Civil

Howard v Surf Life Saving Australia NSW [2019] NSWSC 1212 (13 September 2019)

In this matter, Greg Walsh acted for the Plaintiff, Graham Howard, a long serving member of the North Palm Beach Surf Life Saving Club.

Mr Howard had been subject to allegations of misconduct which was the subject of an investigation and disciplinary hearing.

He was suspended for two years.

Justice Pembroke, of the Supreme Court, heard the case and determined that there was a wholesale failure of the Judiciary Committee to comply with its own regulations. The Committee had also failed to provide Mr Howard with basic information which he was entitled to on grounds of procedural fairness. The unfairness of Surf Life Saving NSW was revealed in the course of the hearing by the Judicia Committee as observed by His Honour at paragraph [19] of the judgement.

The decision of the Judiciary Committee was set aside and the Defendant was ordered to pay costs. 

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Joanne Young v Josephine Smith – Contempt [2017] NSWSC 1443

In this matter Greg Walsh acted for Joanne Young (Plantiff)

JUDGMENT

1 On 2 August 2016, the Contemnor, Ms Josephine Aapa Smith was found guilty of contempt of Court. The Court, as presently constituted, held that on 2 February 2015 the Contemnor dealt with property located at Wharf B, Level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont (‘the Property”), by encumbering it by means of a mortgage in favour of Westpac Banking Corporation (“Westpac”) in circumstances where the Court had, to the knowledge of the Contemnor, restrained such conduct in relation to that property.

2 Having heard the parties on what, if any, sentence to impose, it falls on the Court to sentence the Contemnor.

3 The orders breached were orders of the Court, as earlier stated, restraining any dealing in the Property. The conduct giving rise to the contempt is described in the Reasons for Judgment, published by the Court and giving rise to the finding of guilt: Young v Smith (No 3) [2016] NSWSC 1051 (“the Judgment on Guilt’).

4 It is unnecessary to recite, in full, the somewhat complicated issues associated with the finding of guilt. It is sufficient, for present purposes, to reiterate that proceedings were commenced by the plaintiff, Mrs Joanne Elizabeth Young, initially against her former husband, Mr Leslie James Young, and, as a consequence of the initial proceedings, freezing orders issued against the husband and his subsequent partner, the Contemnor in these proceedings.

5 In the Judgment on Guilt, the Court set out a history of the proceedings (see [17] of that judgment and following). That history is relevant in understanding the objective seriousness of the matter with which the Court is now concerned and is in the following terms:

[17] The applicant, Ms Young, married Mr Young in 1992 and they separated in 1999. She was Mr Young’s second wife. The Contemnor, Ms Smith, is (or was at all relevant times) Mr Young’s de facto partner. She has been in that position since about 1999.
[18] At the time that Mr Young and Ms Smith commenced their de facto relationship, Mr Young’s assets consisted of 50% shareholding in a number of companies (the identities of which, presently, are irrelevant).
[19] In or about 2001 an agreement was executed which recited the contemplation of Mr Young and the Contemnor as to the purchase of residential property for the purpose of it being their residence, that the residential property purchased by them for their joint use, shall be the property of the Contemnor, regardless of the identity of the persons on the registered title.
[20] The applicant, Mr Young’s second wife, was the manager of a hotel owned by one of the companies of which she and Mr Young were each half owners. In July 2006, Mr Young removed the applicant from the hotel premises and made allegations that she had misappropriated monies belonging to the hotel. Those charges were all dismissed.
[21] The applicant brought proceedings against Mr Young for malicious prosecution and/or damages for related or similar causes of action. There were also proceedings relating to a property settlement claim that had been cross-vested from the Family Court of Australia to this Court.
[22] In May 2007, Mr Young and the Contemnor purported to enter into a contract for the purchase of a property at Pirrama Road in Pyrmont (“the Property”). They purported to be joint tenants. The purchase price was something over $4.5 million. The transaction was completed In or about July 2008 and funded through a loan extended to the company that owned the hotel, with Mr Young and the Contemnor each granting the lender a mortgage and guarantee.
[23] The proceedings for the property settlement and for malicious prosecution were heard by the Court and orders made on liability, with separate questions being referred to an Associate Justice. As a consequence of that referral, Harrison AsJ determined, on the basis of proceedings before her, that Mr Young’s assets were valued at or above $9 million.
[24] On 11 April 2013, the Court ordered that Mr Young pay the applicant $2,663,000 and weekly maintenance. Further, the Court found that Mr Young had deliberately deceived police in relation to the charges based upon allegations made by him and awarded damages for malicious prosecution of $165,000.
[25] On 23 September 2013, the residential premises said to be registered in the name of Mr Young and the Contemnor, and described above, were transferred to the Contemnor. Further, the hotel from which the applicant was excluded was sold in May 2014 and the company that owned it put into liquidation. The Liquidator realised its assets which included a car park adjacent to the hotel.
[26] On 5 June 2014 Bankruptcy Notice 172322 was issued at the instigation of the applicant in relation to the judgment debt. The Bankruptcy Notice could not be served.
[27] On 7 August 2014, the Contemnor, acting under a Power of Attorney on behalf of Mr Young, executed a Memorandum of Transfer between Mr Young and herself in relation to Mr Young’s interest in the Property. The purported consideration for the transfer was $1.8 million, which was never paid.
[28] On 29 August 2014, the applicant made an ex parte application to this Court for freezing orders. The Court made orders restraining Mr Young and the Contemnor from dealing with any of their assets, including the Property. until further order of the Court. That order issued on 29 August 2014. The judge who issued the orders was Bellew J. The terms of that order will be recited later in these reasons.
[29] On 1 September 2014, Mr Young initiated an application under s 55(2) of the Bankruptcy Act 1966 (Cth) in which he stated that his interest in the property was worth 50 per cent of $5.5 million and was sold for $1.8 million. The document, in the relevant column, or entry, indicated that Mr Young had received no money for that share or that transfer. Mr Young also identified the Contemnor as a secured creditor in or to the sum of approximately $4 million. Mr Young was declared bankrupt on 2 September 2014, on his own application. [Footnotes omitted.]

6 On 4 September 2014, the Court issued orders, the effect of which was to continue the orders issued by the Court on 29 August 2014 against both Mr Young and the Contemnor in these proceedings. On 2 February 2015, the Contemnor, in contravention of the said orders, entered into a mortgage over the Property and was advanced $5.8 million by Westpac.

