Fung v Bossie Chau Pty Ltd t/a 278 Club, Chang & Hu

District Court of NSW|2020-03-05|Before: Mr J

Solicitors: Chambers Russell Lawyers (Plaintiff) Viney Law (Defendants) File Number(s): 2018/382671 Publication restriction: None

Table of Contents Nature of case [1] Factual background [2] - [13] Issues calling for determination [14] - [16] Polarised factual positions of the parties [17] - [39] Facts not in dispute and identification of facts in dispute [40] - [76] Issue 1 - Credibility and reliability of testimony [77] - [178] The evidence of Mr Chun Wai Fung, the plaintiff [78] - [125] The evidence of Mr Cheuk Yin Fung [126] - [134] The evidence of Mr Seung Man Ha [135] - [152] General approach to evidence of Mr Chang and Ms Hu [153] - [162] The evidence of Mr Chao Chang, the second defendant [163] - [166] The evidence of Ms Xiao Hu, the third defendant [167] - [178] Issue 2 - Findings on disputed matters of fact [179] - [290] (1) December 2017 ban on plaintiff attending Ginza brothel [181] - [191] (2) Claim of ban from 278 Cleveland Street brothel [192] - [197] (3) Plaintiff's attendances at the 278 Cleveland Street brothel [198] - [207] (4) Plaintiff's transaction for provision of sexual services [208] - [212] (5) Arrival of Mr Chang and Ms Hu at 278 Cleveland Street [213] - [216] (6) Reasons for Mr Chang's entry into Room 11 [217] - [229] (7) Physical contact between Mr Chang, Ms Hu and plaintiff [230] - [263] (8) Confiscation of plaintiff's mobile telephone [264] - [268] (9) Plaintiff's departure from the premises [269] - [272] (10) Plaintiff's attendance at RPAH and hospital records [273] - [280] (11) Statements obtained from plaintiff by police [281] - [283] (12) Guilty pleas - Mr Chang and Ms Hu to common assault [284] - [288] (13) Victim impact statements by plaintiff [289] - [290] Issue 3 - Wrongful tortious conduct by defendants [291] - [296] Issue 4 - Vicarious liability of Bossie Chau Pty Ltd [297] Issue 5 - Claimed defence pursuant to s 5F of the CL Act [298] - [310] Issue 6 - Claimed defence pursuant to s 50 of the CL Act [311] - [328] Issue 7 - Claimed defence pursuant to s 52 of the CL Act [329] - [335] Issue 8 - Claimed defence pursuant to s 53 of the CL Act [336] - [347] Issue 9 - Assessment of damages [348] - [407] General and aggravated damages for non-economic loss [351] - [369] Exemplary damages [370] Past economic loss [371] - [389] Future economic loss [390] - [396] Future treatment expenses [397] - [399] Past out-of-pocket expenses [400] Interest on general damages [401] - [406] Disposition [408] Costs [409] Orders [410]

Nature of case

The matter at issue in these proceedings is whether or not the plaintiff has proven his common law claim of having been brutally and unlawfully assaulted, battered and detained against his will, in aggravated and humiliating circumstances.

Factual background

Shortly after 2.40am on Tuesday 26 June 2018, the plaintiff, Mr Chun Wai Fung, who was then aged 23 years, was a customer at a brothel. There, he unexpectedly experienced fellatio interrupta whilst engaging in paid sexual activity with a female sex worker named Joy, a nom de bordel.
The plaintiff claims that interruption occurred without prior warning when the proprietors of the brothel unlocked and entered the room whilst the sex worker was fellating him. The ensuing circumstances involved a violent fracas, in which he was seriously injured, having been repeatedly punched, kicked, and subjected to intimidation and humiliation by the proprietors of the brothel.
The plaintiff claims those events involved a trespass to his person comprising an unlawful assault and battery, and the deprivation of his liberty during a period when he was detained. Accordingly, he claims common law damages including aggravated and exemplary damages from the defendants, the proprietors of the brothel.
The defendants have filed defences seeking to rely on s 5F, s 50, s 52 and s 53 of the Civil Liability Act 2002 (NSW) ("CL Act"). Section 52 and s 53 are within Pt 7 of that Act. Not all of those claimed defences were capable of being applied to the circumstances.
The brothel in question was referred to in the evidence as the 278 Club. In the police records which were tendered, it was also referred to as the Angel Inn: Exhibit "B", p 285. The reference to the brothel being a club is an apparent misnomer as the premises were not a club and there was no club membership. The brothel is situated at 278 Cleveland Street, Surry Hills, NSW. It is one of two such establishments operated by the first defendant, Bossie Chau Pty Ltd, the second defendant, Mr Chao Chang, and the third defendant, Ms Xiao Hu. The second and third defendants are husband and wife. They are the guiding minds and operators of both of those brothel businesses.
In operating those businesses Mr Chang used the working name of Wilson, and Ms Hu used the working name of Yuki. The defendants operated another brothel, known as Ginza, located a short distance away, at 310 Cleveland Street, Surry Hills. Events which occurred at both of those brothels are relevant to these proceedings.
Ms Hu claimed the brothel was licensed: T367.37. Although brothels are not licensed as such, and although there is no legal requirement of good character as a pre-condition for persons to operate a brothel, subject to certain conditions being satisfied, the proprietorship of a brothel at which sex workers provide sexual services for payment, is an activity permitted by law: s 15(3) of the Summary Offences Act 1988 (NSW).
In this case, the characterisation of apparent legality became somewhat overshadowed by the demeaning, offhand, and disrespectful manner in which the commodification of those services, and the personification of the sex workers providing those services, was referred to in the evidence.
Some of the circumstances which led to the violent events in question are the subject of conflicting factual accounts which require a reasoned reconciliation on the balance of probabilities on an assessment of the available evidence. In final submissions it was common ground that the outcome of the proceedings was dependent upon the assessment of the credibility and reliability of the testimony of the respective witnesses: T576.38; T481.1 - T481.5.
In this case there were problematic issues of credibility and reliability of testimony concerning witnesses on both sides of the record. Some of those matters were of significance, whilst others were peripheral, and of no material significance. Those credit issues must be considered and determined at the outset as the findings on those matters form the basis for determining the multiple issues of fact that are in dispute in these proceedings.
These reasons for decision are published in an unredacted form in the public domain because they relate to litigation conducted in open court. The policy and practice of the Court, where practicable, is to publish its reasons for decision in determining civil cases.
In order to arrive at reasoned fact findings and determinations on relevant matters in dispute in the litigation, it has become necessary to make explicit reference to matters of a sexual nature as raised in the evidence. The parties are familiar with those matters. If potential non-party readers consider that such references may cause them offence, they should consider reading no further than this point.

Issues calling for determination

In addition to their pleaded factual denials, the defendants have claimed defences that respectively rely upon s 5F, s 50, s 52 and s 53 of the CL Act. The plaintiff disputes the factual basis and therefore the availability of those claimed defences. The resolution of those disputed matters stand to be resolved according to the assessment of the credibility and the reliability of testimony.
A review of the pleadings, the evidence, and the submissions of the parties, indicates that the material issues calling for determination in these proceedings are as follows: 1. Findings on the credibility and reliability of testimony. My findings on those matters appear between paragraphs [77] to [178] of these reasons; 2. Findings on a number of disputed matters of fact concerning the events leading to, during and following the fracas at the brothel, as those events involved the plaintiff. My findings on those matters appear between paragraphs [179] to [290] of these reasons; 3. Whether the plaintiff was intentionally wrongfully subjected to assault, battery, deprivation of liberty, and intentionally intimidated and humiliated by Mr Chang and Ms Hu. My findings on these issues appear between paragraphs [291] to [296] of these reasons; 4. Whether the first defendant, Bossie Chau Pty Ltd, should be held to be vicariously liable for the actions of Mr Chang and Ms Hu. My findings on this issue appear at paragraph [297] of these reasons; 5. Whether, within the meaning of s 5F of the CL Act, the assault, battery, and the deprivation of the plaintiff's liberty, was as a result of the materialisation of an obvious risk of which the plaintiff must have been aware. My findings on this issue appear between paragraphs [298] to [310] of these reasons; 6. Whether, within the meaning of s 50 of the CL Act, the plaintiff's capacity to exercise reasonable skill and care for his own safety was impaired by reason of self-induced intoxication so that the plaintiff should not be awarded any damages, or alternatively, should be awarded reduced damages on account of alleged contributory negligence on his part. My findings on this issue appear between paragraphs [311] to [328] of these reasons; 7. Whether, within the meaning of s 52 of the CL Act, the defendants were responding to the plaintiff's unlawful conduct, and were acting either in their own self-defence, or in defence of the sex worker, Joy. My findings on this issue appear between paragraphs [329] to [335] of these reasons; 8. Whether, within the meaning of s 53 of the CL Act, exceptional circumstances have been shown to exist that would render it harsh and unjust to award damages to the plaintiff. My findings on this issue appear between paragraphs [336] to [347] of these reasons; 9. The assessment of the plaintiff's entitlement to damages, including compensatory, aggravated and exemplary damages, as well as damages for non-economic loss, past and future economic loss, and past and future treatment expenses, and interest on damages. My findings on these issues appear between paragraphs [348] to [407] of these reasons.
Before addressing those issues and examining matters to do with the credibility and reliability of testimony, it is necessary to identify the polarised factual positions of the parties and to identify the material facts that are variously undisputed or disputed.

Polarised factual positions of the parties

The parties maintained polarised competing factual positions in the litigation.
The plaintiff claims that whilst he was at the defendants' brothel at 278 Cleveland Street receiving consensual fellatio from Joy in Room 11, that activity was abruptly interrupted when Mr Chang and Ms Hu entered the room. The plaintiff claims that in those events he was assaulted, battered, and for a time, he was intimidated and humiliated in front of other brothel staff, and that for such time, he was deprived of his personal liberty.
The plaintiff claims this all occurred due to the physical actions of Mr Chang and Ms Hu, and by the effect of the juxtaposed position adopted by Mr Seung Man Ha, the brothel receptionist employed by the defendants. In that regard, Mr Ha had placed himself in a position effectively blocking the doorway to the room thereby effectively preventing the plaintiff from leaving the room.
In contrast, the defendants claim that they unlocked and opened the door to Room 11 because the sex worker referred to as Joy had been heard to cry out words to the effect: "No. Fuck off, get off me", or variations thereof. The plaintiff disputes that the sex worker said anything along those lines.
That dispute will be considered in more detail at a later point in these reasons. The defendants claim that the reason why Mr Chang, Ms Hu and Mr Ha entered the room was in order to go to the assistance of that sex worker because the plaintiff was sexually assaulting her. The plaintiff disputes that allegation and he disputes that there was any such need for the door to Room 11 to be opened in the circumstances.
The defendants claim that prior to their entry into the room, contrary to house rules and brothel industry standards, the plaintiff had attempted to achieve unprotected penile-vaginal sexual intercourse with Joy, that is, without the use of a condom, in circumstances where, if that allegation was true, this would have amounted to a sexual assault upon her. The plaintiff disputed the allegation.
The defendants opened their case by specifically alleging that the plaintiff had, by his conduct, sexually assaulted Joy because, whilst not wearing a condom, he was attempting non-consensual penile-vaginal sexual intercourse with her. They claim that this was the reason why she had cried out in the manner claimed: T16.45 - T17.11.
The defendants' case on this point, as opened, seemed somewhat confused. The opening address of counsel for the defendants, which must be presumed to be based on specific instructions from the defendants, identified the following factual basis for defending the proceedings: "We say that the plaintiff was on top of Joy at the time of the entry to the room, and that there was no oral sex involved; and in any event, you'll hear evidence that to the best of the knowledge of Joy, who had only worked there for two days, did not consent to giving that particular service, which is removing a condom for oral sex." [T15.38 - T15.42] [Emphasis added]
The parties to the agreement for sexual services and the terms of the particular sexual service that was agreed upon are matters that will be described in more detail at a later point in these reasons.
Ordinarily, on the basis of the opening remarks made on behalf of the defendants, as cited above, and having regard to the emphasised portion of those cited remarks, the clear implication was that if evidence was to be called in a case such as this concerning the knowledge of a named person involved in the events, namely Joy, she would be called to give direct evidence on such matters. That did not occur in this case.
The defendants' case, as opened, was that the plaintiff was previously banned from the brothel in question because he had a reputation for removing condoms during sexual intercourse at the defendants' Ginza brothel, and notwithstanding this, allegedly, knowing he was banned, he had nevertheless "gone back [to the defendants' 278 Cleveland Street brothel] and again participated in attempting to remove his condom during sex": T15.46.
At this point it is relevant to state that the defendants' position as outlined in the preceding paragraph, was problematical when examined from a logical and chronological perspective. This is because at the time the plaintiff was banned from the defendants' Ginza brothel, the defendants had not yet established their brothel at 278 Cleveland Street and there had been no contact or communication between the plaintiff and the defendants since the plaintiff was banned from attending the defendants' Ginza brothel.
There was no evidence called to support the factual allegation that the plaintiff had been banned from the defendants' brothel located at 278 Cleveland Street, and that notwithstanding a claim of a ban to that effect, he nevertheless returned there after having been banned.
At this point it is also appropriate to state that, for reasons that will be made plain, none of the factual allegations made on behalf of the defendants in the opening remarks as cited in the preceding paragraphs, were established by reliable or admissible evidence, either from Joy, who was not called to give evidence, or from any other defence witness.
The defendants claim that immediately after Mr Chang and Ms Hu entered Room 11 at the 278 Cleveland Street brothel, it was the plaintiff who allegedly started a violent altercation.
On the issue of the sequence and the manner in which that altercation occurred, the defence position was somewhat confused, as explained below.
At the time the plaintiff was cross-examined, which occurred in the presence of Mr Chang and Ms Hu, counsel for the defendants, presumably on instructions, suggested to the plaintiff that he was the aggressor in that he had initiated the physical altercation in Room 11 by moving towards Mr Chang, and pushing him on his shoulders with both hands outstretched, following which it was alleged that the plaintiff started throwing punches at Mr Chang, an assertion the plaintiff denied: T155.43 - T156.6.
The basis for that aspect of the cross-examination of the plaintiff was problematic, as in their respective evidence, neither Mr Chang, Ms Hu or Mr Ha supported an important aspect of that proposition which was put to the plaintiff as representing the defendants' case: Browne v Dunn (1893) 6 R 67.
Mr Chang (at T535.34), Ms Hu (at T539.35 - T539.41) and Mr Ha (at T546.45), each stated, contrary to that proposition put to the plaintiff, that the plaintiff had initiated the altercation by moving towards Mr Chang with just one outstretched hand and arm, that is, to push Mr Chang away.
The difference in those two factual versions that emanated from the defence camp, whilst apparently perhaps minor on first glance, was in my view, significantly material, and it remained unexplained. This requires critical evaluation.
The defendants claim that the altercation only occurred because of a perceived need on the part of Mr Chang and Ms Hu to go to the defence of Joy, whom, it was alleged, had been sexually assaulted by the plaintiff. The defendants claim that in those circumstances, Mr Chang and Ms Hu had acted lawfully, in Joy's defence, and also in their own self-defence. On that basis, the defendants claim that the plaintiff is not entitled to any damages in these proceedings. The plaintiff disputed key aspects of those factual assertions made by the defendants.
For reasons that will be made clear in my reasons for decision on particular issues that will be identified, I have not accepted the factual basis of the case sought to be made by the defendants. In arriving at that conclusion, I have preferred and accepted the plaintiff's account of the events to the versions proffered by the witnesses called in the case for the defendants.
Before addressing the principal issues calling for determination as identified at paragraph [15] above, it is necessary to first identify relevant facts that are not in dispute, and to also identify the relevant areas of factual conflict.

