Jennings v Wilden

[2023] NSWCA 41

Court of Appeal (NSW)|2022-11-07|Before: Meagher JA, Mitchelmore JA

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Court

Court of Appeal (NSW)

Decision date

2022-11-07

Before

Meagher JA, Mitchelmore JA

Catchwords

[2000] NSWCA 352 Briginshaw v Briginshaw (1938) 60 CLR 336
[1938] HCA 34 Fox v Percy (2003) 214 CLR 118
[2003] HCA 22 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186
[2006] NSWCA 187 Moran v McMahon (1985) 3 NSWLR 700 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Source

Original judgment source is linked above.

Catchwords

[2000] NSWCA 352 Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34 Fox v Percy (2003) 214 CLR 118[2003] HCA 22 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186[2006] NSWCA 187 Moran v McMahon (1985) 3 NSWLR 700 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Judgment (13 paragraphs)

[1]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[2]

HEADNOTE [This headnote is not to be read as part of the judgment] Ms Kirra Wilden commenced proceedings against her former husband, Mr Michael Jennings, in the District Court in February 2020. Ms Wilden alleged that she had suffered injury as a result of four incidents of rape in 2014 and 2015 at the hands of Mr Jennings. The first incident occurred on 12 October 2014, when Mr Jennings arrived home in the early hours of the morning, smelling of alcohol and cigarettes. Ms Wilden said he forced her to engage in sexual intercourse without her consent. The second incident was alleged to have occurred in late 2014 under similar circumstances where Ms Wilden was again forced by the appellant to engage in sexual intercourse without consent. These incidents occurred in their home at Kensington. The third and fourth incidents occurred in 2015, again under the circumstances of Mr Jennings returning home late and smelling of alcohol and cigarettes. He against forced her to engage in sexual intercourse without consent. The third and fourth incidents occurred in their home at Bella Vista. The took place between May and August, 2021. The trial judge, Wilson SC DCJ, accepted the plaintiff's claims, handing down judgment on 21 December 2021. She was awarded just under $500,000 in damages, including $100,000 for future economic loss. The primary issues were whether the trial judge: (i) applied to the defendant's evidence the standard for appellate review; (ii) reversed the burden of proof; and (iii) awarded excessive damages for future economic loss The Court held, dismissing the appeal with costs: By Basten AJA (Meagher and Mitchelmore JJA agreeing): As to issues (i) and (ii) - reference to appellate review standard and reversal of onus (1) Although the trial judge asked whether the plaintiff's evidence was "glaringly improbable" or "contrary to compelling inferences" there was no material error. In the preceding paragraphs the judge had set out a progression of considerations from the weakest to the weightiest, from a subjective assessment of the reliability of the plaintiff and the defendant, to internal consistency of each party's account, to reliance on objective facts, and, where available, incontrovertible facts and, in the absence of such facts, by asking whether the plaintiff's evidence was glaringly improbable or contrary to compelling inferences. In accordance with established principle, he referred only to the plaintiff's evidence in that regard because (i) she bore the onus of proof and (ii) it was her allegations of criminal misconduct which might be thought implausible, rather than the defendant's denials: [19]. (2) Immediately following the impugned passage, the judge referred to the basic principles as to the burden of proof, the fact that the allegations were of criminal acts, that they were "very serious", and therefore should not readily be accepted: [21] Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170); [1992] HCA 66; Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 applied (3) The judge found that the plaintiff was a careful and reliable historian who gave evidence with clarity. Having regard to the evidence given by the plaintiff about the text messages, the judge found her entirely persuasive and that her account was neither "glaringly improbable" nor "inherently unlikely": [25]-[27]. This language followed acceptance of the plaintiff's evidence as demonstrating consistency, reliability, and honesty. There was no reversal of the onus of proof, but a careful assessment of the plaintiff's evidence against a range of tests, including consideration of the possibility that it might inherently be so improbable as not to warrant acceptance: [28]. As to issue (iii) - excessive and unsupported damages (4) The plaintiff was currently able to work but the psychiatric evidence supported a possibility that her capacity for employment had been affected by the four assaults, and that her PTSD may increase her risk of decompensation at work: [37]-[38]. (5) The evidence of the psychiatrist accepted by the judge took into account that, prior to the assaults, the plaintiff suffered from a generalised anxiety disorder which may have had an impact on her future earning capacity regardless of the assaults. That fact remained that the PTSD developed as a result of the assaults: [39]-[41]. (6) It was not demonstrated that the amount awarded by the trial judge for future economic loss was excessive in the sense that it was beyond the range which could reasonably be considered, having regard to the fact that Ms Wilden had an expectation of 37 years of employment and an unchallenged finding of PTSD. The judge did not err either in his understanding of the facts or of the relevant legal principles: [43].