7 The Contemnor breached the orders, issued by the Court on 29 August 2014 and continued by the Court on 4 September 2014, and that breach gives rise to the sentence to be imposed for contempt of Court.

8 On 15 April 2015, the Court (constituted by Sackar J) finalised the substantive proceedings, dealing with the ownership of property, and on 5 May 2015 issued orders giving effect to those reasons. The orders were altered on 6 June 2015 and the ultimate effect of the orders was that, subject to a registered mortgage, the Contemnor held the contentious property subject to a one half share on trust for Mr Young but not so as to interfere with any interest of the plaintiff in these proceedings.

Punishment for contempt

9 The power of the Supreme Court of New South Wales to punish for contempt arises from its status as a superior court of record. Contempt is a common law offence, punishment for which is an inherent power of a superior court of record. It is unnecessary here to deal with punishment in the face of Court to which the foregoing statements do not relate.

10 Pursuant to the powers described in the Supreme Court Rules 1970 (“SCR”), and in particular Pt 55 r 13, the Court may impose a penalty for contempt on an individual, being committal to a correctional centre or fine or both. Further, the Court may issue orders for punishment on terms, including suspension or part suspension and impose conditions for good behaviour and the like.

11 There are two types of contempt: civil and criminal. Criminal contempt is conduct that obstructs the administration of justice. Civil contempt is, essentially, the breach of an order or undertaking. However, where that breach is deliberate, being a deliberate defiance or a contumacious breach, contempt that is otherwise civil is considered to be criminal in nature: Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3.

12 Further, the Court of Appeal has determined that contumacious, wilful and deliberate disobedience of a Court order may be characterised as both civil and criminal conduct: see Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, per Beazley JA; and Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21; and Witham v Holloway, supra.

13 Even “mere” civil contempt affects the administration of justice. The purpose of imposing punishment for wilful disobedience of a court order is to discipline the offender and to vindicate the authority of the court: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at [112].

14 The process of sentencing involves a sentencing judge arriving at and imposing a sentence appropriate to the gravity of the offence that was committed (objective seriousness) and to the circumstances of the offender who committed it (subjective circumstances), taking into account the purposes of sentencing. Those purposes include punishment; protection of society; personal and public deterrence; retribution; and reform: see s 3A of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) and Veen v The Queen (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14:
“The purposes overlap and none of them can be considered in Isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

15 The process, often referred to as intuitive synthesis, is one jn which the Court considers each of the factors as part of the objective or subjective circumstances (and in some situations both) to arrive at a result which seeks to achieve each of the purposes best.

16 In dealing with the objective and subjective circumstances of the offence and offender, the Court may have regard to the provisions of s 21A of the Act, although most of those criteria are factors to which a sentencing Court would, even in the absence of s 21A of the Act, have regard. Ultimately, the Court has a wide range of sentences that it may impose for contempt of Court: NCR Australia v Credit Connection [2005] NSWSC 1118.

17 The range of sentences includes imprisonment, periodic detention, home detention, community service orders, good behaviour bonds, dismissal of the charge accompanied by either a good behaviour bond or a condition that the offender participate in an intervention program, deferral of sentence, a suspended sentence, a fine, and the making of a non-association or a place-restriction order. Each of those is a potential punishment on Contemnors. The legislature has conferred on the Court the power to impose such punishment: In some instances, there are restrictions on the imposition of any such sentence.

18 In determining the sentence to be imposed, the Court is to consider the nature of the contempt committed: Commissioner for Fair Trading v Rixon (No 3)
[2014] NSWSC 1279, per Garling J. Those circumstances include: the nature and circumstances of the contempt; the impact or likely impact of the contempt on the administration of justice; the extent of the offender’s culpability for the conduct; the need to deter the offender and others from engaging in contempt; whether a finding of contempt has been previously made; whether contrition or remorse is displayed and an apology proffered; and the financial and personal circumstances of the offender when a fine is being sought: see also Paccar Financial Pty Ltd v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622.

The nature and circumstances of the contempt

19 The circumstances immediately surrounding the contempt have been described above. So too has the background arising from the relationship between Ms Young, on the one hand, and Mr Young and the Contemnor, Ms Smith, on the other hand.

20 As at the time of the sentencing proceedings Ms Smith and Mr Young lived in the Property, a lavish apartment in Pyrmont, which, subject to the orders of the Court (Sackar J) is presently owned by Ms Smith as joint tenant with the trustee in bankruptcy of Mr Young. It is those premises that is the subject of a mortgage to Westpac, granted by Ms Smith, as a result of which Westpac provided a $5.8 million loan.

21 The monies that constituted the loan were provided to a corporate entity of which Ms Smith is the sole director and shareholder.

22 On the material before the Court the calculated estimate of the market value of the Property is between $4.6 million and $6.9 million (Affidavit Angela Skocic, 19 October 2016). I consider that calculation more reliable than the “as is” value of $4 million (Affidavit Krista Emma MacPherson at [4] and KEM-I thereto).

23 The plaintiff is owed approximately $3 million, pursuant to orders of this Court of 23 April 2013, by Mr Young. The orders followed the malicious prosecution proceedings reference to which is provided above: Young v State of New South Wales & Ors; Young v Young (No 2) [2013] NSWSC 330. Those monies have not been paid. Mr Young transferred 50%, being his share in the Pyrmont premises to Ms Smith and, as earlier stated, rendered himself bankrupt.

24 The money received as a result of the mortgage of the relevant premises was utilised for a business venture by the Contemnor through her company, Smith & Smith Investments Pty Ltd. Westpac appointed receivers and sold the hotel purchase with those funds. Apparently, the sale returned an insufficient amount to satisfy the mortgage and Westpac had not released Ms Smith in respect of the mortgage on the Pyrmont premises.

25 The hotel was sold in November 2015 for approximately $6 million, which while in excess of the original maximum facility with Westpac of $5.8 million, represented a shortfall of approximately $800,000, presumably as a result of the cost of sale and enforcement and interest (Affidavit Krista Emma MacPherson at [11]-[12]).

26 As was made clear in the Judgment on Guilt, the Contemnor was well aware that the Court had restrained her from dealing with the property in question.

27 Ms Smith’s awareness of the conditions imposed upon her by the Court is evidenced by the application made by Ms Smith that the orders of the Court be replaced by an undertaking on her part not to deal with the Property. Notwithstanding that knowledge, and in spite of it, Ms Smith obtained a financial advantage by deliberately dealing with the Property in contravention of the orders of the Court. She did so, at (east in part, for the purpose of obtaining a financial advantage. It seems, although it is unnecessary to determine this question, that part of the rationale for Ms Smith’s conduct also related to malice against Ms Young, either on her own part or reflecting the malice and state of mind of Mr Young.

