his evidence before the magistrate that Mr Sahade punched him at the wall at least two, three or possibly four times was not true. Mr Bischoff responded that it was true. Cross-examination was then directed to raising doubt that Mr Bischoff was punched at the wall, because he did not fall or gasp or scream at the blows he said had been delivered by Mr Sahade to his rib cage. Mr Bischoff said "I didn't fall. I might have bend" and "I did not scream". It was also suggested to Mr Bischoff that he made no complaint at all that he was punched at the wall. Mr Bischoff replied that he had told the police. This answer was consistent with paragraph 13 of his police statement (set out above at [24]). Importantly, it was not suggested to Mr Bischoff in cross-examination that he gave evidence before the magistrate which he knew to be false. This is fatal to Mr Sahade's contention that Mr Bischoff falsely maintained the prosecution against him in the Local Court.

Mrs Bischoff

1. Next, counsel for the appellants referred to the cross-examination of Mrs Bischoff before the magistrate concerning the circumstances in which she came to make her second statement, and in particular paragraph 5, dealing with the incident at the wall. Mrs Bischoff gave the following evidence in cross-examination: Q. No, quite, so when you say they were really beating him up, that was when he was up against the wall, is that right? A. That's right. Q. When you use the word "beating" how do you describe the beating Mr Sahade was giving your husband? A. Well because my husband had his hands on the wall, he wasn't able to use them to defend the blows, therefore he was being beaten. Q. By Mr Sahade? A. By Mr Sahade. Q. And Mr Smith? A. No, it was mainly Mr Sahade. Mr Smith acted more like a holder. and Q. So it was obvious to you that your husband, defenceless as he was with both hands up against the wall, was being beaten by Mr Sahade whilst Mr Smith was holding him? Is that right? A. Yes. Q. How long was Mr Sahade beating your husband whilst Mr Smith was holding him? A. I recollect about three blows and I was calling out "They are attacking him." That's when I turned and went to ring the police and saw that the phone was at the top of the stairs so I could ring them straight away.
2. At the time of the incident at the wall, Mrs Bischoff was standing near the portico entrance to her residence. She had a sideways view of what was occurring. Mr Sahade was standing near the wall with his back facing her. Mr Bischoff was facing the wall standing between Mr Sahade and Mr Smith. An observer in Mrs Bischoff's position looking at Mr Sahade's actions from behind, could reasonably have concluded that Mr Sahade's right arm made contact with Mr Bischoff's left side.
3. The cross-examination of Mrs Bischoff at trial put the matter no higher than that Mrs Bischoff had no recollection of seeing any punches thrown by Mr Sahade during the incident at the wall. Mrs Bischoff responded: "That's incorrect".
4. Counsel for Mr Sahade accepted that Mrs Bischoff was not directly challenged at trial that she gave evidence before the Local Court concerning the incident at the wall which she knew to be was false (tcpt CA at 19, lines 20-31). That concession was properly made. This is fatal to Mr Sahade's contention that Mrs Bischoff falsely maintained the prosecution against him in the Local Court.
5. Nonetheless, counsel for the appellants sought to rely upon the "kicking" statement by Mrs Bischoff to challenge her credit generally. I turn to this challenge to her evidence.

