Barbara Alicja Mulcahy v Robert Brian Cooper

[2014] HCASL 59

BARBARA ALICJA MULCAHY

v

ROBERT BRIAN COOPER

[2014] HCASL 59
S141/2013

1. The respondent brought proceedings in the Supreme Court of New South Wales (Macready AsJ) under the Property (Relationships) Act 1984 (NSW) seeking a division of property as between himself and the applicant. The applicant brought a cross-claim alleging that she had been assaulted by the respondent on occasions during their relationship for which assaults she sought damages, including aggravated and exemplary damages. The respondent contended that these causes of action were statute-barred[1].

   [1]Limitation Act 1969 (NSW), s 52 ("the Limitations Act").

2. The primary judge found that the respondent had assaulted the applicant on five occasions in the period May 1993 to 2007.  On two occasions the assault was accompanied by a battery.  His Honour rejected the Limitations Act defence, finding that the applicant had been under a disability from shortly after the events in 1993 until shortly after the commencement of the proceedings in August 2008[2].  His Honour gave judgment on the cross-claim in the sum of $480,408.00. 

   [2]Cooper v Mulcahy [2012] NSWSC 373 at [271].

3. The respondent appealed to the Court of Appeal of the Supreme Court of New South Wales (Basten, Meagher and Hoeben JJA).  The Court of Appeal set aside the applicant's judgment.  It held that the primary judge erred in finding that the applicant was under a disability such as to defeat the Limitations Act defence.  The primary judge based his finding upon acceptance of Dr Fisher's opinion that the applicant had been suffering from a mixed anxiety depressive syndrome induced by the respondent's stress-producing verbal and physical abuse.  The Court of Appeal was critical of the primary judge's failure to analyse conflicts in the expert evidence.  The Court of Appeal found that assumptions made by Dr Fisher were not supported by the evidence.  It concluded that it had not been open to the primary judge to find that the applicant was under a disability[3].

   [3]Cooper v Mulcahy [2013] NSWCA 160 at [119].

4. The applicant applies for special leave to appeal.  She acknowledges that her application does not raise a question of law of public importance.  Nonetheless, she submits that special leave should be granted for the "correction of an injustice", contending that the Court of Appeal erred when it "overturned findings which were based upon the considered and reasoned, demeanour-based credibility conclusions of an experienced trial judge".

5. Contrary to the applicant's argument, the interests of the administration of justice do not favour the grant of special leave.  The Court of Appeal's conclusion that the primary judge erred in his treatment of the expert evidence was open.  The applicant does not enjoy sufficient prospects of success to warrant a grant of special leave.

6. The application is dismissed.

7. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
12 March 2014 S.J. Gageler