Varmedja v Varmedja [2008] NSWCA 177 | Case summary

Court of Appeal (NSW)|2008-06-17|Before: Hodgson JA, Tobias JA, McColl JA, Coll JA

For the reasons I have given above, in my opinion the submission should be rejected.

In my opinion it was amply open to the primary judge to make these findings and to accept the respondent's evidence in so doing. 144 Finally, the appellant raised a further matter with respect to the respondent's credibility not referred to in his written submissions. At [82] of his reasons his Honour considered that there was a degree of exaggeration on the respondent's part as to how difficult it was for her to make telephone calls to members of her family in Serbia. However, he did not see that as a highly significant matter. The appellant nevertheless submitted that the evidence of the respondent with respect to her telephone calls to her family in Serbia reflected adversely upon her credibility. Essentially, it was submitted that in her evidence the respondent had said that she only telephoned Serbia once a month, whereas when the Telstra records with respect to international direct calls to Yugoslavia from the farm in Orange were subpoenaed and tendered, they revealed large numbers of calls, including up to five calls per day, made by the respondent to her sister, mother and adult son in Serbia. 145 The matter was first raised with the respondent in cross-examination on Day 2 of the trial. Having acknowledged that she made overseas calls to her mother and son in Serbia, she said that after returning to Orange from Newtown in January 2002 "when the situation became really serious for me", the appellant did not allow her to telephone her family once a week but only once a month. She agreed that this restriction by the appellant on her use of the telephone commenced in June 2001. She then volunteered that there were occasions when she used the phone when the appellant was not in the vicinity. The following exchange encapsulates this aspect of her evidence: "Q. So when was it, so for how long was it that you were only allowed you say to ring your relations in Serbia once a month? A. Already in May 2001, already in May or June I could not ring once a week my relations back in Serbia. I could only sneak a phone call when he wasn't present right there. Q. And how long did that go on for? A. That dictatorship routine was on until the end. Q. So you're only allowed one call a month and it was to be at night time because that was meant to be cheaper? A. 7pm onwards yeah. Q. And you say you would otherwise sneak a call when he wasn't there? A. Yes I had to ring and I had to talk to someone. There were occasions when I just had to say something to someone and talk because I had absolutely no one on the farm, no one to talk to. Q. But you say that was very occasional? A. Occasional when she rings family right? Q. Yes? A. Yes, I know I rang more than just occasionally, quite often actually I managed to ring and I just said what was happening to me. Q. And you did that when he wasn't there? A. Usually it was the occasions when he was just not in the room or when he had a shower or something, then I would do that, I would ring. Q. And, sorry, in your evidence before you refer to you'd occasionally phone out? A. Okay, when I said occasionally what I meant is it wasn't like every day but it would have been once in three days. Q. How often was it? A. I managed to sneak in a phone call every time I could. In other words if he was having a shower or something but those were very short phone conversations. I could only say 'I'm not very well' or something like that. They were no occasions where I could have a long conversation. Q. So they were a matter of seconds were they? A. No, I cannot say that they were a few seconds. Sometimes there was only a few seconds but there were times when it was like up to five minutes of conversation. A. But you said they were very short? A. Well they were short yeah. … Q. And in the time when you snuck those phone calls as you say in those few minutes or few seconds you had ample time to say that your husband had been mistreating you in whatever way or to suggest that you were being hurt for example and to ring the police or contact the embassy and that it was urgent? A. The occasions when I rang more often were more once we came back from Newtown. That's when I rang more frequently and you must understand that people I spoke to like my mother while she was alive or my sister, they were not educated people who would be able to think of ringing an embassy or something like that but when the situation got bad for me when we got back that was the time when I told more to my sister and son and that's when my sister said she would ring the police."

I interpolate that, as might be appreciated from a reading of the above exchange, the context of the cross-examination related to whether she complained of her treatment by the appellant to her family in Serbia during these calls. 146 When the respondent was recalled on 17 April 2007, she was further cross-examined with respect to the Telstra phone records. It was put to her that, having had access to the records, it was simply not true that in 2002 she would ring Serbia only once a month, to which she responded that she had not said this. It was also put to her that the evidence she gave that when she returned to Orange in January 2002, she was allowed to ring once a month, was untrue. Her response was: "It was true but, you know, I called and I used any opportunity to call".

