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[2007] NSWDC 385
District Court of NSW
2006-09-29
Powell JA
Original judgment source is linked above.
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.
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.
After the meeting her solicitor had with her on 1 July there was a gap of about ten months before he saw her again. He said that she was unable to provide funds for more medical reports and he was acting on a contingency basis. So I infer the ten month delay occurred because he was not inclined to use his own money to buy reports and the plaintiff had no money to pay for them.
On 5 May 2005 he saw the plaintiff again. She told him that her physical and mental conditions had deteriorated and she had been diagnosed with breast cancer. As she was missing her family she was travelling to Serbia to see her son. He saw her on the next occasion on 15 September 2005. This time she told him of the specific assaults and asked him to start proceedings. He told me that he felt then for the first time that he would be justified in signing the certificate for the statement of claim under s 198L of the Legal Profession Act 1987.
In cross-examination Mr Stojanovic said that she had told him in a general sense during the Federal Magistrates Court proceedings about the facts giving rise to the causes of action, including that she had unwanted and forced sex, and that the defendant had threatened to shoot her if she did not comply, but he had received no instructions that she had been injured. He did not think it relevant to raise these matters other than in a general way in the Federal Magistrates Court proceedings and did not think she had a viable cause of action because the instructions were too "general". She did not give him any "precise detail of any specific event". He said the delay in commencing proceedings had occurred for the same reason.
In the course of cross-examination it was put to him, more than once, that in an advice from the plaintiff's counsel Mr Sweet about the case, he had recited that Mr Stojanovic had told him the plaintiff had brought the proceedings only because she had been treated badly by the defendant, and that he had not sought to correct Mr Sweet's assertion, although he did not consider it a correct assertion.
I do not see the significance in this that Mr Pierce appears to have seen. The statement, if the plaintiff has been truthful to me, is undoubtedly correct. It is hard to see why else she would have sued had she not been treated badly. It is not, as I see it, inconsistent with her bringing this case.
In her affidavit of 22 September 2006 the plaintiff said that during the period from April 2001 to 21 September 2002 she had been fearful of the defendant and that after she left him she remained fearful and indeed obtained the AVO. She said after she went to live in the refuge upon leaving the defendant, employees there helped her to see doctors, and she was then referred to Dr Kosmanovic who spoke her language. And it was only when she saw him in 2002, she said, when she:
"...understood the full extent of my mental condition. This was the first occasion that I was diagnosed with a mental condition, which I say is directly connected to the experiences I suffered from the defendant."
She said she has been under his treatment ever since. (Indeed, it is clear from his reports that he is still treating her). Explaining why she did not sue earlier she said:
"I did not take proceedings at an earlier time because I had hoped that my condition would improve. I understand that I should have commenced proceedings by no later than April 2004, however I recently returned from overseas prior to that time, and had only seen Dr Kosmanovic on 17 April 2004. I have continued to see him almost on a monthly basis since then, as my condition has not improved."
She told me that when she settled her family law dispute she had no idea she could sue for damages by reason of having sex against her will, or for the physical threats and injuries. Of course, that does not explain why it took until September 2005 for her solicitor to file the statement of claim, or even put the defendant on notice that he might be sued.
The plaintiff was subjected to a very lengthy and searching cross-examination on her credit and other matters. Preparation of her cross-examination would not have been assisted by her lengthy and somewhat confusing examination in chief to supplement the sparsely drawn affidavit. The evidence in chief on the first day was further confused, at least to a degree, by difficulties the interpreter appeared to have. At one stage the plaintiff's solicitor had to correct her. (This occurred by consent ultimately). Further, as there was no running transcript the position of counsel for the defendant in cross-examining the plaintiff was, I have no doubt, more than usually difficult.
Though the plaintiff contended that she had had limited opportunities to complain about her situation and to seek help, it was put to her that she had had a number of opportunities to tell doctors she visited, of the defendant's conduct, had it really troubled her. She conceded that she had seen doctors in Orange at various times, but said that she was not able to talk to them about his conduct as he usually accompanied her as her interpreter. In any event, she said, she was in fear of him and was concerned about what he might do if she did complain. There were some people she could speak to in Orange, she said. But it appears they were friends of the defendant. She said she did try to get help from someone at a local TAFE in Orange, and he did promise to visit her one day, but her husband, on learning she was having a visitor, locked the gate into the farm, and the visitor never did come.
She conceded that she could have made telephone contact with people and that she had in fact had telephone contact with her relatives in Serbia. But she said she was only permitted to use the phone to phone Serbian relatives, and although she did complain to relatives there, and had opportunities to seek help, she had not taken them. Her relatives in Serbia, she said, were aware that she was upset and she did tell them that she was in a bad situation. She said she had no mobile phone until she left him.
It was put her that there was a computer in the home and that she could have used that to get help. But she said that she was not permitted to use it.