28 The contempt is a very serious one. It is a deliberate and contumacious breach of orders issued for the protection of a party and, in the process, dealing with property that belonged to the plaintiff in these proceedings.

29 Further, the overwhelming inference is that the entire scheme was designed to thwart the plaintiffs attempts to obtain from Mr Young the damages that the Court had awarded. It involved the circumvention of a number of orders of the Court. It involved the transfer of the Property so as to ensure that Mr Young had no assets in his name to which the Judgment debt could attach and it involved a deliberate breach of orders of the Court for the purpose of obtaining a business or commercial advantage.

30 I consider the contempt a serious one and to be categorised as both civil and criminal contempt. The conduct is well above the mid-range in objective seriousness for a contempt. Further, the semi-public disregard and disobedience of orders of the Court is a significant undermining of the authority of the Court and affects the administration of justice.

Subjective circumstances

31 The Contemnor has relied upon a number of exhibits, some of which have been referred to above. Ms MacPherson exhibited to her Affidavit the valuation on an “as is” value basis of the Property and media coverage relating to Ms Smith’s conduct and/or the Judgment on Guilt, together with other Judgments in the wider justiciable controversy. Part of the material upon which the Contemnor relies is an issue or issues relating to her health.

32 Ms Smith’s health issues are, on the evidence adduced in the proceedings, considerable. I have been provided a report by clinical psychotherapist, Ms Odelia Carmon and a report by Professor Frederick Ehrlich OAM. There are also reports from Dr Jerry Greenfield, endocrinologist, Dr Michael Talbot, Dr Nesran Varol, Dr Julie Epstein, consultant physician, reports on imaging to various doctors and reports from her general practitioner, Dr Dror Schmuelly.

33 The Contemnor refers to the fact that she has no criminal history. Nor has she previously been charged with any criminal offence. The contempt proceedings are the first ever contact with a penalty or punishment proceedings before a court.

34 It is necessary to deal with the medical issues, although, in so doing, the Court will seek not to disclose unnecessarily matters that are and ought to remain confidential. Some disclosure is necessary. In or about May 2010, Ms Smith was diagnosed with a 1.5 cm meningioma which encased the carotid artery causing some deformity and elongation. There was some inferior extension, but otherwise the cerebral MRI showed no abnormalities. The meningioma was removed and by May 2015 there was no evidence of any recurrence and her brain had stable appearance and no recurrence.

35 In 2009 Ms Smith suffered from a neurological disorder and seizures seemingly related to a multisystem failure after a mosquito bite in South Africa in December 2005. A number of treatments were attempted, which were unsuccessful but, ultimately, she was treated with Nutropin which resulted in her being able, once more, to walk and to give up reliance on a wheelchair, as was previously the situation. She will continue to have balance problems and to use a walking stick.

36 A summary of the conditions suffered by Ms Smith is contained in the report of Dr Schmuelly of 6 February 2015, which forms part of Ex 2 in the proceedings.

37 Professor Ehrlich’s report of 28 September 2016 also forms part of Ex 2. He refers to the multisystem breakdown relating to a virus from the mosquito bite and also to the history given to him of three heart attacks, a kidney failure, lung failure and major neurological problems as a consequence of which she spent three years in a wheelchair.

38 Professor Ehrlich referred to the effect of these illnesses on her business ventures which she was required, during that period, to “sell … at a loss” and “her feelings when having to deal with distress sales”. He also referred to a series of family tragedies, with numerous deaths, having to attend funerals and cope with relationship problems.

39 At the time, according to the history given to Professor Ehrlich, she was consuming approximately 2 bottles of wine each day and a half a bottle of single malt whiskey.

40 The family tragedies seem to have affected Ms Smith more as a consequence of her place in the Samoan community and the fact that members of her family of origin were the founding fathers of the Samoan Congregational Church. She also fulfils major familial and cultural duties assigned to her by her family (Ex 3).

41 Professor Ehrlich suggests that Ms Smith was “unaware of the Court order which was issued whilst she was overseas” and that “she was not made aware of it on her return”. With respect to Professor Ehrlich, he may have been given that history but the history is inconsistent with the events in Court and in the precincts of the Court, including applications made by her through counsel which disclose a clear understanding of the nature of the restrictions imposed upon her.

42 Professor Ehrlich suggests that “her capacity for processing information and applying effective judgement must be considered to have been significantly impaired”. The report was not the subject of cross-examination and I accept that opinion.

43 Nevertheless, the opinion is based upon some assumptions of fact, which are not borne out. The Court has already referred to the awareness by Ms Smith of the orders issued and her understanding of the orders that Issued. Further, the breakdown in her relationship with Mr Young, to which Ms Smith referred Professor Ehrlich, either did not occur at the time or was not at all acrimonious. In evidence as Annexure A to the Affidavit of Angela Skocic of 20 October 2016 are photographs of Ms Smith with Mr Young taken and posted on Facebook at a time during which it was said their relationship had “broken down”.

44 The other issue to which reference needs to be made is the report of clinical psychotherapist, Ms Odelia Carmon. I will not detail the history recited by Ms Carmon. Ms Smith did not give evidence. Some of that history would require direct evidence for it to be taken into account as part of the early childhood of Ms Smith, particularly the allegations of abuse from the age of nine until the age of 22 years.

45 I accept that Ms Smith’s actions may result, at least in part, from a life filled with responsibilities to others and unfulfilled personal expectations and her need to become secure, independent and self-sufficient. do so without necessarily accepting the history that may have led to that.

46 I also accept a degree of cultural tension that defines Ms Smith’s self-image and causes problems with self-management. The report from Ms Carmon expresses the view that Ms Smith genuinely regrets her action in breaching her obligations to the Court. Unfortunately, that was not the subject of any evidence from Ms Smith and J have significant doubts as to the degree of Ms Smith’s remorse.

Consideration

47 The Court accepts that there are a number of subjective mitigating factors in determining an appropriate sentence. I accept that the Contemnor has had a significant medical and psycho-social history, involving a brain tumour and a number of other illnesses, some of which were caused by an unfortunate viral infection from and/or in reaction to a mosquito bite in Africa.

