Jabbar v Gade

Supreme Court of NSW|2020-09-23|Before: Walton J

BACKGROUND

I shall commence then by briefly transverse some of the evidence which fell in that category and, in doing so, provide a background or context for the issues which require consideration in this judgment.
The parties were married in India on XX 2002. Their daughter, X, was born in 2006 and their son, Y, was born in 2012 after their migration to Australia in 2008 ("the children").
The plaintiff and defendant were separated in August 2015.
In 2015 the defendant filed a parenting application in the Federal Circuit Court. There then ensued extensive family law proceedings in the Federal Circuit Court, Federal Court of Australia and High Court of Australia, which broadly ranged across the following: 1. the making of interim orders for children to live with the defendant on 31 August 2015: Gade & Jabbar [2015] FCCA 3607; 2. the commencement of divorce proceedings in 2016; 3. the amendment of parenting orders, including plaintiff being restrained from custody of her children: Gade & Jabbar (No 5) [2017] FCCA 662; 4. on 11 May 2018, the making of final orders in the Federal Circuit Court that the children were to reside with the defendant on a final basis: Gade & Jabbar (No 11) [2018] FCCA 1056; and 5. subsequent interlocutory and appellate proceedings.
On 16 August 2019, the plaintiff was declared a vexatious litigation for the purpose of the Family Law Act 1975 (Cth): Jabbar & Gade (No 22) [2019] FCCA 2186.
One issue consistently arising out of the contested evidence and connected to proceedings in the Federal Circuit Court and Family Court was the issue of an audiovisual recording of the plaintiff and her children which the plaintiff contended was fake. That issue was highly contentious in the various family law proceedings and remained so in these proceedings because of contested images of the plaintiff which the defendant contended represented the plaintiff assaulting the oldest child. That evidence is also before this Court in cross-examination as response to the material relied upon by the plaintiff out of family law proceedings.

CREDIT OF THE PLAINTIFF AND DEFENDANT

The plaintiff complained about the lack of availability of the mobile telephone used by the defendant when receiving a text message concerning a threat to pour hot oil over the children, and record the plaintiff assaulting the parties' daughter X.
The plaintiff contended that the mobile phone had not been available to her to undertake a forensic analysis.
However, that contention may not be accepted. The issue was the subject of complaint by the plaintiff to the Full Court of the Family Court of Australia, the appropriate forum, where that Court considered the issue and determined the complaint to be unfounded.
The contention repeatedly made by the plaintiff in evidence and in submissions was that the recording on the mobile phone was a "fake"; no doubt, as part of a denial that she had assaulted her oldest child.
The plaintiff asserted in her cross-examination in the Federal Circuit Court trial she did not even know if they were her children in the recording.
The plaintiff conceded during cross-examination in the Federal Circuit Court trial that she was the person in the video, but then denied that she had assaulted her daughter.
In these proceedings, when under cross-examination, and after the playing of the recordings, the plaintiff made a complaint about a person sitting in the back of the courtroom. She stated "they are my children, if anybody should be upset it is me".
When questioned about the concession, and becoming aware of her mistake, the plaintiff then proceeded to dispute she had actually said they were her children only moments earlier, and maintained the position that it was not her children depicted in the recording, in the face of images clearly depicting her.
I note that the plaintiff relied upon a report by Dr Hinton, Psychiatrist, of 6 October 2015, which indicates the plaintiff had disclosed to him that that the plaintiff admitted striking the parties' daughter and the defendant had recorded this.
The plaintiff contended that the "text" message and recording had hampered her attempts in securing employment, in that she has been unable to obtain a Working with Children Check. However, as the plaintiff conceded in cross-examination, the Office of the Children's Guardian has actually not refused a Working with Children Check. Rather, the plaintiff has not answered queries of her by the Office of 19 December 2017 and 11 March 2019.
My overall impression of the plaintiff as a witness was that she was an unsatisfactory one.
The plaintiff is plainly an intelligent woman. She was self represented. I accept that she had felt strongly and passionately about her divorce and custody battle.
However, I agree with the defendant that the plaintiff gave the very strong impression of a person consumed by her sense of injustice that drove her to variously adjust her evidence to say that which she considered necessary to assist her at any point in time. She was argumentative and to some extent evasive.
I do not consider her to be "cunning and devious" as submitted by the defendant but her evidence was undermined by her emotional responses fed by her sense of injustice. Her reliability as a witness suffered considerably.
Ultimately, after close examination of the plaintiff in the giving of her evidence, and making due allowance for her self represented status and stress she was under, I have come to the view that her evidence should not be accepted unless corroborated by independent evidence or by the defendant whom I considered to be a thoughtful, considered and careful witness.

THE EVIDENCE

The plaintiff relied upon affidavits filed 4 December 2018, 19 March 2019 (with a large volume of accompanying material) and 25 May 2020.
She also relied upon the report of Dr Tanveer Ahmed of 30 April 2020 (he was not required for cross-examination) together with a large volume of medical evidence filed 4 December 2018.
The defendant relied upon his affidavit of 5 June 2020.
The defendant called Nathindra Mohan Mookerjee who was an advocate having a practice, inter alia, in matrimonial disputes in India. He issued two reports dated 26 November 2019 and 5 December 2019 respectively. Mr Mookerjee was required for cross-examination. The defendant also called Neisha Shepherd, the solicitor for the defendant.

