Balven v Thurston

Factual background

1. The factual findings are conveniently summarised in the judgment of Latham J in Balven v Thurston [2013] NSWSC 210. As the damages awarded by Walsh LCM were to be assessed in accordance with her Honour's reasons, as set out in that decision, and the factual matrix described therein also underpins the current appeal, it is convenient to extract her outline of the facts from that judgment.
2. Latham J set out the evidence as follows: "The Evidence Below. 5. There is no purpose to be served by recounting the evidence in detail. It is sufficient to observe that the plaintiff, a former member of the Armed Forces on disability benefits, met the defendant, a divorced woman who worked in a Nursing Home, through the defendant's adult son. The defendant lived in her own home, as did the plaintiff. Soon after entering into an intimate relationship, the defendant gave the plaintiff a key to her home, and he stayed the night there occasionally. 6. As the relationship developed, the plaintiff gave the defendant moderately large sums of money from his gambling winnings, telling her to treat herself to "something nice". These sums allegedly totalled approximately $8000.00. The defendant always understood that these monies were a gift from the plaintiff. However, following the breakdown of the relationship, the plaintiff sued the defendant for the return of the funds. Those proceedings were decided in the defendant's favour in August 2010, with a ruling that the monies were indeed a gift. 7. The only relevance of the dispute over the funds lies in an appreciation of the course that the relationship took as it deteriorated. Within a few months of beginning the relationship, the plaintiff established a pattern of communicating with the defendant by text message or email several times a day, querying the defendant's whereabouts and her movements. The defendant experienced this behaviour as controlling and intrusive. Ultimately, the defendant became concerned that the plaintiff was in fact stalking and harassing her and she terminated the relationship in mid February 2010. 8. From mid February 2010 to June 2010, the plaintiff sent over 200 text and email messages to the defendant at all hours of the night and day, often only minutes apart. These messages alternated between expressions of love for the defendant and threats of harm and damage to her property by way of retribution. The defendant responded by text on some occasions, for the most part telling the plaintiff to leave her alone. In late February and early March 2010, the plaintiff began demanding the return of all the money he had given to her. 9. On 11 March 2010, the defendant received a text message from the plaintiff as follows: "I guna get u big tim I want me money u will die ill waiting u wer not faithful." The defendant's evidence was that she was fearful of the plaintiff as a result of this message, given her knowledge of his military training. The transmission of this message constituted an assault according to the findings of the magistrate. 10. Following a conversation with the plaintiff's mother about the plaintiff's behaviour, there was a brief reconciliation in late March 2010. The defendant gave evidence that the relationship had not resumed but she and the plaintiff were talking. However, things took a turn for the worse in early April. 11. On the evening of 5 April, the defendant received a text message from the plaintiff indicating that he was going to her home to "repossess" everything he had given her. The defendant arrived home from work at 11pm and found some items of property missing and others damaged or destroyed. This event constituted the first act of trespass found by the magistrate. 12. On 6 April the defendant had the locks on her home changed. While she was at work, she received a text message from the plaintiff, which suggested that the plaintiff had been inside her home. She went home and discovered that a number of items were missing and there was a note from the plaintiff on the kitchen bench. This event constituted the second act of trespass found by the magistrate. 13. Later that day, the plaintiff sent a further text message to the defendant which read "U house will b ashes whil u asleep for what u did u no good." The transmission of this message constituted an assault according to the findings of the magistrate. 14. In the early hours of 7 April, the plaintiff attended the defendant's premises, bashed on the side gate and the side door, and yelled abuse at the defendant. This event constituted the third act of trespass according to the findings of the magistrate. 15. Immediately after these events, the defendant applied for a provisional apprehended violence order which was granted on 8 April 2010. The order prohibited the plaintiff from going within 100 m of the defendant's premises and prohibited the plaintiff from approaching or contacting the defendant by any means whatsoever. 16. Between 8 and 9 am on 8 April 2010, the plaintiff drove his car into the street where the defendant lived. He drove his vehicle into the driveway of the defendant's unit block and collided with the defendant's garage door, causing it to buckle. The plaintiff then ran from the scene. This event was also accepted by the magistrate as an act of trespass by the plaintiff onto property (the garage) in the possession of the defendant. 17. The apprehended violence order was finally granted on 15 April 2010. The plaintiff did not contest the order. The plaintiff served the defendant on 27 April with the statement of claim alleging that the defendant owed the plaintiff $7900.00. 18. None of this evidence from the defendant was disputed. The attack upon her in cross examination centred on an alleged gambling addiction which was said to explain the plaintiff's concern for her whereabouts and the advancement of funds to assist her to pay her bills. The content and number of text messages and emails were admitted. It was put to the defendant that this was a feature of the plaintiff's behaviour that she accepted and that caused her no concern for her personal safety. The defendant rejected that proposition. The plaintiff also maintained that, while he accepted that certain messages were threatening in their terms, he did not intend to threaten the defendant. This contention was properly rejected by the magistrate. The objective meaning of many of the most abusive messages was eloquent of the plaintiff's intention in transmitting them."
3. As noted, Latham J found the facts as described above were established by the evidence. However, she found that the text messages sent on 11 March 2010 and 6 April 2010, while communicated in the terms alleged, did not constitute the tort of assault as the imminence of physical harm was not established. Whilst the learned magistrate found Ms Thurston was placed in fear and apprehended reasonably immediate contact from Mr Balven, that was not sufficient to establish the tort of assault as it is the threat itself that must connote the immediate violence, rather than the subjective interpretation of the recipient.
4. The remaining grounds of appeal were either dismissed or were not required to be determined in light of Latham J's findings regarding the assaults.
5. The learned magistrate's orders as to damages for the assaults were necessarily set aside. The award for damages relevant to trespass remained. However, as the learned magistrate made a global order, without apportioning the damages between assaults and trespass, the matter was remitted back to the Local Court so that the damages could be assessed in accordance with the findings of this Court. Latham J made some obiter comments as to the damages.

