Giunta v Giunta

Factual framework of these proceedings

1. The former wife claims the alleged torts of assault, battery, and consequential emotional distress resulted from the actions of the former husband. These occurred during their marriage between 19 August 2010 and 31 December 2018. Some aspects of that family violence have been admitted by the former husband and some of the basal facts asserted by the former wife are the subject of formal adverse findings by the Family Court that arguably give rise to an issue estoppel in her favour.
2. The former wife gave evidence of the former husband's actions amounting to family violence in the form of physical abuse, emotional abuse and financial abuse. This was noted in the FCAJ, at [73] and at other places in that judgment.
3. Findings were made as to the former husband's disparaging behaviour towards the former wife, including controlling conduct, "gaslighting" as a form of psychological manipulation, and comments undermining the former wife's mental health: FFCAJ, at [225]-[226].
4. Findings were also made as to the former husband linking his financial contributions to a requirement that the former wife engage in sex with him. Findings were also made concerning other coercive conduct which included a pattern of harassment and deliberate sleep interruption: FCAJ, at [246], [251], [532].

Evidence

1. The parties produced a common Court Book ("CB") comprising 274 pages: Exhibit "A". The affidavit evidence was admitted into evidence without a limiting order that was sought pursuant to s 136 of the Evidence Act 1995 (NSW): T7.46. An unredacted copy of the judgment of the Family Court as referred to at paragraph [3] above was marked as Exhibit "B" to record the findings in that Court. In conformity with the confidentiality requirements in Family Court proceedings, an order was made restricting non-party access to Exhibit "B". It has been placed in a sealed envelope and marked "Not to be opened except by order of a Judge of the Court or a Judge of the Court of Appeal in the event of an appeal": T8.35 - T8.37.

Defendant applicant former husband's contentions

1. In support of his application the former husband has drawn attention to the following matters: 1. The parties in these proceedings were also parties to family law proceedings, which resulted in a judgment of Deputy Chief Justice McClelland in Giunta & Giunta (No. 3) [2021] FamCA 272. In those proceedings, the defendant was the applicant husband, and the plaintiff was the respondent wife. 2. The former wife's statement of claim filed 22 December 2022, seeks damages for various torts alleged to have been committed against her during the relationship, most of which are alleged to have occurred during the marriage of the parties. 3. On account of that sequence of events the applicant defendant former husband contends that the respondent plaintiff's claim should be struck out, dismissed or permanently stayed for the following reasons: 1. In the post-cross-vesting era, the Family Court had an accrued jurisdiction empowering it to make an award of common law damages and the former wife did not seek such damages in that Court. The former husband therefore claims that the former wife ought to be estopped from proceeding with this action because of the principles of Anshun estoppel, if not issue estoppel: Port of Melbourne Authority v Anshun (Ibid); 2. As the claims made by the former wife in these proceedings could have been brought in the Family Court proceedings, and because the former wife did not do so, she now ought to be estopped from doing so, applying the rule in Henderson v Henderson (1843) 67 ER 313; [1843-60] All ER Rep 378; 3. The former husband's claim is that it would be exceptionally unfair for him to be forced into re-litigating the same matters that were ventilated in the Family Court proceedings where he has already been "vexed" on the family violence issues. On that basis he claims that these proceedings brought by his former wife amount to an abuse of process; 4. The former husband also relies on his pleaded defence claiming that the former wife's present common law claims were statute barred at the time she filed the present proceedings.

Plaintiff respondent former wife's contentions

1. The former wife's response to the former husband's application may be summarised as follows: 1. It is common ground that the Family Court had an accrued jurisdiction to assess common law damages of the kind claimed by the former wife in the present proceedings; 2. Neither issue estoppel nor Anshun estoppel arise in this case because the compensatory damages aspects of family violence perpetrated by the former husband were not litigated by the former wife in the Family Court proceedings. This is where the assessment principles which emerge from the decision in Kennon (Ibid), are materially different to a claim for the evaluative assessment of compensatory damages at common law; 3. On a comparative reading, the reasons for decision in Family Court proceedings and the pleadings in these proceedings involve litigation of materially different issues and different species of compensation which should lead to the conclusion that no abuse of process arises, contrary to the claim by the former husband; 4. The family violence issues raised in the Family Court proceedings were necessarily raised and explored by that Court in the exercise of its statutory jurisdiction concerning the interests of the children and division of property in the context of that history of violence: s 79(1) of the FL Act. As such, the former husband (to use the terminology adopted by him in argument), was "vexed" on those issues by the Family Court, and not at the instigation of the former wife, although she was required to participate in the process; 5. Therefore, the former wife maintains it is not unfair to the former husband that he be required to "re-litigate" family violence issues in this Court at her instigation where she now seeks compensatory damages, as a separate and distinct species to the assessed Kennon percentage adjustment that was made to the required division of property according to what was considered to be just and equitable in the context of the exercise of jurisdiction required by the FL Act; 6. The determination of the limitation defence raised by the former husband will involve a credit-based assessment of the evidence as a whole which is a matter that should be undertaken at a trial of the facts, and not at an interlocutory stage on limited and untested evidence, where prima facie, the former wife has arguable justiciable claims.