Facts not in dispute and identification of facts in dispute

Reference was made in the evidence to the existence of an internet caller forum relating to what was referred to as Asian brothels operating in Sydney: T417.20. This was identified in the evidence of Mr Ha as a source for his background belief that, at the time of the events in question, the plaintiff was a receptionist at another Sydney brothel that operated in competition with the defendants' brothels.
Before the events in question, since leaving school, the plaintiff had some considerable background familiarity and experience concerning brothels in Sydney. At various times he had managed two brothels owned by his mother and his stepfather at premises in Gladesville and in Marrickville. The Gladesville brothel, at 42 Buffalo Road, Gladesville, was known as the Infinity Bordello: Exhibit "B", p 286. In addition to his work at those brothels, he had regularly frequented other brothels as a paying customer, on a random basis, on an average of about four times per month. For that activity, he used the nom de bordel of Charles.
In 2017, on two separate occasions, some weeks apart, the plaintiff had paid for sexual services at the defendants' Ginza brothel at 310 Cleveland Street.
In late December 2017, the plaintiff attended at that brothel for a third time but on that occasion he was prevented from obtaining such services. This was because Mr Chang, who had become aware of the plaintiff's presence in the waiting area, informed the plaintiff that he was blacklisted and henceforth banned from further attendance at that brothel. The plaintiff did not offer much protest at that time. He then left the premises. The defendants' underlying reasons for that ban were disputed by the plaintiff.
In these proceedings, the defendants' first stated reason for the blacklist ban on the plaintiff was that his image had been copied from earlier CCTV footage taken at the Ginza premises and kept in a file of images of persons who were prohibited from entry to the Ginza brothel. The plaintiff's image was said to be in that file and was said to have been annotated with his identifying nom de bordel, Charles, along with a further notation to the effect that he had a reputation at the Ginza brothel for allegedly removing, or trying to remove, his condom during sexual intercourse with sex workers, an activity which was contrary to house rules.
The plaintiff disputed that he had ever conducted himself in that way. The defendants called no reliable evidence to substantiate that underlying allegation. The allegation, as raised in these proceedings, was plainly based on inadmissible hearsay for which the required notice in writing had not been given: s 67 of the Evidence Act 1995 (NSW).
The defendants' second stated reason for banning the plaintiff from the Ginza brothel was the assertion, also denied by the plaintiff, and not made good within the array of factual evidence called by the defendants in their case, that the plaintiff had previously falsely stated to sex workers at the Ginza brothel that their sexual interactions with customers in those premises had been the subject of CCTV recordings. The apparent implication or inference to be drawn from that suggestion was, or appeared to be that, pursuant to his association with a competing brothel, the plaintiff might have been attempting to lure away or dissuade sex workers from working at the Ginza brothel on that account. Nothing of significance turns on those allegations, which remain unsubstantiated.
Against those background circumstances, on the evening of 25 June 2018, in company with several friends, the plaintiff had attended a social outing at a gaming venue in Haymarket to play the video game known as "League of Legends". After some time, as a group, they decided to seek paid sexual services at a brothel. The plaintiff was accustomed to using his pocket money given to him by his parents in addition to his own earnings, to spend significant sums of money, of the order of two to three thousand dollars, for a night of entertainment with his friends in the manner described.
In that regard, the group attended at a brothel that was not operated by the defendants. There, all members of the group other than the plaintiff were able to engage the services of sex workers. The plaintiff paid for those sexual services to be provided to his friends. However, at that time the plaintiff found that he was unable to obtain similar sexual services for himself at that brothel.
This was because after the plaintiff's companions had made their arrangements to choose and engage with sex workers, the remaining sex workers at that brothel were unwilling and therefore unavailable for similar engagement by the plaintiff. The reason given for this was because those sex workers had previously worked at a brothel which the plaintiff had managed for his family. He therefore left the premises and sought out other establishments, which he referred to as shops. In the course of those events, after some internet searching on his mobile device, he eventually attended at the defendants' brothel at 278 Cleveland Street.
Some weeks earlier, the plaintiff had previously visited that brothel. He said that on that particular occasion the receptionist on duty at that time had allowed him to "view" some of the sex workers who were on the premises at that time. However, on that occasion, he left without engaging in any of the sexual services that were available on that occasion.
In the early hours of 26 June 2018, the plaintiff made telephone contact with the 278 Cleveland Street brothel and spoke to the receptionist to ascertain whether sex workers were available there at that time. He was told that sex workers were available for engagement at that time so he drove there, arriving at about 2.25am. On entering those premises he spoke to the receptionist, Mr Ha.
The plaintiff's account of that discussion was that Mr Ha had allowed him to view the available sex workers, and he did so. The plaintiff said that after further discussion with Mr Ha, an agreement was reached whereby the plaintiff would pay an agreed sum of $240 to spend time with Joy, who would provide him with agreed sexual services. He then paid Mr Ha the agreed amount of $240 for what was identified as being for the agreed Diamond Service, which was to be provided by Joy.
Mr Ha's account was slightly different to that of the plaintiff. He said that he believed there had been an earlier telephone conversation in which the plaintiff had asked for and had booked a session with Joy, by referring to her by name. Mr Ha claimed that when the plaintiff arrived, he was immediately shown to Room 11, where Joy then joined him. Those differing factual accounts will be analysed at a later point in these reasons.
The Diamond Service identified in the evidence of the plaintiff was referred to in the evidence by the acronym "CIM". This was explained as entailing first, fellatio comprising oral sexual stimulation of the penis by the sex worker, leading to in mouth ejaculation, followed secondly, by penile-vaginal sexual intercourse. It was commonly understood between the parties that the former activity was to be undertaken without the use of a condom, and that the latter activity was to be undertaken with the use of a condom.
According to the undisputed evidence of the plaintiff, there had been no discussion between Joy and himself as to the precise nature, extent or detail, of the paid sexual activity that was anticipated to then take place between them in Room 11. To the extent that there had been any such discussion, this appears to have only been between Mr Ha and Joy, where Mr Ha had earlier negotiated the transaction with the plaintiff at the time of payment. The underlying assumption appears to have been that Joy was agreeable to whatever had been discussed between the plaintiff and Mr Ha.
When the plaintiff was shown to Room 11, shortly afterwards, Joy joined him in that room and asked him to shower. The door was then locked from the inside by either the plaintiff or by Joy. They both undressed. The plaintiff showered with the assistance of Joy, and she then produced some towels. The plaintiff then dried himself and lay naked on his back on the bed in that room.
The plaintiff gave the following description of the subsequent events. Joy took up a kneeling position at the foot of the bed and commenced to fellate him by taking his penis into her mouth. The plaintiff said that in those events he had not been asked to wear a condom. The plaintiff said that fellatio then continued for a few minutes, but not to the point of ejaculation. An unexpected interruption to that activity then took place. This occurred when the inwardly opening self-closing door to the room was suddenly unlocked and opened from the outside. That account given by the plaintiff was not contradicted by evidence.
The plaintiff, Mr Chang, Ms Hu and Mr Ha gave varying accounts of the details of the ensuing events.
Mr Chang, Ms Hu and Mr Ha each described Joy as having exclaimed the words to the effect cited at paragraph [20] above. The defendants cite this as the claimed justification for entry into the room. Mr Chang, Ms Hu and Mr Ha described having observed that, at the time of their entry, Joy was in an upset state. The plaintiff disputed the factual correctness of all those assertions.
The plaintiff said that Mr Chang and Ms Hu entered the room in company with Mr Ha, the latter taking up a position blocking the open doorway. Mr Ha denied that he took up that position in order to prevent the plaintiff from leaving the room. He said he was simply holding the door open. Mr Ha said he was shocked by the circumstances that had ensued, and he took no further active part in the events apart from continuing to hold the door open. He said that if the plaintiff had tried to leave the room earlier than when he eventually did so, he would not have stopped him from doing so.
By the time Mr Chang, Ms Hu and Mr Ha appeared and entered the room, Joy had disengaged from any further physical contact with the plaintiff. At that time, Joy was told to leave the room. She then promptly gathered her clothes and left the room. There is a dispute as to whether it was Mr Chang or Mr Ha who told Joy to leave the room. There is also a dispute as to whether or not Joy said anything at that time referrable to the plaintiff or to any of his prior actions.
A violent physical fight then erupted variously involving the plaintiff, Mr Chang and Ms Hu. On the respective versions this involved differing sequences. The details and the sequence of those physical actions are the subject of much dispute. This will be examined more closely in my findings of fact on those matters.
At some point the physical altercation concluded. The plaintiff then took his belongings and left the premises. He then sat in the gutter or pavement not far from the premises, in an injured state, feeling miserable. Police officers arrived soon afterwards, as did the plaintiff's friends. A brothel employee had called the police to report an assault in progress. The plaintiff told the police he had been beaten up in the brothel. It appears that the plaintiff declined ambulance assistance and his friends then took him to hospital.
The plaintiff sought medical attention for his injuries at Royal Prince Alfred Hospital ("RPAH"). The hospital records will be reviewed in the course of the consideration of determining some factual issues and in the consideration of the plaintiff's claim for non-economic damages.
Police investigations later proceeded, ultimately resulting in the arrest of Mr Chang and Ms Hu. Searches were later undertaken of the brothel premises. Immigration officers also raided the brothel premises. These reasons are not concerned with an evaluation of those events other than as now follows.
Mr Chang and Ms Hu were charged with serious indictable offences relating to the alleged manner in which they had treated the plaintiff. They were each twice refused bail. They remained in prison on remand for two months whilst awaiting further court appearances in respect of those charges. They each had previous criminal convictions for assault occasioning actual bodily harm. In that regard, there was no tendency notice served by the plaintiff in relation to those earlier assault convictions. Consequently, I here record that the evidence concerning their prior convictions for assault forms no part of the consideration of this case.
Whilst Mr Chang and Ms Hu remained in custody on remand, their brothel businesses suffered a significant economic decline, and they said they also experienced some family difficulties. They claim that those background events, and some discussions that took place between their lawyers and the prosecution, resulted in circumstances where they each decided to plead guilty to a lesser charge in the interests of a more expedient conclusion to the process of their prosecutions.
On 30 September 2018, they each subsequently pleaded guilty to a lesser charge of common assault upon the plaintiff. They were duly convicted and they each received a non-custodial sentence. Two Victim Impact Statements from the plaintiff were obtained. It appears that one of them was taken into consideration at the time of sentencing. Mr Chang and Ms Hu nevertheless continue to dispute the factual correctness of some aspects of the plaintiff's Victim Impact Statement, and an earlier one, a matter to which I shall return.
Neither Joy nor any of the other sex workers present on the premises who witnessed some of the events were called to give evidence in these proceedings. No factual statements from those persons were tendered in evidence. The defendants claimed that they did not have the contact details for those persons other than their mobile telephone numbers and their WeChat social media contact details. The defendants stated that they believed Joy had returned to Thailand, and that her actual whereabouts are unknown. No detailed evidence was called as to the nature and extent of any efforts that might have been pursued to seek to obtain evidence from those persons.
The manager of the defendants' 278 Cleveland Street brothel on 26 June 2018 was variously identified in the oral evidence and in the police records as being Jesse Jiang, Jesse Lee, or Yunji Jang, who had originated from Korea. The uncontested evidence is that she was at the premises at the time in question and at the time of the fracas and its aftermath. She has been continuously employed in a managerial role at the defendant's brothel since those events. She was not called to give evidence in the proceedings on particular matters that could possibly have assisted the case for the defendants concerning any physical evidence that could have relevantly related to the plaintiff.
The records of the police investigation showed that before the police attended the 278 Cleveland Street brothel, pursuant to a warrant to investigate the plaintiff's claim of having been assaulted there, the Manager, Jesse, had deleted "the CCTV footage of the incident the following day instead of saving the footage" because she "thought there was no reason to keep the footage".
The contemporaneously recorded police narrative stated: "The victim selected the services of an escort named 'Joy' and paid the Accused $240, before entering a designated room. The victim undressed and showered before laying on a bed inside the room, where Joy commenced a sex act. Moments later the Accused and both co-accused entered the room. Joy was ordered to leave and the co-accused CHANG commenced a violent assault on the victim delivering a number of open palmed strikes to the left side of the victims face. The co-accused HU also commenced striking and kicking the victim. The co-accused CHANG dragged the victim off the bed and forced him naked onto his knees in the centre of the room. Both co-accused' continued to deliver a number of open palmed strikes and kicks to the face and body of the victim." [Exhibit "B", p 286]
A call was made to police to report that a violent assault was occurring at the 278 Cleveland Street brothel. When police responded to that call they found the plaintiff sitting on a nearby kerbside in an injured state. This led to the investigating police making a relevant enquiry of a female receptionist at that brothel, who denied that any such incident had occurred: Exhibit "B", pp 287 - 288. Police later established that it was Jesse who had called the police to say the assault on the plaintiff was witnessed, and was in progress: Exhibit "B", pp 289 - 290.
At about 3.40am the investigating police arrived at the scene and saw the plaintiff in an injured state. The police narrative described the plaintiff as being "noticeably affected by an intoxicating substance as he was unbalanced, swaying on his feet, eyes were bloodshot and having a strong smell of alcohol in his breath": Exhibit "B", pp 291 - 292. The plaintiff disputed the factual correctness of the observation as to alcohol.
The observation by police of the plaintiff smelling of alcohol shortly after 3.40am was inconsistent with a contrary observation made by a medical examiner at RPAH shortly before 4.47am that same morning, which recorded that the plaintiff "does not appear intoxicated / does not smell of alcohol": Exhibit "B", p 5.
I now turn to my consideration of the issues calling for decision as identified at paragraph [15] above.

Issue 1 - Credibility and reliability of testimony

Significant credit and reliability of testimony issues arose concerning the testimony of all the witnesses who gave oral evidence. In the paragraphs that follow I set out my analysis and conclusions on matters concerning the credibility and reliability of the testimony of the plaintiff, Mr Cheuk Yin Fung, Mr Chang, Ms Hu and Mr Ha.