The Plaintiff's Submissions

In her closing submissions the plaintiff relied upon two written submissions. The first was a 45 page undated written submission and the second a submission in response to the defendant's written submissions filed on the 6 November 2020. The plaintiff also made oral submissions. It may be noted that appended to the plaintiff's written submissions of 6 November 2020 was a notice of motion and an affidavit of 15 March 2018.
I accept the defendant's written submissions that a substantial proportion of the written submissions by the plaintiff do not squarely relate to her claim or are in the nature of evidence and are difficult to follow as a coherent argument. Bearing in mind those considerations, the following is a summary of the submissions: 1. At the outset, the plaintiff described her unhappy marriage, partly deriving from issues arising with respect to the defendant's family. It was contended that in the period 2005 to 2006, during the plaintiff's first pregnancy, there was abuse from the defendant and his family. 2. The defendant's uncle, D, provided his lawyer's details to the defendant to move for divorce in May 2007 when the daughter of the parties was 1 year old. By October 2007, the defendant's brother Varunjol, was pushing the defendant to move for divorce. 3. This is the context in which the submission was made as to the first assault. It was contended that around 11pm, the child of the couple was crying, the defendant turned off the TV and went to bed. It was submitted that the defendant had no reason to be angry and "should not be a reason to abuse your wife verbally and physically". 4. Reference was made to a report by Dr K consultant psychiatrist, who opined that to the extent the Court finds the father's narrative less reliable and/or the mother's narrative more reliable "the family violence perpetrated by the mother may be less severe and she may in fact be the victim of maternal family violence". (It may be noted that there were considerable limitations in this report being received as an expert opinion.) 5. As to the second assault, the plaintiff made the following submission: 9 December 2007, [Gade] (sic) response that he informed me about his grandparents visit is completely wrong. He never informed me. I only came to know about his grandparents visit in the morning of 9 December 2007, when I heard his telephone conversation with his uncle. And when I asked him about it; he was so angry and there was a blast. In March 2007, his grandfather had a heart-attack. [Gade's] (sic) family informed him about it. [Gade] (sic) was constantly talking to the cardiologist (from my mobile phone) who was treating his grandfather, but he did not inform me, and I was not allowed to ask any question to [Gade] (sic). In 2006, he did not inform me about the death of his father's paternal aunty (his father's paternal aunty lived in the same house with his parents). 1. For completeness I also refer to the following component of the plaintiff's submissions which immediately follows the above extract. If in 2007, [Gade] (sic) did not want to continue with me; he could leave home anytime as he left home on 19 august 2015. In India, I was always in job, in case of any divorce, I could support myself and took care of my child, If in 2008,I continued my job; did not resign to come Australia with him, today (in 2020), I could be working as a Professor in any Medical college with a decent salary and luxurious lifestyle. In India, Indian law (498a) and children custody were big problems for [Gade] (sic). (plaintiff's emphasis) 1. In 2008 the plaintiff continued in her job. The plaintiff contended that she could have continued as a Professor in any medical college with a decent salary. In 2008, upon coming to Australia the plaintiff resigned from her job. Reference was made to various "Indian incidents" which are described as events of "physical abuse and domestic violence". 2. By 2011, there were no difficulties in the home but reference was made to various initiatives said to be taken by the defendant in relation to divorce and contacts with the Department of Community Services. 3. In 2012, there were various exchanges between the defendant and his uncle regarding divorce, various complaints were made unrelated to the ASOC including assertions of an extra marital affair. 4. Contentions were made that, in 2013, the defendant installed recording devices in the family home and in the same year the defendant sponsored his uncle's son for educational purposes. It was contended that in the same year that the plaintiff could not work in "a lab" because of back issues, even though she had a PhD in medical genetics. Various references were made to the plaintiff's further educational pursuits. 5. Reference was then made to the third assault which was described as a "shameful incident". It was submitted that the plaintiff had no confidence to go out and talk to anybody and forgot about her job, she made herself busy with her children and in the same year went to California and New Zealand. 6. Contentions were made as to her difficulties in completing her Master of Clinical Epidemiology. 7. The following passage of the plaintiff's submissions appears to relate to the fourth assault. It was in the following terms: In February 2014, [Gade] (sic) refused to give me salary slip, and in April 2014, [Gade] (sic) abused me and my father. [Gade] (sic) family was interfering and controlling my married life, and this was the main reason for fight in my house, but [Gade] (sic) humiliated my father in my home in my presence, Physical abuse from your partner in the presence of your parents is very insulting and your partner abuse your parents in your presence, in your home is also very disgusting. After his incident, my family was worried not only for my safety and security, they were worried for the safety and security of my children also. I forget this incident too. I pushed myself to do some work. I was not able to work according to my degrees and in my field of expertise; I joined TAFE and did a Cert IV course in Real Estate. I could not find myself doing a paid job, so I start working without money with a hope that in future, I will manage some money for myself. 