The "kicking" allegation

1. It was submitted that the "kicking" statement showed Mrs Bischoff's general disposition to give false evidence to procure the outcome of the prosecution (tcpt CA at 16, lines 1-3). Counsel acknowledged that the primary judge made a finding to the contrary - that Mrs Bischoff's "kicking" statement was not deliberately wrong. His Honour found that Mrs Bischoff was emotional and in shock, and as such was not an accurate recorder of that which occurred at the time.
2. Reference was made to the cross-examination of Mrs Bischoff before the magistrate, where she was asked whether the kicking of Mr Sahade "was in the plural?". She answered "I presume so, it's hard to see the scuffle". She also gave evidence that she saw Mr Bischoff being kicked on his "body" whilst he was on the ground.
3. Reference was also made to the cross-examination of Mrs Bischoff at the District Court trial concerning her evidence given before the magistrate. When pressed on the issue of "kicking", Mrs Bischoff gave the following evidence: A. I saw legs flailing and I certainly saw his leg contact with my husband on the ground. and later Q. Where do you say you saw Anthony kicking your husband? A. I don't recall. Q. You don't recall at all? A. No. Q. You didn't really recall at the criminal trial either, did you? A. I can't recall exactly my answers in the criminal trial. You will have to tell me exactly what I said but I don't recall the exact. As you can see in the video I was also calling for help at that stage.
4. Mrs Bischoff described the wrestling on the ground as a "melee", she said that she could not recall Mr Bischoff being "kicked by Mr Sahade while he was on the ground", though she saw Mr Sahade's leg come in contact with her husband and "when a leg hits something I consider that kicking". Mrs Bischoff denied that she had told the police she saw Mr Sahade kicking Mr Bischoff with the intention of influencing the police to take steps against Mr Sahade. She also denied that her statement to the police concerning the kicking was simply false.
5. Counsel for the appellants submitted in this Court that Mrs Bischoff rather adroitly, and successfully, before his Honour redefined the expression "kicking" (tcpt CA at 21, lines 17-22). It can be seen from the CCTV footage, that Mr Sahade and Mr Bischoff were scuffling across the courtyard and wrestling on the ground. His Honour found that if there was contact between Mr Sahade's feet or legs and Mr Bischoff, it occurred when they were struggling on the ground and was not intentional. Counsel for the appellants did not submit that his Honour's finding that Mrs Bischoff's "kicking" statement was not deliberately wrong, was erroneous by reason of incontrovertible facts or uncontested testimony or that the finding is glaringly improbable or contrary to compelling inferences: Fox v Percy at [28]-[29]. The appellants have not shown that the primary judge's conclusion with respect to Mrs Bischoff's evidence should be set aside.
6. Accordingly, the appellants have failed to make out their contention that the Bischoffs maintained the prosecution against Mr Sahade by giving deliberately false evidence before the magistrate.
7. In summary, the appellants have failed to show error by his Honour in finding that the Bischoffs were not prosecutors either in the sense of instigating the prosecutions against the appellants, or maintaining the prosecution in the Local Court against Mr Sahade. This conclusion is sufficient to dispose of the appeal against the rejection of the malicious prosecution claims. It is unnecessary to address the appellants' separate challenges to his Honour's findings that in providing the statements to the police the Bischoffs had not acted maliciously and without reasonable or probable cause.