The defendant gave evidence. He conceded, as I have noted, that he owned a single barrel shot-gun. He denied however that he had ever used it to threaten the plaintiff. He denied he had ever threatened her about anything. He said he had had another firearm, but had surrendered that in an amnesty in 1997. Documents in evidence confirm that. But he had kept the case of that firearm. That case had been kept under the bed. He denied he had ever used Viagra, although he asserted that he had once been given a Viagra tablet by Dr Hodoba and had later shown the tablet to the plaintiff. He said he had kept it in a shoebox at his home until a few months ago, when he discarded it. He denied that he had ever assaulted the plaintiff. He denied that he had ever bruised her. He denied he had any sexual relations with her without her consent. He denied there had ever been any anal or oral intercourse. But he said that on two occasions she had approached him in the shower and had tried to have oral sex with him, but he had not been interested. He said there was a computer in the home for her use, but she had not used it, so he gave it to his grandchildren. He confirmed that his car was in an accident in September 2002 but said that the plaintiff was asleep at the time and that he had said nothing to her. He agreed that he had later consented to an AVO against himself, but said that was without admissions and that he had not done any of the things asserted in the application.
In cross-examination it was put to him that he had sworn an affidavit in the Federal Magistrates Court concerning the motor accident when he had said the incident was "frightening for both of us". Therefore the plaintiff could not have been asleep, as he had asserted. And it was also put, contrary to the proposition that he only ever had one gun, that he had another. He conceded that he did also have an air rifle at the home which a visitor to a former tenant had left there. But he said he had handed that in to police almost as soon as he discovered it was there.
He denied that there had been any change in his ability to have erections when he was with the plaintiff. But he did speak of an occasion in 1998 when he said he had consulted Dr Hodoba about poor blood circulation leading to difficulty in obtaining erections. He said Dr Hodoba had then suggested that he try Viagra, and had in fact given him one tablet, which he never used. But his erections did then return in a normal fashion, not due to Viagra use, but due to diet changes after he had read an article in Womens Weekly about eating different food, such as celery, nuts, fish oil and vitamins. He denied the plaintiff had suffered any anal bleeding or post coital vaginal bleeding. He agreed that she told him on an occasion that she had suffered bruising to the inner leg area, but said he had not seen it. He said, in effect, that he was happy when she left him, and that there had not been any argument. He agreed that the plaintiff had told him on one occasion at Orange that her TAFE teacher was to visit, but denied having locked the gate to prevent the visit. He agreed that a previous fiancée of his had been shot dead after dancing with somebody who was inappropriate, but not by him. He said that a curtain had once fallen down at the Newtown flat where she said he had struck her with a curtain rod, but that when it had fallen he had got a ladder and put it back up.
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.
Despite Mr Pierce's submission that the delay was not properly explained, I am persuaded that it is properly explained. Some of the reasons may not be good to some, but in her situation they are, I think, perfectly explicable. I accept the explanation.
The next element to consider is the extent to which, having regard to delay, there is or may be prejudice to the defence, by reason that evidence that would have been available if the proceedings had commenced within the limitation period, is no longer available. In his amended defence the defendant alleges "significant prejudice in obtaining a fair trial". Before me, in final address, Mr Pierce contended that his client had not had a fair trial.
A very lengthy list of particulars is set out in [6.2] of the amended defence in support of this defence. I did not understand any actual reliance, however, on 6.2.1 (Death of plaintiff's mother since relevant events). In the course of the cross-examination of the plaintiff she said that while she lived with the defendant she had agreed to assign her interest in a family property in Serbia to her sister. Documents were sent for her signature, and there were international telephone calls about the matter. It was put to her she could have used these opportunities to ask for help if things were as bad as she alleged, either from the lawyer involved in the matter or her family. In the end however Mr Pierce did not rely on his client's not knowing the Serbian lawyer's name or the name of any court officer involved in the property transfer, on the prejudice issue. (See 6.2.2 and 6.2.3 of the amended defence).
It was put to the plaintiff that while she lived with the defendant she had sent cards and letters to her family without mentioning her predicament. I took her to agree with this. In the end Mr Pierce did not to my observation place great weight on this issue, particularly that these documents were not available. In any event, I cannot see that they have any great relevance or weight, given she conceded they contained no complaints about the defendant's conduct (6.2.4).
The plaintiff alleged that she did say on one occasion to a receptionist in a doctor's surgery in Orange, that she was having trouble with her husband. But the lack of the receptionist's name was not ultimately relied on on this issue. (See 6.2.5). The plaintiff said that she visited various doctors in Orange when she lived with the defendant, including, when she stopped menstruating, a gynaecologist. The name of one general practitioner, Dr Freeman, was referred to at least. There was no evidence before me, either from the defendant or the plaintiff, to suggest that either had subpoenaed the records of the practice where Dr Freeman practised. In the end I did not take Mr Pierce to point to any particular aspect of prejudice caused by, as has occurred since these events, Dr Freeman's retirement. (See 6.2.6). Neither party called him or indeed any evidence to show that he was unavailable. Mr Pierce did contend prejudice had been caused by the lack of the name of the gynaecologist. But I am not persuaded that he could have cast any light on any issue, even if his name were ascertained. Further, I am not satisfied that there was any difficulty about identifying him - or subpoenaing him or his notes. Her evidence as to whether or not she complained of anal injuries to him was a little unclear, but in the end I did not take her to say that she did complain to him of any anal injury. Nor did she say she complained of such injuries to any other doctor. She only saw the gynaecologist, I took her in the end to say, in connection with unusual menstrual issues (6.2.7).