1. The following passage of the plaintiff's submissions appears to relate to the fifth assault: In July 2015,1 finished my TAFE course and I gave offers for few big properties. I had plans to get loan from bank; buy some properties; and manage those properties myself, so that after paying bank EMI, I could have some money to manage my day-to-day personal expenses and a bank account which I could use in a situation like February 2014.1 was in need of [Gade's] (sic) support to secure loan for those properties. I asked him several times, as usual, He did not give me any reply. Then one day I send him a text as mentioned in my affidavit dated 28 August 2015. It is a common phrase in India symbolic to "Difficult situation", Meanwhile on 14 July 2015, [Gade] (sic) abused me for the same issues "you should accept that you have a boy-friend in India and give a personal invitation to my mother". 1. Reference is then made to the history of relations between the plaintiff and the defendant, including references to the text message to which I have referred and the making of "false allegations" and the production of "fake evidence". 2. The written submission then attends upon various aspects of the relations between the plaintiff and the defendant including financial support and the plaintiff's access to the Working with Children's Check. In that respect it was submitted that the acquisition of the Working with Children's Check depended on two issues being cleared. One concerned access to the plaintiff's children and the second proving the plaintiff's innocence with respect to the fake evidence brought against her. 3. Reference was then made to charges laid against the defendant in the Local Court of New South Wales. It may be noted in that respect that on 5 July 2016, upon the entry of a plea of guilty to common assault by the defendant, Magistrate Cheetham found the defendant guilty of the charge but did not proceed to conviction. The defendant entered into a good behaviour bond for 14 months pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (Cth). 4. On the same date, that Magistrate Cheetham made a final order for an ADVO in favour of the plaintiff and against the defendant for a period of 2 years from the 5 July 2016. 5. After referring to some of the processes in this Court, the plaintiff referred to proceedings brought against her in 2016 with respect to the common assault of her daughter in 2013 and intimidation for sending text messages to the defendant in July 2015. 6. Various submissions were then made by the plaintiff regarding the text messages and mobile phone of the defendant to which I have referred earlier. 7. Reference was then made to the plaintiff seeking treatment for mental health issues in 2017 and 2018 and that reports were received that she was "safe for children" and "her children can be with" her. She requested this Court to make appropriate orders and return her children immediately. 8. Various submissions were then made about custody. Contentions were made that this Court should take action regarding the defendant's misconduct regarding "fake evidence" and the giving of "false evidence". A related submission was put with respect to defamation. 9. The plaintiff then addressed questions relating to her vexatious litigant status and her reliability as a witness in Family Court proceedings. 10. Reference was made to an incident on 6 November 2019 in which the defendant took possession of the family home. 11. Lastly, in the primary submission made by the plaintiff, she made reference to her not having English as a native language, separation from her children and that the defendant had "planned everything very carefully". She criticised Federal Circuit Court orders of 11 May 2018 and referred to her resultant poor domestic circumstances. It was contended that the defendant was manipulating the law to obtain his ends. 12. In her reply submission, the plaintiff referred to her ceasing to be legally represented on 17 May 2019. 13. In respect of her submissions as to the assaults, the plaintiff submitted For the points from 30-52, my response is: I already provided my response for these incidents. Mr Michael Weightman made derogatory comments on me. I prefer to maintain my dignity, instead of arguing for such issues. I never conceded anything in any court. I produced [Gade's] (sic) mobile phone in court. Even after Judge Terry's threats, I refused to lie and facing this long separation from my children. My children, my dignity and my self-respect is everything for me. I am happy to leave these issues for the honorable court to decide. 1. As to the plaintiff's submissions on damages, the plaintiff made the following submissions: For the points from 53-63: [Dr K] (sic) report (March 2017), my PhD enrollment cancellation document are the proof of my damage. Publishing only a hypothesis-generating paper, without getting any money, is <1% part of work as a Postdoc candidate. [Gade] (sic) abused me purposefully. It was done, intentionally. And the day, when he was sure about my mental health issues, he left home; kidnapped children and started parenting proceeding in Federal Circuit court, Newcastle. 1. Finally, in written submissions, the plaintiff submitted: In the light of [Gade's] (sic) unlawful activities in this court, the outcome of this case will not be favorable for [Gade] (sic). To the best of my knowledge Breach (sic) of AVDO (2 Years), obstruction to justice (10 Years) are related to jail punishments. [Gade] (sic) did other illegal activities too. I requested this court to make orders regarding children also to avoid more applications in different courts. It will not be only in the best interest of children, it will be good for me too. J cannot tolerate more torture. I do not want to spend rest of my life on dole money. Practically defendant has no defense. There is no reason for court to disbelief me and there is no reason for court to trust [Gade] (sic). But in case, court will make any findings against my claim, I request to the honorable court to clear the issue of fake text messages dated 25 July 2015 and fake video dated 9 March 2013, so that I can go for W WCC and live my life with self-respect and dignity. Again, I am requesting court to please make orders regarding children and interim financial support ASAP. If other part is not available, I request court to make orders on ax-parte basis. [plaintiff's emphasis]