C. Costs (ground 13)

1. The primary judge awarded the Bischoffs 50% of their costs on the cross-claim. Mr Sahade sought leave at the hearing to add a further ground of appeal which asserted that his Honour erred in making this costs order (ground 13). The Bischoffs did not oppose the amendment to the notice of appeal and in these circumstances I grant leave to add ground 13.
2. The parties did not direct argument as to whether leave to appeal was required in respect of ground 13, being an appeal from a judgment as to costs only: Supreme Court Act, s 101(2)(c). The unstated assumption of the appellants seems to have been that the amended notice of appeal otherwise included substantive grounds involving a matter in issue with a value not less than $100,000 and accordingly is not an appeal as to costs alone and does not require leave: Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 at [200]; Dasreef Pty Limited v Hawchar [2010] NSWCA 154 at [61] following Wheeler v Somerfield [1966] 2 QB 94. See also Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128; 80 NSWLR 652 at [129]; Dillon v Gosford City Council [2011] NSWCA 328 at [53]-[56].
3. In the absence of argument to the contrary I am prepared to assume, without deciding, that leave to appeal is not required in respect of ground 13.
4. To successfully challenge his Honour's discretionary decision with respect to costs, it is necessary for Mr Sahade to establish error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499.
5. It was not suggested that his Honour had applied incorrect principles, misunderstood the facts, took into account irrelevant considerations, or failed to take into account any relevant consideration. Mr Sahade relies upon the last kind of error identified in House v The King at 505, that the decision was "unreasonable or plainly unjust", such that this Court may infer that in some way there has been a failure by the primary judge to exercise the discretion with respect to costs.
6. Mr Sahade pointed to two matters. First, that the award of costs far exceeds the amount of the Bischoffs' judgment on the cross-claim of $500. Secondly, that the Bischoffs' cross-claim for aggravated and exemplary damages was unsuccessful. Mr Sahade submitted that no costs should have been awarded on the Bischoffs' cross-claim. In my view, neither of these matters demonstrated that the costs order on the cross-claim was plainly unjust.
7. The Court has a discretion to determine, relevantly, to what extent costs are to be paid: Civil Procedure Act 2005 (NSW), s 98(1). The general rule is that costs follow the event unless it appears to the Court that some other order should be made as to whole or any part of the costs: UCPR r 42.1.
8. Here, the primary judge made an order for costs reflecting his assessment of the degree of success achieved by the Bischoffs on the cross-claim. It can be accepted that the award of general damages was very modest. Nonetheless, the Bischoffs succeeded in proving the trespass by Mr Sahade. That outcome warranted an order for some costs in their favour. Having heard the evidence and seen the trial unfold his Honour was best placed to make that assessment.
9. It is not to the point, as Mr Sahade contended, that the Bischoffs' costs might have been possibly capped if the Bischoffs' cross-claim had been brought in the Local Court. The Bischoffs' choice of jurisdiction for their claim was entirely reasonable in circumstances where Mr Sahade had commenced proceedings against them in the District Court in relation to essentially the same subject matter.
10. No basis has been shown for interfering in his Honour's discretionary decision with respect to the cross-claim.

The Bischoffs' Cross-Appeal

1. The Bischoffs sought leave to cross-appeal with respect to the award of damages of $500 for trespass and the costs orders in their favour. By their cross-summons, the Bischoffs sought an award of damages of $80,000. As already mentioned, leave to appeal is required insofar as the judgment involves a matter at issue of a value less than $100,000, or as to costs only: Supreme Court Act, s 101(2)(r) and (c).
2. At the hearing, the Bischoffs sought leave to file an amended cross-summons seeking to increase the award of damages against Mr Sahade to $100,000. The proposed amendment reflected the position taken in the Bischoffs' written submissions that the award of damages for trespass should be increased to $100,000 (not $80,000 as sought in the draft notice of cross-appeal) comprising general damages of $25,000, aggravated damages of $25,000 and exemplary damages of $50,000.
3. The cross-respondents, Mr Sahade and Mr Smith, opposed the grant of leave to cross-appeal and Mr Sahade also opposed the grant of leave to amend the cross-summons.
4. Despite the increased claim for damages of $100,000, the Bischoffs' amended cross-summons was advanced on the express basis that leave to appeal was required under the Supreme Court Act, s 101(2)(c) and (r). Counsel for the Bischoffs adhered to that position in oral argument (tcpt CA at 56, lines 22-28). It is appropriate to proceed on this basis.

