AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 21 February 2023

MCCABE v RIECHELMANN

[2023] NSWDC 44

Assault & violence
TORTS BATTERY SELF DEFENCE ASSAULT EVIDENCE STANDARD OF PROOF

Citation: McCabe v Riechelmann [2023] NSWDC 44
Court: District Court of New South Wales
Date: 21 February 2023
Judge: Dicker SC DCJ

Background

The plaintiff and the defendant were drawn into conflict through a mutual connection: the plaintiff's close friend was the defendant's long-term partner. Over several years, the relationship between the plaintiff and the defendant deteriorated significantly. The plaintiff believed the defendant was a poor partner for his friend; the defendant believed the plaintiff exercised undue influence over her partner and had insulted and intimidated her on multiple occasions.

Physical incidents occurred in 2014, and the plaintiff subsequently obtained an apprehended violence order against the defendant in Sutherland Local Court. Matters escalated further in 2017 and 2018. The proceedings, which originated in the Local Court before being transferred, centred on a series of alleged tortious acts across three separate incidents spanning 2017 and 2018.

The plaintiff commenced proceedings alleging battery arising from the defendant throwing a glass of wine over him in June 2017, battery and assault arising from a physical altercation at his unit on 31 March 2018, and assault arising from a threatened wine-throwing incident in June 2018. The defendant filed a cross-claim arising from the same 31 March 2018 incident, alleging that it was the plaintiff who committed battery against her. The parties' accounts of the 31 March 2018 incident were diametrically opposed.

  • Whether throwing a glass of wine over a person constitutes battery at common law
  • Whether the batteries alleged by the plaintiff were intentional and committed with intent to cause injury, bringing the claims outside the Civil Liability Act 2002 (NSW) under s 3B
  • Whether self-defence was available to the defendant in respect of any of the alleged batteries
  • Whether the defendant committed battery and assault against the plaintiff on 31 March 2018, or whether, as the defendant cross-claimed, it was the plaintiff who committed battery against the defendant on that occasion
  • What standard of proof applied to allegations of intentional battery with intent to cause injury (applying Briginshaw v Briginshaw)
  • The appropriate measure of damages for each party if liability were established

Decision

The court found in favour of the plaintiff on both the statement of claim and dismissed the defendant's cross-claim. Given that the amended pleadings alleged intentional batteries with intent to cause injury, the court treated the claims as falling outside the Civil Liability Act 2002 under s 3B, meaning the common law governed assessment of liability and damages. The Briginshaw standard applied throughout, requiring the court to be positively persuaded of serious allegations on the civil standard, with the gravity of the allegation affecting the weight of evidence required.

On the June 2017 wine-throwing incident, the court was satisfied that throwing a glass of wine over the plaintiff constituted battery. The court was not persuaded that the defendant's conduct amounted to self-defence, nor that it was merely negligent rather than intentional. On the June 2018 incident, the court found the defendant's conduct in threatening to throw wine constituted assault, in that it gave the plaintiff a reasonable apprehension of imminent harmful contact.

The central contest was the 31 March 2018 incident, which produced fundamentally inconsistent accounts from every witness. The court undertook a detailed assessment of the credit and reliability of all witnesses. The plaintiff's account was preferred over the defendant's. The court found that the defendant had struck the plaintiff on that occasion, and was not persuaded that the plaintiff had committed battery against the defendant as alleged in the cross-claim.

The court assessed damages for the defendant's proven acts. The cross-claim was dismissed entirely. Costs were reserved pending further submissions.

Orders Made

  • Judgment for the plaintiff against the defendant in the statement of claim proceedings
  • Judgment for the plaintiff (as cross-defendant) against the defendant (as cross-claimant) in the cross-claim proceedings
  • The cross-claim dismissed against the plaintiff
  • Parties directed to bring in agreed short minutes of orders reflecting the reasons within 14 days
  • Costs of both the statement of claim proceedings and the cross-claim proceedings reserved, pending further submissions

Key Takeaways

  • The District Court confirmed that throwing a glass of wine over a person can constitute battery at common law, provided the act is intentional rather than merely negligent.
  • Where battery is pleaded as intentional and committed with intent to cause injury, the claim may fall within s 3B of the Civil Liability Act 2002 (NSW), with the result that the common law rather than the statutory scheme governs liability and damages.
  • The Briginshaw standard requires courts to be positively persuaded of allegations of intentional battery; the gravity of the allegation affects the weight of evidence necessary to reach that satisfaction on the balance of probabilities.
  • Self-defence was pleaded but not established on the facts; the court's analysis illustrates that a defendant asserting self-defence must produce sufficient evidence to support the plea, particularly where the surrounding circumstances are heavily contested.
  • In proceedings involving diametrically opposed factual accounts, thorough credit and reliability assessments of all witnesses are central to the outcome: the 18-hearing-day trial (against a five-day estimate) reflects the demands such disputes can place on the court.

Legislation and Cases Referenced

Legislation:
- Civil Liability Act 2002 (NSW), including s 3B
- Evidence Act 1995 (NSW)
- Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015

Cases:
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
- Fontin v Katapodis (1962) 108 CLR 177
- Croucher v Cachia [2016] NSWCA 132; (2016) 95 NSWLR 117
- Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294; (2020) 103 NSWLR 658
- Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
- Mason v Demasi [2009] NSWCA 227
- Musa v Alzreaiawi [2021] NSWCA 12
- Nguyen v Tran [2018] NSWCA 215
- Payne v Parker (1976) 1 NSWLR 191
- Ramsey v Denton [2020] NSWDC 426; [2021] NSWCA 310
- A v B [2021] NSWDC 491
- Raad v State of New South Wales [2017] NSWDC 63
- Barton v Armstrong [1969] 2 NSWR 451
- Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204
- Goode v Angland [2017] NSWCA 311
- Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187