The plaintiff's evidence - credit findings

The plaintiff was born in Guangzhou in 1994, in China. In 1997, at age 3 years, he moved with his parents to live in Hong Kong where he was educated to a Year 10 level of schooling. In 2013, he arrived in Australia. He studied for 6 months at the Cleveland Street Intensive English High School. He then attended Randwick Boys High School for about a year.
The plaintiff was cross-examined extensively on multiple topics. In that regard, I had the opportunity of considering his responses over the course of the three days he spent in the witness box. Although the plaintiff had some facility in the English language, he preferred to give most of his evidence with the assistance of a Cantonese interpreter. The plaintiff gave matter-of-fact evidence on the circumstances of his attendance at the brothel, and as to what he claimed had occurred there.
The defendants mounted a series of challenges to the credibility and the reliability of the testimony of the plaintiff. Essentially, those challenges were in three categories. First, on matters which in context, I considered to be minor or peripheral concerning apparent discrepancies between his oral evidence and some factual details appearing in the documentary materials, secondly, the credibility of his evidence on specific matters, both in relation to his finances and in relation to details of the events that occurred on 26 June 2018, and thirdly, what the defendants described as the plaintiff's gross exaggeration of his injuries, except as to his left eye: T190.25. The defendants placed great emphasis on the plaintiff's finances on the issue of his credit, a matter to which I shall return.
The thrust of the defendants' submissions as to the plaintiff's credit was to the effect that because "under oath" (a mistaken reference to the plaintiff's affirmation) he had "told a lot of small lies", which counsel for the defendants acknowledged, of themselves, "don't add up to much because he could be mistaken or all sorts of things", nevertheless, there were "some very large lies regarding his cash payments and his bank accounts", where "he's clearly lying". It was therefore submitted that his evidence on critical matters in dispute should not be accepted: T558.35 - T558.39; T571.13 - T571.19.
In making submissions along those lines, counsel for the defendants rejected an alternatively formulated proposition to the effect that what had been submitted as comprising "small lies" on the plaintiff's part, should instead be seen as being discrepancies on peripheral matters, not necessarily being lies, and which were not material contradictions that discredited the plaintiff on the more substantive issues: T561.7 - T561.18. The defendants rejected that construction in favour of a more critical and adverse construction against the plaintiff's credit.
On balance, I considered the defendants' submissions on the plaintiff's credit overstated the effect of the evidence and overstated the significance and the effect of the challenges that were made in cross-examination of the plaintiff.
The defendants' credit submissions referred to the plaintiff's evidence as lies in very robust terms, as cited above. The defendants' submissions forthrightly characterised the plaintiff as having lied under oath: T567.40. When that submission was queried as to its appropriateness in light of the distinction between an activity of consciously lying under oath, or simply giving incorrect evidence, the defendants maintained that the more serious of those constructions should apply.
This led to counsel for the defendants being asked in the course of final submissions to address whether the proposition of the plaintiff having lied under oath had been properly put to him in those terms to give him a fair opportunity to comment on that assertion. The defendants maintained through the submissions of their counsel that the plaintiff had lied under oath: T567.48. In the specific context of that discussion, counsel for the defendants indicated that transcript references for such challenges would be provided: T567.49.
On 17 March 2020, the parties were informed that the time for any supplementary submissions in writing had closed, and that the Court would proceed to deliver judgment as soon as was practicable. There was no application made by any party to seek an extension of that time frame to make further submissions.
In my assessment, the evidentiary references provided on behalf of the defendants in the course of submissions and in MFI "13" did not support the serious assertion that the plaintiff had lied under oath.
The defendants' challenges to the veracity of the plaintiff's evidence, whether expressed as comprising lies, lying, or untruths, were somewhat limited in their terms. I do not consider that the detail of those challenges, as put to the plaintiff, justified the level to which the defendants' final submissions on the plaintiff's credit had been pitched.
A further difficulty with the defendants' credit submissions was that on the damages issues, although the defendants' counsel flagged that it would be suggested to the plaintiff (at T190.25), that he was "grossly exaggerating any injury to himself other than that to his left eye", no question had been put to him in those terms to justify that submission: Browne v Dunn (1893) 6 R 67.
In essence, the challenges to the plaintiff's credit are, as arranged for convenient consideration as follows, in conformity with the chronological order in which the underlying events took place. Matters pre-dating the events 1. The matter of a date discrepancy, either 2013 or 2014, as the year the plaintiff arrived in Australia: T65.36. The difference is inconsequential; 2. The matter of whether, when at the Ginza brothel in December 2017, the plaintiff had been told of the allegation that he had been referred to as either not wearing or taking off his condom during sexual intercourse with sex workers at those premises: T202.10. The plaintiff's denial was not contradicted by other evidence; 3. The matter of whether, at the Ginza brothel, in December 2017, when the plaintiff was told by Mr Chang that he was banned from further attending there, the plaintiff had been slapped in the face by Mr Chang, gently or otherwise, two, three or a few times: T113.9 - T113.33; Events preceding the plaintiff's transaction at the 278 Cleveland Street brothel 1. The matter of whether or not the plaintiff had taken alcohol on the evening in question is a matter that requires examination in the context of the pleaded defence of intoxication: T594.36 2. The matter of whether or not Mr Cheuk Yin Fung was present when the plaintiff found himself unable to obtain sexual services at the brothel that the group had earlier attended together: T228.2; 3. The matter of whether it was the plaintiff who had rung Mr Cheuk Yin Fung, or vice versa, before the sex worker named Joy and the plaintiff proceeded with their transaction in Room 11 at the 278 Cleveland Street brothel: T144.17; Plaintiff's interaction with Joy at the 278 Cleveland Street brothel 1. Whether the plaintiff had been in Room 11 with Joy for more or for less than 10 minutes: T186.44; T187.3; T187.21; 2. The veracity of the plaintiff's denial of having sexually assaulted Joy and having allegedly himself caused the altercation in question by beforehand removing his condom whilst having or attempting sexual intercourse with Joy: T200.38; T204.10; The critical events of the altercation 1. Who was the physical aggressor in the altercation which is the subject of these proceedings; 2. Whether it was Mr Chang, Ms Hu, or both who had kicked the plaintiff in the abdomen whilst they were located in Room 11: T179.8; 3. Whether it was Ms Hu who left the room in order to assemble the sex workers at the doorway, and whether the plaintiff was lying in his Victim Impact Statement when he asserted that Mr Chang had told him to apologise to those sex workers: T182.1 - T182.9; Events occurring after the altercation in question 1. Whether the content of the plaintiff's police statement was truthful: T64.29; T64.33; 2. Whether the plaintiff had lied in one of his Victim Impact Statements: T182.2 - T182.5; 3. The truthfulness of the plaintiff's claim that, after the events in question, he became scared on a later occasion whilst he was driving a passenger in an Uber vehicle to a Surry Hills destination: T196.36; Basis for the defendants' "greatest lies" submission on the plaintiff's credit 1. The "greatest lies" relied upon by the defendants in their submissions (at T564.13), and which the defendants claim discredited the plaintiff, related to his evidence as to the probity of his finances. In that regard, the defendants relied upon the following extract from evidence: "Q. You said that different expenses may come up during the day, prior to 26 June 2018, every week you were receiving quite a lot of cash from your employment within your mother's brothels; is that correct? HIS HONOUR: Do you mean by that question that he was receiving cash in his own right or on behalf of his mother's brothels, it's the way the question is framed it's ambiguous. WALSH Q. You were paid cash both a base salary and a commission and your evidence was you were paid in cash in an envelope each week by your stepfather? A. WITNESS: Yes. Q. You took that cash home? A. WITNESS: Yeah. Q. And you never banked any of that cash? A. WITNESS: Not immediately. Q. No, you said that you didn't bank the cash that you took home? A. INTERPRETER: I didn't say never. Sometimes when I was with my mother, when I was lacking in cash I would ask my mum for extra cash. When I'm lacking in cash, I ask my mum for cash. Q. Your mum gave you even more cash than your actual salary? A. INTERPRETER: Yes, yes, that's true because I spend quite a bit of money. After this incident especially, before this incident I was quite a big spender. Q. You did say, I said this is at page 72, 47, 44, "And did you take the cash home with you or did you place it in the bank?" Witness, "Take it back to my home, yes." "Did you deposit part of it in the bank each week or did you keep all of it?" Answer, "All took home, nothing bank." "No banking of any of it, you never banked your wages" you did say later on did. And then you said, "When you say later on, what period, it was about a year and a half before case happened"? A. INTERPRETER: Not true. Q. Not true? A. INTERPRETER: I don't, because it's so long, I don't quite catch your, the gist. Q. I'm just repeating your evidence in fairness to you, in any event you had a lot of cash at home did you not, prior to this incident? A. INTERPRETER: Sometimes I put it on my person, sometimes I put it underneath my bed, yes, there's quite a bit of cash, have it on my person or at home. Q. You didn't necessarily have to access the account to get money out because you had plenty of cash at home? A. INTERPRETER: Yes." [T210.45 - T211.47]
As to Sub-paragraphs (1), (2), (3), (4), (5) and (6) of paragraph [90] above, for the reasons that follow, I consider those matters should be seen to be of relatively minor and peripheral if not inconsequential importance and they should not be seen as having a significantly adverse impact on the reliability of the plaintiff's evidence or his credit. My reasons for that view are as follows.
The precise identification of the year of the plaintiff's arrival in Australia is of no material consequence: Sub-paragraph (1) of [90] above. The fact that the defendants had previously banned the plaintiff from the Ginza brothel is of some background relevance, but the defendants' stated reasons for that ban, namely condom removal during sexual intercourse with sex workers at that brothel, has not been proven as to its factual foundation: Sub-paragraph (2) of [90] above. The number of times the plaintiff was previously slapped by Mr Chang at the Ginza brothel, and whether this was accurately described by the plaintiff in his statements, is a peripheral matter: Sub-paragraph (3) of [90] above.
Whether or not the plaintiff had consumed any alcohol on the evening in question is a matter of diminished significance given that, neither Mr Ha, Mr Chang nor Ms Hu, each of whom had direct dealings with the plaintiff that evening, made any reference in their evidence to the plaintiff having been affected by alcohol: Sub-paragraph (4) of [90] above. The significance of the police and hospital observations as to the plaintiff being affected by alcohol has to be examined in that light. That issue will be further examined in the context of the claimed statutory defences, for which the defendants have the onus of proof.
The matter of Mr Cheuk Yin Fung's knowledge of the timing of the plaintiff's inability to obtain sexual services at the brothel where the group had earlier attended, in comparison to himself engaging with such services, is in my view a peripheral matter of no relevance, although it would seem that as the plaintiff had paid for his friends to receive such services, the circumstance of him being refused sexual services there, may have followed those other transactions: Sub-paragraph (5) of [90] above. The question of whether the plaintiff rang Mr Fung or whether Mr Fung had rung the plaintiff before the events in question is a peripheral matter of no relevance: Sub-paragraph (6) of [90] above.
The question of whether, at the defendants' brothel, the plaintiff was in Room 11 with Joy for less than or more than 10 minutes, is of little if any significance to determining any issue in the case, especially as none of the other witnesses were observing the passing of time at that point: Sub-paragraph (7) of [90] above.
None of the witnesses called by the defendants were able to give any eyewitness account on the question of whether, contrary to the plaintiff's evidence, he had removed a condom at any time when he was in the room with Joy, or beforehand, at the Ginza brothel: Sub-paragraph (8) of [90] above.
The question of who was the aggressor who initiated the altercation in question, is a factual matter to be determined in connection with the consideration of Issue 2: sub-paragraph (9) of [90] above.
The question of who kicked the plaintiff and in what sequence during the altercation in question, involves a consideration of a fact in issue which must be determined on an evaluation of the evidence: Sub-paragraph (10) of [90] above. So too is the matter of who went to fetch and assemble the sex workers to whom the plaintiff was then required to apologise: Sub-paragraph (11) of [90] above.
The characterisation of discrepant descriptions on factual matters on a comparison of the plaintiff's oral evidence and the content of his two police statements and his two victim impact statements, and whether he lied in that regard, are matters that stand to be resolved by findings of fact: Sub-paragraphs (12) and (13) of [90] above.
The defendants' characterisation of the plaintiff's evidence on such matters as lies, is an overstated position given there were intermediary interpreters involved in the process and there was scope for misunderstanding on the part of the police and the person preparing the plaintiff's Victim Impact Statement: T64 - T65; T107.7; T173 - T174; T182.5 - T182.25.
The question of the truthfulness of the plaintiff's statement of being scared to drive after the events in the circumstances he described, and as commented upon in the medical evidence, is not of itself incredible or inherently improbable: Sub-paragraph (14) of [90] above.
The fact that the plaintiff's evidence revealed circumstances of non-payment or underpayment of due tax on his earnings is plainly a matter of discredit to the plaintiff: Sub-paragraph (15) of [90] above.
That said, I consider that the fact the plaintiff acknowledged such matters which suggested financial delinquency, is an indication that his evidence in that regard was truthful. The defendants' complaint over an earlier incomplete compliance by the plaintiff with a subpoena for his financial records to be produced could easily have been remedied by taking available procedural steps before the trial if the defendants' legal representatives had seen fit to do so on an examination of those records which were produced in the first instance.
A timely examination of that material would have revealed to the defendants that transfer of significant funds had been made into the plaintiff's account, and by whom. A request for particulars on that issue, or an interrogatory, or a timely further subpoena, if issued could have readily revealed that the plaintiff had another bank account from which he had been transferring funds.
However, once the non-compliance issue was identified in the plaintiff's evidence, and the relevance of the circumstances was explained to him, the plaintiff did not seek to conceal the fact of a second account, and he produced the statements on the next convenient occasion without the need for other measures to be taken. In those circumstances, I do not regard those described events to support "the greatest lies" as made by the defendants' submissions.
In arriving at that view I have not overlooked the matter that the forensic accountants who had been engaged to assist with quantifying the plaintiff's claim for economic loss, were instructed as follows: "4. Business intentions 4.1 It was always the family's intention to open more brothels where our client would independently manage. 4.2 Our client had left school in year 12 to work in the family brothel business. The family did not provide him with a salary documented by pay slips. As it was a family business, his financial needs were provided for in exchange for work. 4.3 As our client has not been able to return to work as a consequence of his injuries, the business has had to increase the number of shift (sic) of the other managers. 5. Comparable 5.1 Attached is a receipt for an electronic fund's transaction to Seung Man Ha from account 06 26923461 4357. The transaction is marked 287 Salary, in the amount of $3,000. 5.2 Mr Seung Man Ha is a manager for the Defendant. We are instructed that our client earns more than $3,000 per week, but believe that this is a reasonable comparable. 5.3 In the alternative, a brothel receptionist advertisement dated 30 July 2019 advertised a rate in excess of $30.00 per hour. 6 Alternative assumption 6.1 Through our client's years of working as a manager in the sex industry, even if he was not going to continue in the industry, we say that our client's injuries have caused him a loss of work potential on the open labour market. 6.2 His comparable earning (sic) on the open labour market would be that of a manager in the entertainment industry. Wages for a venue manager exceeds $80,000 per annum." [Exhibit "B", pp 133 - 134]
Relevantly, and inconsistently with the plaintiff's oral evidence of his brothel earnings of between $1200 and $1500 per week as disclosed in his evidence, his solicitor represented, as I infer, on instructions, that, as at 28 August 2019, the plaintiff "earns more than $3,000 per week". It appears no tax was paid on those historical earnings, which were characterised as monies that were paid to the plaintiff to meet his financial needs, in exchange for his work, in circumstances where there was no salary documentation.
Whilst that was a discreditable financial arrangement, which undoubtedly creates assessment difficulties for the plaintiff with regard to his claim for economic loss, the admission to that effect, which involves significant understatement of his earnings, and which was characterised by the defendants as great lies, does not necessarily mean that the plaintiff's evidence on other matters should be discounted, where it otherwise has the ring of truth, and is not otherwise inherently improbable.
My reason for that view is that, to the plaintiff's forensic disadvantage on the issue of his financial probity, on instructions from him, his solicitor openly disclosed those facts to the forensic accountants as part of the preparation of the case, knowing it would most likely be used against him. Instead, a different course of concealment or suppression of such information could have been taken, and if taken, that would well have reflected adversely on his credit. I therefore consider the openness of that disclosure should be weighed in the plaintiff's favour on the issue of his credit.
In returning to the submission of the "small lies", in essence, the defendants pointed out that, the account of the events given by the plaintiff concerning specific matters, as variously recorded in two police statements and in his two Victim Impact Statements, was in parts discrepant with his oral evidence.
As to the plaintiff's general explanation for the discrepancies as referred to by the defendants, I found his explanation to be both credible and persuasive. In that regard, his evidence, as extracted below, concerning the content of one of his Victim Impact Statements, was as follows: "Q. This is a statement that's, this isn't an interview, this is your victim impact statement which had gone into specific detail as to everything that happened, you say happened that night? A. INTERPRETER: Yes. Q. And you attribute that aggravation to Chang, you also say as to the amount of girls, your estimation at paragraph 24 was about eight girls standing just outside the doorway looking in? A. INTERPRETER: Yeah, here is said eight, but now I recall that it would be around about three to four. Q. Why would you double the amount of girls when giving a victim impact statement? A. INTERPRETER: I was still confused. I was beaten up, I was confined to a room without freedom, at a time even freedom afterwards I can, I understood that they were still at large, they still have freedom so I don't know what they would do to me, so I was, there was without camera, I was in a room without footage and confined there. And even at the time of the statement I was still worried on a daily basis whether they would revenge on me. I did during the past two days of cross examination, you successfully help me to remind of my memory. Now everything has been refreshed due to this cross examination. You know, I've been through hell during the past two days." [T179.35 - T180.6] [Emphasis added]
In that latter regard, the plaintiff also stated: "A. INTERPRETER: Your Honour, the process of the whole episode, I have already told this Ms Barrister in very clear terms. During the past two days of cross examination, I understood that I'm not to communicate with anyone about my evidence and during the past two days I could not sleep at all at home, this episode only happened so long ago but it was not until the present day that I have the opportunity to vent it out. And today and during the past few days is the only location where people do listen to my true story attentively. And also understand what I was going through." [T180.34 - T180.41] [Emphasis added]
The plaintiff's explanations, as emphasised in the two preceding extracts of the evidence, were to the effect that it was not until the occasion of his oral evidence, when he was questioned in a way that enabled him to fully vent his account and put the events together, that this process reminded him of the correct sequence of events. In my assessment, that explanation was not inherently improbable.
At the time of the plaintiff's attendance at hospital, he was assessed as having significant injuries. He experienced dizziness and impairment of his mental faculties (T191.36 - T191.39), he was disoriented (T188.4), and he had memory impairment: T123.40 - T124.17. He was being assessed for his multiple injuries. In that context, any notes made by medical personnel on factual matters as to the sequences in the fight in question have to be considered in proper perspective, in recognition of the true purpose of those notes: Mason v Demasi [2009] NSWCA 227. Those medical notes were not prepared as part of a liability investigation of the events.
As to the specific factual contents of the plaintiff's police statements and his Victim Impact Statements, those documents were prepared in a different context to the taking of oral evidence. It can be safely inferred from the content of the plaintiff's oral evidence, and from the nature of his injuries and the effect of those matters upon him, and from the expressed content of those historical documents, that he did not personally type the two police statements: Exhibit "B", pp 245 - 249 and pp 250 - 257.
At the time the plaintiff signed the first police statement he was suffering the effects of his injuries. He was dizzy and he had memory impairment for a time. That account was not traduced in cross-examination. The second police statement was a function of the first statement. In my view, the discrepancies which the defendants seize upon in that material to seek to impugn the credibility and reliability of the plaintiff's evidence relate to peripheral matters that are not material and they do not form a reliable basis for discrediting the plaintiff's evidence. In that regard I do not discount for the possibility that the police who prepared the plaintiff's statements may have misunderstood him when those statements were prepared, as was suggested by the plaintiff: T173.32.
In my view, given that it is unlikely that the plaintiff composed his two Victim Impact Statements himself, the same analysis should apply to the defendants' submissions concerning those Victim Impact Statements: Exhibit "B", pp 245 - 249 and pp 250 - 257. It is noteworthy that counsel for the defendants only cross-examined the plaintiff on one of those statements: T553.24 - T553.30. In those circumstances, it would be procedurally unfair to the plaintiff to characterise the differences between the content as lies, as was submitted by the defendants.
In surveying those matters, I consider that the challenges made by the defendants to the plaintiff's credit, when taken individually or in aggregate, do not require a conclusion that the plaintiff has been discredited as a witness, as has been submitted by the defendants. In comparing the written materials with the content of the plaintiff's oral evidence given on oath, I considered that the plaintiff's evidence on oath on critical matters in dispute was given by him with apparent truthfulness. That evidence is open to be accepted where it is not otherwise inherently improbable.
On several occasions during the plaintiff's evidence he was observed to become emotionally upset, and on one occasion he seemed to be hyperventilating, as was observed at the trial: T174.33; T180.45. At such times he remained silent whilst composing himself. I considered his reactions to be genuine and commensurate with the embarrassing and upsetting subject matter that was being canvassed in the evidence at those times.
Although the plaintiff's evidence should be seen to be necessarily self-serving in his own interests, I considered that with one qualification, and contrary to the submissions made on behalf of the defendants, his evidence was given in relatively restrained and unexaggerated terms, in which I consider that he understated the physical and emotional effects that the events in question had upon him.
The qualification referred to above concerns the plaintiff's perception that he can no longer work. In my view, his perception in that regard is a distorted one that seems to be a function of his deleterious psychological reaction to the circumstances of the fracas and its sequelae, as those matters continue to affect him. This will be taken up again in my reasons for assessing the plaintiff's claim for damages.
In my assessment, in answers to questions asked of him in cross-examination, the plaintiff made appropriate concessions where such concessions were due. In his rejection of contrary propositions that were put to him in cross-examination, his responses were moderate and believable, including when he reacted with exasperation to some questions.
Significantly, the plaintiff gave candid evidence concerning his avoidance of paying tax on his earnings, in that he received his earnings in a manner that avoided tax. This was conceded fairly and appropriately to the circumstances. That evidence was given freely and against his interests. Whilst the underlying course of conduct that avoided his tax liability did not reflect well on his credit, his candour in making such concessions served to assist in persuading me that he took his oath seriously, and that he was giving a truthful account of the relevant events in his answers to questions.
In assessing the credibility and the reliability of the plaintiff's testimony, I have also taken into account that a substantial part of his evidence was given through a Cantonese interpreter in circumstances where he appeared to nevertheless understand what was being asked of him in English. I am satisfied that he used the services of the interpreter for clarity and precision, given the seriousness of the subject matter of his evidence. Whilst he appeared to give non-verbal indications of having understood the questions asked of him in English, I formed the view that he did not use the services of the interpreter for a possible forensic advantage to seek to evade or to avoid direct answers to questions.
In balancing those matters, except in relation to his capacity for work as explained above, I consider that the evidence the plaintiff gave on critical matters in dispute was not inherently or glaringly improbable. I found the plaintiff to be a credible and reliable witness on the subject matters raised in his evidence. I consider that his evidence is available to be accepted on critical liability facts in dispute.