Damages

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

General damages

1. The primary judge found that Mr Sahade entered the home of the Bischoffs for a very short time and no damage was occasioned to the Bischoffs. He could not determine whether the entry into their home was for the recovery of Mr Sahade's phone. It was common ground that Mr Sahade proceeded a metre or two inside their home and the period of entry was approximately 13 seconds (tcpt CA at 56, lines 39-40).
2. The present case is distinguishable from cases such as Plenty v Dillon and New South Wales v Ibbett [2006] HCA 57; 229 CLR 638. In those cases the trespass was not only deliberate but attended by circumstances of aggravation, namely, the defendants entered as police officers in purported exercise of intrusive powers. In Plenty v Dillon the question of quantum of damages was remitted by the High Court. In New South Wales v Ibbett the High Court dismissed the State's appeal against the decision of the majority of this Court (Spigelman CJ and Basten JA; Ipp JA dissenting) to uphold, relevantly, the trial judge's award for trespass of $10,000 in general damages, $20,000 for aggravated damages and $20,000 for exemplary damages.
3. The circumstance of aggravation which justified a substantial award of damages in Dillon v Plenty and New South Wales v Ibbett is absent from the present case. While Mr Sahade's entry into the Bischoffs' residence was a deliberate entry without consent, it was only for a very short period of time and the physical extent of the entry was quite small. The trespass would justify some modest damages in vindication of the Bischoffs' right to exclude, but not any significant award.
4. It was well open to his Honour in the circumstances to make a very modest award of general damages for the trespass. The Court should not interfere with his Honour's assessment of general damages merely because, if placed in his Honour's position, a slightly higher award (but not significantly higher) might have been made by another judge.

Aggravated and exemplary damages

1. The principles concerning the award of aggravated and exemplary damages were summarised by Sackville AJA in State of New South Wales v Zreika [2012] NSWCA 37 at [60]-[64]. It is unnecessary to repeat what was said there. In short, aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant's wrongdoing. Exemplary damages are awarded to punish or deter the wrongdoer: New South Wales v Ibbett at [31] and [33], citing with approval Taylor J in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 at 129-130.
2. With respect to aggravated damages, the Bischoffs' cross-claim pleaded that the Bischoffs were seriously shocked, injured in their feelings and person, and humiliated by the trespass and that by reason of the trespass they remain in fear of further personal violence and intrusions upon their home by Mr Sahade.
3. In State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 Hodgson JA noted that in cases where the wrongful conduct is trespass to land, for which damages for psychological injuries are not generally awarded, one can say that aggravated damages are compensatory damages for injury to the plaintiff's feelings by the manner of the trespass, which would not otherwise have been awarded: at [128].
4. The primary judge found in the first judgment that "much of the emotional fraught and injuries [of] which Mrs Bischoff complains and the injuries of which Mr Bischoff complains would have been occasioned by that which occurred outside in the courtyard" and that "no damage has been established on probability by the defendant/cross-claimants in relation to the cross-claim".
5. On the re-opening application with respect to the cross-claim, the Bischoffs repeated their earlier submissions on damages. They did not submit that the primary judge should make different factual findings to those in his first judgment. The damages awarded by the primary judge were on the basis that there was an entry by Mr Sahade, hence a trespass without any circumstance of aggravation.
6. With respect to exemplary damages, the onus was on the Bischoffs to prove that Mr Sahade acted in contumelious disregard of their rights: Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 8; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; 155 CLR 448 at 471 (Brennan J). The Bischoffs did not establish that Mr Sahade's entry into their home was "malicious and out of spite" as alleged in their cross-claim. Nor did they obtain a finding that Mr Sahade did not enter their home to retrieve his phone which he believed that Mr Bischoff had taken,.
7. Ordinarily, leave to appeal is only granted where there is an issue of principle or question of general public importance, or where it is reasonably clear that there has been an injustice which in the circumstances should be addressed. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong. The relevant principles are stated, and authorities referred to in Lee v New South Wales Crime Commission [2012] NSWCA 262; 224 A Crim R 94 at [12]; Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397. Where a disproportionate amount of time and cost will be involved, that is a factor tending against the grant of leave: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [37]-[39]. Where the amount in issue is below the threshold of $100,000, the need for restraint in granting applications for leave to appeal must also be kept firmly in mind: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69.
8. In the present case, it was not suggested that any issue of principle or public importance was involved. Rather, the Bischoffs base their application for leave to appeal on the injustice or unfairness of the very modest damages awarded by his Honour. However, no unfairness has been established in circumstances where the challenge to his Honour's assessment of general damages involves only a small amount and no arguable error has been demonstrated. The challenge to his Honour's refusal to award aggravated or exemplary damages also involves relatively small amounts, which are disproportionate to the costs of the 8 day trial and the incurring of additional costs on appeal, and no arguable error has been shown in his Honour's factual findings for rejecting these claims.
9. Leave to cross-appeal with respect to damages should be refused.