Proceedings in Local Court on remitter

1. The matter was again before Walsh LCM on 7 November 2014. Written submissions were filed by both parties. Ms Thurston submitted that damages should not be reduced at all, whilst Mr Balven suggested a sum of $5,000 for general and $5,000 for aggravated damages was appropriate.
2. In a written judgment of 25 February 2014, the learned magistrate correctly noted that, apart from the successful ground of appeal, Latham J did not otherwise criticise his fact finding or his assessment of damages, both of which thus remained effective.
3. He rejected Mr Balven's contention that the assaults were the most significant aspect of the conduct giving rise to damages as inconsistent with his findings at first instance where he was satisfied that Ms Thurston was put in fear and suffered from a mild adjustment disorder with mixed anxiety and depressed mood, which was causally connected to the assaults as well as to the trespasses to land. He found that the disorder was not permanent, nor of a most serious nature, and did not extend past 2010, but was attributable to both the trespasses and the conduct earlier found to constitute an assault.
4. Noting that the award of damages is not a simple mathematical exercise, his Honour reduced the general damages to $10,000 and aggravated damages to $7,000, with interest payable to half of each amount from 1 May 2014.
5. The orders as to costs will be dealt with later in this judgment.

Appeal

1. On 14 May 2014 Mr Balven filed the Summons seeking relief in the following terms: 1. To the extent necessary, an order extending the time to file this Summons. 2. Leave to appeal from the whole of both decisions below. 3. An Order that the Verdict and Judgment of the Wyong Local Court made on 25 February 2014 be set aside. And in lieu thereof Verdict and Judgment be entered in favour of the Applicant (in these proceedings, the Defendant in the proceedings below). 4. An Order that the Verdict and Judgment of the Wyong Local Court made on 31 March 2014 (decision received on 22 April 2014) be set aside. And in lieu thereof Verdict and Judgment be entered in favour of the Applicant (in these proceedings, the Defendant in the proceedings below). 5. An Order that the Respondent (in these proceedings, the Plaintiff in the proceedings below) pay the Applicant's costs in this Court and of the proceedings in Wyong Local Court.
2. Mr. Balven advanced the following grounds of appeal: 1. His Honour Magistrate Walsh erred in his decision of 25 February 2014, by failing to give adequate consideration, weight or affect to the orders and directions of the Supreme Court's decision on 20 March 2013 (Matter No 2012/155030) in awarding the Applicant damages and aggravated damages. 2. His Honour Magistrate Walsh erred at law in awarding damages on re-hearing in the nature of personal injury damages notwithstanding that the Supreme Court had held (decision of 20 March 2013) that the tort of assault had not been committed. 3. His Honour should have held that the Supreme Court's findings resulted in the Civil Liability Act applying to damages to the extent they were claimed for damage in the nature of psychiatric injury. 4. His Honour should have held that Section 3B of the Civil Liability Act was not engaged, that thus the Act including its severity thresholds applied to the award of damages to the extent they were claimed for damage in the nature of psychiatric injury. 5. His honour erred in the assessment of damages on re-hearing by failing to apprehend or apply the full implications of the Supreme Court's decision of 20 March 2013. 6. His Honour erred in failing to give adequate consideration to Local Court Practice Note 1 Clause 36.1 and/or by confirming the earlier award of indemnity costs against the Applicant, notwithstanding the underlying facts and circumstances had changed. 7. His Honour misdirected himself as to the relevant facts and legal principles applicable to an award of indemnity costs. 8. His Honour's discretion as to costs miscarried, and in so doing his Honour erred at law, in that there was no fact or circumstances warranting an award of indemnity costs.

