Ruzica Varmedja v Svetozar Ved Varmedja - [2007] NSWDC 385 - NSWDC 2006 case summary — Zoe

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Ruzica Varmedja v Svetozar Ved Varmedja

[2007] NSWDC 385

District Court of NSW|2006-09-29|Before: Powell JA

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At a glance

Source facts

Court

District Court of NSW

Decision date

2006-09-29

Before

Powell JA

Source

Original judgment source is linked above.

Judgment (123 paragraphs)

[1]

The application to extend time was supported by affidavits from the plaintiff and her solicitor. Both affidavits were somewhat lacking in detail. Both deponents were cross-examined at length. Mr Pierce did not suggest that Mr Stojanovic, the plaintiff's solicitor, was not frank. In any event, I accept his evidence without reservation. As a witness, he was careful, considered and consistent. He had acted for the plaintiff in her Federal Magistrates Court proceedings. On 2 April 2004 she told him she was having treatment for severe depression which she said had arisen from various sexual assaults and threats by the defendant in the course of their relationship. On 30 April 2004 he wrote to the relevant doctor, Dr Kosmanovic, for a medical report. He received the report dated 11 June 2004, from which I have quoted above. He conferred with the plaintiff on 1 July 2004. He formed the view there was sufficient evidence to begin a claim, however was concerned that the report from Dr Kosmanovic did not properly address the part played by the physical assaults in producing the psychiatric condition, so concluded that another report was needed.

[2]

The defendant, during the course of the hearing, called for Mr Stojanovic's notes of that, and the subsequent conference, with the plaintiff. He tendered those notes. They record a history largely in accordance with what the plaintiff told me in evidence, and with the histories given by her to the psychiatrist and the two psychologists.

[20]

The application to extend time was made under s 60C of the Limitation Act. Under that Act the limitation period may be extended for up to five years if the court decides that it is just and reasonable. Section 60E requires me to have regard to the circumstances of the case, and in particular to the extent relevant, the following matters: A. Length and Reasons for Delay: The statement of claim was filed on 19th September 2005. Although it does not allege trespasses by name, that is the way the parties proceeded, viz that all wrongs alleged were deliberate assaults with or without a battery. The first of the assaults complained of is said to have occurred in May 2001, (NB Paragraph 5 of the statement of claim speaks of the period "From about April 2001 to 21 September 2002"). Thus, at the latest, the statement of claim should have been filed on 30 April 2004 in order to ensure it was in time for all causes of action alleged. The delay for the earliest alleged assault was therefore a little over sixteen months. For assaults alleged to have occurred in September 2002, the delay was only a week or so. The alleged attempt to strangle was on or immediately before 21 September 2002. So it was apparently within time, if on 21 September. Overall, I do not regard the delay as lengthy, even for the oldest of the causes of action, for these reasons: her mental condition, her lack of English, her lack of cultural links here, her apparent fear of the defendant, her lack of funds, her solicitor's concern not to start proceedings until he could certify that she had a viable cause of action, and his disinclination to pay for medical reports, and several visits to Serbia by the plaintiff to see her son, who she had not seen for some years. I infer that the plaintiff's mental condition and financial position contributed substantially to the delays. It is not in issue but that she went to live in a refuge after leaving the defendant. She had only been in Australia for two years and had little community support, few friends, no relatives and poor English.

[40]