The following exchange then occurred: "Q. And you gave further evidence, and as appears further on page 54, my question was, 'This period when you say you were told you could only ring once a month in 2002, when did that period start', and you answered, 'That started actually in June 2001 and he said I could only ring once'. That answer just wasn't true, was it? A. He allowed me to call my family or my son once a week but I admitted that I really grabbed any opportunity to call my parents and really to complain to them. Whenever I had the chance I did call, I said so. Q. You're only saying that now that you've been confronted with those records, aren't you? A. It's not true because the question then was, how I was allowed, how he allowed me to call, and probably the answer was what I told you." 147 The respondent submitted that when one considers the evidence to which I have referred, it becomes clear that at all times she was drawing a distinction between the occasions when the appellant allowed her to telephone her relatives in Serbia and the fact that she telephoned those relatives far more often, albeit surreptitiously when the appellant was absent. In my opinion the respondent's evidence makes good that distinction and thus undermines the alleged inconsistency in her evidence upon which the appellant relied as illustrating her lack of credibility. 148 All in all, the appellant has been forced to clutch at straws in support of his ultimate submission which I have recorded at [141] above. That submission is without merit and should be rejected, as should Ground 3.

Ground 4 - The trial judge erred in failing to apply the Briginshaw standard and in failing to give reasons as to the application of that standard 149 The primary judge was well aware of the necessity in the circumstances to apply what was referred to in the appellant's submissions as the Briginshaw standard: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362. It required a case such as the present that the affirmative of an allegation be made out to the reasonable satisfaction of the tribunal of fact. 150 His Honour acknowledged (at [92]) that in the present case, which came down to one person's word against another and where the allegations amounted to criminal offences, proof to the so-called Briginshaw standard was required. 151 I have already referred (at [143] above) to his Honour's specific findings with respect to each of the individual torts that he identified at [105] of his judgment. After totalling the number of acts of anal, oral and vaginal intercourse without consent, his Honour expressed his conclusion in these words: "I find established to the Briginshaw standard and am reasonably satisfied that these matters occurred (see also s 140(2) of the Evidence Act .)" 152 At the end of the day the appellant was forced to rely upon his submissions with respect to Ground 3 to support his contention that his Honour could not have been reasonably satisfied that the affirmative of the various allegations made by the respondent had been established. Rejection of that ground undermines the appellant's submission on the present ground. 153 It was nevertheless submitted that his Honour was required to analyse the evidence and to give reasons as to why he accepted certain evidence over other evidence, but that he had not done so. This submission is without foundation. Ground 4 should be rejected.

Ground 5 - the award of general damages was excessive.

Ground 6 - the trial judge erred in awarding aggravated damages.

Ground 7 - the award of aggravated damages was excessive.

Ground 8 - the trial judge erred in awarding exemplary damages.

Ground 9 - the award of exemplary damages was excessive.