The evidence of Mr Cheuk Yin Fung, "Eddie"

The defendants submitted that the evidence of the plaintiff's friend Mr Cheuk Yin Fung ("Eddie") should not be accepted on critical matters of fact in dispute.
Mr Cheuk Yin Fung, who is a chef from Hong Kong, has lived in Australia on a student visa since 28 December 2017. He knew the plaintiff, initially as a school friend, then in his employment as a cleaner at the brothel owned by the plaintiff's mother at Gladesville, and later as friend and social companion, when they frequented gaming venues and other brothels together. He gave most of his evidence through an interpreter.
The substance of Mr Cheuk Yin Fung's evidence was that on the night in question, in the three hours that he was together with the plaintiff, and when they commenced seeking out brothel venues, he did not see the plaintiff consume any alcohol or illicit drugs. That evidence was not contradicted by any other direct observational evidence other than the police and hospital documents, a matter to which I shall return in the context of my findings on matters in dispute. Mr Fung's evidence on this point was not inherently improbable, and I accept that evidence.
Mr Cheuk Yin Fung described his own attendance on the night in question at the brothel where the plaintiff was not able to obtain sexual services for himself. Mr Cheuk Yin Fung left that brothel at about 2.00am, at which time, in the company of another friend who had been in their company that evening for the same purposes. He said at that time he telephoned the plaintiff who then told him that he was at the brothel at 278 Cleveland Street, that he had chosen the company of a sex worker, and that the anticipated engagement with that sex worker was about to commence. The call then ended. There is a divergence in the evidence as to whether it was Mr Cheuk Yin Fung or the plaintiff who made that call. In the described context, I consider that nothing turns on whether it was the plaintiff or Mr Cheuk Yin Fung who made that call.
After that call ended, Mr Cheuk Yin Fung then went back to the internet café where the group had earlier played games. There, he received a call from another person, and as a result, he then went straight to the 278 Cleveland Street premises.
Mr Cheuk Yin Fung said that on his arrival outside the 278 Cleveland Street brothel, he saw police, and he saw the plaintiff sitting on the pavement holding his head. He said that the plaintiff then told him that he had been beaten up whilst at the brothel. He noticed the plaintiff's left eye was heavily swollen and his face was bleeding. It appears from his evidence (at T223.9 - T223.15), that although an ambulance arrived, one of the plaintiff's companions present at the scene drove the group to the RPAH in the plaintiff's vehicle. It is immaterial as to who drove that vehicle.
Mr Cheuk Yin Fung was cross-examined as to his recollections of the various brothel attendances by the group that evening. Notwithstanding the defendants' credit submissions on those issues, I considered such matters to be peripheral, and of little if any relevance to the resolution of critical matters in dispute in the proceedings. Those matters are immaterial to an assessment of the reliability of Mr Cheuk Yin Fung's evidence.
Similarly, the defendants sought to make much, too much in my view, of an apparent discrepancy as to who amongst the group of the plaintiff's friends had at differing times earlier that evening driven the plaintiff to various brothels and later, to hospital, and at which brothel the plaintiff had earlier been refused sexual services, and why that was so.
I also considered those matters to be peripheral to the central issues calling for decision and peripheral to a credit assessment. They did not have a material adverse impact on the credibility and reliability of the evidence of Mr Cheuk Yin Fung, or on the evidence of the plaintiff.

The evidence of Mr Seung Man Ha, the brothel receptionist

Mr Ha is aged 32 years. He was born in Korea and came to Australia in 1997. He completed his HSC in Australia. He later returned to Korea to study aviation but after 1 year, for cultural reasons, returned to Australia. On 30 May 2018, he obtained employment with the defendants as a receptionist at their brothel at 278 Cleveland Street. His duties comprised sales, taking bookings, and dealing with customers. He used the name Tony whilst working in the defendants' brothel.
Following the events in question, Mr Ha was arrested by investigating police officers on a charge of kidnapping in relation to his role in the events. However, that charge against him did not proceed and it was discontinued. Those circumstances were no doubt distressing to him at the time.
On the plaintiff's behalf, challenges were made to the evidence of Mr Ha on critical matters of fact in dispute. The suggestion was that in his evidence in these proceedings, Mr Ha had provided a selective and factually incorrect version of the events in question in order to support Mr Chang, his employer, in his defence of these proceedings. Mr Ha denied that proposition: T453.15 - T453.45.
There are two components to the assessment of the evidence of Mr Ha, first as to its reliability, and secondly, concerning matters that reflect on his credibility as a witness.
A useful starting point for that evaluation is to recognise that in his evidence, Mr Ha agreed, fairly, that some parts of his memory of the events were not as good as it was at the time of the events: T450.14. There was no suggestion that before he gave evidence in these proceedings he had refreshed his memory from a contemporaneously prepared statement.
On the question of reliability of his testimony, having regard to Mr Ha's concession regarding his memory of the events, as recorded above, I have a reservation as to its factual reliability. That view is reinforced by Mr Ha's hesitancy at a point in his evidence, recorded at T425.42 - T425.47, where he indicated an uncertain recollection where, in my assessment, he was plainly seeking to reconstruct the events in his mind. That matter, together with the fact that part of his evidence was based on his belief as to his initial interaction with the plaintiff, rather than being able to call upon an actual recollection on that question (T416.26), caused me to doubt the reliability and accuracy of his testimony on critical matters in dispute.
Furthermore, Mr Ha gave evidence that vacillated with regard to his knowledge of the plaintiff on the night in question.
At one point Mr Ha claimed to have raised a concern with Mr Chang over the presence of the plaintiff at the 278 Cleveland Street brothel, because the plaintiff was the receptionist of a competing brothel. He said that he "see" the plaintiff (T417.9 - T417.21). At another point in his evidence Mr Ha stated that he was not sure, stating "I don't know his face": T417.47.
At a later point in his evidence, Mr Ha agreed he had telephoned Mr Chang at the Ginza brothel to ask him to attend because of what he had been told by another sex worker to the effect that the plaintiff was the receptionist at another brothel, and not because he had looked at the blacklist and recognised the plaintiff from that blacklist: T439.29 - T439.38. Mr Ha also qualified that evidence by stating that he was not one hundred per cent sure it was the plaintiff: T439.42.
Significantly, that evidence was at variance to Mr Chang's evidence in which he said Mr Ha had identified the plaintiff as Charles, identifying him as a customer who had removed his condom on a prior occasion: T264.13. Mr Ha could not have given that description of the plaintiff if he had not looked at the annotated blacklist, as he claimed.
I found Mr Ha's lack of recall as to whether or not the plaintiff's image appearing on the described blacklist in the defendant's computer had been taken on 26 June 2018, to be unconvincing and of doubtful veracity: T441.46.
Mr Ha said he had been told by a sex worker that the plaintiff was from another brothel. His stated reason for calling Mr Chang was that the receptionist from another brothel was on the premises, and he knew that as such, the plaintiff was banned: T417 - T418. Significantly, Mr Ha did not at that time proffer the reason for that ban as being on account of an alleged reputation for removing condoms during sexual intercourse.
I considered Mr Ha's answers to questioning on whether he looked at the blacklist on the computer before entering Room 11 to be repeatedly unresponsive, if not evasive, until he was ultimately pressed on that matter: T443.3 - T443.15.
I considered that there was a significant dissonance between Mr Ha's belief-based evidence (at T416.26 to T416.28), that the plaintiff arrived at the brothel in accordance with a telephone booking he had made in order to spend time with Joy, and his later and more adamant evidence that the plaintiff was not shown or presented to other sex workers on his arrival, and his claim of not remembering conversations of those events and not knowing if the plaintiff had made a prior booking: T443.17 - T444.44. That dissonance caused me to doubt and to discount the reliability of his testimony on critical matters in dispute.
I considered as obfuscatory, Mr Ha's explanation seeking to reconcile the differing concepts of the plaintiff, during the fracas, being on the ground or on the floor, or in a crouching position, as distinct from standing, at the time when he was asked to apologise to an assembled group of sex workers, and then claiming not to be able to remember an important detail in that sequence: T422.5 - T423.22.
Given that Mr Ha was working for the defendants in the employed position of a paid receptionist at their brothel (T415.2), I considered his evidence as described above, and his stated lack of knowledge concerning his use of an ABN for that work, to lack credibility: T437.45 - T438.7.
I considered his attempt to link to the plaintiff his claim of having observed the brothel Manager, Jesse, locate a small plastic bag with white powder in Room 11 (T428.35) purporting to be cocaine (T426.40; T428.1), to be a baseless attempt at inculpating and discrediting the plaintiff in an endeavour to support his employers in this litigation. I consider that attempt discredits the utility of his evidence as being partisan and unreliable.
In light of those matters, I do not regard the evidence of Mr Ha to be a reliable source of support for an acceptance of the evidence of Mr Chang or Ms Hu.

General approach to assessing the evidence of Mr Chang and Ms Hu

As earlier stated, at paragraph [66] above, in assessing the credibility and the reliability of the testimony of Mr Chang and Ms Hu, I have disregarded as irrelevant the agreed fact of their earlier convictions on the charge of assault occasioning actual bodily harm. Those earlier convictions did not relate to the factual matters in dispute in this case.
That said, a problematic feature of considerable significance emerged in the evidence that becomes relevant and common to the assessment of the credibility and reliability of the oral evidence of both Mr Chang and Ms Hu.
That common feature is that in the respective evidence they gave in these proceedings, they each conceded to having in the past lied in answering questions when formally interviewed by investigating police officers about critical matters of fact relating to the liability issues in this case. This occurred at a time when they each knew they were being called upon to give a truthful account of the events. They lied not just once, but on multiple occasions when interviewed.
This was in circumstances where beforehand they had each been given legal advice to say nothing in answer to police questioning, and notwithstanding such advice, they did not follow that advice. Instead, at that time, and in contrast to their oral evidence in these proceedings, they claimed to have had no knowledge on matters which were the subject of questions raised by police officers in those interviews, where this was plainly not the case.
In his evidence in these proceedings Mr Chang acknowledged that he had been given legal advice not to talk or say anything to the investigating police officers: T295.39; T303.39.
Notwithstanding having had that advice, he nevertheless proceeded to intentionally obfuscate in his dealings with the investigating police officers by giving untruthful and misleading answers to their questions: T298.31; T299.34; T302.7. I do not accept his evidence that he had taken that course in order to try and avoid trouble and I do not accept that he took that course because he was very nervous at that time: T298.43; T299.41; T302.12. I found those explanations unconvincing.
In her evidence in these proceedings, Ms Hu admitted that she had lied to the investigating police officers: T377.26 - T377.31; T379.26 - T379.36; T382.39 - T383.3; T388.17 - T388.31; T389.13 - T389.23. However, she claimed her oral evidence was given truthfully: T409.4 - T409.13. In her answer to Q13 in the electronically recorded record of interview with the investigating police officers, in effect, Ms Hu disagreed with the proposition that the plaintiff had been beaten, punched and kicked whilst at the defendants' brothel. To her direct knowledge at the time, that answer was plainly untrue, as is unequivocally evident from her contrasting oral evidence given in these proceedings.
In identifying those historical matters, I recognise that just because Mr Chang and Ms Hu had previously lied in respect of material matters of fact in those interviews, this does not necessarily, or as a matter of course, preclude an acceptance of aspects of their evidence when determining critical matters of fact in dispute in this case.
However, that said, I consider that in those circumstances I must proceed with considerable caution and reservation in assessing and accepting any aspects of their evidence which involves dispute and contention.
Accordingly, in light of the above analysis, I have concluded that in weighing the evidence of Mr Chang and Ms Hu, their evidence on critical matters in dispute should only be given determinative weight if supported by other credible evidence, or where relevant concessions have been made by them against their respective interests in these proceedings.

The evidence of Mr Chao Chang, the second defendant

The second defendant, Mr Chao Chang, is presently aged 34 years. In his brothel businesses he used the working name Wilson. He was born in Hunan Province in China in 1986. He arrived in Australia aged 19 years. He married Ms Ha in 2007. He and his wife commenced operating the Ginza brothel in 2013.
Although Mr Chang was plainly sufficiently proficient in the English language, part of his evidence was given through an interpreter. That is not a matter of criticism as to his credit. It is understandable that he would want to give his evidence in the clearest of terms.
The contentious detail of Mr Chang's evidence concerned the matters he claimed occurred at the time the door to Room 11 was opened and what occurred during the fracas between himself and the plaintiff, and the aftermath of those events. Those matters will be evaluated in that part of my reasons that identifies my findings on disputed matters of fact.
In summary, for the reasons outlined at paragraphs [153] to [162] above, and for reasons that will be made plain in my reasons for deciding the factual detail of Issue 1, I have preferred the evidence of the plaintiff on those matters to the evidence given by Mr Chang, Ms Hu and Mr Ha.

The evidence of Ms Xiao Hu, the third defendant

Ms Xiao Hu, who uses the name Yuki in her brothel business, is presently aged 35 years. She was born in Hainan in China in 1985. She said that she received her education both in China and in Sydney, having completed High School and having obtained an additional unspecified further diploma. She arrived in Australia in 2006 at the age of 20 years. She married Mr Chang in 2007. They opened their Ginza brothel in 2013.
Ms Hu described her facility in the English language as "My English no good", and elsewhere she described it as being "so so": T358.44; T386.21. It seemed to me that she gave her evidence adequately in English, but at times she required the assistance of an interpreter. No criticism arises in that regard.
Ms Hu said she knew the plaintiff as a customer of their Ginza brothel where he had used the name Charles. As was established by other evidence, she had known the plaintiff to be a person who had been banned from the Ginza brothel since December 2017: T360 - T361. In that regard, she claimed she had seen the plaintiff's image on the list of blacklisted customers at the Ginza brothel: T361.45.
Ms Hu claimed that on 26 June 2018, whilst she was standing near the reception area of the 278 Cleveland Street brothel, which was relatively close to where her husband and the brothel receptionist, Mr Ha were standing, she heard a female voice from within Room 11 scream out the words: "Fuck get off me": T365.30.
The detail of Ms Hu's evidence on the matters she claimed occurred at the time the door to Room 11 was opened and as to what occurred during the fracas, will be evaluated in that part of my reasons that identifies my findings on disputed matters of fact.
On a consideration of Ms Hu's evidence as a whole I formed the view that her evidence was problematic in terms of its reliability. This was not only because she admitted telling lies to investigating police officers in answer to their questions, but also because she had over time, discussed the detail of the events in question with her husband as recently as three weeks before the trial: T390.19.
The fact of such a discussion as between co-defendants may not have been remarkable of itself, however, when Ms Hu was asked about the terms of that discussion she volunteered that she had that discussion with her husband because the events happened nearly two years ago, and she could not remember "so many of the things clearly": T390.32. She later added that she remembered "most of it" but she "wanted to have more memories of it, recollections of it": T390.45. She explained the nature of that clarification of her memory included the fight details, and that the discussion apparently enabled her to put the events into sequence: T391.7.
On the question of an evaluation of the reliability of the evidence of Ms Hu, this was a very different circumstance to the plaintiff's explanation of clarifying the sequence of events as explained at paragraphs [111] to [113] above.
Ms Hu rejected the proposition put to her in cross-examination to the effect that her version of the events of the altercation between the plaintiff and her husband at the 278 Cleveland Street brothel had been made up in an attempt to support her husband in this litigation: T404.46 - T407.4. I found her rejection of that proposition to be unconvincing.
In addition to Ms Hu having had her memory of the events aided by discussions with her husband as to the relevant sequence of events on the night in question (T393.20 - T393.50), there were many other references in her evidence to matters of detail which she either could not recall or could not recall clearly: T372.36; T372.49; T397.39; T400.9; T403.6; T403.30; T403.41; T404.4; T404.31; T405.35. Those matters also indicated that there was a problem of reliability concerning her testimony.
I therefore had reservations about the reliability of her testimony on disputed matters of fact in terms of whether she was accurately recounting her actual knowledge of the facts without the contaminating influence of other sources.
In light of the above matters, and in light of Ms Hu's concession that her evidence had been influenced by a process of discussion with her husband, and because of the admittedly untruthful answers she gave to investigating police in her record of interview on relevant factual matters, where she agreed that she had lied in some of her answers, I consider that her evidence on factual matters in dispute should be regarded as being of doubtful reliability unless corroborated by independent evidence that was not otherwise improbable, or where she made a concession that was against the interests of the defendants in the litigation.

Issue 2 - Findings on disputed matters of fact

The disputed matters of fact that are relevant to these proceedings concern the following topics, which are listed in the chronological order of their factual occurrence: 1. Relevant prior events in December 2017 involving the plaintiff at the Ginza brothel, leading to the plaintiff being blacklisted and banned from attending at that brothel; 2. Whether, as at 26 June 2018, the plaintiff had been banned from attending the defendants' brothel at 278 Cleveland Street; 3. The plaintiff's several attendances at the defendants' brothel at 278 Cleveland Street and his dealings with Mr Ha on 26 June 2018; 4. The extent of the plaintiff's transaction with Joy for the provision of agreed sexual services on 26 June 2018, and the extent to which those services were provided to him; 5. The reasons for the arrival of the second and third defendants at the 278 Cleveland Street premises on 26 June 2018; 6. The reasons for Mr Chang's entry into Room 11 at those premises; 7. The nature of the physical contact between the plaintiff, Mr Chang and Ms Hu after Joy left the room, including the actions of Ms Hu, and the disengagement of contact between the plaintiff and Mr Chang; 8. The relevant events concerning confiscation of the plaintiff's mobile telephone; 9. The plaintiff's departure from the premises; 10. The plaintiff's later attendance at hospital; 11. The plaintiff's statements to investigating police officers; 12. The respective pleas of guilty by Mr Chang and Ms Hu to the charges of common assault in relation to the plaintiff; 13. The content of the plaintiff's two Victim Impact Statements.
My findings on those disputed factual matters now follow.