The Defendant's Submissions

The conclusion of the defendant's written submissions broadly summarises the case for the defendant: The incidents of 25 June 2007, 9 December 2007, 2 March 2013, and 16 April 2014 are all subject of expired limitation periods and the claims concerning them should be dismissed, regardless of any factual findings as to what occurred on those dates. The Court would reject the plaintiff's accounts concerning all 5 incidents and accept the defendant's account. That is, the incidents of 25 June 2007, 9 December 2007, 16 April 2014 and 14 July 2015 did not occur, requiring judgment for the defendant, and the incident on 2 March 2013 was much less serious than the plaintiff would have the Court believe and damages ought to be exceedingly modest, if not nominal given the circumstances described by the defendant (if the defendant's limitation argument is rejected).

The First Assault

In the plaintiff's affidavit 18 March 2019, she gave the following evidence regarding the first assault: On or around 25 June 2007, in night, around 11pm, I was in bedroom with [X] (sic). [Gade] (sic) was in other room watching television. [X] (sic) i was tired and cranky but could not sleep because of television's noise. I asked [Gade] (sic) to turn off the television and be with her for some time so that she will sleep. [Gade] (sic) refused to take care of[ X] (sic). This situation continued for some time, [X] (sic) was crying, Again I asked [Gade] (sic). [Gade] (sic) became very angry. [Gade] (sic) turned off the television and came inside the bedroom. I tried to lay down on bed. [Gade] (sic) pushed me down form the bed; I fell down on hard concrete floor. [Gade] (sic) started shouting with words. "If I was the only condition for[ X] (sic)i to sleep then you should not be here; get out from this room; you cannot be in this room. [X] (sic) was crying and very cranky. At last I left room and went outside. It was June, hottest month in India, whole night I slept on a chair in gallery without even any fan. For almost one month, I could not walk or sit properly. I am still suffering from lower backache. I cannot bent forward. It affects my day-to-day activities like I cannot load and unload dishwasher. I start my day with heating pad; use back support; I cannot sit or stand work for long hours.
In substance, the defendant denied these allegations in his affidavit of 5 June 2020.
The plaintiff claimed this incident occurred in City B and pleaded the assault involved the defendant hitting, pushing and kicking her, causing her to fall onto a concrete floor. The allegation of kicking was contained in the ASOC but does not feature in the plaintiff's affidavit material. In the course of cross-examination, the plaintiff also claimed the incident involved the defendant using his elbow to hit her, an allegation which featured in neither the pleadings nor the affidavit material.
I do not accept the plaintiff's explanation in cross-examination regarding her failure to include reference to the elbow in the ASOC or her affidavit. I accept the submission by counsel for the defendant that the plaintiff did show attention to close detail in her evidence at various points. For example, during cross-examination she gave evidence as to the location of her daughter during the incident whilst at the same time maintaining her position that she did not think the elbow allegation was important. That aspect of the cross-examination is extracted below: Q. Is it your serious evidence that you did not think it important to include in your affidavit, supporting your damages claim, the fact that [Gade] (sic) had elbowed you? A. That elbow push was - there was not significant force in that and that elbow push was not forceful enough to throw me out from the bed, that's why - and whatever damage I - definitely when I fell down on the floor, it hurt my back, that was because of the forceful kick, so I didn't think that I was in need to inform court all about things, but you can ask me that where was my daughter at that time, so I've definitely, I didn't include that. Q. Well, you have included where your daughter was; the first sentence of para 29? A. Mm.
I have made allowance for the variation in the plaintiff's evidence both internally and when considered against her pleadings, particularly having regard to her status of being self represented. However, the discrepancies in the evidence of the plaintiff on this issue are not readily dispensed with as they are substantial and bear directly upon the veracity of her account.
When seen in the light of my findings as to the credit of the plaintiff in giving her evidence, I consider that the deficiencies in the evidence that are referred to above are significant.
I do not accept the plaintiff's evidence as to the first assault.
It is strictly unnecessary to consider the question of damages in the light of that finding. However, I do not consider that the plaintiff's claim as to personal injury deriving from the incident can be sustained, in any event.
The plaintiff claimed the incident caused a chronic back condition from which the plaintiff still suffers, 13 years later, having been unable to sit or walk properly for a month following the assault. The plaintiff included a "Recommended Action Plan" dated 15 January 2019 from a physiotherapist in the evidence, as it was said the "disc irritation" referred to in that document was caused by the event of 25 June 2007, or at least 90% of it, the remaining 10% being caused by carrying her children.
However, the plaintiff acknowledged in cross-examination that the first time she experienced back pain was actually 2003. There is no medical evidence linking any back complaint to the events of 25 June 2007. I accept that the plaintiff's reliance upon the physiotherapist's report was an opportunistic attempt by her to bolster her case.

The Second Assault

The plaintiff's affidavit evidence in this respect is in the following terms: On or around 9 December 2007, around 9am, I was about to leave for my laboratory. I heard [Gade's] (sic) voice. From his words, I got an idea that his maternal grandparents will be at our home in next half an hour, I asked [Gade] (sic) about it. He did not give me any reply. I asked again that if they are coming, why did not he inform. [Gade] (sic) started shouting with words "Who are you, why should I tell you that my maternal grandparents are coming; this is none of your business; I am not compelled to inform you about each and every thing; if you are not happy with this, that's the door, go out from this house; it is my home. Then I said that I already prepared lunch and I have to go now, I have to take care of [X] (sic) also, if you informed me before, I could prepare lunch for them too. Then [Gade] (sic) was angry. He started hitting me on my head and face; he pushed me towards fridge and banged my head on fridge. Meanwhile, somebody knocked on the main door; [Gade] (sic) left me and went inside the room. I went outside. I was standing next to window, I heard that [Gade] (sic) was talking to somebody with words. "I want to teach her a lesson, she should get a legal notice of divorce; she is overconfident; I want to break her confidence: she is very strong and I want to teach her a lesson"
The plaintiff claimed she was hit, slapped and pushed around the head, neck and face by the defendant when they were in City B, which was accompanied by threats to throw her out of the house and a threat of divorce (ASOC [5]).
The defendant's affidavit evidence in reply is contained in his affidavit of 5 June 2020 and is in the following terms: ln relation to paragraphs 33, 34, 35 and 36 of the Plaintiff's Affldavit filed 19 March 2019, I did not shout at the Plaintiff on 7 December 2007 about my grandparents visiting. I did not hit the Plaintiff on her head or face. I did not push the Plaintiff towards the fridge. I did not bang the Plaintiffs head on the fridge. This incident did not occur. I did not answer the door and say: "I want to teach her a lesson, she should get a Legal notice of divorce; she is overconfldent; I want to break her confidence; she is very strong and l want to teach her a lesson".
There was again a discrepancy between this aspect of the plaintiff's affidavit evidence and the pleadings in the ASOC. There is no mention of any assault to her neck in her affidavit and no mention of anything involving a violent act of banging her head on a fridge.
The plaintiff's explanation for these discrepancies in cross-examination was unconvincing. An example is extracted below: Q. All you need to do is just answer the question, [Jabbar] (sic). What I'm suggesting to you is the reason that there is a difference between your amended statement of claim and your affidavit is because you've completely made up the incident, and you forgotten the versions that you've given at different points in time. A. There is no difference in my amended statement of claim and in my affidavit. There is an additional thing on my affidavit that he banged - he pushed me towards fridge and he banged my head in the fridge. It is additional information in my affidavit and definitely these two things are said. I clearly informed that it happened on - to the best of my knowledge, it really happened on 9 December 2007. If right now I was in India, I could really issue a subpoena to Indian relatives because on that day Gabe' grandparents came to our home, so I was just - I could issue a subpoena to Indian relatives and I could confirm that they travelled all the way from..(not transcribable)..to [City B] (sic) in the night of 8 December 2007 and they reached our home in the morning, that train reached [City B] (sic) around I think of 8.30 or 8.45. So, I'm sure it is - it happened on that date.
I accept the submission of the defendant that the plaintiff's story is concocted.

