[2015] HCA 28
Walton v Gardiner (1993) 177 CLR 378
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Catchwords
[2015] HCA 28
Walton v Gardiner (1993) 177 CLR 378
Judgment (7 paragraphs)
[1]
REVISED EX TEMPORE Judgment
These proceedings are listed before me for a hearing for five days, commencing today, 12 July 2021. Kelvin Andrews appears with Ryan Brown on behalf of the plaintiff. Trevor Hall, solicitor, appears for the defendant.
The proceedings are being conducted by audio-visual link ("AVL"), having regard to the current COVID difficulties in Sydney. The defendant is currently in custody and is observing the proceedings by AVL.
At the commencement of the hearing, the defendant sought leave to file an amended defence. The plaintiff did not oppose the filing and I granted leave to file the amended defence. The further amendments relate to the contentious paragraphs, being paras 3 and 4. I say, "contentious", because there has already been considerable debate about paras 3 and 4.
Immediately after I granted leave, the plaintiff sought an order that the defendant not be permitted to cross-examine the plaintiff on the matters raised in paras 3 and 4, on the basis that the raising of the matters in paras 3 and 4 would constitute an abuse of process.
As I understand the plaintiff's position, it is really that the defendant should not be permitted to contest the essential facts relied upon by the plaintiff as constituting the sexual assaults and, even if the defendant is permitted to rely on his defence, he should not be permitted to challenge the plaintiff, in the witness box, on these essential facts.
The second issue which arose at the commencement of the hearing is that the defendant seeks to adduce evidence from three witnesses, one of whom is the defendant.
On Thursday 8 July 2021, the defendant served what purports to be three witness statements dated 8 July 2021, being statements of the defendant, Robert Tennant and Mark Barbeliuk. The statements are not signed and, at least on one view, read more like a summary of the oral evidence that the witnesses might be intending to give.
The plaintiff opposes the defendant being granted leave to rely on any evidence from these three witnesses. Mr Hall agreed that it was appropriate to deal with this issue at the outset and agreed that, bearing in mind non‑compliance with earlier orders, it was really incumbent upon the defendant to seek leave to rely on this evidence at this late stage.
I am thus dealing with two important issues at the outset of these proceedings, being:
1. whether the defendant should be permitted to put in issue and challenge the plaintiff on the essential facts relied upon by the plaintiff to ground his cause of action, that is, the facts of the alleged sexual assaults; and
2. whether the defendant should be permitted to rely on evidence from three witnesses, when notice of an intention to do so was only given two days before the commencement of the hearing.
[2]
Background
The plaintiff alleges that between 8 June and 31 August 1985, the defendant sexually assaulted and or abused him, knowing at the time that he was under the age of 18.
The proceedings were commenced on 3 July 2018. The plaintiff filed an amended statement of claim on 24 August 2020. By way of the amendment, the plaintiff provided some further particulars of the acts constituting the assault.
On 2 November 2018, the defendant filed a defence. At the time, the defendant was represented by Uther Webster and Evans solicitors. The central issue which gives rise to these applications relates to the pleading of the facts giving rise to the allegation of sexual assault as set out in paras 3 and 4 of both the original statement of claim and the amended statement of claim.
It is the plaintiff's case (and it does not appear to be disputed) that the acts which are said to give rise to the cause of action in these proceedings are the same or identical acts in the criminal proceedings which resulted in the conviction of the defendant. The plaintiff alleges that, as a result of this alleged conduct, he has suffered long‑term psychological problems.
He says that these psychological problems have been of such severity that they have impacted upon every aspect of his life, including his employment over the past 30 years. He says that he is now not working at all because of his psychological problems, which he maintains are caused by the sexual assaults perpetrated upon him by the defendant back in 1985. The defendant is currently in custody.
Whilst s 91 of the Evidence Act 1995 (NSW) specifies that evidence of a decision in Australian proceedings is not admissible to prove the existence of a fact that was in issue in the proceedings, the defendant does not dispute the fact that he was convicted of two counts of acts of gross indecency, contrary to s 78Q(1) of the Crimes Act 1900 (NSW) in relation to the plaintiff. That is, it is not necessary for the plaintiff to establish that the defendant has been convicted. The defendant admits it.
Rather, as it is articulated in the amended defence and on behalf of the defendant by Mr Hall today, the defendant says that, despite the conviction, the acts which gave rise to the cause of action and indeed, which gave rise to the conviction, did not occur. He denies them. He seeks to cross-examine the plaintiff about those matters and now seeks to adduce evidence in support of his contention that the attacks did not occur.