By the time of the resumed hearing, Dr and Mrs Hodoba had been found so 6.2.8 does not arise. There is a real issue raised by 6.2.9 in the amended defence and I shall return to consider that in a moment.
Subparagraphs 6.2.10 (a), (b) and (c), are somewhat curious. Counsel for the defendant cross-examined the plaintiff to the effect that she did not have certain academic and work qualifications or experience she asserted: (see for example the history to Mr Stambouliah, which was largely in accord with her evidence in chief and in cross-examination on those issues). However, in the end I did not take Mr Pierce to assert that the lack of testamurs or the like, in Australia, had contributed to any relevant prejudice. The reference to the "alleged fate of fiancée in Serbia" is, I conclude, to the plaintiff's assertion as to what the defendant told her had happened to a former fiancée. Again, I did not take Mr Pierce to try to make good that assertion in his final address.
In 6.2.11 prejudice is alleged as to inability to contest injuries and causation. But there was no medical evidence tendered by the defendant, nor any evidence of any difficulties which had been caused to the defendant in that area, by reason of any delay. Nor did Mr Pierce cross-examine any of the plaintiff's experts to that effect, or at all. Nor, ultimately, did I understand him to say that he relied on this defence.
The balance of paragraph 6 of the amended defence amounts to submissions, as I see them.
As to paragraph 7 of the amended defence, Mr Pierce ultimately did not assert that there was any Anshun or other form of estoppel and indeed said he would not rely on it. He did submit that, having settled the Federal Magistrates Court application, his client had assumed that all matters had concluded as between himself and his former wife. However, the defendant did not say, as I understood his evidence, that he had shifted his position, or taken any steps to his detriment, by reason of his settlement with the plaintiff.
As to paragraph 8 of the amended defence, the motor vehicle incident, was one which Mr Pierce relied on strongly, at times, because there were no relevant notices given under the Motor Accidents Compensation Act, 1999. So he asserted that she could not claim any damages in relation to that accident. But this I think betrays a misunderstanding of the reason this incident was asserted. She did not claim to be injured in the collision. She put the incident forward as an example of threatening conduct, to show what he was capable of if she did not go along with his sexual wishes. The deliberate collision was relied on, ultimately however, as an assault, but not as a battery.
I said that I would return to consider the particular of prejudice in 6.2.9. This I took to be the main issue on prejudice. It is to be recalled that while attending TAFE at Rockdale in 2001 to 2002, the plaintiff saw a counsellor. I have quoted from that counsellor's letter. Her name arose in the plaintiff's examination-in-chief, at page 8, on 28 September 2006, when she gave evidence of having been beaten by a curtain rod when showing reluctance for anal sex. She said the defendant that day said words to this effect:
"'Because you did not satisfy me by having anal sex or by allowing me to have anal sex, this is a warning for you' and he hit me a few times with the curtain rod. Q. I think you said yesterday that you sustained some bruising as a result of-- A. Yes.
Q. What are you able to tell his Honour about that bruising? A. I went to school and I showed those to the counsellor?
Q. Who was the counsellor? A. Her name was Barbara Polenski and at that time I attended an ICL school in Rockdale. She was a counsellor.
Q. When was it that you first met her in relation to the incident with the curtain rod? A. As soon as I started attending Rockdale School they have noticed something on me or in relation to me."
Q. Had you seen the counsellor before the incident when the curtain rod occurred, or did you see the counsellor for the first time after the incident with the curtain rod? A. I had seen her prior to that.
Q. Are you able to say why it was, why you saw the counsellor? A. They had noticed in school, the teacher had noticed in school that something was wrong with me, according to my behaviour. And she took me to see a counsellor where they asked me what was wrong with me, what was the problem and then I was compelled to say that I had a problem, that I was being abused. Q. What were you reluctant to tell someone, that you had been abused sexually--"
(There was an objection, which was overruled). She said "I did not dare say,". She was asked, "Why was that?" and she said, "Because he threatened me that if I say anything to anyone he would kill me."
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.
Mr Pierce submitted the defendant was disadvantaged because it had not known the name of the counsellor until the letter was served. But the evidence shows the defendant has known the name of the counsellor since mid-2006, when the letter was served, as I took him to concede.
Having regard for all the evidence in the case I do not regard the absence of those notes as having the significance which is contended for them. Nor do I consider that their absence has led to the defendant's not having or being able to have a fair trial.