Issues

1. On my consideration of the pleadings, the evidence, and the submissions of the parties, the determinative issues calling for decision may be conveniently stated as follows: 1. Does the former wife have arguably justiciable claims? 2. Is the limitation defence pleaded by the former husband properly amenable to determination at this present interlocutory stage? 3. Was the former husband relevantly "vexed" by the former wife in the Family Court proceedings on the same issues raised in the present proceedings so as to give rise to an unfair oppression of the former husband? 4. Does res judicata, issue estoppel or Anshun estoppel relevantly arise? 5. In conclusion, is a stay of proceedings or a strike-out order justified in the circumstances?

Submissions

1. The parties provided focussed written submissions: CB pp 250-274. Those submissions were supplemented by oral submissions: T1 - T54. On 9 June 2023, pursuant to leave granted, counsel for the former husband forwarded a further brief note in the form of a submission in reply. On 13 June 2023, also pursuant to leave granted, counsel for the former wife forwarded short submissions in response to those submissions in reply. Leave was then granted for a further written submission to be forwarded on 15 June 2023.

Consideration

1. My consideration of the issues and the submissions now follows.

Issue 1 - Arguable justiciable case

1. In my assessment, the suggestion that the former wife's claims framed in tort against the former husband lack elements of a justiciable case must be rejected.
2. First, the claim framed in assault and battery are well recognised as being actionable intentional torts. Secondly, the claim that the former husband intentionally caused emotional distress sufficiently aligns with the elements of the tort of intimidation if nothing else. If that view is considered to be incorrect, given that the conduct in question amounted to trespass to the person, an analysis invoking the innominate action on the case is at least arguable. Accordingly, the former husband's claim that aspects of the former wife's claim are unknown to the law must be rejected.
3. In those circumstances, the high bar required to be satisfied for making a strike-out order by reason of the claimed absence of a reasonably arguable case has not been met: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69.

Issue 2 - Proper time for the determination of the limitation issue

1. The plea of a limitation defence in this case, irrespective of whether the relevant period in question is either three or six years, as was argued, requires an evaluation of credit issues across a range of factual matters. Those issues can only be properly and fairly determined on a review of the whole of the evidence and this could only occur at a trial. It is undesirable that limitation questions be decided on limited evidence at an interlocutory stage except in the clearest of cases: Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, at p 533. This is not a clear-cut limitation case. I therefore decline to strike-out the respondent plaintiff's statement of claim on the basis of a pleaded and untested limitation defence.

Issue 3 - Was the former wife the vexor in the Family Court proceedings

1. The applicant defendant former husband complains that he has already been "vexed" in the Family Court proceedings on the subject matter and the detail of the family violence allegations which the former wife is now seeking to re-litigate in these proceedings in her claim for damages.
2. In my view, the former husband's complaint in that regard proceeds upon an obvious false premise which appears incongruous if not inconsistent with a significant element of his estoppel submission to the effect that the former wife had chosen not to make a damages claim in the Family Court proceedings whilst those proceedings were on foot.
3. The estoppel component of that submission will be addressed shortly in the consideration of Issue 4. However, at this point it is sufficient to simply observe that it was the Family Court in the exercise of its jurisdiction pursuant to s 79(1) of the FL Act requiring it to take into account family violence issues when making decisions on parenting and property matters that "vexed" the former husband in those proceedings.
4. In that context, I again observe that the vexing in question did not occur at the former wife's instigation, where, significantly, it should be noted that the former husband was the commencing party in those proceedings.
5. Therefore, I reject the former husband's argument that he is being unjustly oppressed by the former wife in these proceedings on family violence issues on account of the fact that he has already been "vexed" on some of those matters in the Family Court in the exercise of that Court's specific statutory jurisdiction.

Issue 4 - Does res judicata, issue estoppel or Anshun estoppel arise?