Leave to appeal out of time

1. A preliminary issue arose as to the timing of the second decision of Walsh LCM, relating to costs orders. As noted, the decision was made in chambers, on written submissions, and is dated 31 March 2014. As no parties were present, the judgment was delivered to the parties by post. However, the parties did not receive the decision until some weeks later, on 22 April 2014.
2. If the material date is taken to be the date the decision is handed down, that is 31 March 2014, the appeal is lodged outside of the prescribed 28 day period (r.50.3 Uniform Civil Procedure Rules 2005 (NSW)). In light of the fact that both parties received the judgment with some delay, which seems likely a result of the judgment being dispatched late from the Local Court Registry, I formed a view that granting leave to file summons out of time is in the interests of justice.

Leave to appeal

1. While the grounds of appeal are eight in number, and are variously expressed, they raise effectively two matters - appeal against the award of damages (grounds 1 to 5) and an appeal against the order for costs (grounds 6 to 8). Mr Balven argues that the appeal as to damages raised issues of law alone, thereby invoking the jurisdiction of this Court pursuant to s.39 of the Local Court Act 2007 (NSW). However, he seeks leave to appeal "to cover [himself]" lest he be wrong on that, arguing that those grounds raise at least mixed questions of law and fact.
2. While I am inclined to the view that assessment of damages in light of certain facts of the matter is a question of mixed law and fact, rather than a question of law, Ms Thurston's counsel has not argued such is the case. In any event, in the circumstances of the present appeal and my conclusions that the grounds are not made out, it is not strictly necessary to determine whether grounds 1 to 5 require leave or not.
3. Grounds 6 to 8 clearly do require leave however: s.40(2)(c) Local Court Act 2007.

Ground 1: His Honour Magistrate Walsh erred in his decision of 25 February 2014, by failing to give adequate consideration, weight or affect to the orders and directions of the Supreme Court's decision on 20 March 2013 (Matter No 2012/155030) in awarding the Applicant damages and aggravated damages.

Ground 2: His Honour Magistrate Walsh erred at law in awarding damages on re-hearing in the nature of personal injury damages notwithstanding that the Supreme Court had held (decision of 20 March 2013) that the tort of assault had not been committed.

Ground 5: His honour erred in the assessment of damages on re-hearing by failing to apprehend or apply the full implications of the Supreme Court's decision of 20 March 2013.

