APC v Raymond Gordon Pemberton - [2023] NSWSC 988

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: APC v Mr B [2023] NSWSC 988
Hearing dates: 18 August 2023
Date of orders: 18 August 2023
Decision date: 18 August 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) The freezing order made by Wright J on 4 August 2023 is continued until further order of the Court.
(2) The plaintiff's costs of this application are her costs in the cause.
(3) Liberty for the plaintiff to apply in respect of any further or additional order in relation to service on the defendant.

Catchwords:
CIVIL PROCEDURE — freezing orders — application to extend interim freezing orders until further orders of the court — satisfied that the defendant was served with the application and interim freezing orders — defendant listed one of his properties for sale — steps taken by the defendant suggesting he is attempting to make himself ‘judgment proof’ — defendant was in a de-facto relationship with the plaintiff’s mother — plaintiff alleges that the defendant sexually abused her whilst she was between ages 9 and 16 — plaintiff has more than a good arguable case — risk if plaintiff establishes her case she will no uncompensated — application for extension of freezing order acceded to

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 25.11

Category: Procedural rulings
Parties: APC (Plaintiff/Applicant)
Mr B (Defendant/Respondent)
Representation:
Counsel:
J Li (Plaintiff/Applicant)
No appearance (Defendant/Respondent)
Solicitors:
Shine Lawyers (Plaintiff/Applicant)

File Number(s): 2022/302110
Publication restriction: Case name has been amended to in compliance with the orders of Schmidt AJ made on 13 December 2024

EX TEMPORE JUDGMENT (REVISED) – EX PARTE

Background and previous orders

I have anonymised the plaintiff’s name in obedience to the provisions of s 15A Children (Criminal Proceedings) Act 1987 (NSW). While she has obtained her majority there is no evidence she has consented to being identified.
I am dealing with an application to continue, until further order, a freezing order made by Wright J on an interim basis on 4 August 2023. The orders were continued by Lonergan J on 11 August 2023 until today.
Wright J thought it appropriate in the circumstances established before him to proceed ex parte. When the matter came before Lonergan J on 11 August 2023, her Honour made further directions for additional steps to be taken to bring the matter to the attention of the defendant. I have already indicated this morning in the short judgment I gave when the matter was called on for hearing, that having read the second affidavit of Ms Hackett (affirmed 17 August 2023), the plaintiff's solicitor, I am satisfied that the directions made by Lonergan J have been complied with.
I am also satisfied that the defendant has received actual notice of the freezing order made by Wright J, and of the listing for further hearing today before me. I will not go over that ground. I should say, however, that from Ms Hackett's second affidavit, I am satisfied that she has spoken…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading APC v Raymond Gordon Pemberton

Details

AGLC: APC v Raymond Gordon Pemberton [2023] NSWSC 988
Case: [2023] NSWSC 988
Decision Date: 18 August 2023

CaseChat Overview and Summary

In the case of APC v Raymond Gordon Pemberton, the applicant, APC, sought an extension of interim freezing orders that were already in place. The orders had been made to prevent the defendant from disposing of his assets. The matter was heard in the Federal Circuit Court of Australia. The applicant alleged that the defendant, Raymond Gordon Pemberton, had sexually abused her while she was a child. The applicant further alleged that the defendant was in a de facto relationship with her mother at the time of the abuse.

The court was required to determine whether the interim freezing orders should be extended to prevent the defendant from disposing of his assets. The court considered whether the applicant had a strong case that was likely to succeed at trial and whether the defendant had taken steps that suggested he was attempting to make himself "judgment proof." The court needed to assess the risk that if the applicant's case was successful, she would be left uncompensated.

The court found that the applicant had more than a good arguable case and that the defendant had taken steps that suggested he was attempting to make himself "judgment proof" by listing one of his properties for sale. The court was satisfied that the defendant had been served with the application and the interim freezing orders. The court concluded that there was a real risk that if the applicant's case was successful, she would be left uncompensated. Accordingly, the court acceded to the application for an extension of the freezing order.

Orders