[3]
The conduct of the proceedings
It is necessary to provide some detail about the conduct of the proceedings to date, as the conduct is relevant to both of the applications.
Subsequent to the filing of the amended statement of claim, the defendant filed a defence.
It is appropriate to include paras 3 and 4 of the original defence by the defendant as they add some context to the matters that will follow in this judgment. Paragraphs 3 and 4 of the original defence were as follows:
"3. In answer to paragraph 4 of the Claim, the defendant:
a. Says, and the fact is, that he was charged with offences under the Crimes Act 1900 (The Act) to which he pleaded not guilty.
b. After a trial before a jury of 12 in the District Court of NSW, on 24 October 2011 the jury was unable to agree on the defendant's guilt on the said charges and the jury was discharged. The matter went for retrial on the said charges on 23 May 2012 to which the Defendant pleaded not guilty.
c. Admits that he was convicted by a jury of the said charges on 24 August 2012.
4. In answer to paragraph 6 of the Claim the defendant:
a. Denies that the Plaintiff suffered relevant injury as alleged and denies that any injury or disability from which the Plaintiff suffers is causally related to any conduct of the Defendant."
Subsequent to the filing of the defence, the matter has been the subject of case management by the Court, originally by Fagan J, and then in 2021 by me. On 4 October 2019, the plaintiff served a notice to admit facts on the defendant. On 9 October 2019, the defendant responded, essentially disputing the relevant facts and serving a statement of issues for trial.
The first two issues that were specified by the defendant in the statement of issues for trial were:
1. did the alleged sexual conduct occur between the plaintiff and the defendant? and if so;
2. precisely what did occur, and what was the nature, extent and duration of such alleged conduct?
There followed further correspondence between the parties regarding the terms of the notice disputing facts and precisely what was in issue.
The matter came on before Fagan J on 28 October 2019. Orders were made for the plaintiff and the defendant to serve their written statements of evidence of each witness on which they intended to rely.
Further, the plaintiff was directed to serve any notice of intention to rely on tendency evidence in accordance with the Evidence Act by 14 February 2020.
On 18 December 2019, Fagan J made orders extending the timetable for a short period. In accordance with his Honour's orders, the plaintiff then served a number of statements on which the plaintiff sought to rely to establish the tendency of the defendant.
There were eight statements of persons said to be victims of assault at the hands of the defendant, as well as three other statements of persons said to corroborate the complaints. Then, on 28 April 2020, the plaintiff served a tendency notice under s 97 of the Evidence Act.
Taking into account the number of witnesses to be called, the parties estimated that the matter would take ten days and the matter was originally listed for hearing for ten days commencing today.
Between the filing of the tendency notice and the commencement of the hearing today, the matter has come before the Court on a number of occasions for the purposes of attempting to identify the real issues in dispute between the parties, ensure that the matter was ready for hearing, and to provide an accurate estimate as to the length of time that the matter would take.
These case management reviews assume some importance in this matter, because at each of the case management reviews of 8 April, 26 May, and 3 June 2021, the legal representatives of the parties who appeared, being Mr Andrews and Mr Brown for the plaintiff, and on the first occasion of 8 April, Mr Hamish Stitt of Counsel on behalf of the defendant, and then on the next two occasions, Mr Hall, made statements as to the real issues in dispute between the parties.
Ultimately, the hearing time was shortened from ten to five days, on the basis that having regard to statements made on behalf of the defendant during these case management reviews, there would be no need for the plaintiff to call tendency evidence. As such, the motion which was foreshadowed by the plaintiff to rely on the tendency evidence did not go ahead, and the hearing estimate was shortened to five days.
I will say more about the statements made on those case management reviews later in this judgement.
[4]
Abuse of process
I will now deal with the application by the plaintiff in respect of the new paras 3 and 4 of the amended defence and the abuse of process.
The plaintiff submits that I should preclude the defendant from cross-examining him on issues relating to whether the facts alleged in para 3 of the amended statement of claim occurred, because to allow such cross-examination would be an abuse of process.
However, Mr Andrews agreed that it could not be an abuse of process to permit cross-examination on an issue which was raised by the pleadings and as such, the substance of his application is really that the proposed amended paras 3 and 4 in the defence should be struck out, on the basis that the continued assertion by the defendant that the acts giving rise to the sexual assault did not occur, was an abuse of process.
It is said to be an abuse of process because there is no dispute that the defendant has already been convicted of offences in circumstances in which, according to the plaintiff, the same conduct was relied upon by the prosecution.
The defendant opposes the application. He says that the plaintiff should have filed a reply if he wanted to raise the issue and that it is now too late to be raising such an issue. The defendant also submits that there is no abuse of process, bearing in mind that he has always disputed that he engaged in the conduct the subject of the proceedings, even in the criminal proceedings in which he was convicted.