(1) December 2017 ban on plaintiff attending Ginza brothel

The first historical personal contact between the plaintiff and the second and third defendants was in December 2017, at the defendants' Ginza brothel.
Prior to such contact, in that same year, the plaintiff had been to the defendants' Ginza brothel on two other occasions. On the first two of those occasions he paid for and received from a sex worker what was described as the Diamond Service.
There is no dispute that the Diamond Service was available at the Ginza brothel on all occasions on which the plaintiff had attended there. That service was understood to have commenced with fellatio without a condom. On his second attendance there, in December 2017, he made a telephone booking before arriving at the premises. On that occasion, on his arrival, he saw that Mr Chang and Ms Hu were present on the premises.
At that time, the receptionist asked him to wait in the waiting room. He was then approached by Mr Chang, who in the course of the ensuing discussion, slapped him, gently it seems, on the side of his face, two or three times, with an open palm, and told him that he was not welcome at the premises. At that time, he was told to never return to those premises. The plaintiff's account of those events was essentially confirmed by Mr Chang and Ms Hu: T260.44 - T261.23; T353.2. The plaintiff then left the Ginza brothel and never returned.
The defendants maintained that the plaintiff had been photographed on CCTV cameras during his attendances at the Ginza brothel prior to December 2017. On Mr Chang's evidence, that photographic evidence, described as being in the form of a computer file, was still in existence. The defendants' legal representatives took no pre-trial procedural steps that were available to them to attempt to introduce that photographic and documentary material into evidence: UCPR r 31.10(1).
The defendants maintained that at their Ginza brothel they kept a blacklist in relation to some particular customers. This was said to be in the form of a computer file containing photographic images copied from CCTV footage taken from cameras located within the premises. The images in question were said to have included annotations comprising short descriptions that identified reasons for a particular customer being blacklisted or banned. Such annotations included allegations such as being rude to sex workers, drunkenness, taking videos or photographs of sex workers, or non-consensual removal of condoms during sexual intercourse with sex workers.
It is common ground that in December 2017, the defendants banned the plaintiff from further attendance at their Ginza brothel. In these proceedings, the reason proffered by the defendants for such banning was first, the claim by the defendants that on a number of prior occasions at the Ginza brothel, the plaintiff had either removed, or had attempted to remove, a condom worn by him during sexual activity with sex workers on the premises, and secondly, because of claimed discussions he had with sex workers at that brothel concerning the alleged location and effect of CCTV cameras that recorded activity on those premises. The plaintiff denied the factual basis of each of those allegations.
The defendants carried the onus of proof for such allegations. They did not tender any photographic images, extracts or material copied from the claimed blacklist maintained at the Ginza brothel in relation to the plaintiff notwithstanding that the evidence disclosed that such material still existed and remained in the defendants' control.
No sex worker from the Ginza brothel was called to seek to prove the underlying factual basis for the assertion that the plaintiff had a reputation for condom removal during sexual activity with sex workers at the defendants' Ginza brothel, or that he had told sex workers at that brothel their sexual activities had been filmed on CCTV footage. Whilst it is understandable that sex workers may have been reluctant to give evidence in these proceedings such a circumstance does not justify ignoring the need to discharge the evidentiary onus on such matters.
In light of my credit findings concerning the evidence of Mr Chang, Ms Hu and Mr Ha, without corroborative evidence from the relevant sex workers at the Ginza brothel or evidence in the form of the annotated blacklist images, I do not accept the suggestion that the plaintiff had a reputation for condom removal during sexual activity or sexual intercourse with sex workers at that brothel. For the same reason, I do not accept that the defendants' evidence that the blacklist they maintained included any annotation linking the plaintiff to the alleged activity of condom removal during sexual activity or intercourse with sex workers.
I accept the plaintiff's denial of the suggestion that at the time Mr Chang told him he was not welcome at the Ginza brothel on account of having been the subject of any complaints of removing or trying to remove his condom during sexual activity or intercourse: T113.35 - T114.48; T202.10. I find that the defendants' suggestion that the plaintiff had either told or had attempted to tell Ginza brothel sex workers that video recordings had been made of their sex work has not been proven on the evidence. Nevertheless, I do accept that the plaintiff had been banned from further attendance at the defendants' Ginza brothel. It appears that this was on account of his employment at a rival brothel.

(2) Claim that plaintiff was banned from 278 Cleveland Street brothel

In May 2018, in addition to operating the Ginza brothel, the defendants also commenced to operate their brothel at 278 Cleveland Street. Consequently, the defendants' cannot logically maintain, as was stated by their counsel in opening remarks that outlined the case for the defendants, that in December 2017, the plaintiff had been banned from attending their brothel at 278 Cleveland Street.
I accept the plaintiff's rejection of the proposition that, on 26 June 2018, he knew, by reason of his knowledge of the ban preventing him from re-attending at the Ginza brothel, that he would therefore have known that he was unwelcome at the 278 Cleveland Street brothel: T117.8; T201.32; T202.19.
The concession made by the plaintiff (at T201.48), to the effect he had heard that the defendants had opened a new brothel in addition to the Ginza brothel, was not a concession that he knew he had been banned from entering the 278 Cleveland Street brothel on 26 June 2018.
The plaintiff made the concession of the common ownership of those two brothels after having observed Mr Chang and Ms Hu enter Room 11 at that brothel on 26 June 2018. The concession appears to have been made in the context of him being confronted by Mr Chang in Room 11: T115.41.
As to the claimed content of the Ginza brothel blacklist as it related to the plaintiff, although it is possible that Mr Chang may have made an electronic copy of that blacklist, and may also have copied it onto the defendants' computer kept at their 278 Cleveland Street brothel, that was not a matter within the plaintiff's knowledge.
The defendants have not made good their claim, as was opened by their counsel at the beginning of the trial, that before the events of 26 June 2018, he was aware that he was not welcome at the defendants' 278 Cleveland Street brothel: T17.18.

(3) Plaintiff's various attendances at the 278 Cleveland Street brothel

The plaintiff was asked a question in cross-examination aimed at challenging the proposition that he had only found out on 26 June 2018 that the two brothels were operated by the defendants. The plaintiff gave an answer that was ambiguous. That ambiguous answer was not challenged for unresponsiveness and it was not later clarified. I do not regard that answer to operate against the plaintiff's credit as the question evolved in a confusing way, as appears in the following extract: "WALSH Q. I'm sorry, I'll ask you this question: when you went to the 278 Club on 26 June 2018, were you aware that the same ownership sorry the people who owned the Ginza Club also ran the 278 Club? A. INTERPRETER: I heard of it before. Q. So, you knew that? A. INTERPRETER: Heard it before." [T116.47 - T117.2]
I do not read the evidence cited in the above extract to necessarily be an admission by the plaintiff that before the events in question, he had known that the defendants' premises at 278 Cleveland Street were in fact also operated by the same persons who were the proprietors of the Ginza brothel: T116.47 - T116.50.
However, on that question, the plaintiff's second statement to the police, which he gave on 29 June 2018, contained the following and slightly different account: "8. When I went to the brothel at 278 Cleveland Street, Surry Hills on Tuesday 26th June 2018, I knew that Wilson was involved in the running of that place. I know this because of the girls that work there worked at the Ginza Club and at my mum's brothels." [Exhibit "B", p 167]
In light of the above cited content of that statement I accept that on 26 June 2018, the plaintiff most probably knew that Mr Chang had some involvement in the 278 Cleveland Street brothel. However, it does not necessarily follow from the plaintiff having been banned from the Ginza brothel, that as at 26 June 2018, he was also banned from the 278 Cleveland Street brothel.
Even if the plaintiff knew that the two brothels had a common ownership, that fact did not justify the physical actions of Mr Chang and Ms Hu that later followed.
The plaintiff said that about 2 weeks before 26 June 2018, he had attended the premises at 278 Cleveland Street. He said that at the time, the receptionist allowed him to view sex workers who were present on the premises, and after he did so, he then left the premises: T31.32 - T31.43. I accept that evidence.
On the evening of 26 June 2018, after the plaintiff found that he was unable to obtain sexual services at another brothel where his friends had been able to obtain such services, and after browsing the internet for other brothel options, he then telephoned the defendants' brothel at 278 Cleveland Street. At that time he ascertained that sex workers were available at that brothel. I accept that at that time, he spoke with the receptionist, Mr Ha, before he drove to those premises.
The plaintiff said that on his arrival at the defendants' 278 Cleveland Street brothel, the receptionist Mr Ha told him to go to the waiting room where he was then presented to a number of sex workers who were available for engagement at that time. Mr Ha's evidence of those events was to a different effect. As Mr Ha remembered the events, the plaintiff had made a telephone booking for an appointment with Joy, and he was therefore not introduced to the other sex workers present. I prefer and accept the plaintiff's evidence on that issue as being a more reliable account of those events.
In the course of the plaintiff being introduced to the sex workers who were available at that time, he selected Joy. In cross-examination, no contrary proposition was put to the plaintiff concerning that evidence, which was not inherently improbable. I prefer and accept the plaintiff's account on this factual issue rather than the account proffered by Mr Ha.
After the plaintiff paid the sum of $240 to Mr Ha, he was shown into Room 11. For the reasons already outlined in relation to my consideration of the reliability of Mr Ha's evidence, I prefer and accept the evidence of the plaintiff on the above matters of factual dispute.

(4) Plaintiff's transaction with Joy for the provision of sexual services

Whilst the plaintiff was either entering, or shortly after he had entered Room 11 at the 278 Cleveland Street brothel, he had a brief telephone conversation with his friend, Cheuk Yin Fung. In that call he told his friend where he was located. That telephone call was truncated by the plaintiff at the time Joy entered Room 11. In my view, it is immaterial as to which of those persons made the call to the other. However, I accept the plaintiff's account as being more likely to be correct.
In Room 11, the plaintiff's initial conversation with Joy was to the effect that he said he needed to use the bathroom. On returning from his visit to the bathroom Joy was standing near the sofa in that room.
The plaintiff said, and I accept, that in his conversations with Joy, there had been no discussion between them as to the nature or the extent of what was to then occur between them in relation to the contemplated sexual activity for which he had paid, other than that Joy had told him to have a shower.
After the plaintiff returned to Room 11 following his bathroom visit, he undressed himself. He then showered together with Joy. He then dried himself with a towel she had provided to him, and he then lay on the bed in the room. He was not asked to put on a condom and no condom was produced at that time.
Joy then took up a kneeling position at the end of the bed and she then commenced to fellate him without the use of a condom as part of the initial phase of what he understood to be the Diamond Service for which he had paid Mr Ha the sum of $240. Fellatio then continued without the use of a condom for a relatively short time, some two to three minutes, and the next thing to occur was that the door to the room was unexpectedly opened.

(5) Arrival of Mr Chang and Ms Hu at the 278 Cleveland Street brothel

Without contradiction, Mr Ha said that after the plaintiff had entered Room 11, he had telephoned the Ginza brothel and had spoken to Mr Chang to inform him that he thought the plaintiff was in the premises at 278 Cleveland Street.
The terms of that conversation were that Mr Ha thought the plaintiff, whom he identified as the receptionist at "42" (a reference to the Gladesville brothel owned by the plaintiff's mother), was in a room in the premises with Joy: T439.29 - T439.31.
On hearing of the plaintiff's possible presence at the 278 Cleveland Street brothel, Mr Chang promptly left the Ginza brothel and went to the defendants' other brothel at 278 Cleveland Street. He admitted that at that time, he was angered to learn of the plaintiff's presence at that brothel: T314.40. Shortly after Mr Chang left the Ginza brothel, Ms Hu finished the process of closing and locking up that brothel and she then also went to the 278 Cleveland Street brothel.
On Mr Chang's arrival at the 278 Cleveland Street brothel he spent some minutes talking to Mr Ha at a location not far from the reception area whilst they each smoked a cigarette. In those events they were later joined by Ms Hu. Some further minutes then passed. Mr Chang claimed he was at that time waiting for the plaintiff's allotted time with Joy to expire in order to then check whether it was in fact the plaintiff who had been in the room with her, and if so, to then speak to him. The events that then followed are the subject of substantial dispute.

(6) Reasons for Mr Chang's entry into Room 11

Mr Chang, Ms Hu and Mr Ha each claimed that whilst they were near the reception area they heard Joy cry or scream out from inside Room 11.
In their respective evidence, they each recounted the words that they said they had heard, with some variation in content, namely, words to the effect: "no, get off me, fuck" (Mr Chang T270.27) and "Fuck get off me" (Mr Chang T277.45); "Fuck get off me" (Ms Hu T365.30); "Fuck, fuck off" (Mr Ha T419.5).
In contrast, the plaintiff maintained that those words had not been said as was asserted by those persons. His account of the events was that fellatio interrupta occurred when Mr Chang suddenly opened the door to Room 11, and that beforehand, nothing untoward had occurred between himself and Joy. Specifically, the plaintiff rejected as incorrect the proposition that the sex worker Joy had cried out using words to the effect claimed by the defendants and Mr Ha.
I reject the suggestions from within the evidence of Mr Chang, Ms Hu and Mr Ha, that at any time before or after Mr Chang, Ms Hu or Mr Ha had entered into the room, the plaintiff was situated in a position on top of Joy, or that he was attempting or had achieved penile-vaginal sexual intercourse to any degree, or that he had at any stage removed a condom.
Absent any direct evidence from the sex worker Joy, and in light of my findings as to the credibility and reliability of the testimony of Mr Chang, Ms Hu and Mr Ha, without corroborative evidence from Joy, or other reliable evidence, I do not accept that she had called out either : "No. Fuck off, get off me", "Fuck get off me", "no, get off me, fuck" or "Fuck, fuck off", as was variously claimed in the evidence of Mr Chang, Ms Hu and Mr Ha.
The plaintiff's account, as outlined in paragraph [219] above, was not contradicted by any credible evidence to the contrary. I do not regard the evidence of Mr Chang, Ms Hu and Mr Ha as being credible on this point. The plaintiff's account was not inherently or glaringly improbable, and I prefer and accept his account as being factually correct.
Without other reliable evidence, I do not accept that words to the effect cited above were said by Joy. I do not accept that the plaintiff had sexually assaulted Joy. Even if the words attributed to Joy had been said by her, they do not of themselves necessarily indicate that the plaintiff had either removed or had tried to remove a condom whilst attempting penile-vaginal sexual intercourse with Joy.
There was no evidence suggesting either that an unwrapped condom or a condom wrapper had been found in Room 11 after the plaintiff left that room. It was not suggested to the plaintiff that he had taken such items with him when he eventually left the room. Neither Mr Chang, Ms Hu, or Mr Ha were able to describe having seen a condom on the plaintiff, or nearby, whether used or otherwise.
I find that Mr Chang entered Room 11 because he was angered at the prospect of the plaintiff being in that room with one of his employed sex workers because he did not want the plaintiff to be there.
I find that when Mr Chang appeared at the opened door to the room, in company, as described by the plaintiff, and he did so in order to angrily confront the plaintiff and to achieve his removal, including by using physical force, if he felt the need to do so. On entering the room, once Mr Chang recognised the plaintiff, his level of anger elevated and it precipitated a violent reaction in him.
I find that the evidence given by Mr Chang, Ms Hu and Mr Ha as cited at paragraph [218] above, concerning words allegedly called out by Joy, represent a contrivance aimed at seeking to justify Mr Chang's entry into Room 11 whilst the plaintiff was still in there with a sex worker. Whilst it was possible that the words cited, if uttered by Joy, could have been heard through a thin closed door as was suggested by Mr Ha, absent evidence to that effect from Joy, I do not accept that Joy used those words as was described by those witnesses.
In arriving at that finding I am conscious of the need to identify a possible motive for the several defence witnesses giving incorrect evidence, absent a mistaken belief on their part.
In my view Mr Chang and Ms Hu each had sufficient motive to do so because of their need to defend these proceedings. They had each shown a history and a facility for lying in the course of their dealings with police officers who were investigating the factual circumstances that have given rise to these proceedings. Mr Ha also had sufficient motive, namely a perceived need on his part to support his employers in advancing their version of relevant events in defending these proceedings. I do not accept his denial in that regard.

(7) Physical contact between Mr Chang, Ms Hu and the plaintiff

Almost all of the physical elements of the described fracas in Room 11, from initiation to conclusion, were the subject of dispute. Briefly stated, the opposing factual accounts were as follows: 1. The plaintiff said that after Mr Ha had told Joy to get out of the room he was attacked by Mr Chang whilst he had been sitting on the bed in Room 11. He said in that process, Mr Chang had pulled him off the bed by the shoulder and neck, and flung him onto the floor, and in response, he had defensively tried to fend off Mr Chang with an outstretched hand and arm; 2. In contrast to the plaintiff's account, Mr Chang said on his entry into the room it was he and not Mr Ha who told Joy to leave the room, following which the plaintiff moved towards him aggressively, with an outstretched arm and hand, and had tried to push him out of the room through the open doorway. Mr Chang said that at that time, he then forcibly threw a punch at the plaintiff, following which a fight then ensued between them; 3. Ms Hu stated that she entered the room after Mr Chang. When she entered the room she saw the plaintiff sitting naked on the bed and she saw Joy in a very upset state, wrapped in a towel. She interpreted Joy's facial expression to be one of anger. Ms Hu stated that when Mr Chang asked the plaintiff to get out of the room, the plaintiff used a hand to push Mr Chang away. Ms Hu stated that at the same time, the plaintiff had said "fuck, get out of my room": T370.30. She said that she then saw Mr Chang immediately punch the plaintiff: T371.19 - T371.28. The effect of her description was to suggest that the plaintiff was the aggressor; 4. Mr Ha stated that he and Mr Chang entered the room together. He said that he saw Joy on top of the plaintiff who was lying down: T419.27 - T419.41. He said Joy had a shocked appearance: T420.9. He claimed that Joy had said of the plaintiff, "he tried to do no condom sex" or "he took off condom": T420.5 - T420.18. He said the plaintiff got off the bed and, "like push him away", this being an intended reference to the plaintiff pushing Mr Chang away: T420.37. He said punches were then thrown after that push: T420.45; T449.25 - T449.37. He implied that both the plaintiff and Mr Chang were exchanging blows at that time.
Whilst in my view it is immaterial as to whether it was Mr Ha or Mr Chang who had told Joy to leave the room, I prefer and accept the plaintiff's account as being more credible as Mr Chang was the proprietor and Mr Ha took a more passive role in the situation that developed.
At this point it is relevant to observe that the factual account set out in the opening address of counsel for the defendants, namely, that on Mr Chang's entry into the room, the plaintiff came towards Mr Chang and had pushed him with two outstretched arms and hands (T155.43 - T156.6), was not made out in the evidence.
Having considered the array of conflicting evidence, in the paragraphs that now follow, I set out my findings on the significant factual matters in dispute concerning the elements of physical contact that occurred involving the plaintiff, Mr Chang and Ms Hu.

Preface to findings as to the actions of Mr Chang and Ms Hu towards the plaintiff

In analysing the events in question it must be recognised that the physical actions involving the plaintiff, Mr Chang and Ms Hu, had unfolded rapidly, in violent and confusing circumstances. Consequently, other than identifying who initiated the violence, a precise sequential analysis would be an exercise in artificiality as to who, between Mr Chang and Ms Hu, had delivered which particular blow, punch or kick after Mr Chang initiated the violence towards the plaintiff by slapping and punching him: T46.48 - T47.3. That said, I consider the plaintiff's account to be credible, and not inherently or glaringly improbable.

Location of the plaintiff when Mr Chang entered the room

Immediately prior to the opening of the door to Room 11, the plaintiff was laying on his back being fellated by the sex worker named Joy. I do not accept that at that time, or at any other time, the plaintiff was in a position on top of Joy, either prior to or at the time the door to the room was opened by Mr Chang.
I do not accept that Joy had cried out or called out in the manner alleged by the defence witnesses. I do not accept that the plaintiff had sexually assaulted Joy in any manner prior to the door being opened. I do not accept that Mr Chang, Ms Hu and Mr Ha entered Room 11 in order to go to the defence of the sex worker Joy. I reject the evidence to the contrary as was variously proffered by Mr Chang, Ms Hu and Mr Ha.