[6]

Legal principles

It is a matter of fundamental and unchallenged principle that the plaintiff in civil proceedings bears the burden of proving each element of her or his case to the satisfaction of the trial judge, established on the balance of probabilities. Further, it is not in doubt that that simple proposition must be applied contextually. Both these principles are reflected in s 140 of the Evidence Act 1995 (NSW) which states: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account - (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
The appellant, correctly, identified the importance of giving full weight to the "gravity of the matters alleged". The allegations of sexual intercourse without consent were allegations of serious criminal conduct. That did not mean that the plaintiff was required to establish her claims beyond reasonable doubt, as in a criminal trial, but it did mean that the Court was required to be cautious in accepting the plaintiff's evidence. Although decided three years before the commencement of the Evidence Act, the appellant submitted that the relevant principle was helpfully explained in the following passage in the judgment of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd: [1] "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."
There is no inconsistency between this statement and s 140 of the Evidence Act. Section 140 states what matters the Court may take into account, without explaining how they are to be taken into account. The statement from Neat helpfully and relevantly explains one aspect of that exercise.

[7]

Alleged misdirection

Ground 1 of the appeal alleged that the trial judge erred in two specific paragraphs in his reasons, by applying the standard for appellate review of findings of fact to the plaintiff's evidence. The effect of that error, as explained in ground 2, was that it effectively reversed the onus of proof. The approach adopted by the trial judge, it was submitted, required the appellant (being the defendant at the trial) to demonstrate that the plaintiff's evidence was "glaringly improbable" or "contrary to compelling inferences". Properly understood, the plaintiff bore the burden of satisfying the judge as to her allegations of very serious misconduct on the part of her former partner; the appellant bore no onus of proof of his side of the case, though as a practical matter, his denials would need to be assessed against the evidence of the plaintiff.
The specific passages referred to by the appellant ([24]-[25]) must be read in their immediate context. After a very brief outline of the circumstances of the proceedings, the judgment contained a heading, "Approach to determination of the proceedings". The following six paragraphs, [20]-[25], commenced with the following proposition: "20 If the outcome of the proceedings was to be determined (and it will not be) on the basis of the impression created by Ms Wilden and Mr Jennings, then the plaintiff would succeed."
That statement was explained briefly by the judge recording his impressions of the two parties. He described Ms Wilden as "an honest and reliable witness" and said of Mr Jennings that his evidence "raised concerns regarding his honesty generally". The following observations are then found: "23 The difficulty is that Mr Jennings denied that he had sexual intercourse with Ms Wilden without her consent. The inconsistency between their accounts should not, unless necessary, be determined merely by having regard to whose evidence is to be preferred based on consistency, demeanour, or reliability. 24 The Court must also look to objective facts and, where they exist, incontrovertible facts. Where they do not exist, questions should be asked as to whether the plaintiff's claims are 'glaringly improbable' or contrary to compelling inferences. 25 These are questions which, after consideration of the evidence, I will ask myself."
The second sentence in [24] lies at the heart of the appellant's case. As he submitted, the language is drawn from cases dealing with appellate review of fact-finding by a trial judge, such review being a significantly different function from that exercised by the trial judge who hears the witnesses. For the appeal court, there is a tension between its obligation to review the findings of the trial court and the deference it should accord to fact-finding by the trial court based on the trial judge's impression of the witnesses. As three members of the High Court stated in Fox v Percy: [2] "28 Over more than a century, this Court and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint …. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. 29 ... In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case."
It is self-evident that the trial judge was not undertaking appellate review; but the questions are why the judge adopted terminology relevant to appellate review and, if in error, whether it gave rise to a miscarriage of justice.
The appellant submitted that there is no available understanding of the judge's observations at [24], nor of the clarity of his direction to himself at [25], which can be reconciled with the fundamental principles noted above. The judge said that he was accepting the plaintiff's claims unless satisfied that her evidence was glaringly improbable or contrary to compelling inferences. He should have directed himself that the plaintiff was required to satisfy him of her claims and that, given their gravity, it was not sufficient that he considered her claims more plausible than the defendant's denials, but that he was comfortably and affirmatively satisfied as to their truth.
The plaintiff disputed this reading of the impugned passage. There are two factors which support the plaintiff's contention that there was no material error. The first turns on the context in which the statement was made. That requires consideration of the immediately preceding paragraphs, and those which immediately followed the impugned passage. The second factor turns on the lack of evidence of error in the later passages in the judgment where the critical factual findings were made.