The thrust of the defendant's submission is that the fact of the criminal conviction does not prevent the same party from maintaining in subsequent civil proceedings that the acts constituting the sexual assaults did not occur.
Of course, the Court has the power to strike out either the whole or part of the defence, on the basis that maintenance of paragraphs or the whole of the defence would constitute an abuse of process. The categories in which the Court may consider that pleadings constituted an abuse of process are not closed.
In Tomlinson v Ramsey Food Processing Pty Ltd [1] at [24]-[26], the High Court observed:
"To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel." (Citations omitted)
Similarly, in Walton v Gardiner [2] the Court suggested that it would be an abuse of process if a party sought to litigate a new case that had already been disposed of by earlier proceedings.
As was stated by Lord Diplock in Hunter v Chief Constable of the West Midlands Police: [3]
"the inherent power, which any Court of justice must possess to prevent misuse of its procedure in way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right‑thinking people."
An attempt by a party to re-agitate an issue which has already been the subject of litigation and, indeed, the subject of a final judgment, could constitute an abuse of process. Such conduct calls into question the principle of the finality of litigation. The abuse of process in this context might be viewed as a corollary to the principle of issue estoppel.
Having said that, in this matter, the plaintiff is seeking to maintain an abuse of process on the basis only of a conviction by a jury. Of course, the jury does not make any express findings of fact. It merely determines whether the accused person is guilty or not guilty.
In this matter, the plaintiff has not put before me the terms of any sentencing judgment. I am not suggesting that he should have, but I do not know what facts might have been found at sentence. Not that am I stating that findings of fact by the sentencing judge would have necessarily been determinative. The defendant says that he has always disputed the conduct which gave rise to the criminal conviction and which gives rise to these civil proceedings.
There are no admissions to which the plaintiff can point. Whilst the statements of principle relied upon by the plaintiff are correct, I do not consider that it is an abuse of process for the defendant to continue to dispute the conduct giving rise to the cause of action in these civil proceedings, merely because he was found guilty by a jury. Apart from anything else, it is not clear and cannot be clear merely by reason of the jury verdict, precisely what acts the jury might have accepted were committed by the defendant.
A jury verdict does not represent an express finding of fact by a tribunal of fact in earlier proceedings for the purposes of subsequent civil proceedings.
I thus do not consider that the continued denial by the defendant of the acts said to give rise to the sexual assaults constitutes an abuse of process.
In the circumstances, I do not propose to strike out paras 3 and 4 of the defence. I will not make any advance ruling about cross-examination. That will be a matter for objection at that time.
[5]
The defendant's evidentiary statements
A number of things must be said about the defendant's evidentiary statements as follows:
1. the defendant did not serve these statements until two days before the commencement of the hearing;
2. they are not in proper form; they have not been signed and they purport to be merely summaries of the type of evidence that the witnesses might give;
3. large parts of the statements are inadmissible. It might be somewhat unfair for the defendant to be permitted to call evidence from a witness to suggest that witness had never known the defendant to be engaging in sexual assault when the defendant through his Counsel and solicitor have already made express statements in Court on earlier occasions, which has induced the plaintiff into the belief that it was unnecessary for the plaintiff to call any tendency evidence;
4. the defendant was first ordered to serve lay statements in October 2019;
5. the matter has come before the Court on a number of occasions since that time. At no time did the defendant indicate that he would be seeking to rely on any lay evidence, whether from himself or any witnesses; and
6. the defendant has communicated to the plaintiff that he would not be seeking to rely on such evidence.
Throughout the conduct of these proceedings, the defendant has been legally represented. He was represented by solicitors instructing both Robert Stitt QC and Hamish Stitt of counsel. When their instructions were withdrawn, shortly prior to 26 May 2021, the defendant then immediately instructed Mr Hall who appears on behalf of the defendant today.
Further, it is not merely that the defendant has previously failed to comply with case management orders and indicated that he would not be serving evidence. Through his legal representatives, he has informed the Court that such evidence would be completely unnecessary.
When the matter first came before me on 8 April 2021, his counsel, Mr Hamish Stitt, identified the issue as being whether the plaintiff suffered from dysthymia as a result of the sexual assault. He said that, in those circumstances, the tendency evidence on which the plaintiff sought to rely, would be wholly irrelevant and the trial could probably be cut down to five days. As he said:
"[T]here's a conviction, and my client has been convicted and, as we have said repeatedly to the plaintiff, we are not intending to go behind the conviction. It is what it is and we don't resile from it. The real issue in the case is, well, what is it that the plaintiff is suffering from? And what, if any, damages flow from that?"