Ground 10 - The primary judge erred in failing to give any or any adequate reasons for his finding as to the general damages and aggravated damages. 154 These grounds may be dealt with together. It was common ground that the primary judge should assess a global figure for damages for all torts that he had found proven to the requisite standard. Although his Honour acknowledged that ex-spouses or partners do not usually sue for assaults and batteries, in the present case there were a large number of separate torts alleged which collectively, on the psychiatric evidence, had caused the respondent significant psychiatric injury. Each of the assaults, his Honour found, made a contribution to the respondent's ultimate psychiatric condition. 155 The appellant called no evidence to contradict the medical reports tendered by the respondent. Nor were any of the authors of those reports required for cross-examination. Having regard to that evidence and acknowledging (at [118]) that when one adopts a lump sum value with respect to a series of assaults and batteries, one is required to give the assessment a sense of proportion, his Honour determined (at [120]) general damages in the sum of $150,000. 156 The appellant submitted that if entitled to anything, the respondent was entitled to a small award only. Further, he submitted that his Honour did not provide any reasons as to why the sum of $150,000 was considered appropriate. I would reject both submissions. Given the number and nature of the assaults and, in particular, their humiliating impact and given the evidence of the respondent's treating psychiatrist, Dr Kecmanovic, that the prognosis for the respondent's mental condition was bleak and that it was unlikely to improve in the years to come, I have no doubt that an award of $150,000 was well within the range of damages capable of being awarded in the exercise by the primary judge of sound discretionary judgment. 157 As to the submission that his Honour did not give reasons for awarding that sum, the judgment is replete with references to the respondent's evidence as to the pain and suffering as well as the humiliation that she sustained as a consequence of what were clearly grave assaults and batteries over an extended period of time. Although his Honour accepted that the physical injuries sustained by the respondent with respect to those assaults had resolved, the psychiatric condition from which she was suffering and which was caused by the assaults was continuing. In particular, his Honour made the following findings relevant to the assessment of damages: "106. I find that by reason of the assaults and the batteries from 1st May 2001 to 21st September 2002 the [respondent] suffered a significant chronic post traumatic shock disorder and chronic adjustment disorder and depression with symptoms associated with pain and functional sequelae from the physical and psychological injuries at the hands of the [appellant]. 107. I find that she had and continues to have psychological symptoms and has a need for treatment and will need it in the immediate future. She told me she had seen Dr [Kecmanovic] more than sixty times since 2002 and is still seeing him. She has taken Valium since 2002 and for a time also took Cipramil. She says, and I accept, that she still lives in fear of the [appellant] and hides in her flat if the phone rings if she does not know who has called." 158 It follows that the appellant's submission that his Honour failed to give reasons as to why he considered the sum of $150,000 to be appropriate should be rejected. 159 The primary judge awarded aggravated damages in the sum of $25,000. In so doing he applied the principles set out by the High Court in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 9-10 and this Court in State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496. His Honour also referred to the decision of the High Court in NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638 at 646 [31]. He was particularly aware of the necessity to avoid double counting, referring to the judgment of Hodgson JA, with whom on the issue of damages Sheller JA and Nicholas J agreed, in Riley at [130], [131] to [133]. The primary judge's finding under this head of damage was as follows: "125. Given my findings of the [appellant's] conduct towards the [respondent], I consider that what he did went beyond ordinary human fallibility, so as to justify an award of aggravated damages on top of the ordinary award: Riley at [142]." 160 The appellant submitted that if the primary judge awarded damages for hurt feelings as part of ordinary compensatory damages, then any award of aggravated damages must only be of an amount necessary to bring the damages up to the upper end of the available range. His complaint was that the primary judge had given no real indication that his award of aggravated damages in the sum of $25,000 represented further compensatory damages. Rather, in awarding such damages he focussed on the appellant's conduct rather than the effect of that conduct upon the respondent. I disagree. 