48 Ms Smith was 46 years of age at the time of the contempt, namely February 2015. As has been made clear earlier in these reasons, the Contemnor has not before been before a court and is entitled to the leniency of a first offender. accept, also, that there was some impairment to Ms Smith’s capacity for executive decision making on a rational basis around the time of the contempt.

49 I do not accept that the Contemnor and Mr Les Young had severed their relationship at the time of the contempt or very soon thereafter. I do accept that the Contemnor deliberately and contumaciously contravened the order of the Court prohibiting her from dealing with the Property, which she mortgaged in order to obtain a benefit of $5.8 million (or the use of the funds for business purposes). I also accept that the breach of the order was part of a wider plan the effect of which was intended to deprive Ms Young of enforcing other Court orders, cocooning the assets into the name of the Contemnor and away from Mr Young, and thereby seeking to prevent Ms Young from enforcing her judgments.

50 Further, the conduct of transferring the property from Mr Young to the Contemnor (and, in the case of the Contemnor, accepting that transfer) and mortgaging the property, was done without any notice to any person, in circumstances where Ms Smith was at that time before the Court. The transactions were deliberately concealed from the Court and Ms Smith allowed the proceedings to continue on a false premise, known to her and which she hid from others. Part of that process included misleading Westpac as to the position of the apartment and its history.

51 It is clear that the Contemnor was motivated, in part, by financial gain and probably as a matter of malice towards Ms Young. The former has been proved beyond reasonable doubt. The latter is disregarded because it has not been proved to that required standard. The contempt (and the larger financial arrangement of which it formed part) was otherwise performed for the benefit of Mr Young, her then partner.

52 As previously stated, an assessment of the objective seriousness of the offence puts it above the mid-range in seriousness and it is clear that the contempt offence was not, in the least, technical. It was a wilful, deliberate and contumacious contempt being an intentional disobedience involving a conscious defiance of the authority of the Court and a deliberate attempt to subvert the orders imposed upon her.

53 As a consequence Ms Smith’s intentional conduct also involves the knowing defiance of the Court’s order and authority and the sentencing must achieve a purpose that involves both general and specific deterrence.

54 The consequence of the mental and other medical conditions of the Contemnor render the general and specific deterrence less significant than it might otherwise have been and render the Contemnor Jess appropriate as an example in relation to general deterrence. Ms Smith’s behaviour was described as “surreptitious” by the Court (Young v Smith (No 2) [2015] NSWSC 1267 at [36]-[37]. However, some general and specific deterrence is required. The medical conditions of the Contemnor, including her restricted mobility, make prison a more onerous punishment.

55 Further, the fact that the business for which Ms Smith borrowed the money did not succeed is a matter wholly unrelated to the contempt. The money was borrowed for the purpose of making a profit. The mortgage was effected in order to gain security for the borrowed monies.

56 Notwithstanding the comments in the report of Ms Odelia Carmon, there has been no apology or public expression of contrition.

57 Moreover, the publicity occasioned in relation to the conduct of Ms Smith js not an extra curial punishment. It is the natural result of conduct by a person in utter defiance of the orders of a court. In the absence of the rule of law, we would all live in a state of chaos. Courts adjudicate the rights of the members of society as between themselves. It is not for a member of society to snub that adjudication for self-interest.

58 If the published material about the conduct of Ms Smith was defamatory, then Ms Smith would have a cause of action. I do not consider the publicity given to the conduct of Ms Smith or the Judgments of the Court concerning her conduct to be a form of extra curial punishment. Nor, in this case, do consider that it ameliorates the punishment that otherwise ought to be imposed.

59 As a consequence, the Court shall impose a penalty. I reiterate the comments made in relation to financial penalties where the motive is financial gain. Democracy, as we know it, depends upon the rule of law and the obedience of members of the community of the orders of the Court.

60 Moreover, I do not accept the submission, put on behalf of Ms Smith, that no damage or prejudice has been suffered by the plaintiff. The stress associated with litigation of this kind and the years of litigation leading to the orders that ultimately were made by the Court, involve a stress beyond the stress of winning or losing and beyond the stress associated with the requirement to meet legal costs to enforce rights that ought not have needed to be litigated.

61 Notwithstanding the subjective circumstances to which Ms Smith has pleaded in relation to her conduct, I consider, bearing in mind both the objective and subjective circumstances of the offence, that a custodial sentence is warranted. I also consider that the only proper disincentive to other persons seeking to obtain a profit by the deliberate defiance of Court orders is to impose a monetary penalty.

62 The Court makes the following orders:

(1) The Court records a conviction for the offence of contempt committed by Josephine Aapa Smith (“the Contemnor”);
(2) The Court sentences the Contemnor to a term of imprisonment of 6 months, fixed term. The Court suspends execution of the whole of the sentence for a period of 6 months and directs that the Contemnor be released from custody on condition that she enter into a good behaviour bond for the said period of 6 months. The sentence will commence on and from 25 October 2017;
(3) The Court imposes a fine on the Contemnor of $50,000, in addition to the foregoing sentence of imprisonment;
(4) The Contemnor shall pay the plaintiffs costs of and incidental to these proceedings on an indemnity basis;
(5) Any party who seeks a different or special order as to costs may apply within seven (7) days of the date of this Judgment by filing a submission with the Associate to his Honour Justice Rothman. Such submission shall be no more than three (3) pages in length. Any party affected by any such application may reply to said application by a submission of the same length within 7 days of receipt of the application.

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Barbanera v Barbabera Anors: Estate of the late Antonio Barbanera [2017] NSWSC 357

John Barbanera is the oldest son of Antonio Barbanera and Maria Barbanera. Antonio died on 3 1 October 2014 and Maria November 2009.

John has three younger siblings Nunzia, Peter and Angela. Angela died in April 2015 and is survived by her husband Nick and their only child Giuliana.

John was excluded from his father’s will and he brought proceedings under the succession act for provision out of his late father’s estate, Greg Walsh acted on his behalf.

The hearing was heard and determined by His Honour Justice Slattery of the Supreme Court NSW Sydney.

His Honour heard evidence over two days, 12 and 13 December 2016. There is no doubting, that the proceedings were bound to involve a recounting of difficult emotional issues involving the lives of John and his siblings.

John over many years was an extremely hard worker and quite successful businessman. He was married to Pina and they have two children.

His Honour has set out in detail in his judgement the history of home life in the family home in Haberfield between 1976 to 1991.

His Honour observed that John as the first born in the family regarded himself as having a solemn duty and entitlement and as such this caused him to be regarded “the role is giving him authority to control the personal lives of his sibling’s particular of his sisters”. His Honour details a number of life events which had significantly impacted upon John and his siblings over so many years.