The Third Assault

The plaintiff's affidavit evidence in this respect was in the following terms: On or around 2 March, 2013,1 was at home with [Gade] (sic) and my children, X (sic) and Y (sic) There was an argument between me and [Gade] (sic), over family matters and his extended family. [Gade] (sic) was angry and threatened me in Hindi. The translation of that Hindi is, "I will not leave you able to speak; I will break your mouth" At that time, [Gade] (sic) reached out with his hand and pulled my hair. He then started to slap me at least 20 times. I was trying to push him away but I could not get up because I had my young son in my lap. After that, I managed to push him away; I got up and put my son on the bed and walked to the bathroom, (Annexure I) I stayed in the bathroom for a short while, crying because of what had happened to me. After a while, I heard my son was crying so I came out from the bathroom. I took two photographs of injuries on my face and neck, I had cuts on my checks and my lips were bleeding. All this happened when my son was in my lap, I was breast-feeding him, and my daughter was in her bed, trying to sleep, It was very embarrassing situation for me. I was beaten in front of my 7 years old daughter.
It was previously mentioned that the defendant admitted he slapped the plaintiff on this occasion. He was found guilty of a charge of assault with respect to this allegation, although, no conviction was entered. Further, a 2 year ADVO was made against the defendant although without admissions.
In that light, the defendant's evidence is of some significance. In his affidavit of 5 June 2020 he gave the following evidence: On one occasion, 2 March 2013, l acknowledge l slapped the Plaintiff on the face once. On this occasion, the Plaintiff was yelling, shouting and cal!ing me names in Hindi front of the children, including "bastard", "asshole", "pimp" and "whore". I asked her to 'stop, stop". I was sitting on the bed next to her at this time. The Plaintiff was holding knitting needles in her hand and she was waving the needles at me with the pointed ends towards me. She advanced towards me aggressively with the needles on a few occasions at that time. She was threatening to attack children with those needles l was pleading with the Plaintiff: "please don't do it. The Plaintiff kept on yelling "What will you do? Will you hit me?, hit me!" I was so frustrated I slapped her across the face once on her left cheek area. I was charged with assault on 15 January 2016, On 10 March 20161 entered a plea of guilty in the Local Court, but the matter was listed for a contested-facts hearing as the Plaintiff asserted that I had slapped her more than 20 times.
The plaintiff pleaded in the ASOC that the defendant hit and slapped her around the head, neck and face (at [7]). The plaintiff said in her affidavit she was slapped at least 20 times.
The defendant admitted that he slapped the plaintiff once, however the slap followed upon the plaintiff having called the defendant names such as bastard, asshole, pimp and whore, and threatening himself and the children with knitting needles. Nonetheless, there was a proper basis to find guilt given the slap occurred out of frustration and not self defence.
The plaintiff relied upon a photograph to support her allegation of injury. However, in cross-examination, she stated she was unable to find the photographs to include in her first affidavit. The photographs appeared annexed to the second affidavit.
The defendant submits that the plaintiff's account not including the photographs in the first affidavit is unconvincing because the plaintiff had otherwise acknowledged the importance of including evidence in supporting her allegations, such as a physiotherapist report.
I do not consider that the photographic evidence can be so lightly dismissed, and I am inclined to accept the defendant's explanation as to the absence of the photographs in the first affidavit. However, I do not consider there was a proper basis for concluding that the defendant hit the plaintiff on more than one occasion. I also consider this finding is more consistent with the approach of the Local Court in sentencing the defendant. The third assault is proven but within the parameters of my findings above.

