Sahade v Bischoff [2015] NSWCA 418

Sahade v Bischoff [2015] NSWCA 418

The appeal failed as the primary judge's factual findings regarding assault, self-defence, and malicious prosecution were not in error. The Bischoffs did not instigate or maintain the criminal prosecutions and did not act maliciously or without reasonable and probable cause. The damages award for trespass was properly modest, and no error was shown in refusing aggravated or exemplary damages or in costs orders. Leave to cross-appeal was refused.

Jurisdiction
Australia
Judgment Date
23 December 2015
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed; leave to cross-appeal refused
Legal Topics
['assault' 'malicious Prosecution' 'trespass' 'self Defence' 'damages' 'costs']
['torts' 'civil Procedure' 'criminal Law'] ['assault' 'malicious Prosecution' 'trespass' 'self Defence' 'damages' 'costs']

Case Brief

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Procedural Posture

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ["Whether primary judge's factual findings concerning alleged assaults by respondent erroneous" 'Whether primary judge correctly applied the test and onus for self-defence under s 52 Civil Liability Act 2002 (NSW)' 'Whether respondents instigated prosecution by knowingly making false statements to police' 'Whether respondents maintained prosecution by giving deliberately false evidence' 'Whether primary judge erred in awarding general damages of $500 for trespass' 'Whether there were circumstances justifying a substantial award of general damages' 'Whether refusal to award aggravated or exemplary damages was erroneous']

Ratio Decidendi

The appeal failed as the primary judge's factual findings regarding assault, self-defence, and malicious prosecution were not in error. The Bischoffs did not instigate or maintain the criminal prosecutions and did not act maliciously or without reasonable and probable cause. The damages award for trespass was properly modest, and no error was shown in refusing aggravated or exemplary damages or in costs orders. Leave to cross-appeal was refused.

Court Disposition

Appeal dismissed; leave to cross-appeal refused

Orders

  • ['Grant leave to appellants to file an amended notice of appeal' 'Direct appellants to file amended notice of appeal within fourteen days' 'Appeal dismissed' 'Leave to file amended cross-summons refused' 'Cross-summons for leave to cross-appeal dismissed' 'Reserve all questions of costs in this Court' 'Directions...