161 It is true that any additional aggravated damages must be compensatory and must not already have been included in an award of ordinary compensatory damages: Riley at 528 [131]; 529 [133]. However the appellant's conduct cannot be ignored. As was stated in the joint judgment of the High Court in Lamb at 8: "Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like ." (Emphasis added) 162 In the present case it was the appellant's insulting and humiliating conduct towards the respondent which was the foundation of his Honour's finding that that conduct went beyond "ordinary human fallibility" as Hodgson JA described the relevant wrongdoing in Riley at 528 [131]. It matters not that the same conduct gives rise to an entitlement not only to aggravated damages but also to exemplary damages. In the one case, the damages are compensatory in nature in that they compensate the particular plaintiff for the hurt feelings as a consequence of the insulting and humiliating conduct of the defendant. In the other, the conduct of the defendant gives rise to an award of damages that is unrelated to any question of compensating the plaintiff. Nevertheless, the same conduct may give rise to both. In my opinion no error on the part of the primary judge has been demonstrated with respect to his finding that the respondent was entitled to aggravated damages. 163 The only rider I would make to the foregoing is that it might be considered more appropriate for his Honour not to have separately assessed general damages and then added an additional sum by way of aggravated damages but to have assessed both heads of damage by determining an amount towards the top of the range of compensatory damages. However, particularly in cases where there is a real question whether or not aggravated damages should be ordered, there could be merit in a judge indicating one figure without it (an estimate of a mid-range figure) and the aggravated damages (bringing the result towards the upper end of the range); and in the absence of any basis for suggesting there has been double counting, I would not consider that his Honour's approach bespeaks appellable error. 164 As to exemplary damages, the primary judge (at [127]) recognised that they were exceptional and rarely awarded. He cited the following passage from the judgment of Hodgson JA in Riley at 530 [138]: "In my opinion, as made clear in Gray , while conscious 'wrong-doing in contumelious disregard of another's rights' describes the greater part of the field in which exemplary damages may properly be awarded, it does not fully cover that field. Similarly, malice is not essential: Lamb v. Cotogno . Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval or (in cases where the defendant stood to gain more than the plaintiff lost) demonstrate that wrongful conduct should not be to the advantage of the wrong-doer." 165 His Honour concluded that his findings with respect to the appellant's treatment of the respondent could reasonably be described as a "conscious wrongdoing in contumelious disregard of another's rights", citing Whitfeld v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71 at 77 and Riley at 530 [138]. He concluded: "128. In my view the compensatory damages I have awarded for the proved conduct does not sufficiently express the court's disapproval for the plaintiff's conduct and an award of exemplary damages is appropriate. I consider the award should be $50,000." 166 The appellant submitted that an award of exemplary damages can apply only where the conduct of the defendant merits punishment which is only where his conduct is wanton or it discloses fraud, malice, violence, cruelty, insolence or the like or, as it is sometimes described, where the defendant acts in contumelious disregard of the plaintiff's rights. The appellant's conduct was so described by his Honour and rightly so. He further submitted that the primary judge had focussed on the appellant's conduct towards the respondent in deciding to award both aggravated and exemplary damages and had thus engaged in double counting. The submission was made, which I would reject, that his Honour did not differentiate between the two heads of damages. 167 The appellant then submitted that the main thrust of exemplary damages is deterrence, both specific and general. In the present case the parties no longer resided with each other, the respondent had the benefit of an Apprehended Violence Order and there was no suggestion that the appellant had conducted himself in any inappropriate manner towards the respondent since the end of 2002. In these circumstances, it would be appropriate for the issue of deterrence to be dealt with by the criminal law. 168 In my view these submissions should be rejected. No proper basis exists for the submission that any question of deterrence should be left to the criminal law in the present case as the appellant has not been prosecuted. The fact that he might have been of good behaviour since the parties separated is irrelevant. Furthermore, the appellant did not address the issue of general deterrence and, importantly, the necessity for the Court to express its disapproval of the appellant's conduct. 169 In the present case, that conduct was high handed, outrageous and showed complete contempt for the rights and feelings of the respondent. It was malicious and deliberate. The respondent was forced to undergo and undertake humiliating sexual acts without her consent and in circumstances where she was threatened with dire consequences if she did not succumb to the appellant's demands. A stronger case for exemplary damages is difficult to imagine. 170 So far as his Honour's award of $50,000 is concerned, his reasons for awarding such a relatively substantial sum are reflected in his findings with respect to the nature of the appellant's conduct. No case has been demonstrated to suggest that the amount awarded was outside the range of exemplary damages awards which were open to the primary judge to assess in the proper exercise of his discretion.