John’s late father attached a statutory declaration his will dated 23 April 2008. His Honour referred to the contents of that Statutory Declaration and judgement.

His honour referred to other events including visits to his late mother before her death in 2009 and what occurred at his mother’s funeral in November 2009.

Justice Slattery noted the deletion of any reference to John from Maria’s funeral documents and made a finding that he did not accept that there was any reasonable basis for Peter and Nancy to fear what John might do at his mother’s funeral.

At his father’s funeral once again there was no mention of John and this clearly the impact of public humiliation to John His Honour made reference to the back cover of the mass book for his late father’s funeral omitting to making reference to John. The exclusion of John was noted by His Honour as follows:

“caro ed amato marito della defunta Maria, adorato padre e suoero di Angela e Nick Bouyioukos, Nancy e Antonio Brunetti, Peter e Maryanna Barbanera, orgoglioso nono di Giuliana, Antonia, Leonardo, Donatella, Dante. …”

Justice Slattery set out the applicable legal principals in particular that of Singer v Berghouse (No.2) (1994) 181 CLR 201. His Honour then examined in detail John’s financial and personal position. His net position was $5076502.00.

His Honour also referred in detail to the financial position to John’s siblings and the health problems of Angela’s husband.

His Honour made a finding that John’s summons should be dismissed subject to further argument as to what costs orders are conveyed.


SMH – Warring children ignore judge’s warning about fight over father’s will

SIMMONS v ROCKDALE CITY COUNCIL (NO. 2) [2014] NSWSC 1275

Alex Simmons sustained serious injuries as a result of an accident that occurred on 11 April 2007 whilst he was riding his bicycle through a car park adjacent to the St George Sailing Club.  He struck a boom gate that had been closed across a motor vehicle entrance to a car park.  The accident resulted in a below knee amputation of his left leg.

On 27 September 2013 Hall J delivered the principle judgment in the proceedings Simmons v Rockdale City Council [2013] NSWSC 1431.  An order was made that verdict and judgment be entered in favour of Alex Simmons against Rockdale Council in the sum of $928,000 and that judgment be in favour of the Club.

Mr Campbell SC and Mr Sheller appeared on behalf of Alex Simmons and Mr Watson SC appeared on behalf of the Council.  A dispute arose between the parties as to whether the Plaintiff was liable to pay the Club’s costs and if so should they be awarded on an indemnity basis from the date of the Club’s offer of compromise or whether Mr Simmons was entitled to a Bullock or Sanderson order in respect of his costs liability to the Club.

Liability to pay the Club’s cost on an indemnity basis

His Honour observed that an offer of compromise must be a real and genuine offer Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368.

On behalf of Mr Simmons it was submitted the Club’s offer was “an invitation to surrender” and His Honour particularised the basis of that submission.

Bullock or Sanderson Order

In the event that Mr Simmons was found liable to pay the costs of the Club he should be entitled to a Bullock or Sanderson Order from the Council.  The arguments of the Plaintiff were referred to by his Honour [para 16].

Council’s Submissions

The Council accepted that it is liable for the costs of both the Plaintiff and the Club.  It however opposed the Bullock or Sanderson Order and the basis of this was referred to by His Honour [para 21]

Reasonableness of not accepting the Offer of Compromise

Hall J observed that the reasonableness of the party refusing an offer amounts to an important feature in determining whether an order for indemnity costs should be made.  The reasonableness must be assessed as at the date of the offer and without the benefit of hindsight: Barakat v Bazdarova [20102] NSWCA 140.

His Honour made a finding that given the lack of clarity on the material available to the Plaintiff as to the arrangement between the Council and the Club, he did not consider the Plaintiff’s failure to accept the Offer of Compromise can be regarded as unreasonable [para 63].

Absence of Information to Support the Club’s offer requiring capitulation by the Plaintiff

His Honour found that he did not consider the Plaintiff had acted unreasonably in not accepting the Club’s Offer of Compromise.  See Leichhardt Municipal Council v Green [2004] NSWCA 341.

Whether a Bullock or Sanderson Order should be made

His Honour referred to Gould v Vaggelas (1985) 157 CLR 215.  His Honour made a finding that it was reasonable for the Plaintiff to have sued the Club [para 79].

The conduct of the unsuccessful defendant, the Council

His Honour referred to an Affidavit sworn by Greg Walsh on 21 November 2013 which relied upon his earlier Affidavit of 26 October 2010.  Walsh referred to evidentiary statements of James Garcia a cleaner that had been employed as a contractor by the Club and also a statement of the General Manager of the Club Keith Langelaar.  Mr Walsh stated that none of those statements mentioned what he refers to as “any rationale about when and why the gate was to be open.” [para 92].

His Honour noted that Mr Walsh stated in his Affidavit to his state of belief that it was possible that the Club was instructed in a manner that constituted a more formal delegation as to why the gates needed to be opened and closed at certain times and that it embraced that responsibility.    As such there was a real issue as to whether the Council had effectively delegated to the Club the opening and closing of the boom gate.  Mr Walsh referred to Mr Lay’s evidence.  [paras 91-98].

His Honour ultimately was not satisfied that in the circumstances and at his discretion a Bullock or Sanderson Order ought to be made against the Club.

Reid v Wright [2014] NSWSC 1110

In this matter Greg Walsh acted for Christine Reid who claims damages for professional negligence against her former solicitor, Diane Wright.

The proceedings were commenced by statement of claim filed in the Supreme Court Sydney on 2 August 2013. By Notice of Motion filed 30 June 2014 the Defendant, Diane Wright sought an order that the proceedings be transferred to the Supreme Court of Queensland. The application was brought pursuant to s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987.

The application was heard by McCallum J. McCallum J observed that the principles to be applied in determining an application under the cross-vesting legislation was considered by the High Court in BHP Billiton Ltd v Schultz [2004] HCA 612; (2004) 221 CLR 400.

The Plaintiff retained the Defendant between February 2008 and February 2011 to act for her in respect of a property settlement with her ex-husband. Ms Reid alleges that Ms Wright failed during that time to give advice as to the importance of instituting proceedings promptly and to take steps otherwise to protect her interests. The legal service was to be provided pursuant to the retainer were in the area of family law, which is governed principally by Commonwealth legislation. Ms Wright’s retainer was terminated in February 2011.