1. Grounds 1 and 5 are expressed in similar, somewhat overlapping terms, and, as developed in oral argument, seem to intrinsically intersect with the second ground of appeal.
2. The gist of the argument is that the amounts awarded on remitter are too high in light of Latham J's findings that the assaults have not been made out. The error is said to arise from the following paragraph of her Honour's judgment: [48] The above findings require the award of damages for the assaults to be set aside. The award of damages for the acts of trespass remain, but given the global award made by the magistrate, it is not possible to determine what proportion of the general and/or aggravated damages are referable to those torts. Having regard to the relatively short duration of the plaintiff's interference with the defendant's possession of her land, I would expect damages to be of a modest nature, even allowing for some component of aggravated damages arising out of the plaintiff's behaviour.
3. Mr Balven argued that the major component of the damages must have been awarded for the assaults, as they were the most serious allegations, and were the 'cause' of the psychological injury. That submission was expressly rejected on remitter and is plainly based on an incorrect interpretation of Walsh LCM's findings at first instance - that the fear and the adjustment disorder were the result of both trespass and assaults.
4. I raised this with counsel in oral submissions, querying the basis upon which it was contended that the fear experienced by Ms Thurston is irrelevant to trespass, with the issue of trespass considered in isolation to the threatening text messages. The threatening text messages provide the context in which the trespass occurred, especially where the messages are temporally and contextually related to the trespass (for example, the message from Mr Balven to Ms. Thurston threatening to burn her house down, a message sent on the same day that he unlawfully entered her house).
5. The text messages are inextricably linked to the acts of trespass and put them into a proper context. They have the capacity to, and do, make the acts of trespass more serious, in the sense that they make them more frightening.
6. Counsel for Mr Balven conceded that it was open to his Honour to reach that conclusion, noting that he did not dispute the factual findings made by his Honour, but submitted that to award damages for psychological injury was to allow assaults to creep back into consideration, despite being overturned on appeal.
7. I do not accept that such is the case here.
8. The learned magistrate referred to and clearly turned his mind to the above paragraph of Latham J's judgment. He rejected the submission that the assaults were the most serious aspect of Mr Balven's conduct. He found that Ms Thurston's mental state was caused by both the receipt of threatening messages, and the trespasses by Mr. Balven upon her property. On a proper reading of the learned magistrate's reasons, it is clear that he assessed the acts constituting trespass in the context of the whole of Mr Balven's conduct, as established by the evidence. The pattern of his conduct indicated stalking, intimidation, and oppression of Ms Thurston. The acts of trespass were committed as a part of, and in furtherance of that pattern.
9. Damages to be awarded for trespass had to be assessed in that context. To do it any other way would have been to embark on an entirely artificial exercise.
10. Mr Balven's submissions on remitter were somewhat contradictory. He conceded that some award of damages was appropriate, whilst submitting that there was no damage occasioned by the acts of trespass, and thus no damages should be awarded.
11. It is clear that damages for trespass may be awarded even where no damage is occasioned: " ... Once a plaintiff obtains a verdict in an action of trespass, he or she is entitled to an award of damages. In addition, we would unhesitatingly reject the suggestion that this trespass was of a trifling nature. The First and Second Respondents deliberately entered the Appellant's land against his express wish. True it is the entry itself caused no damage to the Appellant's land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves a purpose of vindicating the Plaintiff's right to the exclusive use and occupation of his or her land": Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5, at 654-655 per Gaudron and McHugh JJ.
12. While neither party has referred this Court, or the court below, to any relevant authority on point, there is precedent for an award of damages for psychiatric harm or mental trauma resulting from trespass to land (although there seems to be some ambiguity as to the relevant test to be applied). In TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82, Spigelman JA, having referred to the differing approaches, was of the view that it may be most appropriate to apply the test of whether the resulting harm, including the psychological injury, is intended, or is the natural and probable consequence of the tortious act (at [100]).
13. While the court in Anning found that damages for mental trauma were not recoverable in the particular circumstances of that case, Spigelman JA noted at [104] that "what is the natural and probable consequence arising from a trespass to land must depend on all the circumstances of the case," adding: "[105] It is unnecessary to decide whether or not damages for personal injury and, specifically, psychiatric injury may, as a matter of law, be recovered in an action for trespass to land. It is undesirable to lay down a general rule that such damages cannot be recovered. I have come to the conclusion that personal injury, including mental trauma, was not, in the circumstances of this case, a "natural and probable" result of the trespass. It is unnecessary to decide whether some other mode of trespass may have such damage as a "natural and probable consequence". [106] It is undesirable to limit the scope of recoverable damage to a list of categories intended to exhaustively state the kinds of damage that may be recoverable, as propounded by the Appellant in its submissions to this Court. It is possible to conceive of a trespass to land in which psychiatric harm is actually intended or is within the trespasser's "presumed intent" under the 'natural and probable consequences' test. This may be the case if a trespass occurred by way of leaving a cobra snake in a bedroom. Similarly, in the case of a stalker who enters property. (Although in such cases, a cause of action based on Wilkinson v Downton [1897] 2 QB 57 and Janvier v Sweeney [1919] 2 KB 316 may be more appropriate.)"
14. The circumstances of the present case are distinguishable from Anning and in my view are informed by the second example given by Spigelman JA. In the circumstances where the incidents of trespass were committed in the context of intimidation and stalking, and in furtherance of such intimidation, the mental harm as experienced by Ms Thurston was clearly capable of being viewed as a probable, and/or intended, consequence of trespass. However, even if there was any doubt as to whether the adjustment disorder was actionable, the fear experienced by Ms Thurston as a result of persistent, unauthorised intrusions into her home as referred to by the learned magistrate, clearly was.
15. With respect to the scope of the available damages in tort, in State of NSW v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439 Basten JA said "[47] The general damages available for compensation for tortious conduct include damages for pain and suffering. There is no basis for limiting pain and suffering to physical suffering. Accordingly, there is no ready basis for distinguishing between an assessment of general damages and aggravated damages. As explained in Ibbett, aggravated damages are a form of general damages. [48] […….] there is no reason not to describe aggravated damages as compensatory in their purpose. They are, in effect, compensation for mental suffering falling short of a recognised psychiatric illness. The fact that the liability depends in part upon the defendant's conduct does not put them in a different category from compensatory damages generally" (references omitted).
16. The principle in relation to the availability of aggravated damages was outlined in Lamb v Cotogno [1987] HCA 47, (1987) 164 CLR 1, at 8 as "Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like."
17. Thus, not only are both general and aggravated damages available for tortious conduct, but the surrounding circumstances of the said conduct are clearly relevant and essential to a proper assessment of the award: "Aggravated damages are a form of general damages given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of wrongdoing:" New South Wales v Ibbett (2006) 229 CLR 638 at [31].
18. And: "The theory is that in such a case the damages are still only compensatory because the more insulting or reprehensible the defendant's conduct the greater the indignity that the plaintiff suffers and the more he should receive for the outrage to his feelings:" Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 at 151.
19. A fair reading of the learned magistrate's reasons indicates that his Honour turned his mind to the relevant circumstances and assessed the seriousness of the trespass by reference to the context of the conduct. His Honour found that aggravated damages should be awarded because "in relation to each tort [Mr Balven] consciously and contumeliously disregarded the rights of the plaintiff and put his wishes and desires above hers."
20. Such contumelious conduct made the already serious infringements of Ms Thurston's civil rights even more significant, necessarily increasing the degree of hurt experienced by her: Johnstone v Stewart [1968] SASR 142 at 144-145. In those circumstances, it was appropriate that she be compensated by way of both general and aggravated damages.
21. The complaint as to the quantum of the damages was based largely on Latham J's comment that she expected the damages to be of "modest" nature. No material was tendered by Mr Balven to resolve what a 'modest' amount may be in the present circumstances. No comparable cases were provided to the court to shed light on what Mr Balven would say is an appropriately modest amount; or to indicate that the amounts awarded by his Honour were excessive.
22. There is nothing to indicate that it was not open to the learned magistrate to award damages in the amounts he did. No error is demonstrated.
23. Grounds 1, 2 and 5 are dismissed.