Next, Mr Pierce added that absent notes from the gynaecologist there was unfairness too. I have explained earlier how that submission was sought to be made out. However, given that ultimately I took the plaintiff's evidence to be that she never complained to him about any anal injuries or bleeding, I do not see how his absence could have caused any unfairness or had any influence on whether or not there could have been a fair trial.
Next, I turn to the time at which the injury became known to the plaintiff. The physical injuries I am satisfied she knew of immediately on their occurrence. However, her depressive illness was not diagnosed, she said, until 5 November 2002. There is no evidence to the contrary.
The next matter is "Any conduct of the defendant which induced the plaintiff to delay bringing the action." If the plaintiff's evidence is accepted, it could reasonably be said, (and I find this to be so), that conduct by the defendant did induce delay in the sense that it put the plaintiff in fear of him and induced in her an inability to complain or otherwise seek help while she was still with him. It is to be recalled that until 2001 she had spent her whole life, or most of it, in either Yugoslavia or Serbia and spoke little English while with the plaintiff, and had no relatives or friends here. As to the period after she left, it may be said the conduct continued to have effect. It is her case, as I have noted, that the defendant's conduct led to her depression. The depression, I am satisfied, contributed to the delay.
Then there is relevantly the extent of the plaintiff's injury or loss. It is clear that if I accept the plaintiff's evidence about the physical assaults on her then although there were no long lasting physical sequelae, there were many instances of short periods of pain and suffering which collectively must be said to amount to substantial pain and suffering. The psychiatric condition, according to the psychiatric and psychological reports, is substantial too, if I accept the plaintiff's evidence which forms the basis for the opinions. I am quite satisfied that as far as "extent or injury or loss" are concerned, there is substantial utility in permitting the case to go forward.
I shall deal now with prejudice. In the normal course both parties deal with the prejudice issue on the assumption the trial will be heard at some later time. The absence of evidence caused by the delays in commencing the proceedings may then be the subject of evidence and submissions. The court will normally be invited to assess the extent to which absence of such evidence might affect adversely the defendant's ability to defend the action. Only if the court is satisfied that the prejudice is not such as to make the chances of an acceptably fair trial unlikely, may an extension be granted: South-West Area Health Service v Gabrielle [2001] NSWCA 477 paragraph 34, per Hodgson JA, (Beazley JA and Rolfe AJA agreeing.) Here I have had the advantage of hearing all issues together and am better placed to assess the defendant's capacity to have a fair trial. Of course a trial judge is in a difficult position dealing with a submission that the trial he or she has just conducted was not fair. However, having regard for all the matters in s 60E, the evidence and the submissions, I am persuaded that the prejudice, presumed and actual, was not such as to have made the chances of an acceptably fair trial unlikely. Further, I consider that it is just and reasonable that the plaintiff have an extension of time, and that the matter proceed to trial. I will now deal with it on that basis.
I will deal first with the issue of credit. Having the benefit of having observed the plaintiff being examined and cross-examined over an extensive period, and the defendant for a much shorter period, I prefer and accept the plaintiff's evidence where it differs from that of the defendant. Mr Pierce relied on a number of apparent inconsistencies in the plaintiff's evidence in submitting I should not accept the plaintiff. Having heard his careful submissions, and paying regard to the evidence to which he took me, I do see the plaintiff in some areas as having given evidence which was in some ways hard to follow. The parties, as I have noted, were involved in litigation in the Federal Magistrates Court, and each served the affidavits from which I have quoted, including in the plaintiff's case the reference to the sexual assaults. Mr Pierce put to me that there was a particular paragraph of her affidavit which reflected badly on her credit. This was paragraph 24, which said this: "After the respondent recovered he began to beat and sexually abuse me and treated me like a slave. He had previously abused me before he fell ill, and the abuse became more violent and frequent."
It was put to me by Mr Pierce that she did not refer there to any sexual assaults before he was ill, and that that conflicts with her evidence before me. However, I do not accept that submission. I do not read this affidavit in that way. Rather, the affidavit suggests that matters became a lot worse after his surgery, so that eventually she had to leave. The evidence showed in fact that once she had her residency, (as occurred in September 2002,) she could leave.
Mr Pierce then submitted that the plaintiff had concocted the whole case out of spite, or through disappointment, from the fact that the defendant had not done enough to help bring her son here from Serbia. The evidence certainly shows that she was unhappy about the fact that her son could not come here, and saw the defendant as not helping when he had earlier promised to. There is no doubt that she missed her son very much and was unhappy about not being with him. But I am not persuaded this shows that she made up the case, even though, as Mr Pierce put to me, it could reasonably be put that this was a motive for her to do so.
There were other motives for her to lie that were put to me, such as in connection with his dealings with property and his will, where it was put, with accuracy, that she was disadvantaged. But I do not find those persuasive.
Next, Mr Pierce put to me that the plaintiff had deliberately waited until settlement of the Federal Magistrates Court proceedings before starting this case. However, I reject that argument. I am satisfied that she concentrated her earlier efforts on her property settlement and only later discovered she could sue for assaults in marriage. Mr Stojanovic's evidence supports this.