Conclusion 171 For the foregoing reasons in my opinion each of the grounds of appeal advanced by the appellant should be rejected. I would therefore propose that the appeal be dismissed with costs. 172 McCOLL JA: I agree with Tobias JA.

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Legal Profession Act 1987(NSW)

Legal Profession Act 2004(NSW)

CITATION: Varmedja v Varmedja [2008] NSWCA 177

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Conray v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2001) 54 NSWLR 207 Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 CASES CITED: NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638 R v Birks (1990) 19 NSWLR 677 R v Ignjatic (1993) 68 A Crim R 333 State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Whitfeld v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71

The s 60E(1)(a) factor - the length of and reasons for the delay 19 The respondent's application to extend the limitation period was supported by affidavits from herself and her solicitor, supplemented in cross-examination of the solicitor and extensive evidence in chief and cross-examination of the respondent. The relevant paragraphs of the respondent's affidavit in support of the application were as follows: "10. During the period that I was at the refuge, I received assistance in dealing with the trauma I had suffered during the previous period that [I] was with the [appellant]. I did not know how severe my mental condition was, but I felt depressed, the refuge arranged for me to see medical practitioners, and I was subsequently referred to Dr Kecmanovic, a psychiatrist who can communicate with me in my language. 11. I saw Dr Kecmanovic on 5 November 2002. It was not until my consultation with Dr Kecmanovic that I understood the full extent and nature 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 during April 2001 to September 2002. 12. I continued to receive treatment from Dr Kecmanovic, and I went back to Serbia in December 2003, to visit my family. I returned to Australia in February 2004. I resumed my consultations with Dr Kecmanovic shortly after I returned to Australia. 13. Throughout this period, I have been fearful of the [appellant], and still have [t]his fear. From my earlier experiences with the [appellant], I believe that he is capable of inflicting physical harm to me an[d] I am extremely frightened. 14. My mental condition has not improved and [I am] determined to take proceedings against the [appellant]. I did not take proceedings at an earlier time, because I had hoped that my condition would improve. 15. I understand that I should have commenced proceedings by not later than April 2004. However, I recently returned from overseas prior to that time, and had only seen Dr Kecmanovic on 17 March 2004 and 27 April 2004. I have continued to see him almost on a monthly basis since then, as my condition has not improved." 20 The relevant paragraphs of the solicitor's affidavit were as follows: "2. In September I acted for the plaintiff in relation to property orders sought against the defendant under the Family Law Act . Those proceedings were finalised on 7 September 2003, when consent orders were made, which provided that the [appellant] pay the [respondent] $45,000. 3. On or about 2 April 2004, I received instructions from the [respondent] that she was consulting Dr D Kecmanovic, Consultant Psychiatrist in relation to treatment of severe depressions, which she instructed me arose out of various sexual assaults by the [appellant] and from threats made by the [appellant] during the course of her relationship with him. 4. On 30 April 2004, I requested a medical report from Dr Kecmanovic. 5. In June 2004, I received a report from Dr Kecmanovic dated 11 June 2004. …. 6. On 1 July 2004 I had a conference with the [respondent], and obtained further instructions from her, including instructions as to the report from Dr Kecmanovic. 7. I formed the view that based upon the [respondent's] instructions, there was sufficient evidence to commence a claim against the [appellant]. However, the report of Dr Kecmanovic did not appear to sufficiently address the effect of the assaults detailed to me by the [respondent] on the development of her psychiatric condition. 8. The [respondent] was unable to provide funds to obtain further medical reports, and I have been representing the [respondent] in these proceedings on a contingency basis. 9. On 5 May 2005 I had a further conference with the [respondent] where she instructed me that her physical and mental condition had deteriorated and [she] had found it extremely difficult to cope since her last conference with me. She instructed me that she was diagnosed with breast cancer and that she needed to undergo a biopsy to determine if her condition could be treated, or whether she would require an operation. 10. She instructed me that she could not cope with life, particularly with her immediate family being in Serbia. She instructed me that she was leaving for Serbia on 15 May 2005 to see her son, and to try and obtain a visa for him to come to Australia. She told me that she would be returning on 2 August 2005. 11. On 15 September 2005 I had a conference with the [respondent]. At this conference, she provided further instructions as to specific incidents of assaults which she alleged against the [appellant]. She instructed me to commence proceedings as soon as possible against the [appellant]. 12. I formed the view that based upon the further instructions from the [respondent], and the fact that the medical report of Dr Kecmanovic dated 11 June 2004 gave opinion of a psychiatric condition, there was sufficient basis to commence proceedings, and certify under s 198L of the Legal Profession Act 1987. 13. The Statement of Claim was filed on 19 September 2005." 21 As I have indicated, the respondent's solicitor was cross-examined by trial counsel for the appellant. The thrust of that cross-examination was an attempt to establish when it was that the solicitor had sufficient instructions as to the details of the alleged assaults and batteries so as to be able to advise the respondent that she had a case for damages against the appellant. When it was suggested to him that he had sufficient details with respect to the alleged incidents of assault at the time of the Family Law proceedings between the parties in 2003, he denied that he then had specific instructions as to dates and times and as to the details of the alleged assaults and batteries and that the only instructions he had were of "vague general allegations". When asked when the respondent first provided more details of the allegations of assault and battery, he thought it was around February 2004. As at September 2003, when the Family Law proceedings were settled, he "wasn't satisfied there was any cause of action at that time". 