Ground 3: His Honour should have held that the Supreme Court's findings resulted in the Civil Liability Act applying to damages to the extent they were claimed for damage in the nature of psychiatric injury.

Ground 4: His Honour should have held that Section 3B of the Civil Liability Act was not engaged, that thus the Act including its severity thresholds applied to the award of damages to the extent they were claimed for damage in the nature of psychiatric injury.

1. Mr Balven argues that the learned magistrate should have applied the provisions of the Civil Liability Act 2002 (NSW) that limit the award of damages for non-economic loss. Section 16 of the Act provides: "(1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. (2) The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case."
2. The section further sets out a table of ratios to be awarded depending on the extent of impairment.
3. Mr Balven argues that the magistrate did not embark upon the exercise of assessing the proportion of the loss suffered in comparison to the most severe case, and apportioning the damages accordingly. He further argues that in light of the magistrate's finding that the condition was transient, his Honour should have found that the impairment was below 15% and thus should have not awarded damages at all.
4. Notably, no submission to this effect was made in the Local Court on remitter. Mr Balven did not submit that no damages should be awarded but rather suggested what he said were appropriate sums of $5,000 for each of general and aggravated damages. Implicit in such submission is a concession that either the loss was above the threshold, or that the provisions did not apply.
5. Furthermore, Mr Balven's submissions below did not undertake the very analysis which he complains the magistrate failed to embark upon. There was no indication as to how Mr Balven arrived at the amounts of $5,000 that he suggested as appropriate awards.
6. The provisions of s.16 come into play only if liability falls within the realms of the Act. Section 3B excludes certain civil liabilities from the operation of the Act. Relevant to present circumstances, it provides: "3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act […]"
7. Subsection (1)(a) goes on to list a number of exceptions, none of which are relevant for present circumstances.
8. Evidently, the test in s.3B, as relevant for present purposes, is twofold - (1) the act must be intentional and (2) it must be committed with intent to cause injury or death.
9. Mr Balven argues that s.3B does not apply to the present facts because, as the assaults were not made out, the second step is not made out; that is, there was no act committed with intent to cause injury. In support of his contention he relies on paragraphs [41] to [46] of Latham J's judgment where her Honour made obiter comments that s.3B did apply to the assaults were they to be made out (that is, the Act was excluded from operation), but because they were not, she did not have to determine the issue. Mr Balven argues that by implication, her Honour was of the view that s.3B would have no part to play on remitter.
10. It is not clear from the material before this court whether the argument before Latham J was directed to the application of the Act to both the trespasses and assaults, or to the assaults alone. The way her Honour dealt with the matter would suggest the latter as her comments are directed to the application of s.3B to the alleged assaults. I do not understand her Honour to suggest that s.3B would necessarily not apply to trespasses; hence the operation of the Act would not be excluded; and damages would have to be limited pursuant to s.16.
11. In light of the fact that her Honour made only passing comments on this issue, together with the uncertainty as to the scope of the argument before her, it is not prudent to attempt to interpret her reasons in this regard, or to attribute meaning to them that she may not have intended on a matter that was not fully considered.
12. I am satisfied that s.3B does apply to the facts at hand and excludes the application of the Act with respect to damages for trespass.
13. All of the acts constituting trespass were done willingly and consciously, and were thus intentional. Therefore, the first condition of s.3B is satisfied.
14. Were the acts done with intention to cause injury?
15. Injury is not defined for the purposes of s.3B, but is defined in other parts of the Act including s.11: "Injury means personal injury and includes the following: (a) pre-natal injury, (b) impairment of a person's physical or mental condition, (c) disease."
16. The Court of Appeal has warned of the dangers of attributing definitions from a specific part of the Act to other parts, as parts of some statutes are purpose-specific, and definitions appearing in each are tailored to the relevant part and its purpose.
17. In New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 it was held that the word injury in s.3B should not be limited to "personal injury" but should rather be given its ordinary meaning, which would include harm caused by an apprehension of physical violence (per Spigelman CJ at [11] and Basten JA at [218]). In the same case Ipp JA noted: "[124] [….] In my view, anxiety and distress would be an "impairment" of a person's mental condition in accordance with the ordinary meaning of "impairment", as the word is used in s 11. [125] In my opinion, irrespective of whether the ordinary meaning of the word is attributed to "injury", or whether it is given the meaning defined in s11, the word is wide enough to encompass anxiety and stress."
18. Thus, if the acts were done with intention to cause anxiety, or distress, or fear of physical violence, they were done with intention to cause injury.
19. As I noted above, in my view, the acts of trespass have to be assessed in the context of all of the evidence. The text messages, while not meeting the legal definition of assault, were sent with intention of causing injury. So much is also clear from Latham J's judgment.
20. The messages, especially where sent in reference to trespass, such as the message threatening to burn Ms. Thurston's house down, inform the intention behind the acts of trespass. They are interrelated acts, committed in the same context. They indicate that at least to some extent, the purpose behind the trespass to land - especially the incident of driving into the garage - was to intimidate Ms Thurston. As such, they were acts intending to cause her injury.
21. The learned magistrate would seem to have accepted that much by finding that Ms Thurston suffered from fear and had suffered an adjustment disorder to be attributed to both the text messages and the trespass. To that effect, he accepted the opinion of Dr Nicolas that her condition continued while she was threatened, trapped, shadowed, stalked and intimidated, which he found did not continue past 1.5.10. The incidents of trespass contributed to that intimidation.
22. Thus, as Mr Balven's acts were both intentional and intended to cause injury in the meaning relevant to s.3B, the section must apply, and the Act is excluded.
23. Grounds 3 and 4 are not made out.