Next, Mr Pierce, quite rightly, pointed to the confusing nature of the plaintiff's evidence about when the anal and oral sex began. Her evidence-in-chief is somewhat confused. There are some apparent ambiguities. For example, at transcript 40, on 27 September 2006, she said that in June 2001 there had been anal sex occurring. Yet at other times she said it did not commence till August.
There was also an issue about whether the defendant had hit her with the gun butt, or the gun barrel: see Day 1 T34.4.3 and T40.9. However as to being struck with the gun, butt versus barrel, it is her evidence that he hit her at least four times with the gun, so I do not see this as highly significant. But it is a matter I take account of. And I note at page 37, on Day 1, she said "He hit me with the wood last". So, it is not inconceivable that he hit her first with the barrel and last with the wood, or butt.
Next, it was put to me that it was odd that she did not complain of her problems when the defendant took her to see doctors. But if he was with her, either in the waiting room or surgery, to act as her interpreter, as I find he usually was, then I do not find it at all surprising that she did not complain to doctors. Also of course, she could not speak English.
Mr Pierce was critical of the plaintiff's evidence about the curtain rod incident. He drew my attention to Dr Hodoba's evidence. The bruise that he saw, just after the incident is said to have occurred, was a very small one and more consistent with a poke rather than a striking. I do not see that as significant. The plaintiff did not say he did not poke her. She said he struck her with the rod on several occasions. Further, on Mrs Hodoba's evidence the bruise was more consistent with a striking.
Further, as to the curtain rod incident, Mr Pierce relied on her evidence that he had not actually said anything to her at the time he struck her, whereas later she said he had spoken to her "afterwards". However, I think that is simply a matter of the sequence of events: he struck her and then spoke to her.
Further, Mr Pierce submitted that there was no evidence from Dr and Mrs Hodoba about there being a broken curtain rod, whereas the plaintiff said it had been broken into two parts. However, it is possible the rod was broken in two parts but put back in its place and simply not noticed by the owners.
Then Mr Pierce, as I understood it, was critical of the plaintiff for her description of the part of her body where she had been hit. But the various descriptions, given through interpreters, were, I thought, essentially consistent.
Then it is said the plaintiff said a gun was under the bed, whereas the defendant had surrendered the gun. But the defendant told me the rifle case was under the bed. So it would not surprise me if the plaintiff, seeing a rifle case under the bed, and knowing that the plaintiff had a shotgun, assumed, incorrectly, that there was a gun within the case.
I have no doubt there was a degree of exaggeration on the plaintiff's part as to how difficult it was for her to make calls to Yugoslavia or to Serbia. However, I do not see that as a highly significant matter. There is no doubt that things were difficult for her in using a telephone, given her language problems. The fact is that her only ability to use the telephone, given her language, was restricted to calls to her relatives. Her point, which I accept, is that to a large extent she was at the defendant's mercy and under his thumb. Further, I note her explanation as to why she was not able to seek assistance from her family in Yugoslavia about her problem. As she said, her mother and her sister were not educated people, able to take steps such as ringing the Australian Embassy and having the Embassy intervene on her behalf in Australia. Nor do I find it particularly surprising that, in her complaints, which I accept she did make to her relatives, she would not have mentioned the precise type of sexual problems that she was experiencing with the defendant.
Mr Pierce made much of Mrs Hodoba's evidence that when she saw the plaintiff on the occasion when the plaintiff said she had been struck by a curtain rod and had then gone to see Dr Hodoba, it was only when the plaintiff ran into Ms Hodoba that she burst into tears. As I understood the submission, the tears were manufactured for the purpose. This is not a submission which I accept. As I see it, bursting into tears when finding a friendly face, after a frightening and upsetting incident, is entirely in accordance with human affairs.
Then it was put that she had made up her story about the defendant's fiancée. But the fact that she gave me a story about what he told her, does not mean that he did not tell her that. Whether the incident occurred or not is another matter. I make no finding about it.
Next, one of the complaints made by the plaintiff was that the defendant on one occasion cut her hair with a pair of scissors and made it look very odd, after she had displeased him. This she said occurred when they were at Newtown. Mr Pierce relied on the fact that Dr Hodoba had not noticed that her hair was different. Again, I do not find it inconsistent with human affairs that somebody, particularly a male who was not her husband, would not have noticed major changes in the way her hair was cut.
Then it was put to me that it reflected badly on the plaintiff that she used every opportunity to blame the defendant for all of her ills, particularly a lump she had on her breast. I note that she raised this with Mr Stambouliah and attributed it on that occasion, to a rifle butt incident. But I did not understand her to assert this to me (and her counsel never made that any part of her case). So I do not see that as being a significant matter.