Plaintiff's apprehension of danger

When the door to Room 11 opened without prior warning, Joy immediately disengaged herself from fellating the plaintiff. At the time the plaintiff then sat up on the bed in an attitude of startled surprise at the sudden change in the prevailing circumstances. Understandably, in those circumstances, he therefore feared for his personal safety: T44.35.
I accept the plaintiff's evidence that, at the time, consistent with having been surprised and interrupted in the manner he described in his oral evidence, he remained sitting on the bed in a state of apprehension as Mr Chang entered the room and proceeded to move towards him.

Mr Chang initiated the violent physical contact with the plaintiff

The room in question was a relatively small area and the events unfolded rapidly. After Joy was told to get out of the room, Mr Chang was at that time moving closer to where the plaintiff was seated on the bed. Mr Chang asked the plaintiff why he was back again. Immediately after Mr Chang asked the plaintiff why he was back again, he slapped the plaintiff on the face. I reject the evidence to the contrary as proffered by the defendants.
When Mr Chang entered Room 11 and recognised the plaintiff, he believed that the plaintiff's attendance there was in apparent defiance of the plaintiff having been banned from the Ginza brothel. Mr Chang held the mistaken belief that such ban also applied to the defendants' 278 Cleveland Street brothel. Plainly, that could not have been correct, as the 278 Cleveland Street brothel had not been in existence at the time the plaintiff was banned from attending the Ginza brothel.
I find that in the circumstances, Mr Chang approached the plaintiff in an attitude of anger, and with the intention of teaching him a painful lesson. Plainly, at that time, Mr Chang intended to use physical force on the plaintiff.
Mr Chang was obviously taller, of larger proportions, and more solidly built than was the plaintiff. He was also in the company of others who were in the same interest as he was at that time. Those circumstances clearly emboldened and strengthened Mr Chang's perception of his position and this gave him a significant measure of confidence to direct his actions in the events which then followed.
This was in stark contrast to the plaintiff's position of relative disempowerment in that situation. At that time, the plaintiff was feeling apprehensive, he was outnumbered, naked, and he was in a startled and vulnerable position seated on the bed. The plaintiff was of smaller and of more slight physical proportions to Mr Chang.
I consider that in those circumstances Mr Chang had no fear of the plaintiff at the time he initiated and used physical force against him.
I accept that throughout those events and whilst Mr Chang was approaching him, the plaintiff remained passive. I also accept that in those circumstances, the plaintiff raised an outstretched hand and arm as a protective measure to try to maintain a distance between himself and Mr Chang in order to fend off Mr Chang's progressive and threatening approach.
I find that it was Mr Chang who first angrily touched the plaintiff when he slapped the plaintiff. In those events, I accept that the plaintiff's open palm defensively touched Mr Chang on his clothed chest as Mr Chang continued to move forward towards him.
Mr Chang then grabbed the plaintiff by a shoulder and by the neck, pulled him from his seated position on the bed, and flung him onto the floor of the room, where he landed on his left shoulder and side. At that time the plaintiff tried to stand. He requested that he be permitted to put on his clothes so he could then leave. He was prevented from doing so. At that time, he was slapped again, this time by Ms Hu, who at some stage told him to kneel on the floor. When he refused to do so, she kicked him twice, in the "guts", as he described it, following which he submitted, obeyed, and knelt on the floor.

Multiple blows were directed at the plaintiff who remained passive

In the ensuing events, I accept that the plaintiff was hit repeatedly, by "various people" whilst he remained passively silent: T46.48 - T47.3. I find that the persons who struck the plaintiff were Mr Chang and Ms Hu. In those events, Mr Chang was the first to strike the plaintiff. He directed forceful punches towards the plaintiff with the intention of injuring him. In those circumstances I consider it was highly improbable that the plaintiff would have fought back or used his hands other than to hold them in a passively defensive or protective position near his head. I accept that Mr Ha was a shocked onlooker to these events.
In addition to the plaintiff having been slapped, there is no dispute that Mr Chang also angrily threw a forceful punch at the plaintiff with his right fist, and that punch was successful in connecting with the plaintiff's head.
At some stage during Mr Chang's attack on the plaintiff, in addressing the plaintiff, Mr Chang said words to the effect that he had previously been told not to come "back" and "why do you come back again": T274.13.
Mr Chang acknowledged that in his physical actions towards the plaintiff he punched the plaintiff with his right fist, forcefully and with anger, followed by some 10 to 15 repeated similar jabbing punches. I accept that some of those punches connected with the plaintiff's head. I accept his evidence in that regard. I do not accept the evidence of Mr Chang, Ms Hu or Mr Ha to the effect that it was the plaintiff who initiated violence or that he had pushed Mr Chang.
I do not accept that the plaintiff attacked, punched, or wrestled Mr Chang, or in any way retaliated. I find that the plaintiff, who whilst outnumbered, remained passive throughout, and I accept that he was trying to extricate himself from that difficult situation without incurring the prospect of further harm to himself in those circumstances.

Mr Chang's dramatic physical and verbal demonstration of punching the plaintiff

In his evidence in chief, Mr Chang conceded, including by way of giving a dramatic demonstration from the witness box, in which he made repeated downward and forceful movements with his closed fist moving up and down rapidly beside him in a pumping action, that he repeatedly struck the plaintiff some 10 to 15 times.
This was whilst the plaintiff was in a defensive position with his hands up near his head whilst he was seeking to protect his head from those blows. Mr Chang's evidence concerning those circumstances was as follows: "Q. You did something with your hands then. What did A. WITNESS: It was like Q. He pulled up his hands next to his head? A. WITNESS: Yes, yes. Q. Indicating that's what Charles did. A. WITNESS: Yeah. Q. Then what happened? A. WITNESS: Then I keep punching him a few times. Q. You did punch him a few times after that? A. WITNESS: Yes. Q. Did you say anything? A. WITNESS: I didn't say much. It's like abuse him. Q. You were abusing him? A. WITNESS: I say I say bad words. Q. You can use swear words in this courtroom. What did you say to him? A. WITNESS: I can say? Q. You can say them, yes. A. WITNESS: It's like when you throw a punch, like "fuck you, fuck you, fuck you" something like that. I told him --" [T281.22 - T281.48]
It was clear that Mr Chang had managed to connect some of those forceful punches with the plaintiff and caused him to suffer injury. The cited words "fuck you, fuck you, fuck you" were delivered by Mr Chang with considerable expressive emphasis, in a violent manner, and in syncopation with his described physical demonstration.

Ms Hu's claimed attempt to separate the plaintiff and Mr Chang

Ms Hu claimed that she had simply sought to physically disengage Mr Chang and the plaintiff whilst the fracas was in progress. Ms Hu described making a series of light taps to the plaintiff's head with her open palm in an endeavour to break up the fight: T371.40 - T372.4. In contrast, the plaintiff described Ms Hu as having struck him on a number of occasions in those events, and with much greater force than the benign manner that she had described in her evidence. I do not accept Ms Hu's construction of those events. I prefer and accept the plaintiff's account of her actions in striking and kicking him.

Plaintiff cowered on the floor

After the physical blows to the plaintiff had ceased, the plaintiff, who was still naked, assumed a curled position of self-protection on the floor. He had already been injured. At that time his hands were in a raised position to protect his head from further blows. At that time he made it known to those present that he wished to leave the room. At the time he thought he had no way of escaping, and he perceived, correctly, that the three other persons were in effect blocking his exit from the room: T44.42.
When the plaintiff asked permission to leave the room he was slapped again. At one point he said that he was again slapped by Mr Chang: T46.9. At another point he stated that it was Ms Hu who had slapped him again: T46.31. In the context of the described confusion, violence and melee, where both Mr Chang and Ms Hu had acted violently towards the plaintiff in the rapidly unfolding events, during which they had both slapped him, I consider it to be immaterial to seek to analyse and to establish which one of them slapped the plaintiff at what point. Overall, the evidence discloses that Mr Chang and Ms Hu were acting together in concert in striking the plaintiff at different times, and without his consent. The plaintiff would have been considerably shocked and shaken by those events.

The line-up and the kick in the guts

Ms Hu demanded that the plaintiff kneel near the door to the room. When he refused, she kicked him, twice, in the guts. In the context of having been hit and beaten repeatedly by various persons, he then surrendered, and knelt down as was requested of him. He acquiesced to that demand as he just wanted to leave: T46.30 - T47.3.
Against the plaintiff's will, the defendants prevented him from leaving the room until he first obliged their request that he apologise to the sex workers who were present on the premises. For that purpose, Mr Ha left the room and he later returned and assembled a number of female sex workers to stand near the doorway to Room 11 in order to receive the plaintiff's apology: T47.9.
The plaintiff initially questioned and declined the demand that he apologise to those sex workers. At that time, he was standing naked in front of them. Mr Chang admitted that at that time he then forcibly kicked the plaintiff in "the guts", an action that brought the plaintiff to his knees, in obvious and in considerable pain. That action was aimed at forcing the plaintiff to submit and it was successful.
In the described circumstances where there had been so much violent punching and kicking directed at the plaintiff, I consider that it is immaterial to seek to define the precise sequence and the actors for each of those blows where Mr Chang and Ms Hu had each attacked the plaintiff in the course of those rapidly unfolding events.

Enforced kowtowing

The plaintiff said that when he was forced to apologise to the assembled sex workers, he was required to, in turn, separately apologise and kowtow to each of them by deeply bowing before them with his head touching the floor: T48.45; T175.10 - T175.12. He said that this experience was culturally humiliating and degrading for him: T178.35. I accept his evidence in that regard.

(8) Confiscation of plaintiff's mobile telephone

At some stage, the plaintiff's driver's licence was taken from him. Initially he refused to hand it over but it was forcibly taken from his wallet: T49.27. It was then photographed, and later returned to him when it was thrown on the bed.
The plaintiff claims that he was also photographed whilst naked, after having been beaten. His mobile telephone was taken from him and never returned. In those events the plaintiff claims that he had been intimidated by the defendants into disclosing his passcode to unlock the mobile device. Ms Hu had kicked him in his abdomen again when he refused to divulge his passcode. At that time Mr Chang threatened him with repercussions if he refused: T51.15.
The plaintiff further claims that the contact list on his mobile telephone was then accessed, and that later, embarrassing messages and images were sent to various persons on his contact list, including to his mother.
The defendants conceded that the plaintiff's driver's licence was taken, photographed, and then returned to him. However the defendants disputed the allegations concerning the plaintiff's mobile telephone.
I accept the plaintiff's evidence that he was intimidated into handing over his mobile telephone, which was then confiscated. Furthermore, I accept that he was also intimidated into divulging his passcode for that device. I accept that the mobile telephone was never returned to him. I also accept that someone acting on behalf of the defendants, if not Mr Chang or Ms Hu, then accessed and misused the plaintiff's contact list on that device. This resulted in embarrassing messages and images of the plaintiff being sent, at least to his mother.

(9) Plaintiff's departure from the premises

After the physical attacks on the plaintiff had ended, and after his mobile telephone was accessed he was told to get out and he was pushed out of the premises: T51.34. The plaintiff gathered his clothes, dressed himself, and he then left the defendants' brothel.
After leaving the premises, the plaintiff walked a short distance across a side street and sat in the gutter nearby to rest. His vehicle was parked nearby. His face was bleeding. He had a painful face and he had intense pain in his back and on his side. He had reduced vision due to swelling around his left eye. He was also numb in that area. He had severe pain in his abdomen. He described it as feeling as if it had been torn. He was feeling helpless. Police officers approached him shortly afterwards. He told them he had been beaten up in the brothel. His friends arrived, and then the ambulance arrived.
In the plaintiff's estimation, the whole event, from the time he entered the brothel until when he left, occupied approximately 1 hour. In his more contemporaneous police statement, he estimated having been kept in the room at the brothel for about 20 minutes. Those two estimates are not necessarily accurate or contradictory.
The defendants sought to cast doubt upon the reliability of the plaintiff's account by focussing on matters such as whether the police and ambulance personnel arrived before the plaintiff's friends, and as to who drove the plaintiff to seek hospital attention. In my view, given that the plaintiff was dazed, dizzy and injured, those matters are peripheral matters that are immaterial, and of limited utility to an assessment of the plaintiff's credit and to the determination of the central issues calling for decision in this case.

(10) Plaintiff's attendance at RPAH and the hospital records

The plaintiff was taken to RPAH. At the time he was feeling dizzy and he was in pain. The hospital clinical notes were tendered as part of Exhibit "B", pp 1 - 36.
In essence, those notes show that at Hospital, the plaintiff was examined because of a history of an alleged assault in which he had been kicked and punched. It was noted that he had loss of sensation in his left mandibular teeth and he had tenderness over the left orbital rim. A CT scan revealed depressed fractures to the orbital floor, the medial orbital wall and the maxillary antrum: Exhibit "B", p 20. The CT scan of the plaintiff's face and brain showed related muscle abnormalities of a traumatic origin, and orbital air emphysema: Exhibit "B", p 1. The treatment plan was for him to be reviewed in the Hospital's eye clinic later that day: Exhibit "B", p 25.
A graze was also observed on the left side of the plaintiff's forehead. His left eye was swollen shut and could not be assessed. He complained of abdominal and back pain, left-sided frontal headaches and an occipital headache, and blood was seen coming from his nose. The hospital notes recorded that the plaintiff's right eye was also swollen shut, and was unable to be assessed: Exhibit "B", p 7.
The plaintiff's left eye was noted to have been bruised and swollen shut and when it was partially opened for the purpose of examination the plaintiff reported blurring of his vision. He was reviewed by the plastics team, he was told not to blow his nose for 3 weeks, and he was given antibiotics: Exhibit "B", pp 4 - 7. He was also given pain medication: Exhibit "B", p 15.
It is not clear as to the precise time at which the plaintiff arrived at Hospital. The hospital notes recorded the plaintiff had consumed one to two shots of alcohol that evening: Exhibit "B", p 4. However, the medical assessment was that he did not appear intoxicated and that he did not smell of alcohol: Exhibit "B", p 9. Those entries in the notes were not timed. It appears that the hospital triage notes were not entered onto the computerised record system until 04:47 hours: Exhibit "B", p 7.
All that can be said of the timing of those observations was that they were made following the police observations which had been made shortly after 3.40am, and when those medical notes were written up at 4.47am.
Follow-up examinations at the Hospital revealed the plaintiff had diplopia on upward and downward gaze: Exhibit "B", p 29. The plaintiff's last attendance at the Hospital out-patient clinic was on 29 August 2018: Exhibit "B", pp 31 - 35.
The defendants sought to show that the plaintiff was intoxicated. In my assessment, notwithstanding the mixed observations in the police records, the hospital notes do not support that contention as it was noted that the plaintiff did not smell of alcohol. In my view, nothing in the hospital records serves to detract from the plaintiff's credit. Those notes were not intended to serve as a factual liability investigation: Mason v Demasi [2009] NSWCA 227, at [2].

(11) Statements obtained from plaintiff by investigating police

The plaintiff signed two formal statements prepared by investigating police officers following interviews with him.
The plaintiff's first police statement was dated 26 June 2018: Exhibit "B", pp 149 - 151. He gave that statement when he was dizzy, and whilst he was in the more acute phase of his injured state: T187.46 - T187.47. The statement was interpreted to him by a family member: T64.1. From the terms of that statement, it appears to represent a summation of the police officer's interpretation of what the plaintiff had said to him in answer to questions. On that occasion, the police officers took a series of photographs showing the plaintiff's injuries. Those were tendered as black and white images. A number of colour images were also separately tendered: Exhibit "B", pp 152 - 159; Exhibit "G".
The plaintiff's second statement to police was dated 29 June 2018: Exhibit "B", pp 166 - 174. That statement was more detailed than the previous one. It contained some incorrect descriptions, such as: 1. At paragraph 4, it was stated that 26 June 2018 was the plaintiff's first visit to that brothel, when it was not. This could have been a mistaken reference to the first visit at which the plaintiff had paid for sexual services at that brothel; 2. At paragraph 8, it was stated that when the plaintiff attended the 278 Cleveland Street brothel on 26 June 2018, he knew that Mr Chang, there described as Wilson, "was involved in the running of that place", because some sex workers whom he knew had told him so. The plaintiff was not directly cross-examined on that entry in his statement. That aspect of the statement was not the subject of submissions. Absent evidence from the police officer who prepared the statement, I prefer and accept the plaintiff's evidence that he only directly found out about that during or after the incident as to the ownership of that brothel; 3. At paragraph 17, it was stated that the plaintiff could not say who had caused him particular injuries. This was because both Mr Chang and Ms Hu had both punched and kicked him multiple times in the face, stomach and back areas. His evidence as to the sequence of the assaults, and by whom those assaults were carried out, must be read in that light.

(12) Plea of guilty by both Mr Chang and Ms Hu to charge of common assault

Following a police investigation of the events and whilst they were waiting in custody on remand, Mr Chang and Ms Hu each pleaded guilty to the charge of a common assault upon the plaintiff. They said that they did so for expedient reasons.
It is well-settled that, absent improper influences, inducements, or threats, a person charged with an offence is at liberty to plead guilty or not guilty to the offence charged, whether or not that person is in truth guilty or not guilty. It is commonplace for Courts to accept and to act upon a plea of guilty entered according to the exercise of free will without further proof of guilt being required: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, at [22]. That is what occurred in this case when Mr Chang and Ms Hu pleaded guilty to having assaulted the plaintiff.
Mr Chang and Ms Hu claimed that they pleaded guilty to the lesser charge of common assault because of personal, family and business difficulties that had arisen and had become pressing during their period in custody, after they had each been twice refused bail. In my view, those proffered reasons are not persuasive for the proposition that Mr Chang and Ms Hu did not assault the plaintiff.
Whilst I am prepared to accept that Mr Chang and Ms Hu each expediently pleaded guilty to a lesser charge of common assault that attracted a lesser penalty, I do not accept that they pleaded guilty despite not having assaulted the plaintiff. They each entered their respective pleas of their own free will.
That said, those pleas do not form the basis of my findings as to whether or not the plaintiff was assaulted by them. My findings on that question follow my acceptance of the plaintiff's evidence in preference to the evidence of the defendants, for the reasons that I have identified.