Ground 6. His Honour erred in failing to give adequate consideration to Local Court Practice Note 1 Clause 36.1 and/or by confirming the earlier award of indemnity costs against the Applicant, notwithstanding the underlying facts and circumstances had changed.

Ground 7. His Honour misdirected himself as to the relevant facts and legal principles applicable to an award of indemnity costs.

Ground 8. His Honour's discretion as to costs miscarried, and in so doing his Honour erred at law, in that there was no fact or circumstances warranting an award of indemnity costs.

1. Grounds 6, 7 and 8 relate to the learned magistrate's orders as to costs. Ground 6 argues the learned magistrate erred in not applying clause 36.2 of the Local Court Practice Note 1. Grounds 7 and 8 relate to His Honour's orders as to indemnity costs.

The learned magistrate's orders as to costs

1. On 13 April 2012, having awarded damages, the learned magistrate proceeded to order Mr Balven to pay Ms Thurston's costs as agreed or assessed on the ordinary basis. Ms Thurston's representatives raised the issue of indemnity costs in light of a prior offer of compromise. Some discussion ensued with the learned magistrate allowing further time for the parties to file material and submissions on the issue. It was agreed his Honour would make orders in chambers, in absence of any requirement for oral submission, and would advise the parties accordingly.
2. Ms Thurston filed a copy of her offer of compromise dated 7 June 2011 and served on Mr Balven pursuant to rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). The offer was in the terms that Mr Balven pay Ms Thurston damages in the sum of $25,000 and costs as agreed or assessed. The offer, which was not accepted, was to the same amount as ultimately awarded by the learned magistrate at first instance.
3. On 4 May 2012, his Honour made the following orders: "Defendant [Mr Balven] to pay the plaintiff's [Ms Thurston's] costs on a party/party basis as agreed or assessed up to but not including 7/6/11, thereafter (including 7/6/11) defendant to pay plaintiff's costs as agreed or assessed on indemnity basis."
4. When the matter was remitted to the learned magistrate in 2013, and he awarded damages in the total amount of $17,000, his Honour again allowed the parties further time to make submissions as to costs, if variation to his previous orders was sought. It was.
5. Written submissions were filed, as were copies of two earlier offers made by Mr Balven - one made on 29 July 2010 in essence suggesting proceedings between the parties be dismissed and each party pay their own costs. The second offer was made on 11 March 2011 in accordance with rule 20.26, offering to pay Ms Thurston $12,000 and costs as agreed or assessed. In the written submissions of 21 March 2014, Mr Balven also refers to an earlier offer of $15,000, although that document was not formally before the court. All of these offers predate Ms Thurston's offer of 7 June 2011.
6. Mr Balven argued in the Local Court, as he does in this Court, that the costs should have been ordered in accordance with cl 36.1 of the Local Court Practice Note 1 (Civil Proceedings). In addition, he argued that the magistrate, having reduced the damages to $17,000, had no basis for indemnity costs as the ultimate award was lower than Ms Thurston's offer of 7 June 2011.
7. Having determined the issue on the written material, in a judgment of 31 March 2014 his Honour ruled that his previous orders of 4 May 2012 remain. His Honour referred to the Practice Note but was of the view that complexities of this matter warranted departure from it. With respect to indemnity costs, he noted that both of Mr Balven's offers of compromise were substantially below the ultimate award. He was not persuaded that he should depart from the orders he made on 4 May 2012 and hence did not.
8. I see no error in that approach.