[8]

A contextual reading

As to the first, [20]-[24] contain a progression of considerations from the weakest to the weightiest. Beginning at [20], that paragraph should not be read as stating that the judge would not rely on impressions created by the witnesses giving evidence, but rather that the case would not be determined purely on that basis. That qualified reading is necessary because the two paragraphs immediately following identify the impressions he formed of the plaintiff on the one hand and of the appellant on the other. A similar qualified reading should be given to the statement at [23] that the evidence to be preferred was not to be determined merely by having regard to "consistency, demeanour or reliability". The element of "consistency" referred to an earlier discussion of certain text messages which had passed between the parties. It appeared that the plaintiff had been unable to recover the text messages from her phone, but that the appellant had downloaded some 47,000 text messages from his phone, which were produced after the commencement of the trial. Ms Wilden gave evidence without the benefit of the text messages, but when produced, they supported her assertions. [3] The judge placed reliance on that material.
By contrast, the judge said that Mr Jennings' evidence was subject to inconsistencies which gave rise to doubts as to his reliability and that he gave evidence of "a history of lying to Ms Wilden, mostly as to his social life". The judge said that this evidence raised "concerns regarding his honesty generally". [4] Again, consistency, demeanour or reliability were not disregarded, but were not treated as determinative.
It is clear that in these passages the judge was working through a number of matters which were relevant to the assessment of the evidence of the plaintiff and the defendant. He then turned, in the first sentence in [24], to consider objective facts and, where they exist, "incontrovertible facts". It may be seen that each element discussed is likely to bare greater weight than the previous element or elements. Then, in the absence of objective facts or incontrovertible facts, the judge states that he will ask whether the plaintiff's evidence was glaringly improbable or contrary to compelling inferences. In accordance with established principle, he referred only to the plaintiff's evidence in that regard because (i) she bore the onus of proof and (ii) it was her allegations of criminal misconduct which might be thought implausible, rather than Mr Jennings' denials.
On this understanding, these passages in the judge's reasoning did not represent a departure from established principles.
There is further support for that view to be found in the succeeding paragraphs. Immediately following the impugned paragraphs: first, there is a new heading "Standard of proof". In that section, the judge referred to the basic principles set out above, including s 140(2) of the Evidence Act, the fact that the allegations were of criminal acts, that they were "very serious", and therefore should be dealt with in accordance with the principles established in Neat set out above (which was quoted) and the earlier judgment of Dixon J in Briginshaw v Briginshaw. [5]
Having regard to these considerations, I am not persuaded that the impugned passages demonstrated any misunderstanding by the judge as to the principles he was required to apply. This understanding is consistent with the approach described by Ipp JA in Goodrich Aerospace Pty Ltd v Arsic: [6] "27 These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge's reasons that the probabilities and consistency with other relevant evidence have properly been taken into account."