Following further exchange about the ambiguity in the original defence, I raised with Mr Stitt what he meant by not going behind the jury verdict. He said the difficulty was the way the plaintiff was framing his case.
The plaintiff wanted the defendant to accept liability and the defendant would not accept liability because the cause of action is concerned with psychiatric injury. I quote:
"It's not concerned with whether or not the assault took place, because the man has been convicted of it and we're not trying to resile from that. So if we accept that he has been convicted of these things, there is no utility in putting on tendency evidence other than just to simply smear the defendant or to try and, you know, make him look worse."
Following further exchanges, I asked Mr Stitt whether, having regard to what he had been saying, there was any reason why he should not obtain instructions just to admit paras 1, 2, 3 and 4 of the statement of claim and fight the case on the terms he would be suggesting. He said, "the defendant has actually done that in large measure."
He said he thought admissions had been made and the relevant position had been properly put. Following those further exchanges, I granted leave to the defendant to file an amended defence.
The matter came back before me on 26 May 2021. At that stage, Mr Robert Stitt QC and Hamish Stitt sought leave to withdraw, as their instructions had been terminated. Mr Hall kindly made himself available and there was discussion with Mr Hall about the issues in the proceedings. I again raised the issue of the amended defence and what matters of fact were in issue.
When I raised the issue with Mr Hall as to whether the defendant would be putting to the plaintiff that the matters alleged; that is, the conduct alleged - was not true, he said, "I don't think he could. You can't go behind the judgment, you can't do that."
Mr Hall had previously responded to Mr Andrews' concern as to what the plaintiff needed to do to prepare the case, by suggesting that he hoped to come back with an admission. Following that discussion, the plaintiff's motion was not pursued.
When the matter came before me on 3 June 2021, there were further exchanges about the defendant's position. Mr Hall said:
"My instructions are that those actual matters that are alleged against us in paragraph 3, that those particulars are denied. Because we don't go behind the conviction you have what we say at paragraph 4 in the first two sentences. And I would have thought that with that being the state of the pleadings it is a fairly simple matter for the plaintiff to simply call their witness. He will have to give evidence of the assault that he says took place upon him.
We have indicated to our friends that with the benefit of the conviction there is no need to call numerous witnesses for tendency evidence because you have the benefit of the conviction. It will be up to the trial judge to decide and one imagines the trial judge will accept the witness on what he says."
Mr Hall says that he has only recently come into the matter and thus, with the change of solicitors, there has been a change of approach. That may be so. I accept that Mr Hall is seeking to rely on evidence which he has ascertained is available to his client and that he is seeking to comply with his instructions.
However, the defendant has previously been represented by very experienced and competent solicitors and barristers. This is not a case in which it could be said that the previous solicitors and Counsel for the defendant either were not following instructions or were incompetent.
The defendant has been given many opportunities to indicate that he would be seeking to rely on lay evidence. The defendant has been given many opportunities to state that he would be seeking to rely on evidence which would put in issue and seek to positively establish that the acts of sexual assault did not occur.
Not only has he not done so on any occasion but he has positively indicated to the Court that he would not be taking that position. It is clear that the plaintiff has been induced into a position of understanding that it would not be necessary to call corroborative or tendency evidence as to the acts giving rise to the sexual assault. Both the former Counsel for the defendant and the current solicitor for the defendant made statements to me to that effect.
Whilst case management principles are important, regard must be had to the principle of doing justice between the parties.
In this matter, the defendant has failed to comply with all earlier case management orders relating to the serving of lay statements.
Further, although the original intent of the orders which I have made was to allow the defendant to clarify its position in his pleading and make his pleading consistent with what his Counsel and solicitor were informing the Court, the latest amended defence does the opposite. The defendant has taken the opportunity to make positive assertions and withdraw the reference to the earlier criminal conviction. That was never the intent of granting the defendant leave to amend his defence.
If I allow the defendant to adduce the evidence which he seeks to adduce, which would have to be adduced orally because the statements are not in proper form, there would be a substantial injustice to the plaintiff.
As Mr Andrews submits, there could have been evidence which the plaintiff could have relied upon if the plaintiff understood that these matters were in dispute.
In all the circumstances, leave to the defendant to rely on the three witnesses is refused.
(1993) 177 CLR 378 at 393; [1993] HCA 77 (Mason CJ, Deane and Dawson JJ).
[1982] AC 529 at 536.
[7]
Amendments
20 December 2022 - Anonymisation of names for plaintiff and defendant
20 December 2022 - Anonymisation
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Decision last updated: 20 December 2022