After the determination of the retainer a dispute arose as to the payment of Ms Wright’s fees. Ms Wright alleged that Ms Reid initially agreed to pay her fees as assessed in a “short form assessment” but that, after the assessment had been completed, she reneged. That dispute is the subject of the in the Magistrates Court of Queensland.

Her Honour noted the submission made by Mr Sheller on behalf of Ms Reid that there was significant unexplained delay in seeking a transfer. He relied upon r 44.5 of the Uniform Civil Procedure Rules 2005. Mr Curtin SC who appeared on behalf of Ms Wright contended that rules of court ought to be applied with a degree of flexibility.

McCallum J observed that the rule plainly contemplates that parties should ordinarily turn their minds to the issue of cross-vesting as soon as practicable after the commencement of the proceedings. That was not to say that it would be inevitably fatal to the success of a cross-vesting application but nevertheless it is an important matter to be taken into account.

Mr Sheller submitted to Her Honour that a cross-vesting application calls for a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.

McCallum J concluded   in the interests of justice the Supreme Court of New South Wales was the more appropriate court to determine the proceedings.

Turia Pitt and RacingThePlanet

Greg Walsh acted for Turia Pitt who was injured in a fire while competing in an Ultramarathon in the Kimberley region of Australia. Mr Walsh commenced proceedings and the case against RacingThePlanet was resolved on confidential terms satisfactory to both parties. Both parties agreed to make the following joint press release:

Joint Press Release


ABC News – Ultramarathon runner Turia Pitt, burnt during race in Kimberley, WA, reaches multi-million-dollar settlement.

The Guardian – Ultramarathon burns victim Turia Pitt settles with race organiser.

Motor Vehicle Accident – MV as next friend for MM and SM v D

On 4 August 1996 MM was a passenger (in utero) that was driven by her father and had been built, rebuilt and modified as Hot Rod.

The vehicle was being driven on an outer Western Sydney Road and whilst being driven by D in negotiating a right hand bend on the roadway he lost control of the motor vehicle and SM suffered catastrophic injuries.

SM was admitted to WestmeadHospital where she underwent emergency surgery.  She suffered horrific injuries including a brain injury and as a result was rendered totally blind.

MM was delivered by Caesarean Section suffering from Hyaline Membrane Disease, Intraventricular Haemorrhage and associated Hydrocephalus.    These conditions were causally related to her prematurity (25 weeks) and extremely low birth weight (714g).

MM remained as an inpatient at WestmeadHospital from the date of the accident until 14 October 1996.  She suffered from Post-haemorrhagic Hydrocephalus, Periventricular Leukomalacia, chronic lung disease and Retinopathy of prematurity.    Her mother remained in WestmeadHospital for nine months.

MM was eventually discharged into the care of devoted grandmother MV who had the onerous task of not only caring for her catastrophically injured daughter SM, but also her grand-daughter MM.

MV applied herself in an absolutely devoted way to the ongoing care and support of her tragically injured daughter and grand-daughter.

Greg Walsh was instructed to act for SM and MM.  The next friend was MV.  As a result of the devoted efforts of MV and due to intensive rehabilitative treatment SM was eventually able to live with her mother and daughter in the most difficult of circumstances.  Her disabilities were such that she required constant care and ongoing rehabilitative treatment.

MM experienced neurological problems including a blocked shunt.  She underwent operative care by her very experienced and devoted neurosurgeon, Dr Chaseling.

MM suffered from Cerebral Palsy and significant difficulties with her gait.  She was treated by many specialists and gradually improved due to the devoted efforts of these medical and other practitioners.

In time and indeed over many years MM gradually improved.  This no doubt was not only due to the tremendous efforts of her doctors and other specialists but the absolute devotion of her grandmother.

As a result of the complex nature of MM’s injuries and disabilities and despite proceedings being instituted in the Supreme Court relatively shortly after the accident, MM’s matter was not resolved until February 2014.  Thus Greg Walsh in effect had been acting for MM for approximately 16 years.

Although there were complex issues as to causation the matter was eventually resolved for an amount of $4 million plus out of pocket expenses.

AA v BB [2013] NSWSC1956

In this matter Greg Walsh acted for AA in a hearing before Barr AJ in the Supreme Court of NSW.

The Plaintiff is the daughter of the Defendant and CC.  She is now 19 years of age.  The Defendant began sexually interfering with the Plaintiff when she was five and continuing until she was twelve.  Plaintiff sought aggravated and exemplary damages, interest and costs.

The Defendant agreed with the facts pleaded including those relevant to aggravated damages.  He also agreed that exemplary damages were appropriate.

Barr AJ set out the particulars of the assaults pleaded including the effects on the Plaintiff.  His Honour acknowledged that the effects upon the Plaintiff had been profound and in particular noted the impact of the abuse upon the Plaintiff’s capacity to maintain relationships including her sibling and her mother.

His Honour noted the tragic history of the Plaintiff including attempting to kill herself by cutting her throat.  She was saved in emergency surgery but was committed to the care of mental health services.  Since 2011 the Plaintiff has suffered seizures and has descended into coma.

A report of Dr Colette Hourigan was entered as was a lengthy report of Dr Patricia Jungfer.

His Honour awarded the Plaintiff damages as follows:

  • General damages $200,000;
  • Future medical expenses $75,000;
  • Future economic loss $250,000;
  • Aggravated damages $100,000;
  • Exemplary damages $100,000.

Total $725,000.

Simmons v Rockdale City Council

Mr Walsh Acted for a champion cyclist Mr Simmons who lost his leg after colliding with a steel boomgate over one of the city’s most popular cycle routes. Justice Peter Hall awarded Mr Simmons almost $1 million in compensation. Read the full judgment here:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=167394

Young v Young & Anor [2013] NSWSC 330

Read the judgment of Her Honour Adamson J Young v Young & Anor
View story: $3 million victory for ex-wife

Richardson v Laing O’Rourke (BMC) Pty Ltd (2012)

In this matter, Greg Walsh acted for Julian Richardson – a Plaintiff in an action against his employer.

On 13 November 2007, whilst conducting his duties as an employed “Linesman” and working on the Epping to Chatswood rail tunnel, the Plaintiff was struck in his left cheek and left eye by a copper wire. The wire was inadequately fixed to a “D” shackle system and the tension built up in the string line caused it to whip towards the Plaintiff’s face.

The Plaintiff sustained serious injury – virtually complete loss of sight in left eye – and sought damages.

The matter was fixed for hearing in the District Court, Sydney, for two days but was ultimately settled. The Plaintiff received considerable damages pursuant to both the Common Law and the Workers Compensation Act.