22 Generally speaking the cross-examination went nowhere. However, in re-examination the following exchange occurred: "SWEET: Q. You indicated to my friend that at about the time of the Family Law proceedings there were vague, general allegations? A. Yes Q. What did you mean by that term? OBJECTION. QUESTION ALLOWED. A. She was complaining about her treatment during her marriage. Then she raised certain things of a general nature of what that ill-treatment amounted to and that was about it. A. You also indicated to my friend that you were not satisfied that there was a cause of action at that time? A. Yes. Q. I take it that that was a reference to a cause of action arising out of certain alleged assaults and/or batteries? A. Correct. Q. Why was it that you were not satisfied that there was a general cause of action at that time? A. The form of her instructions which were so general and the absence of any medical evidence. Q. Proceedings in this matter weren't instituted until 19 September 2005? A. Correct. Q. Are you able to say why it was that proceedings weren't instituted prior to that time? A. Well firstly getting the precise instructions and having sufficient medical evidence available." 23 The thrust of paras 11 and 12 of the solicitor's affidavit set out in [20] above was that it was not until approximately 15 September 2005 when the respondent gave him further instructions as to the specific incidents of the alleged assaults that he considered that there was a sufficient factual foundation upon which he could provide a certificate under s 198L of the Legal Profession Act 1987 (NSW) when commencing proceedings (see now: s 347 of the Legal Profession Act 2004 (NSW)). 24 It was accepted by the appellant that the solicitor was not challenged with respect to this evidence. Nor was he challenged with respect to his evidence in para 8 of his affidavit - that the respondent was unable to provide funds to enable the obtaining of further medical reports, a factor upon which the primary judge relied: see below. 25 The respondent was cross-examined with respect to when she became aware that she had a claim for damages against the appellant. In her evidence in chief she agreed that she was advised by her solicitor at the end of 2003 that she was entitled to seek damages for what had happened to her. 26 When it was suggested to her that it was not until she saw her solicitor in September 2005 that she specified the dates upon which she was assaulted, she responded by saying that she had previously provided her solicitor with certain dates but that some dates she could not recollect because of the medication she was taking at the time. She said that she provided a statement to her solicitor at the beginning of 2004 mentioning the dates which she could remember at that time, but that they did not include all the dates. 27 The primary judge accepted (at [31]) the solicitor's evidence "without reservation". His Honour noted that on 2 April 2004 the respondent had told her solicitor that she was having treatment for severe depression which she said had arisen from various sexual assaults and threats by the appellant in the course of their cohabitation. 28 After the solicitor had received a report of the respondent's treating psychiatrist, Dr Kecmanovic, dated 11 June 2004, he conferred with the respondent on 1 July 2004, forming the view that there was sufficient evidence to commence a claim but expressing concern that Dr Kecmanovic's report did not properly address the part played by the physical assaults in producing the respondent's psychiatric condition. He therefore concluded that another report was required. 29 The primary judge then narrated the following evidence: "33. After the meeting her solicitor had with her on 1 July [2004] 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 [respondent] had no money to pay for them. 34. On 5 May 2005 he saw the [respondent] 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. 35. 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 [appellant] 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." 30 His Honour next turned to the respondent's evidence, noting that she had said that when she saw Dr Kecmanovic on 5 November 2002, she then: "… 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 experience I suffered from the [appellant]." 31 His Honour then recounted the following evidence: "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 [appellant] on notice that he might be sued." 32 Having noted that the first of the assaults complained of was said to have occurred in May 2001 at the latest, the statement of claim should have been filed on 30 April 2004 in order to ensure that it was in time with respect to all causes of action alleged. His Honour continued (at [48]): "…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 [respondent] to see her son, who she had not seen for some years. I infer that the [respondent's] mental condition and financial position contributed substantially to the delays. It is not in issue that she went to live in a refuge after leaving the [appellant]. She had only been in Australia for two years and had little community support, few friends, no relatives and poor English." 33 The primary judge then rejected the appellant's submission that the delay had not been properly explained. He said (at [49]): "Some of the reasons may not be good to some, but in her situation they are, I think, perfectly explicable. I accept the explanation." 34 In his challenge to this finding the appellant relied heavily upon a number of statements in the judgment of Ipp AJA (as his Honour then was), with whom Spigelman CJ and Sheller JA agreed, in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2001) 54 NSWLR 207. 35 Reliance was placed upon the following passage from his Honour's judgment (at 224 [88]): "The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the Courts." 36 That statement of his Honour was made under the subheading "The particular significance of a deliberate decision to allow a limitation period to expire". Earlier in the same paragraph his Honour had said (omitting citations): "I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure to satisfactorily explain the delay will not be decisive. Ordinarily the issue of prejudice will be of paramount importance. Nevertheless the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused." 37 After stating the "rule" upon which the appellant relied, his Honour continued (at 225) as follows (omitting citations): "90 The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. … 91 A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave. ..." 38 The main thrust of the appellant's submissions under this head was that the respondent was well aware that the limitation period was due to expire in "April 2004" and that a decision not to "take proceedings at an earlier time" was not only deliberate but also made on an informed basis. Accordingly, the respondent had made a deliberate decision to knowingly allow the limitation period to expire. It would not appear that this submission was advanced before the primary judge. 39 The evidentiary foundation for this submission was said to be the first sentence of para 15 of the respondent's affidavit which for convenience I repeat: "I understand that I should have commenced proceedings by not later than April 2004". 