Mr Pierce was critical of the plaintiff for having given different versions about what might be called "normal sex". She was asked about when she and the defendant had had 'normal sex' and she used the word "numerous", at T52 Day 1, whereas she said "no" at T49.49, suggesting on one occasion that they had had vaginal sex whereas on another occasion they had not had vaginal sex. However, as matters were being translated, I think there may have been misunderstandings caused by counsel's use of the word "normal" in his question. I think this becomes apparent in her evidence where she says that once he began to use Viagra things were never normal again. On Day 2, T57 she said: "I wouldn't call it normal sex. When he started taking Viagra he starting humiliating me, he started threatening me, he started beating me."
She was asked on Day 1, at T57, "Was sex with Viagra different to sex without Viagra?" She said "Yes".
Mr Pierce criticised the plaintiff for having made no reference to sexual abuse in her AVO application. It followed, he submitted, that it had never occurred. However, I reject that argument. Typically, these very brief applications do not necessarily require all factual matters to be set out.
Then there were other matters put about whether or not she played a part in buying a property in Orange, as to which it was said there were conflicts in her evidence. But I do not find this persuasive.
It can be difficult for a trial judge to judge the credit of a witness from a different cultural background. The difficulty can be greater, as here, when one party gives her evidence through an interpreter. Nonetheless, I consider that the plaintiff was a most impressive, straightforward, compelling witness, who had to deal with difficult and sensitive topics with a male judge, male counsel, and male solicitors, and who was subjected to a very lengthy cross-examination which was at times quite repetitious. Ultimately, an answer which the plaintiff gave in cross-examination, I thought, spoke loudly about her as a witness. Counsel for the defendant at the end of his cross-examination put to the plaintiff a question to the effect that she had made up the whole of her case. This exchange occurred: Q:"The other matters that have been alleged in this case against the defendant are not true, are they? A: Everything that I said was true or is true and is exactly how it happened, so if any of things did not happen I would have stayed with him. I would have lived with him. I wouldn't have left this man and gone to a refuge and I don't think you're aware what a refuge looks like. I went to sleep on a metal bed and that is a person who grew up in a very nice home and had a very nice background and I don't want to offend anybody, but I had to stay at very refuges with drunk people, with drunk women, and with all kinds of people. Not that I want to offend anyone."
That response, which I found convincing and compelling, typified the plaintiff's dignified way of handling the cross-examiner's questions.
In a case which comes down to one person's word against another, and where the allegations, as here, amount to criminal offences, there are issues raised of the kind in Briginshaw v Briginshaw (1938) 60 CLR 336: Rejfek v McElroy (1965) 112 CLR 517; Gianoutsis v Glykis [2006] NSWCCA 137.
I shall note some observations about the defendant. He is quite elderly. He has some deafness. His English is not always easy to understand. It is a credit to the court reporters that they did so well in transcribing what he said. There was no application by either side however to correct the transcript of his evidence from the tapes.
I will turn to say something about Dr and Mrs Hodoba. I found both of them impressive and straightforward. He is elderly, and at times wandered from the point, but in what he had to say about the issues in this case I found him persuasive. Though he has ceased to be the defendant's friend my clear impression was that he was not here to harm him but to tell the truth. He was clear in his evidence that the plaintiff showed him a bruise on her thigh and complained that the defendant had caused it. He was clear in his evidence that at the time she was upset, and that he had given her painkillers. Concerning the bizarre incident at Orange Hospital, when the defendant appeared to use a cane with leather ends on it to keep the plaintiff at bay, I found what he said to be persuasive as well.
Mrs Hodoba is also elderly. She uses a hearing aid and used an interpreter, so there were at times difficulties with her giving evidence. But I found her, as I did her husband, straightforward and forthright.
It is to be recalled that contrary to the defendant's evidence Dr Hodoba said that he had never treated the defendant. In particular he said he had never given him or prescribed any Viagra or been consulted by him. Given the length and nature of their friendship I consider he would recall incidents of this nature had they occurred. I prefer and accept his evidence that he prescribed no Viagra and gave the defendant none. I accept his evidence someone staying in his apartment had access to his surgery, where he kept Viagra samples, and that it would have been easy for someone staying in the apartment to obtain them from the surgery as the plaintiff told me she had seen the defendant do.
I should, at this stage, deal with two evidentiary issues concerning Dr Hodoba's evidence. They concern the incident at the Orange Hospital and his evidence about the homeless man who was playing chess in his rooms. Evidence about both of those incidents went in without objection. Indeed, the defendant's counsel cross-examined Dr Hodoba, not to the effect that these incidents had not happened, but that they were not as bad as they seemed. The plaintiff gave no evidence concerning the incident at Orange Hospital. She attempted to give some evidence of a hearsay nature concerning the homeless man but the evidence was disallowed.
The defendant did not assert that the incidents did not occur. He gave evidence about the homeless man. He did not give evidence about the incident at Orange Hospital.