 

Wilson v State of NSW [2009] NSWDC

On Wednesday, 25 February 2004, two sheriff’s officers, Mr Davies and Ms Lomas entered the home of Mr and Mrs Wilson at Leonay with a property seizure order relating to unpaid traffic fines owed by Mr Wilson to the State. A conversation occurred between the officers and the Wilsons through a screen door and then an incident occurred in which the Wilsons alleged that Officer Davies assaulted Mr Wilson by kicking the screen door into his face and the Sheriff’s officers failed to leave the premises notwithstanding a clear instruction by Mr Wilson to go. The Sheriff’s officers claimed that Mr Wilson charged out the door and assaulted Officer Davies who then placed Mr Wilson under arrest. Mr Wilson then locked himself inside of the house and the officers left the premises.

The officers went to the street where the police were called. They observed Mr Wilson to emerge from the house and get into his car in the driveway. Officer Davies entered the premises onto the driveway and removed the keys from the car. A physical altercation occurred between the two men during which Officer Lomas came onto the premises and sprayed Mr Wilson with capsicum spray. There was conflict as to what occurred. The Sheriff’s officers claimed that after Officer Davies took the car keys Mr Wilson punched him and then got out and launched a sustained attack on him against which he was forced to defend himself. Mr Wilson claims that he only used such force by way of response as was reasonably required in the circumstances.

Police Officers, sheriff officers and ambulance officers then arrived. Officer Davies and Mr Wilson were taken to hospital in separate ambulances. The sheriff’s officers went into the house and seized and took away certain goods pursuant to the Property Seizure Order. Mrs Wilson claimed that these officers entered the house without her permission.

On Thursday 26 February 2004, Mrs Wilson paid the outstanding traffic fines but was unsuccessful in her attempt to recover the goods from the Sheriff’s Department.

Two days later on Saturday 28 February 2004 Mr and Mrs Wilson attended at the Penrith Police Station where Senior Constable Janovsky and another police officer interviewed Mr Wilson by way of an ERISP. Mr Wilson claimed that soon after his arrival at the station he was arrested and detained in custody for 4 hours and 20 minutes.

Three weeks later, Senior Constable Janovsky instituted criminal charges against Mr Wilson alleging that he assaulted Officer Davies on 25 February 2004. Janovsky pursued and maintained the prosecution notwithstanding a letter from Mr Wilson’s solicitors dated 9 September 2004 seeking withdrawal of the charges. The charges were ultimately heard in the Local Court but were dismissed on 9 November 2004.

Mr Wilson claimed substantial damages including exemplary and punitive damages.

The issue of trespass on initial entry

Judge Johnstone considered the well known authorities of Halliday v Neville (1984) 155 CLR 1 at 6-9 and Lipman v Clendinnen (1932) 46 CLR 550 at 557-8. The defendant’s case was that the Sheriff’s officers had lawfully entered the premises pursuant to a licence implied by law. The plaintiff’s case was that if the permission or licence to enter premises was withdrawn and the entrant then remains on the premises for an unreasonable time, the entry becomes a trespasser: Cowell v Rosehill Race Course Co Ltd (1937) 56 CLR 605.

Johnstone DCJ held that the licence pursuant to which the officers were on the verandah was never withdrawn. Mrs Wilson did not ask the officer’s to leave and at no stage did Mr Wilson identify himself as someone with the apparent authority to revoke the licence. His Honour was comfortably satisfied that Mr Wilson’s immediate and sudden attack left the officer’s no time to withdraw and as such, the Sheriff’s officers did not commit a trespass.

The issue of estoppel

The plaintiff contended that the defendant was estopped from denying that Officers Davies and Lomas were trespassing during the initial entry. This arose from the initial finding by the Magistrate against the plaintiff to the effect that Davies and Lomas were trespassers from the moment they entered the premises.

Johnstone DCJ found that the parties in both sets of proceedings were not identical. His Honour found that there were no allegations in respect of the cause of action against the Crown and the right of the State of New South Wales arising from the actions of Officers Davies and Lomas. Further, that the doctrine of issue estoppel is not applicable to criminal proceedings: R v Storey [1978] HCA 42 at 39; Rogers v The Queen [1994] HCA 42 at 1.

Did Officer Davies assault Mr Wilson during the initial entry?

His Honour was comfortably satisfied that Mr Wilson assaulted Officer Davies in a manner totally disproportionate to the circumstances that arose and as a result of which Officer Davies was entitled to arrest Mr Wilson immediately after the offence.

The second entry by Davies and Lomas

His Honour found that whilst waiting at the car for the arrival of the police, Davies and Lomas saw the plaintiff exiting the front door of the house and proceed down the outside stairs to a BMW car in the lower driveway. Davies called out “Sir, stay where you are you’re under arrest. The Police are on their way.” The plaintiff however proceeded to the car, got in the driver’s seat, placed the keys in the ignition and started the engine. Davies went up to the driver’s door and said, “Stop.” The plaintiff replied “Fuck you”. Davies reached into the car, grabbed the keys, turned the motor off and pulled the keys out and placed them in his pocket. He told the plaintiff that he was under arrest. At this stage, the plaintiff punched Davies in the chest striking him on the left side and knocking him off balance. Lomas moved out of the driveway and moved towards him. She observed the plaintiff to emerge from the car and scream “I’m not under fucking arrest”. Davies moved towards the rear of the car whereupon the plaintiff charged him and punched him on the left cheek, his head jerked back and his upper body turned to the left but he did not fall over. The plaintiff then struck him with a series of further punches to the head and body. Davies managed to grab the plaintiff’s arms and smother his punches and the two struggles for several minutes. Davies punched the plaintiff on the chin and pushed him to the side of the car. The plaintiff kept struggling and trying to punch Davies. Lomas got out her OC spray and sprayed the plaintiff.

Johnstone DCJ found that the second entry by Davies onto the driveway did not constitute a trespass.

The defendant’s contention that Davies and Lomas were entitled to re-enter the land and seize the car keys to prevent the plaintiff from driving onto a public road relied upon the High Court decision of Gorrin v Nugent [1988] HCA 59 per Brennan J at 16. This contention was upheld by Johnstone DCJ.

Did Davies assault the plaintiff during the second entry?

His Honour found that the plaintiff was wrongfully detained and falsely imprisoned when Davies removed the keys from the car. However, that detention was limited to the plaintiff’s driving of the car. That detention was of an extremely short duration until Davies punched the plaintiff, being an excessive response totally disproportionate to the removal of the keys when he arrested Mr Wilson in the car.