[9]

Application of principles in fact-finding

The second factor noted above concerned the lack of evidence of error in making critical factual findings. Thus, the understanding of the impugned passage set out above may be tested by asking whether in subsequent passages in the judgment, where the evidence of particular events was considered, there was demonstrated misapplication of correct principles.
The trial judge gave extensive consideration to the factual material before him. That commenced with a lengthy chronology, all contained within [38] but covering some 33 pages of the judgment. He then set out the evidence of the four alleged sexual assaults from [39] to [97]. Following that largely factual account, where no findings were made, the judge then turned to what were described as "disclosures by Ms Wilden", in which section at [98]-[154] he dealt with both complaints to friends and to health practitioners.
At [155] the judge began a consideration of the submissions of the parties on liability, recording that the written submissions exceeded 200 pages and that oral submissions took "the best part of two days of court time". Inevitably, the submissions repeated much of the factual material that had already been identified. Within the summary of the submissions, however, there were significant findings of fact. Without seeking to be comprehensive, it is convenient to refer to some examples, which were identified in submissions in this Court as potentially significant to grounds 1 and 2 of the appeal.
After noting Ms Wilden's submissions dealing with the credibility of the witnesses and in particular the parties, the judge stated: "189 It was submitted for Ms Wilden that the court would find that she was a careful and reliable historian. I accept that submission and make that finding. I accept that she gave her evidence with clarity, although at times was visibly upset."
After setting out the submissions with respect to the text messages, the judge continued: "194 I accept the submission that, despite the fact that Ms Wilden did not have access to Mr Jennings' contemporaneous records, her evidence was remarkably consistent with them. That fact demonstrates the accuracy of recollection, reliability, honesty and her lack of embellishment. 195 Further, it was submitted that Ms Wilden is supported by recent complaint evidence, contrary to any suggest of fabrication for the purposes of financial gain. I accept that the disclosures to various people referred to in this judgment were in fact made. In most cases, Ms Wilden and the person to whom the disclosure was made were not challenged about that fact. 196 I find Ms Wilden's accounts of what occurred to be entirely persuasive and reliable. In my opinion, they are neither 'glaringly improbable' [n]or 'inherently unlikely'."
The last passage, at [196], was the only point in the judgment at which the judge repeated the language of Fox v Percy. However, it may be noted that the reference followed acceptance of Ms Wilden's evidence as demonstrating consistency, reliability and honesty. These, too, were reflections of the language used in the earlier passage. There is, in my view, no suggestion of a reversal of the onus of proof. What is being undertaken is a careful assessment of the plaintiff's evidence against a range of tests, including, despite findings of reliability and honesty, the possibility that they might inherently be so improbable as not to warrant acceptance.
The judge then turned at [197] to the plaintiff's submissions with respect to Mr Jennings' reliability, or rather lack thereof.
Without reference to the Fox v Percy language, the clearest subsequent suggestion of a reversal of the onus of proof was said to lie in the following passage: "203 It was submitted for Ms Wilden that unless there is clear and cogent contemporaneous records that corroborate the evidence of Mr Jennings then Ms Wilden's evidence should be preferred. I accept that submission as, in the examples referred to, the oral evidence of Mr Jennings was shown to be contradicted by the contemporaneous record. In addition, the manner in which he gave evidence was unimpressive. He was reluctant to accept a number of propositions until they were demonstrated by the contemporaneous records to be correct."
I do not read this passage as indicating the judge accepting that Mr Jennings bore a legal burden of proof. It was entirely appropriate for counsel to make submissions to the effect that the other party was unreliable and inaccurate in his oral testimony and that the Court should not accept his evidence unless corroborated. Mr Jennings had two forensic strategies available to him at the trial. One was to seek to undermine the credibility and reliability of the plaintiff's evidence; the other was to attempt to persuade the judge by his denials. Discussion of these strategies did not impose on the defendant a legal burden of disproof.
The conclusion of the judge with respect to liability was made at [206]-[207]. That appears to be a preliminary finding, as the judge then went on to address Mr Jennings' submissions at [208]-[290]. In the course of that consideration, the judge dealt with a range of other issues, including a submission that Ms Wilden had deliberately deleted text messages from her phone in order to improve her prospects in these proceedings: at [265]. Significantly, the judge then stated: "266 Like the onus which Ms Wilden bears in her claims against Mr Jennings, he bears a similarly high onus to prove that she deliberately destroyed evidence to improve her prospects of success in the case."
There followed a passage (at [291]-[312]) in the course of which the judge considered, and rejected, a defence raised by the defendant under the Limitation Act 1969 (NSW). Nothing further was said in relation to liability.