40 In my opinion it is plain that the sentence in the respondent's affidavit relied upon does not establish that in April 2004, or at any other time prior to swearing her affidavit, that the respondent was aware that there was a limitation period or that, in order to comply with it, it was necessary that she give instructions to institute proceedings prior to the end of April 2004. Clearly, she was stating that it was her understanding (present tense) at the time she swore her affidavit that she should have commenced proceedings no later than April 2004. 41 Furthermore, neither the respondent nor her solicitor was cross-examined to suggest that she received advice from her solicitor that there was any limitation period or as to when it would expire. In all probability it was overlooked in the same manner as the appellant's legal representatives had overlooked it until counsel for the respondent brought it to their attention shortly prior to the commencement of the hearing. 42 Accordingly, the present case is distinguishable from Itek where the applicant had made a deliberate decision to allow the statutory period to expire and was unable to provide any satisfactory explanation for that decision. It follows that the submission that the respondent made an informed and deliberate decision to allow the limitation period to expire should be rejected. 43 The appellant then challenged each of the reasons relied on by the primary judge as explaining the delay in the institution of proceedings. In particular he submitted that none of those reasons were adopted by the respondent or her solicitor in their evidence. The only stated reason of the respondent, as set out in para 14 of her affidavit, was that she did not take proceedings "at an earlier time because I had hoped that my condition would improve". 44 A consideration of paras 12, 13 and 14 of the respondent's affidavit makes it clear that when she said that she did not take proceedings at an earlier time because she hoped that her condition would improve, the earlier time to which she was referring was prior to February/March 2004 when, after returning from overseas, she saw Dr Kecmanovic and was informed that her mental condition, which had not improved by then, was unlikely ever to improve. 45 The delay to which the primary judge was referring in that part of [48] of his judgment that I have recorded in [32] above, related to the period subsequent to 30 April 2004. Accordingly, the appellant's submission based upon para 14 of the respondent's affidavit should also be rejected. 46 The appellant next challenged the primary judge's inference that the respondent's mental condition and financial position had substantially contributed to the relevant delay. It was submitted that there was neither medical evidence nor evidence from the respondent that her mental condition had any effect upon her ability or capacity to provide instructions to her solicitor to institute proceedings. Indeed, prior to 2004 she had been a willing and active party in Family Law proceedings as well as in an application for an AVO. However, in his report of 11 June 2004 Dr Kecmanovic said that the respondent was: "… depressed. She felt decried and dejected. She displayed a motivational syndrome, consisting of diminished drive, apathy and deterioration in life-style. She appeared unable to break the usual vicious circle of guilt, self-blame and anger. She showed difficulty in focussing on the issues . It was obvious that her capacity to be cheered by pleasant events and social support was impaired." (Emphasis added) 47 In my opinion the fact that as at June 2004 the respondent's mental condition was such that she had difficulty in focussing on the issues, was more than adequate to entitle the primary judge to infer that her mental condition had substantially contributed to the delay. So far as her financial position was concerned, there was no challenge to the statement by her solicitor that she was unable to provide funds to obtain further medical reports and that he was representing his client on a contingency basis. 48 The appellant further challenged the finding by his Honour that the respondent's lack of English, lack of cultural links and fear of the appellant constituted satisfactory reasons for the delay. None of those matters, it was submitted, could have prevented her from instituting proceedings, especially as she had already been a party to Family Law proceedings and proceedings for an AVO and was able to give instructions to her solicitor in her native language. Furthermore, her alleged fear of the appellant had not caused her to desist from instituting the proceedings referred to. 49 There is substance in the appellant's submission that the matters referred to would not of themselves provide satisfactory reasons for her failure to institute proceedings after approximately the end of 2003 when she first became aware that she might have a case for damages against the appellant. But those matters do provide reasons which explain her failure to institute proceedings prior to that time and, in particular, when she was still cohabitating with her husband. 50 On the other hand, her lack of funds prevented her solicitor from obtaining any further medical reports and he had given unchallenged evidence of his concern not to commence proceedings until he could certify that she had a viable cause of action by providing the certificate required by s 198L of the Legal Profession Act. 51 As the respondent submitted, the factual underpinning necessary for the appellant to make out this submission was never put to the respondent's solicitor at trial. Nevertheless, the appellant submitted that there was more than sufficient evidence of the giving of instructions sufficient to found a viable cause of action and that the respondent's solicitor's explanation to the contrary was "mere window dressing". 52 It was never suggested to the solicitor that this was so and it is, with respect, a submission to the effect that the solicitor was giving false evidence or, at the very least, indulging in exaggeration when he swore that it was not until he received further instructions from the respondent in September 2005 that he considered that there was a sufficient basis to institute proceedings. In the absence of any challenge to the solicitor's evidence on this aspect of the matter, the appellant's submission should be firmly rejected as being without foundation. 53 The facts accepted by the primary judge were that after February 2004 it took the conferences with his client on 2 April 2004, 1 July 2004, 5 May 2005 and 15 September 2005 for the solicitor to obtain the degree of specificity he considered necessary before he could certify that the Statement of Claim alleged a reasonable cause of action. His Honour accepted that evidence, as he was entitled to do, and it was open to him to consider that it constituted, at least in part, an acceptable explanation for the delay. The appellant's challenge to his Honour's finding that the delay had been acceptably explained should be rejected.