Did Davies wrongfully arrest the Plaintiff during the second entry?

Johnstone DCJ found that the Plaintiff’s response was unreasonable and totally disproportionate in the circumstances. He was under no physical threat; his personal safety was not threatened. The plaintiff did not even get out of the car before he punched Davies. His Honour found that the response of the plaintiff justified Davies in defending himself. Thus, the arrest of the Plaintiff during the second entry was not wrongful.

The seizure of the plaintiff’s goods

Johnstone DCJ found that the goods were not wrongfully detained by the Sheriff for the period from 26 February 2004 to 16 March 2004. See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54. His Honour found that neither the plaintiff nor his wife revoked the original licence. The other Sheriff’s officers who entered the property were entitled to go onto the plaintiff’s property for the legitimate purpose of executions of a Property Seizure Order and to make enquiries of the plaintiff’s wife. This was particularly so when the plaintiff denied ownership of the contents of the house.

Events at Penrith Police Station

Johnstone DCJ found that Senior Constable Janovsky did not wrongfully arrest the plaintiff at Penrith Police Station on the evening of Saturday 28 February 2004. His Honour found that the Custody Management Record was a totally unreliable record. His Honour found that the plaintiff attended the Penrith Police Station of his own free will. He was never told he was under arrest. In this regard, the lawyers who drafted the original defence admitted the arrest. Johnstone DCJ allowed the admission to be withdrawn.

Johnstone DCJ came to the view that the Custody Management Record was a totally unreliable record.

His Honour despite the use of the word “arrest” as used by Inspector Bisset when questioning Senior Constable Janovsky to that of Inspector Bisset.

Did Senior Constable Janovsky prosecute Mr Wilson maliciously?

Johnstone DCJ considered A v New South Wales [2007] HCA 10 and Hathaway v State of New South Wales [2009] NSWSC 116.

Johnstone DCJ referred to the state of mind of Senior Constable Janovsky that he Janovsky preferred the version of the Sheriff’s officers than that of the plaintiff. As such, his Honour found that Janovsky formed the honest belief that the officers were lawfully upon the premises and, as such, justifying the prosecution. His Honour rejected the proposition that the proceedings were instigated for the improper purpose of satisfying the will of the Sheriff’s office. Also, his Honour rejected the proposition that the proceedings were instituted to discourage the plaintiff from bringing proceedings against him or the Sheriff’s officers.

Did Officers Davies and Lomas maliciously prosecute Mr Wilson?

Johnstone DCJ found that Davies and Lomas did not maliciously prosecute the Plaintiff as neither Davies nor Lomas were prosecutors.

Section 52 and 54 Civil Liability Act 2002 (NSW)

The defendant relied upon the provisions of ss. 52 and 54 of the Civil Liability Act. The defendant relied upon the plaintiff’s “aggressive, excessive and violent” conduct in response to Officers Davies and Lomas.

The plaintiff contended that these sections have no application because the defendant failed to satisfy the Court that any act of physical force employed by the plaintiff to which Davies and Lomas were responding at any time constituted an action for assault, were more than a necessary consequence of their own condition and behaviour.

Johnstone DCJ found that the defendant was entitled to protection provided for in s52 in respect of the allegations of assault and battery in the plaintiff’s second further amended statement of claim.

Disposition

The matter was adjourned for written submissions in light of his Honour’s findings and in particular as to s54, damages and costs.

On 31 July 2009 Judge Johnstone of the District Court delivered reasons for judgment as to damages arising from his Honour’s judgment on liability handed down 30 April 2009.

His Honour at [24] found that the Plaintiff had not proven any psychological condition suffered by him was caused or materially contributed to by any torturous conduct for which the defendant was responsible.

As such, his Honour made no award of damages to the plaintiff by way of compensation for any injury, loss or damage including any special damages, any damages for loss of earning capacity and any damages for pain and suffering or loss of enjoyment of life in respect of any physical or psychological consequences of the torturous conduct which his Honour found occurred.

His Honour then considered s.54 of the Civil Liability Act upon which the Defendant relied in answer to the whole of the Plaintiff’s claim.

  1. A Court is not to award damages in respect of liability to which this Part applies if the Court is satisfied that:
    1. the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and
    2. that conduct contributed materially to the death, jury or damage or to the risk of death, injury or damage.
  2. This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).
  3. A “serious offence” is an offence punishable by imprisonment for 6 months or more.
  4. This section does not affect the operation of the Felons (Civil Proceedings) Act 1981.
  5. This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.

His Honour observed that s.54 of the Act does not concern the liability of the defendant but is directed against an award of damages rather than the existence of a liability. It is for the defendant to establish the matters in the sub paragraphs of s.54(1). Evidential Security Services of Australia v Brilley [2008] NSWCA 204 at [124].

His Honour found at [31] that the evidence was insufficient for the Court to be satisfied what matters materially contributed to the plaintiff’s injury or damage let alone that his conduct did so, and if so, what the conduct was, when it occurred and whether it constituted a serious offence. See Fangak v Baxter [2000] NSWCA 264 at [84].

Ex-turpi causa non actio

The defendant contended that the plaintiff was disentitled for recovery of any damages by reasonable operation of the principle of ex-turpi causa non actio, such that his own lawful conduct precludes recovery. This contention relied upon a number of findings of His Honour as to liability.

His Honour observed that the principle of ex-turpi causa non actio was never pleaded. The defendant contended that it was not required to plead reliance upon the principle. His Honour observed that whether or not it should have been pleaded, clearly the plaintiff could not complain that he was taken by surprise.

His Honour observed at [35] it could not have been an intentional parliament to replace the common law principles in the area and as such s.54 of the Civil Liability Act did not replace the doctrine.

The defendant relied upon the assault of Officer Davies by the plaintiff on his verandah and his subsequent resistance and avoidance of the attempted arrest by Officer Davies in giving rise to the precise conduct relied upon. That is the only unlawful conduct on the plaintiff’s part that preceded the torturous conduct of Officer Davies in the second entry onto the plaintiff’s premises.

His Honour at [40] found that the conduct of the plaintiff on the verandah was sufficiently serious or sufficiently proximate to the torturous conduct of Officer Davies in the driveway to preclude the recovery of damages.

His Honour awarded the plaintiff general damages of $15,000. His Honour also awarded the Defendant to pay the Plaintiff’s costs on an indemnity basis.