Mr Sweet, when I asked about the relevance of these matters, said that each amounted to tendency evidence and, as I took the submission, showing a tendency on the part of the defendant to be violent and, in the case of the Orange Hospital incident, to humiliate the plaintiff. I gave Mr Pierce leave during addresses to revisit his concessions because I was not satisfied of the relevance of the evidence, especially that concerning the assault on the homeless man. Having reconsidered the two pieces of evidence, I now reject the evidence concerning the assault on the homeless man. I am not satisfied of its relevance to any issue in the case. I do admit the evidence, however, concerning the incident at Orange Hospital. It does, I think, satisfy the test under s 97 of the Evidence Act. In my view it has significant probative value. No notice was given of the fact that the plaintiff proposed to give that evidence, as I understand it, however no prejudice was alleged and no complaint made about the absence of notice. The incident, it seems to me, has a similarity of conduct to that alleged, namely a tendency to act against the plaintiff in a physically humiliating way. The defendant, through his counsel, never suggested that that event did not occur when cross-examining Dr Hodoba, merely suggesting that he had not made physical contact with the plaintiff when flicking the strap at her. 100. I accept both Dr Hodoba and Mrs Hodoba as witnesses of truth and accuracy.
"Are you able to say whether or not there was any bleeding on that occasion?" She said: "Yes."
(13) The parties at the beginning of 2002 returned to Orange. I find there was an incident about August 02 when he shot an animal and said to her: "See, it is very easy to shoot and kill and this is what will happen to you if you do not satisfy me." (14) And there were, I find, several other occasions when he held the gun to her mouth. (15) There was an occasion, I find, when a mirror was broken and when the defendant picked up a piece of glass and threatened her with it. (16) I find that the defendant hit the plaintiff on the back and legs with a broom handle in September 2002. (17) I find the incident involving the motor vehicle occurred in September 2002, when the defendant deliberately caused the vehicle to collide with a tree, her evidence being: "My side of the car was, he was driving in a manner that my side of the car would hit one of something beside the road but because the road is, the surface of the road was gravel the car spun around and the back of the car got damaged, the back of the car got actually like cut off the rest of the car, bearing in mind it's a stationwagon." And then she said it hit a tree, and he looked at her and said, "Look now how one can die," and then he accelerated and put his foot on the pedal and accelerated.
(18) I accept her evidence that he attempted to choke her on 21 September, on the day she left, by using his hands in a strangling motion around her neck. Dealing with that incident, her evidence was: "He was choking me when I said I wanted to go. He put his hands around my neck and he was choking me and wouldn't let go. I was, I had difficulty breathing. Saliva was coming through my mouth, out of my mouth already and when he let go I fell back, nearly was unconscious. I fell back on my bed, on the bed." Asked, "How did you feel after that occurred?" she said, "Terrible." Fortunately she was able to escape from him. I find that that incident caused her fear, as did all of the assaults and all of the batteries. I find all of the batteries caused some harm to her body.
(19) The anal sex, I find, would take place on each occasion in circumstances where her anus would bleed and she would be upset. She said, and I accept, the anal sex would take forty minutes or thereabouts, and was without her consent. (20) There were, I find, altogether twenty-five acts each of anal and of oral intercourse without consent, and two hundred acts of vaginal intercourse without consent. I find established to the Briginshaw standard and am reasonably satisfied that these matters occurred (see also s 140(2) of the Evidence Act).
"To recover damages there must be findings that loss was sustained as a result of the commission of the particular tort and that there was a causal connection between the particular tort and the loss in respect of which damages are claimed. On this issue Mr Broun QC referred us to two cases which he submitted had relevance - Re application for Criminal Injuries Compensation (1991) 103 FLR 297 and Dimas v Government Insurance Office (NSW) (1992) 15 MVR 213. The first of these cases was a claim for compensation under Crimes Injuries Compensation Act 1983 (ACT) by a young woman for a series of sexual assaults by her father and brother over a two year period. One of the issues was the impossibility of determining the extent to which her psychological condition at the time of hearing was the result of each separate assault. Master Hogan of the Supreme Court of the Australian Capital Territory awarded a single amount for the totality of the injuries suffered which he said was a broad and commonsense approach.
A similar approach was adopted by Brown J in W & W: R & G (by next friend P) (intervener) (1994) 17 Fam L R 751: FLC 92-475 where a claim by two children against their stepfather for damages for sexual and other assaults which occurred over a period of time was heard in this court, having been cross vested with property proceedings between her mother and the stepfather. Liability was not in issue."