1. For the reasons that now follow, from an examination of the judgment delivered in the Family Court proceedings, I conclude that no issue estoppel or Anshun estoppel arises when the findings and orders made in the Family Court are compared with the claims made by the former wife in the present proceedings in this Court.
2. The stand-out feature of the circumstances to be gleaned from the outcome of the concluded Family Court proceedings is that there was no claim by the former wife for compensatory damages for the consequences of family violence.
3. This was specifically noted in the following terms at [533] of the FCAJ: "While the wife has not requested the Court to consider exercising its accrued jurisdiction to award damages in this matter, I note that, ... To be clear, in determining that the wife is entitled to an adjustment in respect to what has been known as the "Kennon principle", I am not purporting to determine that the wife receive an adjustment equivalent to damages that would be awarded in a civil suit. However, the consequences upon the wife of the husband's conduct, in circumstances where the evidence satisfies me that the wife has suffered emotional and psychological harm which has impacted upon her capacity to make contributions, in terms of s 79(4) of the Act, must be considered in a real and meaningful way."
4. Those statements were made in the broader context of the Family Court noting that, in that Court's exercise of its accrued jurisdiction to award damages, a victim was entitled to exemplary damages: Giller v Procopets (2008) VR 1.
5. It is accepted that there have been appropriate cases when the Family Court has exercised its accrued jurisdiction to award tortious damages for assault in addition to making a Kennon adjustment, as has been noted in Rock v Henderson [2021] NSWCA 155, at [39]-[40].
6. However, in Rock v Henderson (Ibid), at [42]-[43] it was also noted that a party cannot be criticised for bringing a separate claim in a state court for damages for assault in the context of domestic violence in addition to Family Court proceedings. In that context, a separate claim for damages does not amount to an improper or collateral attack on the judgment of the Family Court or an abuse of process. That is what the former wife has done in this case.
7. With regard to the present case, it is noteworthy that in the Family Court proceedings, the former wife did not advance a specific claim for monetary compensation in respect of the assaults, batteries, or harmful intimidatory behaviours perpetrated by the former husband. In fact the former husband's submissions concede that in the judgment of the Family Court it was noted the former wife made no claim for damages in those proceedings: FCAJ, at [533].
8. A fair reading of the FCAJ makes it clear that the issue of family violence was raised in order to identify its incidence and its effects in order to enable the Family Court to quantify the effect on the capacity of the parties to "contribute" to the marriage in the broad terms identified in s 79(4) of the FL Act dealing with the settlement of property matters and earning capacity, as explained in Keating & Keating [2019] FamCAFC 46, at [37], citing Spagnardi & Spagnardi [2003] FamCA 905, at [47]-[49]. Those factors did not involve assessment of damages for tortious compensation.
9. Therefore, I conclude that there is no res judicata or issue estoppel in this case.
10. Turning to the question of Anshun estoppel, in making the financial adjustments required by s 79(1) of the FL Act, in referring to his application of the Kennon principle, at [545] Deputy Chief Justice McClelland specifically noted: "In doing so, the adjustment that I have included in favour of the wife, in respect to the "Kennon principle", should not be regarded as what the Court considers as fair and reasonable compensation for the impact of the husband's conduct upon the wife. His conduct clearly had emotional and psychological and, indeed, physical consequences for the wife."
11. This was in circumstances where, at [580], it was noted that the former wife's mental health had been adversely impacted by her exposure to family violence perpetrated by the former husband, resulting in the need for psychiatric treatment for depression and anxiety that has been significantly exacerbated by the family violence in question. That said, no claim for common law damages was made by the former wife at that time.
12. However, the former husband argues that the former wife ought to have brought her claim for compensation in the Family Court, and as a result of her argued failure to do so, she should be estopped from advancing her present claim in this Court: Anshun (Ibid).
13. As authority for that submission, the former husband relies upon the decision of the Privy Council in Henderson v Henderson (Ibid), in which it was stated that: "… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." [Emphasis as appears in the written submissions on behalf of the former husband]
14. On the basis of that decision, the former husband argues that the former wife had the opportunity to bring "her whole case" in those proceedings and because she failed to do so, she is now estopped from bringing her claim in this Court.
15. In my view, the above cited statements from the decision in Henderson v Henderson (Ibid) must be read in historical context. It involved a common law claim as distinct from the present circumstances where the Family Court was exercising a specific statutory jurisdiction that did not invoke a common law component of tortious compensation. The respective circumstances are distinguishable.
16. It is recognised that there are justifiable instances where a party is not Anshun estopped from bringing an available case, such as a cross-claim: Stokes v Toyne [2023] NSWCA 59. The question in each case is one of reasonableness, that is, was it reasonable or unreasonable having regard to the subject matter of the subsequent proceedings, not to have raised the claim in the earlier proceedings on account of severability: Stokes, at [3], [6].
17. In my view, a fatal flaw in the former husband's argument is that the former wife was not the claimant in the Family Court. She did not instigate a claim for compensation by way of common law damages in that Court. Therefore, the argument that the former wife failed to bring "her whole case" is misconceived.
18. The subject matter of those proceedings concerned first, the appropriate parenting arrangements for the children of the marriage, and secondly, the appropriate division of the matrimonial properly. This latter issue is informed by the extent by which, expressed in percentage terms with reference to the value of pooled property, the former wife's share of the pool should be adjusted by a Kennon assessed percentage in her favour by reason of the fact that, as found there, the family violence in question had adversely impacted upon the ability of the former wife to make a contribution to the marriage.
19. Assessing an appropriate Kennon adjustment is a task does not equate to the evaluative task involved in the specific assessment of common law compensatory damages for the intentional torts for which the former wife has brought the present claim as plaintiff, as distinct from when she was a respondent in the Family Court proceedings.
20. In that regard, the fact that the Family Court had an accrued jurisdiction is the starting point. It is not the end point to the required analysis.
21. The former husband's estoppel arguments are based on the notion that in both proceedings there was a common substratum of facts. That argument is met and effectively answered by recognising that a common factual substratum is not enough. It must also be shown that there is "an attached non-severable claim" and the exercise of an accrued jurisdiction does not arise simply "because it is closely associated with a matter within jurisdiction": Pichard & Pichard [2022] FedCFamC1F 549, at [8], following Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261, at p 278.
22. As was pointed out in Pichard (Ibid), at [16]-[21], properly understood, a Kennon claim is not a claim for damages for intentional torts such as assaults, the rationale being that Kennon adjustments made on account of family violence do not equate to damages for pain and suffering as a consequence of wrongful conduct.
23. The integral facts relied upon in intentional tort claims of the kind brought by the former wife in this instance involve much more expansive evidence as to loss than the evidence required to determine property proceedings in the Family Court where the litigation status of the parties are different: Crampton & Robinson [2013] FamCA 65, at [52], [58].
24. The latter point is well demonstrated by reference to the fact that in the Family Court the former husband was the instigating party whereas in this Court the proceedings were filed by the former wife.
25. In further answer to the claim of an Anshun estoppel the former wife points to the fact that the existence of a common substratum of facts is only part of the analysis. An integral subsequent step is also required, namely that the Family Court "invoke" the accrued jurisdiction: In the Marriage of Warby [2001] FamCA 1469. That jurisdiction was not invoked in Giunta & Giunta (Ibid).
26. On my reading and evaluation of the matters identified in the judgment of the Family Court in Giunta v Giunta (Ibid) that Court did not undertake a consideration of the property matters and the former husband's tortious conduct as a single justiciable controversy. As a result, the estoppel claims advanced by the former husband cannot be accepted. The Kennon style property adjustment made in that case is separate and severable from the former wife's claims made in this case framed in tort.
27. Accordingly, I find that no issue estoppel or Anshun estoppel has arisen.