The Fourth Assault

The plaintiff sets out her affidavit evidence in this respect at pars 63-66 of her affidavit of 18 March 2019. That evidence is in the following terms: On or around 16 April 2014,[Gade] (sic) argued with my father and me. [Gade] (sic) as very angry and upset that my father had come to visit us despite him not wanting to come. [Gade] (sic) came early from his office. At that time, my daughter was in one religious camp. During that conversation, I asked him about installing recording devices in home. I showed him one, which he hide in his coat pocket. When I showed him that device, [Gade] (sic) was out of control. [Gade] (sic) started throwing chairs and other crockery on me. Then he thrown another chair and then a lot of dining table stuff like cup, plates, salt container etc on me. [Gade] (sic) clearly asked my father "how dare you come in my house". [Gade] (sic) started using dirty words for me and for my father. Anyhow, I saved myself, but I was so scared. [Gade] (sic) ay to give him space. After all this, he left home. (Annexure K) I changed my father's return tickets and send an email to [Gade] (sic) in this regard. (Annexure L) [Gade] (sic) responded, "Your father is not the issue, you are "The issue". (Annexure M)
The plaintiff pleaded the defendant swung a chair towards her, and threw two chairs at her, (none of which hit her), and then threw a coffee cup and other items that hit the plaintiff's feet. The plaintiff's version in her affidavit evidence was largely consistent. However, when cross-examined, the plaintiff again gave a much more florid account.
In cross-examination, the plaintiff claimed that one chair actually hit her, and broken glass had hit her, which caused bleeding and scarring to her legs. The plaintiff's explanation that the reason she took photographs of the March 2013 injuries, but not the bleeding and scarring to her legs on this occasion, was that the defendant had hit her in front of her daughter, who was on school camp and that their son was also there, and she was busy with other things. I accept the submission for the defendant that this explanation was unconvincing. The plaintiff had given no evidence of the injuries in her affidavits. A reason proffered as to why that had occurred was that the injuries were not permanent. Again, this explanation strains credulity. The plaintiff had given evidence of cuts, which were not asserted to be permanent, in the context of the incident on 2 March 2013.
The plaintiff also gave evidence in cross-examination of permanent pain in her right leg, which prevents her from standing or sitting for a long time, which she has not previously mentioned. There was no explanation as to why this permanent injury had not been included in the plaintiff's affidavits, given the plaintiff's logic of including only permanent injuries in her evidence.
I reject the plaintiff's case as to the fourth assault.

The Fifth Assault

The plaintiff's affidavit evidence as to the fifth assault is set out in her affidavit of 18 March 2019 at par 69 and is in the following terms: On 14 July 2015, [Gade] (sic) was abusing me with the allegation of having an extra marital affair. I asked him several times to stop but he did not. [Gade] (sic)was asking me to call his mother and personally invite his mother. I was scared of his mother. My 3-year-old son was playing there and my daughter was reading a book, In front of my children, He used words that you always asked for your rights, this is my right, and he punched me on my lower abdomen several time and asked for physical relationship while my 9-year-old daughter and my 3-year son was present there. I feel humiliated and scared. I had severe pain in my lower abdomen. I tolerated that pain for few days but when that pain was continued for next one week or 10 days, and then I went to my GP. He had doubts for hernia or internal bleeding, and he suggested me to go for USG and blood test. I did all those thing. There was not any (sic) internal injury or bleeding. He said that it might be only soft tissue injury. (Annexure N)
When seen in the light of the Court's findings as to credit, the analysis by the defendant as to this incident may be readily accepted.
The plaintiff's evidence is the defendant punched her several times to her lower abdomen and asked her for a "physical relationship" while the children were present. The plaintiff gave evidence for the first time in cross-examination as to having picked up a doll's house and threatening the defendant with it in order to protect herself. The plaintiff had pleaded that the defendant had attempted to push her down onto the bed, but that did not feature in the affidavit. The plaintiff gave evidence of having attended her GP and then a sonographer for the purpose of obtaining an ultrasound due to the assault but did not reveal the assault to those medical practitioners.
I reject the allegations as to the fifth assault. I am not convinced of the plaintiff's version and accept the defendant's denials as to the same.