Costs orders at trial

1. The Bischoffs complain that the primary judge ordered Mr Sahade and Mr Smith to pay only 80% of their costs of the hearing of the amended statement of claim and that Mr Sahade pay only 50% of their costs of the cross-claim (grounds 2(a) and 2(b)).
2. It was not suggested that these grounds raised any issue of principle or question of general importance. In their written submissions, the Bischoffs asserted that there was no proper basis for his Honour to "order otherwise" under UCPR r 42.1 and reduce their costs entitlement on the amended statement of claim. While accepting the discretionary nature of the determination as to costs, it was contended that his Honour's costs decision was exceptional and this Court should intervene. That contention should be rejected.
3. The primary judge gave reasons for reducing the Bischoffs' costs in defending the amended statement of claim to 80% and their costs of the cross-claim to 50%. Those reasons included that the Bischoffs declined mediation on two occasions, and had also declined offers of settlement in circumstances where the Bischoffs' ultimate success in the proceedings was not materially different from the offers. Most relevantly, the Bischoffs had declined an offer that both claims be discontinued and that there be no order as to costs.
4. His Honour also took into account the Bischoffs' failure to establish the totality of their allegations on the cross-claim. The Bischoffs submitted that the result of the litigation was a victory for the Bischoffs on all major issues on the claim and cross-claim, and that the judge misapprehended or misapplied the law. That submission is untenable.
5. The Bischoffs failed on a substantial component of their cross-claim for damages for trespass and this was a relevant matter for his Honour to take into account. The Bischoffs failed to prove that an assault occurred inside their house, that the trespass was malicious and out of spite and that there should be an award of aggravated or exemplary damages. His Honour was best placed to assess the extent to which costs in favour of the Bischoffs as the successful party should be reduced because of their failure on particular issues.
6. No basis has been demonstrated for interfering in the costs orders made at trial in favour of the Bischoffs. Leave to cross-appeal with respect to the cost orders should be refused.

Conclusion and orders

1. The appeal by Mr Sahade and Mr Smith has failed and must be dismissed.
2. The Bischoffs' application for leave to amend the cross-summons should be refused and the cross-summons for leave to cross-appeal should be dismissed.
3. The parties requested that whatever the outcome of the appeal and cross-summons, they be given an opportunity to make further submissions as to costs (tcpt CA at 59, lines 14-19). The orders which are proposed make provision in that regard.
4. Accordingly, I propose the following orders: (1) Grant leave to the appellants to file an amended notice of appeal in the form appearing in the Orange Book. (2) Direct the appellants to file an amended notice of appeal within fourteen (14) days. (3) Appeal dismissed. (4) Leave to file an amended cross-summons refused. (5) Cross-summons for leave to cross-appeal dismissed. (6) Reserve all questions of costs in this Court. (7) In default of agreement as to costs, direct: (a) the appellants to file and serve within 28 days of the date of these orders their proposed short minutes of order on the issue of costs and any supporting affidavits, together with written submissions not to exceed 4 pages; (b) the respondents to file and serve their proposed short minutes of order the issue of costs and any supporting affidavits, together with written submissions not to exceed 4 pages within 14 days after service of the appellants' submissions contemplated by the previous order; (c) the appellants to file and serve any written submissions in reply not to exceed 2 pages within 10 days after receiving the respondents' submissions. (8) Direct that the Court determine any issue as to costs on the papers.
5. BEECH-JONES J: I agree with Gleeson JA and the orders his Honour proposes.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2015