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

1. 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.

2. 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.

3. 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.

4. 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 to the defendant, Mr B, who is self‑represented in the principal proceedings, and from her affidavit I am also satisfied that he has acknowledged the existence of the freezing orders, the nature of them, and their legal effect. I am satisfied of that because he spoke to her about whether he could take steps to have the order dissolved, or whether he could make an application to the Court to have certain property excluded. While Ms Hackett appropriately declined to give the defendant any advice, his conversation with her clearly indicates to me that he is aware of the nature and extent of the freezing order.

5. In his judgment, Wright J set out the principles of law that govern the Court's power to make a freezing order and the exercise of that power. I do not propose to cover the same ground. I am, with respect, content to say that his Honour has accurately set out the relevant considerations the Court applies when making an asset preservation order under r 25.11 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), and indeed as a manifestation of the Court's inherent powers. I wish to record that I have been greatly assisted in that regard by the helpful and succinct written submissions of Mr Li of counsel.

The plaintiff’s case

6. The nature of the plaintiff's case is straightforward.  She is claiming principally a psychiatric injury inflicted upon her by the defendant through his grooming of her for child sexual abuse and the abuse itself which occurred between the ages of 9 and 16 years of age when the defendant was in a de facto domestic relationship with the plaintiff's mother. The plaintiff’s case is supported by the psychiatric opinion of Associate Professor Michael Robertson, who examined the plaintiff on 6 December 2021 and has provided a report in which he expresses the opinion that she has suffered a complex Post‑Traumatic Stress Disorder with the comorbidity of a Depressive Disorder as a consequence of the child sexual abuse to which she was subjected. Her account, in her affidavit, is credible and as I have said, her claim for damages is supported by that expert evidence. I am well satisfied that the applicant does have more than a good arguable case on her cause of action for personal or psychiatric injury.

Risk of dissipation of assets

7. I am also satisfied that in all the circumstances established by the evidence that there is a danger that the prospective judgment debt will be wholly or partially unsatisfied because of actions taken by the defendant to divest himself of assets — to use the vernacular expression — to make himself judgment proof. In that event, r 25.14 UCPR is also satisfied. I am also satisfied from the additional evidence that has been read that the danger that Wright J found existed, having regard to statements made by the defendant, which Wright J was satisfied were sufficiently proved for that purpose, has been enhanced, if I can put it that way, by the consideration that one of the properties which the defendant owns, in an apparently unencumbered fashion, at Yetholme in New South Wales, has been put on the market with an expectation of about $875,000.

8. From the second affidavit of Ms Hackett, I am satisfied that due to her intervention with the agents, the property has been removed from the market. However, it remains a strong indication that the defendant does have in mind, if he can, rendering himself judgment proof.

9. I accept Mr Li's submission that the consideration that the property has been withdrawn from the market for now is but cold comfort.  There are, of course, many real estate agents in New South Wales, including, I have no doubt, in Bathurst or the surrounding region.

10. I have also formed the impression that Mr B's non‑appearance may be part of a deliberate strategy to evade the Court's jurisdiction. Reading Ms Hackett's affidavit, I was left with the impression that he was somewhat disingenuous in his claims that he was ignorant of these interlocutory proceedings, and of the orders that had been made. I appreciate in making that observation that he has not been here to answer the application, but I am satisfied that is a matter of his deliberate choice. That attitude, as described in Ms Hackett's evidence, also enhances the strong impression I have formed that Mr B is intent on seeking to render himself judgment proof. The danger that Wright J identified only seems to have increased in the interim. I am satisfied that the plaintiff has a good arguable case, and I am satisfied that there is a relevant danger that the prospective judgment will go unsatisfied because of the defendant's deliberate conduct.

Discretionary considerations

11. That being so, it remains for me as a matter of discretion to determine whether it is in the interests of justice to continue the freezing order in accordance with Mr Li's application.  In that regard I have borne in mind that the plaintiff through her counsel has proffered the usual undertaking as to damages. I have also considered the balance of convenience.  It is often said, as Wright J observed, that notwithstanding the undoubted existence of the power, the jurisdiction is one to be exercised with a high degree of caution. However, the matters to which I have referred suggest that if the Court were to stay its hand, there is a very real risk that if the plaintiff makes her case good at trial, she will go uncompensated, and in that regard, bearing in mind the extent of the defendant's property as established by the evidence, the balance of convenience, to my mind, strongly favours making the order to not only protect the legitimate interest of the plaintiff, but to ensure that the interests of justice and the administration of justice are not defeated by any ill‑advised conduct of the defendant.

12. For those reasons, I propose to make an order continuing the freezing order until further order.

Orders

13. My orders are:

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.

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Amendments

16 December 2024 - Amendments to Case Name to APC v Mr B

Amendments in paragraphs 4 and 10 to reflect the name change to Mr B.

Amendments made in compliance with the orders of Schmidt AJ made on 13 December 2024.

Decision last updated: 16 December 2024