(13) Victim impact statements by plaintiff

The plaintiff has provided two Victim Impact Statements which set out some detail of the effect that the events in question had upon him. He was only cross-examined on one of those statements. Those statements were obviously prepared on his behalf at different times and it was obviously intended that such statements be placed before the Local Court at the defendants' sentencing hearings.
The first Victim Impact Statement was dated 30 August 2018: Exhibit "B", pp 245 - 249. The second Victim Impact Statement was dated 26 September 2018: Exhibit "B", pp 250 - 257. Those statements were obviously prepared on the plaintiff's behalf, most probably by his legal practitioners. It is not clear as to which of the two Victim Impact Statements was tendered at the sentencing hearing, although it would be reasonable to assume it was the most recent statement. As was the case with the plaintiff's police statements, they were not sworn. I prefer the plaintiff's oral evidence, which was tested, as being more reliable as a source of facts.

Issue 3 - Wrongful tortious conduct by the defendants

It follows from my findings of fact as identified above that the plaintiff was assaulted, battered, and deprived of his liberty by Mr Chang and Ms Hu in humiliating circumstances such that his entitlement to damages on account of those matters arises for assessment.
The plaintiff pointed to arcane but good authority comprising an extract of a summing up by Coleridge J in an assault case on 16 August 1891, in the matter of Regina v Jeremiah Driscoll, reported at (1841) Car & M 214; 174 ER 477, at p 477, which was in the following terms: "If one man strikes another a blow, that other has a right to defend himself, and to strike a blow in his defence, but he has no right to revenge himself : and if, when all the danger is past, he strikes a blow not necessary for his defence, he commits an assault and a battery. It is a common error to suppose, that one person has a right to strike another who has struck him, in order to revenge himself, and it very often influences people's minds; and I have, therefore, [215] thought it right to state what the law upon the subject really is."
Subject to the statutory provisions embodied in Pt 7 of the CL Act, those principles aptly apply to the present case.
Significant in this case is the fact that it was Mr Chang who struck the plaintiff and the plaintiff only sought to protect himself. He neither initiated nor struck blows himself. Mr Chang continued to rain injurious blows down on the plaintiff when it was plain that the plaintiff was not offering any resistance or defence other than holding up his arms and hands in order to protect his head.
None of Mr Chang's slaps, blows, or kicks that struck the plaintiff were delivered as a means of defence, either of himself, or of any other person. The same conclusion applies to the slaps, blows and kicks that Ms Hu delivered to the plaintiff.
I find that the plaintiff has made good his claims of having been assaulted, battered, and wrongfully detained by Mr Chang, and Ms Hu, who are the guiding minds of their company, the first defendant in these proceedings.

Issue 4 - Vicarious liability of Bossie Chau Pty Ltd, the first defendant

The defendants no longer contest the plaintiff's submission to the effect that a company can be held to be vicariously liable for tortious acts committed by individuals: Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204: T594.48 - T595.1; T493.48.

Issue 5 - Claimed defence pursuant to s 5F of the CL Act

By paragraph 6 of the defence filed on 18 April 2019, the defendants pleaded a defence that the risk of injury that the plaintiff incurred in this case was an obvious risk within the meaning of s 5F of the CL Act.
As opened, the defendants' case for invoking s 5F of the CL Act was that if a person in the plaintiff's position was going to criminally assault a sex worker by having non-consensual penile vaginal sexual intercourse without a condom, then that person necessarily places himself at risk of injury, by implication, from the foreseeable consequences of a protective or defensive physical intervention aimed at assisting or defending the affected sex worker: T16.45.
Section 5F of the CL Act provides: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
As opened, the defendants' contention was that in the environment of a brothel and in the context of transactions for paid sexual services, there was an ever-present and therefore an obvious risk of physical intervention in intimate relations between a brothel customer and a sex worker, including by means of defensive injurious physical force, if the customer behaved in such a way as did not adhere to the conditions that applied to the provision of sexual services. Such behaviour would have included the consequences of a customer removing a condom, or attempting to remove a condom, during sexual intercourse. The implication of the pleaded s 5F defence was that such a risk had in fact materialised for the plaintiff in this case.
The defendants' final submissions only lightly touched upon s 5F of the CL Act. As that defence was not formally withdrawn, it must be considered. In my view, it must be rejected for the reasons that follow.
First, the factual assumptions underpinning the pleaded s 5F defence has not been made good in that the defendants have not provided any satisfactory evidence that the plaintiff had removed or had attempted to remove a condom during sexual intercourse.
Secondly, as s 5F of the CL Act appears in Pt 1A of that Act, and by the operation of s 3B(1) of that Act, s 5F has no application to this case. That said, the alternative position requires analysis, as follows.
Thirdly, the precise terms of any agreement between the plaintiff and Joy as to the agreed parameters for sexual activity, including if and when a condom was to be used, are not in evidence. Whilst denied by the defendants, the plaintiff's account of those events was not contradicted as Joy did not give any evidence.
An agreement for the provision of paid sexual services cannot be reasonably likened to other transacted commercial activity such as involving the occupation of premises. This is because of the need for specific consent from the person providing the services. Such consent is personal to the provider of the services in question, and cannot be provided vicariously, through an agent, or by a proxy, such as by a receptionist on behalf of a sex worker in a brothel. Whilst the state of the evidence as to actions taken by Joy permits a general inference that Joy agreed to participate in ill-defined consensual sexual activity with the plaintiff. The evidence of the specific terms, conditions and limits for such consent could only come from the evidence of Joy and from the plaintiff. Her evidence was entirely absent in this case. Whilst the defendants' case was that the absence of consent from Joy, or the withdrawal of her consent, could be inferred from her cited verbal reaction and described upset state, I have not accepted the evidence that the defendants relied upon for the drawing of such an inference.
Fourthly, whilst accepting that the terms of the transaction for the provision of the Diamond Service entailed oral sexual stimulation to be performed on the plaintiff's penis by Joy without the use of a condom, on my findings that the plaintiff had not sexually assaulted Joy, or had behaved in a manner that went beyond what had been agreed, I do not accept that there was anything in the described physical interactions between the plaintiff and Joy which either contravened or went outside of what I find to have been the mutually agreed terms of the Diamond Service in which the plaintiff and Joy were participating, respectively, as customer and provider.
Fifthly, in my view, as a consequence, the unexpected interruption of the described activity by the sudden physical presence of additional persons in the room of Mr Chang, Ms Hu and Mr Ha, the physical interchanges that then followed, could not be reasonably described as being the materialisation of an obvious risk within the meaning and contemplation of s 5F of the CL Act.
That defence, if capable of acceptance, might have arguably attached to Mr Chang's first punch if it was delivered in self-defence or if it was delivered in the defence of Joy, but I have found that was not the case here. Mr Chang punched and continued to punch and batter the plaintiff in an angry, punitive, vengeful, and unlawful way.
The defence raised pursuant to s 5F and the related provisions of the CL Act is rejected.

Issue 6 - Claimed defence of intoxication pursuant to s 50 of the CL Act

By paragraph 7 of the defence filed on 18 April 2019, the defendants pleaded an intoxication defence pursuant to s 50(2) of the CL Act which provides as follows: 50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated. (3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage. (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.
Section 50 appears in Pt 6 of the CL Act. By the operation of s 3B(1)(a)(ii) of that Act, that claimed defence is not available to the defendants in this case as the defendants' actions were carried out intentionally to cause injury and there was no such intention, criminal or otherwise, on the plaintiff's part. That said, in the alternative, the factual basis for that claimed defence must be examined, as now follows.
In my assessment of the evidence, there was no reliable evidentiary basis for concluding that the plaintiff was either intoxicated by alcohol or under the influence of drugs, so as to enliven a claim of a defence pursuant to s 50 of the CL Act. Accordingly, there is no basis for a reduction in the plaintiff's entitlement to damages on account of alleged contributory negligence.
The defendants introduced evidence of the presence of a small resealable plastic bag containing white powder that was found in Room 11 after the plaintiff had left. That bag and its contents was said to have been flushed down the toilet by the brothel manager, Jesse, whom the defendants have continued to employ.
Jesse was not called as a witness. Even if she had been called as a witness, absent a relevant admission by the plaintiff, it is doubtful that she would have been in a position to reliably prove that the plastic bag contained cocaine or some other illicit drug, an assertion that the defendants unsuccessfully attempted to prove through the evidence of Mr Ha.
There is no evidence that would link that claimed small resealable plastic bag to the plaintiff rather than to someone else who might have previously been in the room. There is no evidence that relevantly identifies the contents of that bag in terms of whether it was or was not a proscribed substance.
Having due regard to the gravity of the allegation, the evidence of the presence of the plastic bag containing white powder is an unsound basis for seeking an inference that the plaintiff had either possessed or had used illicit drugs and was affected by such alleged drugs so as to cause him to be relevantly impaired at the time of the events in question: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
As to the claim that the plaintiff was intoxicated at the time of the events, the evidence in support of that proposition is scant to say the least, and it falls well short of acceptable proof.
The plaintiff said he had not consumed any alcohol: T134.37; T138.40. He later stated that if he had consumed alcohol it would most likely have been shots of whisky: T140.30. He denied being affected by alcohol when he was spoken to by the police and he denied having told them he had consumed one or two shots: T140.14 - T140.30. Relevant to the claimed intoxication defence is the uncontested observation of a police officer (recorded at Exhibit "B", pp 290 - 291), to the effect that the plaintiff was unbalanced, swaying on his feet, his eyes were bloodshot and there was a strong smell of alcohol on his breath.
As to the evidence that the plaintiff had "two shots" of whisky, without evidence of the measurement of the quantity of alcohol taken, and absent evidence of the time at which the plaintiff had taken such alcohol, it is not reasonably open on the evidence to find that the plaintiff was thereby intoxicated by prior alcohol consumption.
There is an important difference between alcohol consumption and alcohol intoxication. The defendant has not discharged the evidentiary burden of demonstrating that the latter rather than the former proposition applied in this case.
The defendants' reliance on the police officer's observation of the plaintiff at the kerbside before he went to hospital, where it was stated he had a strong smell of alcohol in his breath, is in my view an unsound basis for an intoxication finding where, because as already observed at paragraph [277] above, I consider that the hospital records more reliably contradict that police officer's observation, albeit that it was unchallenged.
The police officer's observation was a mixed one. He formed the opinion that the plaintiff was "affected by an intoxicating substance as he was unbalanced, swaying on his feet, eyes were bloodshot and had a strong smell of alcohol in his breath".
The reliability of the observation that the plaintiff's eyes were bloodshot was doubtful given that the observation in question was apparently made in relative darkness and given that the plaintiff had been beaten about the face to the extent that the doctor at RPAH had difficulty examining the plaintiff's eyes.
In the context of the plaintiff having received multiple punches to the head and facial fractures, the observation that the plaintiff was unbalanced and swaying on his feet, does not necessarily mean he was intoxicated. Those observations were also consistent with him having been seriously injured.
On the question of whether or not the plaintiff's breath smelt of alcohol, I prefer the medical examiner's conclusion to the contrary, in preference to the observation recorded by the police officer as cited above.
I consider that little weight should be given to the observation of the police officer on the subject of alcohol intoxication, especially since it was a mixed observation that ought to have involved a consideration of the effects of the plaintiff's injured state, a task which was more carefully and reliably carried out at hospital by medical staff: Mason v Demasi [2009] NSWCA 227.
In my view, the claimed defence that the plaintiff's capacity to exercise reasonable care and skill for his own safety because of alleged alcohol intoxication or due to the alleged influence of drugs, must be rejected.

Issue 7 - Claimed defence pursuant to s 52 of the CL Act

By paragraph 4 of the defence filed on 18 April 2019, the defendants pleaded a justification defence claiming that Mr Chang and Ms Hu had acted either in self-defence or in the defence of the sex worker Joy, thus seeking to enliven a defence based upon s 52 of the CL Act.
Section 52 of the CL Act provides as follows: 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.50 No recovery where person intoxicated
In order to establish the defence of self-defence pursuant to s 52 of the CL Act the defendants must prove they were responding to unlawful conduct by the plaintiff: s 52(1) of the CL Act. To establish that defence, Mr Chang and Ms Hu must also prove that they believed their actions constituted a reasonable response to the circumstances that was necessary to defend either themselves or Joy from the plaintiff's actions, or to protect their property, or to remove the plaintiff if he was committing a criminal trespass: s 52(2) of the CL Act.
In the findings I have already identified, I have found that the plaintiff had not been acting unlawfully. In summary: 1. On 26 June 2018, before he was assaulted, he had not been warned by anyone on behalf of the defendants that he was trespassing at the 278 Cleveland Street brothel, and he was not trespassing at those premises; 2. He had been lawfully engaging in consensual sexual activity with the sex worker named Joy; 3. He had not sexually assaulted Joy at any time; 4. The entry of Mr Chang and Ms Hu into Room 11 was not in response to any cry for help from Joy and she had made no such call for assistance; 5. Joy was not being detained against her will, and was not in need of defence; 6. He was not damaging, interfering with, or destroying, the defendants' property; 7. The defendants had no sound reason for removal of the plaintiff from the premises by the use of physical force; 8. Mr Chang, followed by Ms Hu, were the initiators of the physical aggression that had been directed at the plaintiff; 9. There was no requirement that either Mr Chang or Ms Hu needed to defend themselves against any actions of the plaintiff.
When Mr Chang and Ms Hu struck the plaintiff there was no element of self-defence in the repeated and sustained blows and kicks that they had directed at him. Mr Chang struck the plaintiff aggressively and in anger, not in self-defence.
Joy, the person whom the defendants claimed was in need of defence, did not give evidence. I have not accepted the evidence of Mr Chang, Ms Hu or Mr Ha as to their accounts of how the physical events unfolded. I therefore do not accept that the defence of self-defence as claimed by the defendants pursuant to s 52 has been made good.
On the factual findings I identified at paragraphs [230] and [263] above, in my view, it cannot be said reasonably that Mr Chang or Ms Hu, by their actions, were either defending themselves, or that they were defending Joy, or that they were conducting themselves in a manner that could be said to be a reasonable response to the circumstances, so as to render their physical actions towards the plaintiff necessary, within the meaning and contemplation of either s 52(2)(a) or (d) of the CL Act.

Issue 8 - Claimed defence pursuant to s 53 of the CL Act

By paragraph 7 of the defence filed on 18 April 2019, the defendants sought to rely upon a claimed defence pursuant to s 53 of the CL Act.
Section 53 of the CL Act provides as follows: 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.
The defendants' argument in support of a defence pursuant to s 53 of the CL Act was premised upon the factual contention that the plaintiff first laid hands upon Mr Chang in the sense of having assaulted him: T585.10. My fact findings are to the contrary on that contention. I have found that it was Mr Chang who first touched the plaintiff in anger. Furthermore, at the time of Mr Chang's physical confrontation with the plaintiff, he was not at all frightened, apprehensive or scared of the plaintiff: T353.34. Mr Chang assumed control of the circumstances. He was not in need of self-defence, and nor was Ms Hu, or the sex worker named Joy.
In my assessment, the actions of Mr Chang and Ms Hu, in initiating slaps, punches and kicks, and repeatedly applying them to the plaintiff in circumstances where he offered no resistance, in no way represented a perceived reasonable response to the circumstances that prevailed at the time: s 53(1) of the CL Act.
In conformity with my finding that s 52 of the CL Act does not afford the defendants a defence from liability. The position of Mr Chang and Ms Hu, in attacking the plaintiff, must be seen to have been unreasonable conduct.
Section 52 of the CL Act is a protective provision that is expressed in unusual terms that are premised upon the notion of self-defence. Section 53 of the CL Act is only engaged if s 52 of that Act is found to operate. I have found that not to be the case here.
The aim of s 53 of the CL Act, is to limit the ability of a claimant to recover damages where the party against whom the claim is made has exhibited an unreasonable response, or a response that is "not a reasonable response" to the prevailing circumstances, to adopt the words of the section.
The driving force behind s 53 of the CL Act is to provide complete immunity from liability for damages, but only for actions taken by way of reasonable self-defence, such as fear causing a person to use excessive force in self-defence: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 November 2002 at 6944.
I find this to be an exceptional case within the meaning of s 53(1)(a) of the CL Act in that immediately before the plaintiff was assaulted he was in the defendants' brothel, acting lawfully, in accordance with the terms of the transaction he had made with the defendants' employees. In those circumstances, where the defendants' actions were directed at the plaintiff in the course of their business, it would be harsh and unjust not to award the plaintiff damages: s 53(1)(b) of the CL Act.
As I have found that s 53(1) of the CL Act does not apply to the circumstances of this case, the prohibition on the award of damages as contemplated by s 53(2)(b) of the CL Act does not apply in this case.
In my view, there is no sound basis for concluding that the plaintiff should not be awarded any damages or any damages for non-economic loss: s 53(1)(b) and s 53(2)(b) of the CL Act.
In light of my finding that the plaintiff was not intoxicated and was not assaulting the sex worker named Joy, or anyone else, and in light of my finding that s 52 of the CL Act does not provide the defendants with a defence to the plaintiff's claim, in conformity with that finding, I conclude that s 53 of that Act does not assist the defendants in seeking to avoid liability to the plaintiff for damages in this case. I therefore reject that defence.

Issue 9 - Assessment of damages

Consequent upon the plaintiff having made good his claims of having been intentionally assaulted, battered, and humiliatingly deprived of his liberty at the hands of the defendants, the defendants have failed to make good any of their claimed defences. It therefore becomes necessary to assess his entitlement to damages according to common law principles unaffected by any statutory scheme for the assessment of such damages.
The plaintiff ultimately relied upon an amended damages schedule totalling $597,201: MFI "2". In my view, that schedule contained assessment components that sought excessive damages. The defendants' damages schedule produced on the sixth day of the trial was in the contrasting amount of $67,889: MFI "10". In my view, the defendants' contrasting contentions for the assessment of damages represented inadequate compensation.
Consequent upon my findings on the liability issues calling for determination, my assessment of the plaintiff's entitlement to damages now follows.