Limitation

Strictly speaking, having regard to the findings made by the Court, the only issue as to the limitation period concern the third assault.
Nonetheless, I will briefly deal with the defendant's case on the limitation period.
I agree that the incidents in India alleged to have occurred on 25 June 2007 and 9 December 2007 are affected by the limitation period.
The defendant relied upon an expert in Indian Law, Mr Mookerjee who provided evidence. That evidence is extracted below: As per the amended plaint[sic], there is no pleaded assault within three years from December 2007, and as such the pleaded assaults in India are outside the limitation period under the Indian law, and as such no benefit can be available by the plaintiff in purview of Section 22 of the Limitation Act, 1963.
Mr Mookerjee gave evidence in answer to questions from the Court that, if there is a proper reason, the limitation period can be extended. The plaintiff gave no evidence of any reason as to why the limitation period should be extended, so the 3 year time limit applied and the first two allegations can otherwise be dismissed on limitation grounds.
The claims concerning the incidents of 2 March 2013, 16 April 2014, and 14 July 2015, are claims for personal injury (Limitation Act 1969 (NSW) s 50A(1)).
Section 50A(1) provides as follows: 50A Application of Division - kinds of causes of action (1) This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.
Section 50C of the Limitation Act provides: 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire - (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. Note - The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3. (2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times - (a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased, (b) the appointment of the plaintiff as the deceased's personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment, (c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased's personal representative. (3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased. The question of discoverability is governed by s 50D of the Limitation Act 1969 which provides: 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts - (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.
The defendants submitted there was no evidence from the plaintiff as to the delay in bringing proceedings for the third, and fourth allegations. The was no evidence of the plaintiff subsequently becoming aware upon advice from a lawyer that she could bring the proceedings. The plaintiff filed the SOC without the assistance of a lawyer and was highly intelligent. The Court should conclude the causes of action were discoverable shortly after each event.
The defendant further submitted the incident of 2 March 2013 was pleaded, albeit not in completely clear terms, in the SOC filed on or about 4 July 2017. It is submitted that it was discoverable prior to 4 July 2014, and so is not maintainable.
As to the 16 April 2014 incident the defendant further submitted that it was first pleaded in the ASOC filed on 7 December 2017. It is submitted that it was discoverable prior to 7 December 2014, and so is not maintainable.
The SOC was filed on 5 July 2017 by the plaintiff who at the time was self represented. The SOC outlined a detailed background of the plaintiff's relationship with the defendant and previous Court proceedings relating to the custody of their children.
The ASOC was filed on the 7 December 2017. Even though solicitors for the plaintiff appear to have been appointed on the 31 May 2018, it is plain that the ASOC was drafted with the benefit of legal advice or assistance.
As identified by the defendant the incident of 2 March 2013 was mentioned in the SOC. That is extracted below: Meanwhile, on 5th July 2016, on the basis of my statement dated 13 January. 2016, [Gade] (sic) proved guilty of assault on me (dated 2 March 2103). [Gade] (sic) signed a two years good behaviour bond and magistrate issued an ADVO to protect me from [Gade] (sic).
However, I do not consider that the mention of the incident in the SOC was, in substance, a pleading towards a specified cause of action, namely, damages for assault and battery which was ultimately advanced in the ASOC after the benefit of some legal advice or assistance. The reference to the incident in the SOC was merely an addition to the plaintiff's chronology outlining the background of her relationship with the defendant and of past Court proceedings. Further, there was no mention of the first, second, fourth and fifth assaults in the SOC which are the subject of these proceedings. Those assaults were first mentioned in the ASOC after the plaintiff had sought legal advice or assistance. This further suggests that the mention of the fact of the third assault did not constitute directly or indirectly a pleading specifically with respect to the third assault.
It is a reasonable inference that the plaintiff relevantly received legal advice after the filing of the SOC mostly likely more proximate in time to the filing of the ASOC.
That is sufficient, in my view, to preclude the Limitation Act barring the claim for the third assault.
Counsel for the defendant did not refer the Court to the provisions of s 50F or 52 of the Limitation Act. It is unsurprising that the plaintiff was not cognisant of those provisions.
Section 50F is in the following terms: 50F Effect of disability on limitation period (1) If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability. (2) A person is under a disability while the person - (a) is a minor, but not while the minor has a capable parent or guardian, or (b) is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person. (3) In determining when a cause of action is discoverable by a person who is a minor, or an incapacitated person, who is not under a disability, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the incapacitated person are taken to be facts that are known or ought to be known by the minor or incapacitated person. (4) In this section - capable parent or guardian of a minor means a person who is a parent or guardian of the minor and who is not under a disability (as referred to in subsection (2)). guardian of a minor includes a person who under a written law of the State is exercising the parental responsibilities of the Minister under the Children and Young Persons (Care and Protection) Act 1998 for the minor. incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of - (a) any disease or any impairment of his or her physical or mental condition, or (b) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990, or (c) war or warlike operations or circumstances arising out of war or warlike operations. protected person means - (a) a person in respect of whose person another person is guardian, whether under the Guardianship Act 1987 or any other Act or law, or (b) a person in respect of whom an order is in force under the NSW Trustee and Guardian Act 2009 or the Guardianship Act 1987 that the estate (or any part of the estate) of the person be subject to management under the NSW Trustee and Guardian Act 2009. (5) Sections 52 (Disability) and 53 (Notice to proceed) do not apply to a cause of action to which this Division applies.
The expression "disability" for the purposes of s 50F is defined in s 11(3) of the Limitation Act extracted below: 11 Definitions (3) For the purposes of this Act a person is under a disability - (a) while the person is under the age of eighteen years, or (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of - (i) any disease or any impairment of his or her physical or mental condition, (ii) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958, (iii) war or warlike operations, or (iv) circumstances arising out of war or warlike operations.
Whilst I reach no concluded view on the question there appears to be evidence before the Court that may sustain a contention that, pursuant to s 50F, there should be a suspension on the running of the limitation period for the duration of any disability which in this case is a period of time from, at least, March 2013. This is based on the plaintiff's mental state after her separation from defendant. I do not suggest that the third assault was causation of any such psychological condition.