Leave

1. All three grounds require leave.
2. In Be Financial Pty Ltd v Das [2012] NSWCA 164 Basten JA outlined a number of matters of significance when considering a question of leave. In the circumstances of the present matter, it is useful to set them out in full: "32. The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]: "It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute." 33. In Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Campbell JA, with the agreement of Young and Meagher JJA, expanded on his summary of Carolan, noting that Kirby P had recognised "that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable": at [46]. 34. Kirby P in Carolan set out a number of reasons for the constraint on rights of appeal in such cases. Not all of them have been repeated in later cases. Not all are universally relevant. Thus, the delay in obtaining a hearing in this Court appears to have been greater at that time than is the case presently, although an overly liberal approach to leave applications might well result in an increase in the period between filing and hearing. 35. In Coulter v The Queen [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure "recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention": at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction. 36. As the High Court has noted, an application for leave is not a proceeding in the ordinary course of litigation but a preliminary procedure: Collins v The Queen [1975] HCA 60; 133 CLR 120 at 122; Coulter at 356. On the other hand, there is no reason to doubt that s 58 of the Civil Procedure Act 2005 (NSW), requiring a court to act in accordance with "the dictates of justice" when making an order or direction "for the management of proceedings", applies in respect of a leave application. One of the factors to be taken into account pursuant to s 58 is "the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction": s 58(2)(b)(vi). That provision, like s 56, identifying the overriding purpose of the Civil Procedure Act as being to facilitate the just, quick and cheap resolution of the real issues in the dispute, recognises that questions of injustice are relative. Similarly, the requirement that this Court not order a new trial unless it appears that "some substantial wrong or miscarriage" has been occasioned, also reflects a principle of parsimony in requiring that the parties be put to the expense of a second trial: UCPR, r 51.53. 37. The idea that injustice may be measured on a scale reflects a number of underlying considerations. First, the ability to assess the existence of an injustice in a preliminary proceeding, such as a leave application, is limited. In assessing the merit of a proposed appeal, the Court may well apply a vague criterion, such as whether the judgment below is attended by "sufficient doubt". Secondly, injustice involves a balancing exercise. The delay and cost of further litigation will constitute a form of injustice to the successful party below, whatever the outcome of the appellate process. Thirdly, the entitlement of the parties to justice is not unconditional, but is dependent upon the resources of the court made available by the government and the appropriate allocation of resources by the parties, which may depend upon their individual assessments of the importance of the issues in dispute. The parties may well make disparate assessments in a particular case. 38. The last point is reflected in the terms of s 60 of the Civil Procedure Act: "60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute." 39. This direction has an important operation in respect of leave applications involving amounts below the statutory threshold. Where, as in the present case, the costs of the trial are disproportionate to the amount in dispute, the incurring of additional costs, for a potentially uncertain return, will be a factor weighing heavily against a grant of leave. Particularly is that so where there is a real prospect that, if successful, an appeal will not resolve the matter but will require a new trial." [Emphasis added]
3. The above passages resonate strongly in the case at hand. The costs involved in prosecuting this matter, and especially the two appeals, has far outweighed the amount ultimately awarded. As noted by Latham J in the 2013 appeal, the expenditure to the judicial system and the use of judicial resources is entirely disproportionate to the award in question. This second appeal to the Supreme Court adds to the futility of that expenditure, and highlights the importance of Basten JA's comments above.
4. I am not of a view that ground 6, 7 and 8 raise any questions of general public importance or principle. Nor do they point to the existence of any injustice to the parties. Militating against the grant of leave are the further costs to be incurred, the unnecessary expenditure to the justice system, and the fact that after five years of proceedings before the courts, there must be some finality to this matter.
5. I would refuse leave to appeal.
6. However, as the merits of the prospective grounds are one of the matters to be considered when determining the issue of leave, I will make some brief observations as to why the grounds would not be successful in any event.