"It appears to us that as the law presently stands the trial judge was correct in requiring each alleged assault to be separately identified and proved. His Honour recognised that this approach could be unfair to a claimant because domestic violence over a period of time may not be able to be particularised and proved in this way, and this approach may substantially erode the cumulative effect of those assaults. But these are common law claims for damages for assault. They are not part of the ordinary jurisdiction of the Family Court. They are only heard by this court as a consequence of the cross vesting scheme and that scheme makes it clear that in exercising that jurisdiction the Family Court is to apply the law of the relevant State. For our part we must say that we do not regard this as satisfactory. We doubt the validity of parallels between motor vehicle accidents and other like events, or even stranger assaults on the one hand and domestic violence and sexual assaults involving a series of events over a number of years on the other. But we doubt that it is open to this court to make such a significant change in an area of the law which is not part of its usual jurisdiction. However, it is an area of the law which may call for reassessment and reform. For those reasons we agree with Coleman J in this case that it was not open to him to treat the claim as constituted, even partly, by a series of broadly identified assaults over a period of time. It is necessary in a common law claim for the applicant to identify the individual events and satisfy the court on the balance of probabilities that each of them occurred. This does not, in our view, sit easily with the nature of domestic violence and this court's experience of it and its responsibilities in relation to it. However, this is a common law claim litigated in this court only because of the cross vesting scheme and therefore these limitations must for the time being be acknowledged.
However in our view his Honour was correct in his approach to the assessment of those damages which arise as a consequence of the accumulative effect of a number of assaults and in circumstances where it is not practical to relate that damage or particular portions of it in a realistic way to the individual assaults which are established. This is not an issue which the common law normally has to confront. it is open to this court to participate in evolution of the law and to do so in the way adopted by Coleman and Brown JJ. Their reasons are compelling: Not to do so would lack commonsense and represent a denial of basic justice."
At pages 60-61 Baker J in Kennon said this: "The basis of a claim in tort for damages for assault and battery is compensation for a specific provable incident. It is not a remedy designed to adequately capture the dynamic of a relationship that involves ingoing domestic violence. As such the pleadings and particulars must be precise and concise, clear and definite. …
The approach which the trial judge took was in my opinion consistent with the above authorities and practice and therefore no appealable error had been demonstrated."
Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact. If the threat is actually carried out the whole incident is properly described as an assault and battery.
Since the gist of assault lies in the apprehension of impending contact the effect on the victim's mind created by the threat is the crux, not whether the defendant actually had the intention or the means to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm. Hence it is actionable to point a pistol for the mere purpose of frightening."
Battery is actionable per se, that is without proof of damage. In the unlikely event that a successful battery plaintiff were unable to prove that she had suffered any compensatory loss she could still be entitled to punitive damages. It remains to be seen whether a new tort of sexual battery or the like will emerge eventually. In at least one respect the traditional battery action may be unsatisfactory. Traditional battery was conceptualised as a discrete event, discrete injury tort.
What does not fit in the law of this area is prolonged patterned sexual wrongdoing. This is arguably the more common form of sexual battery, especially incest, and the better candidate for the civil action. Incest and other child sexual abuse often involve hundreds of discrete batteries continuing over several years. Is the whole of the damages suffered the same more or less [as] the sum of its parts?" 117. The difficulties for a trial judge are obvious.
"Aggravated damages are a form of general damages given by way of compensation for injury to the plaintiff which may be intangible resulting from the circumstances and manner of the wrongdoing."
At para 133 his Honour said: "This means that if a court has awarded damages for hurt feelings as part of ordinary compensatory damages the award of aggravated damages must only be for the difference justified by this approach, that is an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means I think that aggravated damages can be a matter of degree. The worse the defendant's conduct, the further from the centre of the range and towards the upper limit of the range the court will be justified in going."
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Ruzica Varmedja
Svetozar Ved Varmedja
CITATION: Ruzica Varmedja v Svetozar Ved Varmedja [2007] NSWDC 385
Regina v Clarence (1988) 22 QBD 23 Regina v Clarke [1949] 2 All ER 448 Cetojevic v Cetojevic [2006] NSWSC 431 De Winter v Johnston, (unreported, Court of Appeal, per Powell JA, 23 August 1995) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 South-West Area Health Service v Gabrielle [2001] NSWCA 477 Briginshaw v Briginshaw (1938) 60 CLR 336 Rejfek v McElroy (1965) 112 CLR 517 Gianoutsis v Glykis [2006] NSWCCA 137 CASES CITED: Wainwright and Anor v Home Office [2003] UKHL 53 In the Marriage of C Kennon and D Kennon (1997) 22 FLR 1 Re application for Criminal Injuries Compensation (1991) 103 FLR 297 Dimas v Government Insurance Office (NSW) (1992) 15 MVR 213 Nowlan v Marson Transport Pty Limited (2001) 53 NSWLR 116 Lamb v Cotogno (1987) 164 CLR 1 State of New South Wales v Riley [2003] NSWCA 208 New South Wales v Ibbett (2006) 229 CLR 638 In the Marriage of Marsh (1993) 17 FLR 289 A v M [1991] 2 NZLR 228 Whitfield v De Lauret and Co Limited (1920) 29 CLR 71
(1996) 186 CLR 541
(1938) 60 CLR 336
(1965) 112 CLR 517
(1997) 22 FLR 1
(1991) 103 FLR 297
(1992) 15 MVR 213
(2001) 53 NSWLR 116
(1987) 164 CLR 1
(2006) 229 CLR 638
(1993) 17 FLR 289
(1920) 29 CLR 71
(1994) 17 Fam L R 751
[2007] HCA 57