The counsellor, as I have observed, was not called. Mr Pierce submitted that based on what she said in the letter, her letter contained the best of her recollection, so that calling her would not have produced any more information. There was no evidence that either party had tried to find her. It would seem, and I infer from her letter, that she could easily have been found. Indeed, according to the plaintiff in her evidence, she had seen her in about mid 2006. When I suggested to Mr Pierce that her letter appeared to give support to the plaintiff's case because of its reference to "domestic violence problems", he said this was imprecise and I would err and act unfairly to the defendant if I gave any weight to those words in the document which he had tendered. He submitted that the delay in starting the proceedings had caused the loss of the records referred to in that letter, and that loss meant his client could not and had not had a fair trial. The counselling records, he submitted, were crucial and were on a par in importance with the missing doctor in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. There the plaintiff alleged a doctor negligently did not warn her of alternatives to hysterectomy. She sued fifteen years later. The doctor had left Australia and could not be found. One can readily see why in a case of alleged failure to explain alternatives to proposed surgery, his absence was found to be so prejudicial to the defendant's case there could not be a fair trial. I do not accept the analogy here. As is apparent from the secondary evidence in exhibit 1, they would give at least some support to the plaintiff's case. Secondly, they could not assist the defendant to show no complaint was made of the type alleged. It is true there is no reference to domestic violence having any sexual context, but there is other evidence before me of reasonably prompt complaints of sexual violence in early 2003 when she saw a psychologist who spoke Serbian. Further, it is not the evidence of the counsellor that the delay is connected to the lost records. There is no evidence they were available beyond the time of their creation. According to the letter the Centre has client records going back to 1998. The author of the letter of 29 June 2006 does not say the notes were lost or destroyed because the Centre was closed or because all matters happened so long ago. Finally, (not that it had any obligation to do this,) the defendant did not call Ms Polenski or any evidence to show she had been spoken to and really had no more recollection than the few words in her letter.

[84]

In the course of addresses I asked the plaintiff's Counsel to identify the particular torts or groups of torts alleged, since they must be proved individually on the balance of probabilities. He identified these: (1) At T 33.45 D1, was said to be evidence of the first assault and battery: "He was hitting me, slapping me around the face." I find this occurred. (2) At T 34.25 D1, shortly after the above incident he threatened to kill her with a gun when she refused anal sex. She said, "I was terrified. I was experiencing great fear and panic but I couldn't do anything." She said he aimed the gun at her face. He told her he was going to kill her or disfigure her if she would not agree to both anal and oral sex. I find this occurred. (3) I find there were incidents of a like kind to that in (2) which occurred about every ten to fifteen days throughout the time they lived together thereafter, i.e. from May 2001; (4) I find that there were at least three occasions during the relationship that is between May 2001 and 21 September 2002 when the defendant struck the plaintiff with a gun, either the butt or the barrel; I find that he said in August 2001, on one of those occasions, "I'm going to kill you because you're not sexually satisfying me anally or orally", or words to that effect. I find that when these assaults occurred, they involved bruising of a hand, an arm and a breast. (5) I find there was an occasion in August 2001 when she had, I find, anal sex under threat. As to that occasion she said, "I was experiencing anxiety and my heart was beating. There was fear, great pain and I was bleeding." (6) The sixth matter, involved oral sex in August 2001. The plaintiff told me: "He was holding my head firmly and pushing the thing with his hand, pushing in." I find this occurred. (7) I find that from the end of April until the end of July 2001 there were three acts of vaginal intercourse without consent each week, making a total of thirty-nine acts. (8) From the end of July to the beginning of January 2002 when they lived at Newtown, I find there were seventy-six such incidents, or three acts per week, of vaginal intercourse, contrary to her will. (9) I find that the curtain rod incident occurred when he struck her on the inguinal area when she refused anal sex and that he struck her three or four times on the thigh, leaving her with bruising. (10) I find that there were sixty threats to kill her during the time when they were together, including the one on the occasion when he told her, as I find he did, that he had previously killed a fiancée, and including thirty with the use of a gun. (11) I find that there was an incident in August 2001 when the defendant lit matches and threw them at her when she refused anal sex and said that he would set her alight, and that the matches struck her body and burnt her. (12) I find the incident occurred concerning his cutting of her hair. The evidence about this was at T 12 on Day 2: "He said on that occasion when he cut off my hair words to this effect, 'This is your punishment for not completely satisfying me and this is what I will always do, punish you if you don't let me ejaculate or have my satisfaction is the word.'"

Ruzica Varmedja v Svetozar Ved Varmedja

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Judgment (123 paragraphs)

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Cases Cited (18)

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