Ground 6

1. Mr Balven asserts that his Honour failed to give proper consideration to clause 36.2 of the Local Court Practice Note Civil 1. Clause 36.2 appears in Part G of the practice note, titled "Maximum Costs in the General Division", which commences as follows: "Part G - Maximum costs orders in the general division 36.1 This section applies to all proceedings (regardless of when the proceedings commenced) where the amount of the claim is $20,000 or less and includes: 36.2 Unless the court otherwise orders, the following orders are taken to have been made when the defence is filed in the proceedings: if the plaintiff is successful and the claim is for an amount between $10,000 and $20,000, then the maximum costs that can be awarded to the plaintiff is 25% of the amount awarded by the court plus any amount that might be allowed in relation to costs incurred up to the filing of the first defence in the proceedings. if the defendant is successful and the claim is for an amount between $10,000 and $20,000, then the maximum costs that can be awarded to the defendant is 25% of the amount claimed by the plaintiff ' where the proceedings were transferred from the Small Claims Division to the General Division, then the maximum costs that can be awarded to the successful party is $2,500."
2. Part G goes on to provide that a party seeking to vary the maximum order may file a notice of motion to that effect, and proscribes requirements for supporting evidence.
3. Mr Balven made the same submissions on remitter as he did before this court, namely that because the ultimate award of damages was between $10,000 and $20,000 the costs should have been limited in accordance with clause 36.2. Ms Thurston argued that the clause applied to liquidated claims, rather than unliquidated claims, submitting that the word "claim" as it appears in the clause refers to an amount that is sought in the originating process, rather than the amount ultimately awarded. Mr Balven argued to the contrary. Neither this nor the Local Court was referred to any authority on the point, despite this Court granting the parties liberty to file any such authorities within 5 days of the hearing.
4. This issue does not need to be resolved for the purposes of this appeal, as I am of the view that, even if the present proceedings came within the scope of the clause, whether to apply it or not was entirely a matter for his Honour. Nothing in Part G, or indeed the preceding parts, imposes any prescriptive obligation on the magistrate to apply the clause. On the contrary, clause 36.2 specifically states "Unless the court otherwise orders …". The question of costs remains entirely within his Honour's discretion.
5. To say that his Honour failed to have adequate regard to the practice note in circumstances where he directly addressed the submissions, the practice note, the authority he was referred to, and the overriding purpose of the Civil Procedure Act 2005 (NSW), is entirely misconceived. Having considered the relevant issues, and having found that the matter was not a simple matter, his Honour was entitled to depart from the provisions of clause 36.2. That is so despite the fact no party filed a notice of motion seeking a different order. There is nothing in the practice note to restrict the magistrate from varying the maximum order of his own volition, in absence of any notice of motion. That too is a matter entirely within his Honour's discretion.

Grounds 7 and 8

1. As grounds 7 and 8 both deal with the award of indemnity costs, it is convenient to deal with them together.
2. At first instance, the learned magistrate ordered Mr Balven to pay Ms Thurston's costs on indemnity basis as of, and including, 7 June 2011, that being the date of her offer of compromise of $20,000 which was bettered at first instance. There was nothing unusual about that order, and, in fact, it was precisely in terms prescribed by rule 42.14 of Uniform Civil Procedure Rules 2005.
3. On remitter, his Honour awarded $17,000, an amount below that offered by Ms Thurston in the letter of 7 June 2011. Thus, Mr Balven argued he should not pay indemnity costs, and his Honour's previous order to that effect should be set aside.
4. However, his Honour was referred to two previous offers made by Mr Balven - one for the amount of $12,000 and one for an amount of $15,000. Neither was accepted by Ms Thurston and both were ultimately bettered.
5. Indemnity costs are often awarded in light of offers of compromise that were ultimately bettered, as an important case management tool: Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353. For the same reason, Division 3 of Part 42 of the Uniform Civil Procedure Rules 2005 provides express rules for awards of indemnity costs; although the present situation - where a defendant makes an offer which is not accepted by the plaintiff, and is ultimately bettered by the plaintiff - is not covered by the rules.
6. That does not mean however that it was not open to the learned magistrate to order indemnity costs. On the contrary, the power to award indemnity costs is absolute, as provided by s.98(1) of the Civil Procedure Act 2005, to be exercised as appropriate in the circumstances, although with caution.
7. Whilst his Honour's expression, "the reasons given on 4th May 2012 still factually apply" may not be of the most felicitous in the present circumstances, it cannot be said that his Honour overlooked the essential facts. When considering the question of the award on 24 February 2014, having just reduced the amount of damages, his Honour indicated to the parties that the orders regarding costs would remain as it was unless he were convinced otherwise. In his judgment of 31 January 2014, his Honour referred to and considered the offers of compromise, the complexity of the proceedings and the reduced award on remitter, before determining that nothing raised had convinced him that his original orders should be varied.
8. Nothing has been raised by Mr Balven to indicate that his Honour's discretion miscarried.
9. Leave to appeal on grounds 6, 7 and 8 is refused.

Orders

1. The orders made are as follows: 1. Leave to file the Summons out of time is granted. 2. Leave to appeal, in so far as it is required, is refused. 3. Summons is dismissed. 4. Costs of these proceedings are awarded in favour of Ms Thurston. 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: 07 August 2015