Issue 5 - Is a stay or a strike-out justified?

1. In balancing the respective arguments I find that despite the partial overlap of the factual substratum which based the Kennon adjustments to the pool of funds considered in the Family Law proceedings and the torts pleaded in this case, no relevant oppression or unfairness arises as against the former husband. The former wife is entitled to pursue her claim for damages for the alleged assaults, batteries, and intimidatory conduct she claims against the former husband.

Disposition

1. For the above reasons the appellant defendant former husband has failed to sustain his application to strike-out or stay the present proceedings brought by the respondent plaintiff, his former wife.

Costs

1. As the applicant has failed to achieve a stay or a strike-out order it follows that the applicant should pay the respondent's costs of the application 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

1. I make the following orders: 1. The defendant applicant's notice of motion filed on 17 March 2023 seeking to strike-out or stay the plaintiff's claim is dismissed; 2. The defendant applicant is to pay the plaintiff respondent's costs of the dismissed motion; 3. On hearing the parties the Court will proceed to make appropriate case management orders; 4. Exhibit "A" may be returned to the parties; 5. Exhibit "B" is to be placed with the Court file in a sealed envelope and marked "Not to be opened except by order of a Judge of the Court or a Judge of the Court of Appeal in the event of an appeal"; 6. Liberty to apply on 7 days' notice if further or other orders are required.

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: 16 June 2023