General and aggravated damages for non-economic loss

The plaintiff has established that he was the victim of vicious and sustained assaults, during which, despite his attempts to protect and shield himself, he received not only slaps but repeated injurious blows to his head, hands, shoulders, neck and back from punches and from kicks to the abdomen. Those assaults were committed upon him by the second and third defendants. The first defendant is vicariously liable for those events.
For assessment purposes, those matters, and the related period of humiliating deprivation of his liberty, should be seen to form a single, but prolonged or sustained event, which was shocking and frightening for the plaintiff. The repeated punches and kicks sustained by the plaintiff were aggravating factors.
Given my general acceptance of the plaintiff's credit as a witness, I propose to treat the tendered medical evidence as a reliable source of detail of the plaintiff's post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995 (NSW).
The RPAH clinical notes recorded that when the plaintiff was assessed and treated at that hospital, it was noted that his injuries included having been punched and kicked in the head multiple times. He sustained inferior and medial orbital floor fractures with a bruised and swollen shut left eye that prevented a full ocular examination. Blurring of vision was also noted. The plaintiff's right eye was also noted to have been swollen shut. Grazes to the left forehead and cheek were also noted, as well as a fractured tooth. There was a loss of sensation in the left maxillary teeth. The plaintiff at that time also reported having left-sided frontal and occipital headaches.
The CT scan of the brain and facial bones taken whilst the plaintiff was in hospital showed a minimally displaced left lamina papyricia with ethmoid bleeding, a 5mm displaced fracture of a medial fragment of the left orbital floor, a comminuted fracture of the left anterior maxilla with retropulsed fragments into the maxillary sinus and probable damage to the left inferior rectus muscle, a facial muscle.
The plaintiff's examination at the emergency department at hospital was accompanied by him experiencing pain and distress, with associated numbness and impaired sensation in the distal distribution of the left infra-orbital nerve.
The plaintiff was also examined and treated by separate teams from the hospital ophthalmic and plastics departments as an out-patient. Those reviews noted the plaintiff as having vertical diplopia with downgaze, pain on upgaze, and left facial numbness. By 28 August 2018 the upgaze pain was noted to have ceased.
After discharge from hospital, the plaintiff saw his general practitioner who diagnosed him as having an acute post-traumatic stress disorder and an acute stress disorder. The general practitioner also noted the plaintiff's complaints as inability to properly bite, having reduced appetite, being stressed, overthinking, being worried and scared about his personal safety, difficulty sleeping, being frustrated, experiencing nightmares, not going outside by himself, experiencing flashbacks, being easily angered, being depressed, having delayed speech, having concentration difficulties and being socially withdrawn.
The plaintiff's general practitioner referred him to Mr Carl Nielsen, a psychologist, for assessment and ongoing treatment: Exhibit "F". Mr Nielsen's records show that he first saw the plaintiff on 27 July 2018 and took a history of the plaintiff being anxious, having fluctuating speech and diagnosed him as having post-traumatic stress disorder. A series of consultations followed. The records show these ceased on 26 November 2019.
Mr Nielsen also recorded that the plaintiff had difficulty coping with the described traumatic incident, and experienced disturbed sleep and nightmares, with concerns over his safety, with loss of trust and avoidance behaviour. In his counselling sessions, Mr Nielsen treated the plaintiff with cognitive behavioural therapy, exposure therapy and discussed coping strategies with the plaintiff. He also noted the plaintiff had impaired memory and concentration, persistent irritability and agitation secondary to the assault, impaired self-esteem, hypervigilance, coping difficulties and depressive symptoms.
Over time, the plaintiff's treating general practitioner issued him with certificates of unfitness for work for problems identified as head injury, orbital fractures, cervical spine strain, left shoulder strain, thoracic spine strain, abdominal trauma and acute post-traumatic stress disorder relating to the incident in question.
On 7 February 2019, at the request of his solicitor, the plaintiff was examined by Dr Y Kai Lee, an orthopaedic surgeon. Dr Lee communicated with the plaintiff in fluent Cantonese. Dr Y Kai Lee took a detailed history. He noted the plaintiff had numbness in the left cheek, marked tenderness in the lumbar spine, tenderness in both shoulders with mild muscle wasting of the right suprascapular deltoid muscles, and recovery of knee injuries leaving only mild tenderness in the left patella-femoral compartment. He concluded that in summary, the plaintiff's injuries involved a fractured left eye socket, and injuries to the neck, shoulders, back and legs, and he noted that the latter two injuries had recovered. He suggested the plaintiff have shoulder physiotherapy.
Dr Y Kai Lee noted the plaintiff's prognosis was fair, and noted that there were ongoing psychological problems. He considered the plaintiff's shoulder problems contra-indicated a return to his previous work as a hairdresser, and that a sales position involving standing would be difficult for the plaintiff. He indicated that the plaintiff would need a sympathetic employer for those reasons and because of the plaintiff's psychological problems that followed the subject incident. Those opinions were unchallenged and uncontradicted by other medical evidence.
On 8 February 2019, at the request of his solicitor, the plaintiff was assessed by Dr Leonard Lee, a consultant psychiatrist. He noted that the plaintiff had an absent memory of the events of the week that followed the subject incident. He also noted that the plaintiff was apprehensive, withdrawn from his usual activities, he ruminated, was fearful of working, had impaired sleep, experienced flashbacks, experienced constant irritation, and preferred to be alone. He assessed the plaintiff as being fearful, guarded and anxious, and having symptoms consistent with post-traumatic stress disorder, with intrusive memories, insomnia, hypervigilance, inability to focus, and negative perceptions about his future.
Dr Leonard Lee expressed the unchallenged and uncontradicted opinion that the plaintiff has persistent post-traumatic stress disorder caused by the subject incident, and that the progress for improvement of that condition was guarded, and may require definitive psychiatric treatment for between 15 to 20 sessions, with medication. He was of the opinion that the subject incident has caused the plaintiff to be unable to work.
The plaintiff was subjected to a harrowing, scarifying experience that included the aggravating element of conduct that was plainly aimed at humiliating him whilst naked in a vulnerable position in front of a number of sex workers whom the defendants had summoned to witness the events, including his enforced apology that was extracted from him by intimidation. A further aggravating element of those circumstances was that at the request of either Mr Chang or Ms Hu, photographs were taken of the plaintiff whilst he was naked and in that vulnerable position. He still suffers from the physical and emotional sequelae of the assault and battery. The prognosis for the adverse psychological consequences is guarded. He has also been left with significant physical restrictions.
At the plaintiff's relatively young age, those matters will continue to have an adverse impact upon him and upon the otherwise unimpeded amenity of his life. He will continue to have those problems for a considerable period of time, for years to come.
In my assessment, general damages for pain, suffering and loss of amenity of life, including a significant element for aggravated damages, should therefore be assessed towards the mid to upper end of the range. The aggravating element of the plaintiff's damages is justified by the repeated nature of the attacks on the plaintiff and the deliberate humiliation to which he was subjected: Lamb v Cotogno [1987] HC 47; (1987) 164 CLR 1, at [8]. In assessing aggravated damages I recognise and have taken into account that such damages are compensatory in nature and therefore double or overlapping compensation should be avoided: State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496, at [130] - [131].
In the assessment of fair and reasonable damages at common law, as distinct from statutory schemes, other decided cases on damages are not helpful in assessing quantum because the intrinsic facts of a particular case must guide each assessment: Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, at p 125. Furthermore, as time inevitably advances, along with the value of money, community attitudes and expectations as to damages also move with the times. I assess the plaintiff's fair and reasonable general damages for pain, suffering and loss of amenity of life, including the element of aggravated damages, in the amount of $75,000.

Exemplary damages

The assault and battery of the plaintiff was not only carried out in aggravated circumstances of a power imbalance, over a sustained period of time rather just a fleeting incident, the harm inflicted on the plaintiff was intentional. It was calculated at causing him injury and humiliation. This was in contumelious disregard of his rights. In that sense, the blows received by the plaintiff were delivered with malicious intent with the misconceived aim of teaching him a lesson. Those factors justify an award of exemplary damages. In those circumstances I assess the plaintiff's entitlement to exemplary damages in the claimed amount of $25,000.

Past economic loss

As a result of the events, the plaintiff has suffered a significant impairment to what was an otherwise unrestricted earning capacity.
In September 2016 the plaintiff commenced working as a manager in one of the two brothels owned and operated by his mother in Gladesville and Marrickville. He worked a 48 hour week full-time for 6 months at the Gladesville brothel and was paid between $1000 and $1500 per week in cash on a commission basis. He then transferred his employment to his mother's brothel at Marrickville where he worked a 56 hour week for which he was paid in cash, varying from $1200 to $1800 per week. His financial records did not reflect those earnings.
Prior to the events in question the plaintiff was able-bodied. Apart from his limited educational attainments, he had no apparent restrictions or impediments in seeking unskilled work on the open labour market.
The plaintiff claims past economic loss of $1000 per week gross or $821 per week net over 86 weeks (totalling $72,068), less estimated earnings as an Uber driver for 6 weeks at $500 per week (totalling $3000), yielding a claimed loss to date totalling $69,068.
That claim is based on the proposition that the plaintiff has been unable to return to work in the brothel industry because he has a residual fear of harm, and he has an inability to work as an Uber driver or in like employment, especially at night, for similar reasons. The medical evidence already cited also identifies other physical restrictions on his earning capacity due to the effects of the violence with which he was dealt. In view of his shoulder injury, work as a hairdresser would be difficult for him and this was ill-advised for him.
It must be recognised that the plaintiff had a common law duty to mitigate his damages. The defendants did not argue that there has been any alleged failure on the plaintiff's part to mitigate such losses.
That said, there seems to have been no sound reason until now for the plaintiff not to seek to pursue some suitable alternative work within his limited skillset. He has worked as a hairdresser in the past. He has an interest in automobiles. This suggests he is capable of acquiring a range of alternative work skills to being a receptionist in a brothel or being an Uber driver.
The hospital records euphemistically identified the plaintiff's occupation as being a shopkeeper. It is doubtful but possible that he could work in a conventional shop.
I accept that for a time, the traumatic events which he has described and experienced would have precluded him from working in both of those occupations due to fear. However, this ought not have precluded him from seeking other work where he was not at risk of harm or vulnerable to recrudescence of his post-traumatic stress condition. In those circumstances, I find that after about 3 months, that is after the acute phase of the events had most probably receded, he would have had a gradually increasing capacity for employment for daytime work in an alternative and safe environment.
The assessment of the plaintiff's past loss of earning capacity is a challenging task where there is no documentary proof or other reliable evidence of the plaintiff's pre-accident net earnings, especially where little if any tax was paid on those earnings.
In those circumstances, where precise calculations are not possible, courts traditionally employ a rounded discretionary buffer approach as a method of assessing economic damages: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
In this case there is an additional challenge to assessing the plaintiff's economic damages where his pre-injury earnings have not been the subject of accounting for the impact of taxation, and where such earnings were the subject of some significant variation due to the fluctuating impact of a component of his income being commission-based.
In such circumstances, courts conventionally base assessments in reliance on rates of average weekly earnings based on figures published by the Australian Bureau of Statistics. Those historical rates, and the tax scales which apply to them are conveniently found in the Furzer Crestani Assessment Handbook, 2019. The current average weekly earnings of full time male employees in NSW are identified as being $1778 per week gross, or roughly $1300 per week net.
As commonly occurs in personal injury cases where there is a paucity of reliable evidence concerning the level of the plaintiff's likely post-accident earnings, I propose to take the conservative approach. In the absence of reliable documentary proof of the plaintiff's earning capacity, I propose to use average weekly earnings as a broad-based guide to the assessment of the plaintiff's claim for past loss of earnings: State of NSW v Gee (aka Michaels) [2002] NSWCA 326, at [35]; Rosniak v GIO (1997) 41 NSWLR 608, at pages 621F, 622B-E, 628E.
In adopting that approach it is recognised that in some other cases, equating average weekly earnings with lost earning capacity has been seen as problematic: Jovanovski v Billbergia Pty Ltd [2011] NSWCA 135, at [32]. That said, some kind of guide is required rather than an entirely arbitrary approach.
In that regard, caution must also be observed with the use of such published statistics of average weekly earnings as they include data of the taxable income of millionaires and the income of those whose earnings are just above the tax-free threshold of $6000 per annum. A discounted approach is therefore required, especially as part of the plaintiff's income would have been commission-based and therefore variable.
With that caution in mind, and given that the plaintiff is in the relatively early stages of exercising his earning capacity, I propose to use a conservative range figure guided by the published statistics.
In my view, in this case, the proper approach to assessing the plaintiff's damages for past loss of earning capacity would be to allow $750 per week net for 12 weeks of full incapacity and a further 12 weeks of partial but increasingly emerging earning capacity at an average of $300 per week net.
I consider that the assessed sums of $750 per week net for 12 weeks ($9000), and an average of $300 per week net for the ensuing 12 weeks ($3600) represent fair assessments. I therefore assess the plaintiff's damages for past loss of earning capacity in the respective amounts of $9000 and $3600, in the total sum of $12,600.

Future economic loss

In seeking to obtain evidence in support of an assessment of the plaintiff's claim for future loss of earning capacity, the plaintiff's solicitor obtained a forensic accountant's report dated 13 September 2019 from Furzer Crestani Forensic.
On the basis of assumptions put to those accountants, they were asked to prepare illustrative calculations estimating the plaintiff's earnings but for the subject incident on a series of three alternative scenarios. The first was an assumed gross weekly income of $3000 per week as a manager of a brothel; the second was at an hourly rate of $30 per hour as a receptionist in "a high class brothel"; and the third was on the basis of assumed earnings of $80,000 per annum as a venue manager.
The Furzer Crestani Forensic report identified calculations based on those three alternative assumptions. The amounts calculated according to those assumptions were all outwith the jurisdiction of the Court for determining this case, namely, $750,000. Those calculations were tabulated as follows: Elements of loss Scenario 1 Scenario 2 Scenario 3 (a) Past income $162,041 $74,151 $91,150 (b) Future income $1,647,227 $742,620 $910,504 (c) Superannuation $290,938 $116,370 $148,677 Total $2,100,206 $933,141 $1,150,331

The plaintiff's future economic loss submissions were based on the range identified in element (b) in the above tabulation. The defendants' submissions proceeded on the basis that no damages should be awarded for future economic loss.
As already observed, I consider that the submissions from both parties on the issue of future economic loss are unacceptable as they do not adequately reflect the medical evidence.
Therefore, instead, I propose to approach the assessment of future economic loss by adopting the same principles for a buffer approach as outlined in the authorities identified at paragraph [381] above.
Having regard to the medical evidence that touches upon the plaintiff's need for future treatment, I consider that the plaintiff is entitled to a modest buffer against the possibility that he may in the future encounter a degree of difficulty obtaining employment because of the residual psychological and physical sequelae of the events in question. I consider that a buffer amount of $30,000 would be a reasonable sum on that account. I therefore assess the plaintiff's damages for future loss of earning capacity in the buffer amount of $30,000.

Future treatment expenses

The plaintiff claimed an amount of $13,305 for future treatment expenses likely to be incurred over the ensuing 2 years: MFI "2". Those claimed expenses relate to consultations with his general practitioner, a psychologist, medication, and functional vocational assessments.
I consider the range of claimed treatment modalities identified in the plaintiff's submissions to be reasonable. However, the amounts claimed are only estimates which will undoubtedly vary as to incidence and frequency. I also recognise that the bulk of any expenses incurred for future treatment will most probably be incurred in the relative short term within the next few years rather than in the longer term.
In those circumstances I consider that a discounted buffer sum would be the appropriate method of assessment of this component of the plaintiff's claim. I consider that a reasonable allowance for this head of damage would be the buffer sum of $5000. I therefore assess the plaintiff's damages for future treatment expenses in the buffer amount of $5000.

Past out-of-pocket expenses

Past out-of-pocket expenses have been agreed in the amount of $6185.85. I therefore assess the plaintiff's claim for past out-of-pocket expenses in the amount of $6185.85.

Interest on general damages

The plaintiff claims interest on his damages award in respect of past damages. In this case interest is only allowable on some elements of the assessed damages.
Part of the plaintiff's general damages crystallised as at the time the deprivation of the plaintiff's liberty ceased, that is, within about half an hour of the events: Zavarinos v State of New South Wales [2004] NSWCA 320, at [52]. In my view, that component is a relatively small proportion.
Overall, I assess the plaintiff's past general damages for pain, suffering and loss of amenity of life, to date, a period of 1.34 years, at $40,000.
This requires that interest be awarded on $40,000 at the rate of 2 per cent over 1.34 years to the commencement of the hearing on 20 February 2020: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3. This yields the amount of $1072.
There is no evidence that the plaintiff's out-of-pocket expenses have already been paid by him. Accordingly, the evidence does not disclose a basis for interest to be assessed on those damages.
I therefore award interest on the plaintiff's past general damages in the amount of $1072.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: (a) General damages for non-economic loss $75,000 (b) Exemplary damages $25,000 (c) Past economic loss $12,600 (d) Future economic loss $30,000 (e) Future treatment expenses $5,000 (f) Past out-of-pocket expenses $6,185.85 (g) Interest on general damages $1,072 Total $154,857.85

Disposition

The plaintiff has established his entitlement to a damages award of $154,857.85.

Costs

As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that the defendants should pay his costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff against each defendant in the sum of $154,857.85; 2. The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered 3. The exhibits are to be retained with the Court file until the further order of the Court; 4. Liberty to apply on 7 days notice if further or other orders are required; 5. I direct the Registrar to forward a copy of these reasons, together with copies of the transcript, MFI "11" comprising the list of transcript errata, and a copy of pages 112 to 148 of Exhibit "B", to the Proper Officer at the Australian Taxation Office responsible for ensuring compliance with taxation obligations.

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: 21 April 2020

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