The s 60E(1)(b) factor - the question of prejudice 54 Section 60E(1)(b) of the Act requires the court to consider the extent to which, having regard to the delay, there is or may be prejudice to a defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period, is no longer available. As was observed by Simpson J, with whom Beazley JA agreed, in Conray v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60 at [136], the provision requires identification of any evidence that has been lost since the expiration of the limitation period. Any evidence lost prior to that date is not, for this purpose, relevant. McColl JA expressed a similar view in that case at [91]: "I accept that in focussing on the prejudice to a defendant arising from the delay by reason of the fact that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available, s 60E(1)(b) looks to the period between the expiration of the limitation period and the time of the extension application." 55 This is not to say that the Court should not examine the period between the time the cause of action accrued and the limitation period expired: it is required to consider any prejudice, presumptive or actual, sustained by a defendant during as well as after that period as the governing requirement of s 60E(1) is that the court must have regard "to all the circumstances of the case"'. Nevertheless in terms of s 60E(1)(b), the issue is whether any evidence which would have been available if the proceedings had been commenced within the limitation period, is no longer available. 56 In his amended Defence, the appellant particularised in para 6.2 some 12 instances of what he asserted to be actual prejudice. The primary judge rejected each of those matters. Of present relevance was particular 6.2.9 which asserted that the records of an alleged complaint by the respondent to counsellors had been lost. Only this particular of prejudice was addressed by the appellant in oral submissions. However, in his written submissions on the appeal the following was also asserted: (a) Due to the general terms in which the alleged assaults had been pleaded in para 5 of the Statement of Claim and the fact that it was not until the first day of the trial on 27 September 2006, more than five years after the first alleged assault, that the respondent became aware of more specific details as to those allegations, the appellant was required to mount a defence against the claim which had been brought out of time and which involved extremely serious allegations, the nature, extent, duration and detail of which he was, until that time, completely unaware. As a consequence, the appellant suffered actual and significant prejudice.

Varmedja v Varmedja

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (19)

Cited By (10)