Cheng v Farjudi

(2016) 93 NSWLR 95; [2016] NSWCA 316

NSW Court of Appeal

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Interrogate

Catchwords

1. Damages
2. › Exemplary damages
3. › Availability where criminal sanction imposed
4. › Whether good behaviour bond constitutes 'substantial punishment'
5. › Whether conduct of civil proceedings provides separate basis for award
6. › Whether denial of assault after guilty plea demonstrates continuing contumelious disregard
7. › Civil Liability Act 2002 (NSW), ss 52, 53
1. Torts
2. › Intentional torts
3. › Assault and battery
4. › Self-defence
5. › Defence of another
6. › Whether conduct responded to was 'unlawful'
7. › Whether appellant acted in belief it was necessary to defend wife
8. › Civil Liability Act 2002 (NSW), ss 52, 53
1. Damages
2. › Future out-of-pocket expenses
3. › Whether proper evidentiary basis for award
4. › Expert evidence of need for ongoing treatment
1. Appeal
2. › Standard of appellate review
3. › Challenges to factual findings
4. › CCTV evidence
5. › Whether findings supported by evidence

Quick Take

A conviction and good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be treated as 'substantial punishment' for the purposes of the Gray v Motor Accidents Commission bar on exemplary damages, absent evidence to the contrary. However, a defendant's conduct in defending civil proceedings — specifically, denying on oath conduct to which the defendant has pleaded guilty and characterising the guilty plea as one of 'convenience' — can provide a separate and unusual basis for an award of exemplary damages, notwithstanding that the criminal sanction was substantial.