[11]

Damages

Ground 3 alleged that the trial judge erred in assessing damages for future economic loss in the amount of $100,000, a figure which was said to be "excessive and unsupported by the evidence".
The trial judge made reference to a submission on behalf of Mr Jennings that, if any amount were to be allowed on account of future economic loss, it would be a buffer of $10,000. In this Court, counsel for Mr Jennings submitted that no concession had been made but that, contingently, if some amount were to be allowed, $10,000 was all that would be appropriate.
As the judge explained, Ms Wilden had originally claimed a loss of earning capacity of some $250 per week, or about 20% of her expected net weekly income, over 37 years. That would have given a capital sum of $284,000. In the course of her submissions at trial, Ms Wilden accepted that the calculation was speculative, given her then current abilities to study and work, albeit in a less stressful job than that for which she was seeking qualifications, and that an appropriate course was to allow a buffer of $200,000.
It may readily be accepted that the evidence did not support an award of a precisely calculated amount. However, there was evidence to support a possibility that her capacity for employment had been affected by the four assaults. The judge accepted the opinion of a psychiatrist, Dr John Roberts, that Ms Wilden "may be at increased risk of decompensation (at work), being at a greater risk than if the posttraumatic stress disorder was not present". [7] The judge continued: "360 She impressed me as a hardworking person who, at various times, has juggled work with fulltime studies. It seems likely to me that her condition will impact upon her capacity to work in the future, and that a buffer ought to be allowed for that loss of earning capacity. It is impossible to predict with any degree of certainty what that loss will be. There is also the possibility that her condition will resolve, or otherwise abate, which will therefore not impact upon her working life."
Mr Jennings submitted that the judge failed to have regard to the fact that Ms Wilden was, prior to the events in question, suffering from a generalised anxiety disorder which may have had an impact on her future earning capacity regardless of the assaults. However, that consideration was taken into account by Dr Roberts who nevertheless considered that she suffered from PTSD as a result of the assaults over a significant period of months, and that the PTSD would be likely to have an impact on her future work capacity. Ms Wilden submitted that at the time of the trial, she was working 25 hours a week in women's fashion, which she had been doing for at least three years as well as undertaking her university studies.
Mr Jennings further noted that Ms Wilden had not undertaken any psychiatric treatment for her conditions. That was a material consideration, but Dr Roberts had stated in his initial report: Blue 66K "In summary, Ms Kirra Wilden, as a result of the circumstances under consideration, has developed a posttraumatic stress disorder superimposed on a tendency towards mild to moderate anxiety predating the relationship with Mr Jennings. The relationship has had a significant impact on the quality of her existence, treatment will be difficult and even in the best of hands, may not be totally successful. "
The joint report of Dr Doron Samuell and Dr Roberts was brief and largely a matter of agreement. It was that report upon which the trial judge relied.
As explained by McColl JA in Pollard v Baulderstone Hornibrook Engineering Pty Ltd: [8] "82 The setting aside of an award of damages in a trial where there is neither a challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence, should be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable [9] …. Requiring this level of error before appellate intervention is warranted reflects the fact that the task of assessing damages for lost earning capacity is 'necessarily impressionistic' [10] …."
It is by no means clear that the amount awarded by the trial judge for future economic loss was excessive in the sense that it was beyond the range which could reasonably be considered. It was not a nominal amount of the kind Mr Jennings had proposed at trial, but neither was it a clearly excessive amount having regard to the fact that Ms Wilden had an expectation of 37 years of employment and an unchallenged finding of PTSD. There is no basis for concluding that the judge erred either in his understanding of the facts or of the relevant legal principles. Given the "necessarily impressionistic task of assessing damages for lost earning capacity", [11] this is not a case which calls for the intervention of this Court. Ground 3 should be dismissed.

Jennings v Wilden

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Judgment (13 paragraphs)

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Legislation Cited (2)

Cases Cited (14)

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