DAMAGES

The defendant conceded that, if the plaintiff's evidence concerning the incidents having occurred is accepted, it is acknowledged damages will be awarded to the plaintiff, with respect to any such assault found by the Court.
The issue of damages is strictly only assessed with respect to the third assault in respect for which I have found the defendant liable.
I accept the submissions for the defendant that, as the plaintiff has placed no evidence before the Court concerning her entitlement to damages in accordance with Indian law which governs the first and second assaults. Damages are to be assessed in that respect in accordance with New South Wales law.
There is no evidence of any out of pocket expenses, and the plaintiff's earning capacity has not been affected. The plaintiff has authored two peer-reviewed journal articles this year alone (Exhibit 4). Any damages will be limited to non-economic loss.
Nor do I consider the plaintiff has established on the evidence that the third assault caused any psychological injury (even though the plaintiff may have suffered psychological decline in that period).
There was no evidence of any actual past medical expenses, or the need for any future medical expenses, or any actual need for past of future care relevant to the claim.
The defendant acknowledged, assuming his limitation defence is not accepted, that damages would be awarded in respect of the incident of 2 March 2013.
Damages are not affected by the limiting provisions of the Civil Liability Act 2002 (NSW) (s 3B(1)(a)).
The defendant submitted that, in the circumstances described by the defendant (affidavit of defendant filed 5 June 2020 at [11]; Court Book Tab 11 p.851), that is, following the plaintiff calling him names including "bastard, asshole, pimp and whore", where the defendant asked her to stop, and the plaintiff was threatening the defendant with knitting needles, and the defendant then slapped the plaintiff once out of what he described as frustration, general damages ought to be exceedingly modest, if not nominal, certainly no more than $5,000.00.
However, I do not consider that the significance of acts of domestic violence may be diminished in that manner, particularly when the real basis for the assault by the defendant was frustration with the plaintiff. General damages must be assessed as greater than nominal although with the context of evidence of a single occurrence involving a single slap with minor bodily injury.
The defendant submitted there are no comparable cases which can provide the Court with reliable assistance in these circumstances.
The plaintiff made a claim for aggravated and exemplary damages in respect of the incident of 2 March 2013 (ASOC [14]-[15]; Court Book Tab 1 p.11).
In Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 at [149], Windeyer J explained: [149] that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more objects of punishment - moral retribution or deterrence
The plaintiff's pleading that "the assault and battery was carried by the Defendant, from the Plaintiff's head, neck and face, thereby attacking the Plaintiff without warning and on an unprovoked basis" (ASOC [14]; Court Book Tab 1 p 11) does not support a claim for aggravated damages. Nor does the plaintiff's accounts of the assault in evidence (noting they have not been accepted save, in the case of the third assault).
The Court should not make an award of exemplary damages concerning the incident of 2 March 2013 given the defendant was charged and punished by the Local Court of New South Wales for the incident (Gray v Motor Accident Commission (1988) 196 CLR 1; [1998] HCA 70 at [40]).

CONCLUSION

In all the circumstances, the plaintiff has established liability with respect to the assault on 2 March 2013. I assess general damages at $7,000.
I reject the remaining claims brought by the plaintiff based on the first, second, fourth and fifth assaults in the ASOC.
The defendant sought that the Court reserve costs. I will take that course.

DIRECTIONS

The defendant shall bring in short minutes of order reflecting this judgment within 7 days of its publication.

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: 03 February 2022

Crimes (Sentencing Procedure) Act 1999(Cth)

(Limitation Act 1969(NSW)s 50A(1)).

Judgment

HIS HONOUR: On 4 July 2017, the plaintiff, Jabbar, filed a statement of claim ("SOC") in which she sought damages against her former husband, the defendant, Gade.
The statement of claim was amended on 7 December 2017 ("ASOC").
An amended defence was filed on 12 July 2019 (a notion of motion filed by the defendant to dismiss parts of the statement of claim was dismissed on 30 May 2018: Jabbar v Gade [2018] NSWSC 836).
The amended statement of claim was founded upon five claims of assault and battery by the plaintiff, against the defendant, and a claim for damages as a result of those alleged incidents. (I shall refer to each alleged assault in numbered chronological order such as "the first assault" although plainly each assault must be established by the plaintiff. A collective reference to the five assaults shall be referred as "the assaults").
The pleaded assaults were as follows: 1. 25 June 2007 at City B, India ("the first assault"); 2. 9 December 2007 at City B, India ("the second assault"); 3. 2 March 2013 at Suburb A, New South Wales ("the third assault"); 4. on or about 16 April 2014 at Suburb A, New South Wales ("the fourth assault"); and 5. on or about 14 July 2015 at Suburb A, New South Wales ("the fifth assault").
The defendant admitted the assault of 2 March 2013 but otherwise denied the other assaults. The defendant relied upon a limitation defence with respect for all the pleaded assaults, save for the pleaded assault of 14 July 2015.

The Course of the Proceedings

The hearing of the matter commenced on 29 July 2020. The plaintiff was self-represented. The defendant was represented by Mr M Weightman of counsel. The matter proceeded over 5 days for the taking of evidence ranging from 29-31 July 2020 and 22-23 September 2020. The plaintiff and the defendant both gave evidence and were cross-examined. After the filing of substantial written submissions, oral submissions commenced on 23 September 2020 and continued on 3 February 2021. At the close of oral submissions on 3 February 2021, the Court reserved its decision upon the receipt of chronologies. The chronologies were received from the defendant on 25 February 2021 and the plaintiff on 5 March 2021, at which date judgment was then reserved.
By an amended notice of motion ("the Motion") filed 5 February 2021, the plaintiff sought the following: 1. Leave to re-open the case. 2. Plaintiff be allowed to file further amended "Statement of Claim". 3. Matter listed as soon as possible.
By the Motion, the plaintiff sought to further amend the amended statement of claim and to file further evidence. The plaintiff filed two written submissions in support of the Motion on 17 March 2021 and 6 April 2021, respectively (a further amended statement of claim was attached to the latter submission).
In oral submissions on the Motion, the plaintiff made clear that the Motion was primarily directed to a further amendment of the statement of claim, although she also sought adduce further evidence flowing from the amended claim.
The application was supported by the plaintiff's affidavit evidence of 5 February and 5 March 2021, respectively, and documentary evidence. The affidavit of 5 February had 3 annexures and the affidavit of 5 March had 33 annexures.
The plaintiff tendered four further documents on the Motion as follows: 1. application for an Apprehended Domestic Violence Order ("ADVO") by the plaintiff; 2. advise of Court Result (document concerning the AVO application); 3. transcript of proceedings before Magistrate Crews of 20 April 2021; and 4. correspondence from NLS Law to the plaintiff dated 21 May 2021.
All of the evidence led on the Motion was intended for the use in the primary proceedings.
On 9 August 2021, the Court dismissed the amended Notice of Motion: Jabbar v Gade [2021] NSWSC 997.

At a glance

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Judgment (15 paragraphs)

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