Bray v Davey (Civil Dispute)
[2013] ACAT 69
•15 October 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BRAY v DAVEY (Civil Dispute) [2013] ACAT 69
XD 12/1505
Catchwords: CIVIL DISPUTE – claim to recover goods or their value – whether the respondent had possession of items or wrongfully converted them – counterclaim: damages for tort of assault – the standard of proof
Legislation:ACT Civil and Administrative Tribunal Act 2008. s.16
Tribunal: Mr. C. Chenoweth – Senior Member
Date of Orders: 15 October 2013
Date of Reasons for Decision: 15 October 2013
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL XD 12/1505
BETWEEN:
MARTIN BRAY
Applicant
AND:
JOHN PATRICK DAVEY
Respondent
TRIBUNAL: Mr. C. Chenoweth – Senior Member
DATE:15 October 2013
ORDER
The Tribunal Orders that:
1. The originating application is dismissed.
2. The respondent’s counter claim is dismissed.
………………………………..
Mr. C. Chenoweth – Senior Member
REASONS FOR DECISION
This is an application instituted under part four of the ACT Civil and Administrative Tribunal Act 2008 ("ACAT Act") commenced on 26 September 2012. The application was that the respondent "make the property listed in attachment 1 available for collection by Jonathan Bray, or, if the goods are no longer available, pay Martin Bray reasonable compensation for the value of the goods, taking into account commercial and sentimental value." A list of items, 11 in all, was attached to the application. The applicant listed valuations of those items made by his brother Eric. While the valuation of the individual items amounted to $9700, the applicant also claimed for the costs of the application and the costs incurred by detention of the goods after the applicant attempted to collect them. The application provided that any excess of the claim over $10,000 was abandoned.
Difficulties arose with service of the application on the respondent. An application was made for substituted service, and that application was granted by order of the tribunal made on 14 March 2013.
On 10 April 2013, the applicant applied for a default judgement against the respondent. The default judgement was granted on 15 April 2013.
On 27 April 2013, the respondent sought to have the default judgement set aside on the grounds set out in the application.
The respondent filed a response on 5 June 2013. In that response, he disputed the jurisdiction of the tribunal to deal with the matter, contested the standing of the applicant to bring the claim, claimed that Mr Eric Bray had abandoned the property the subject of the application in 2009, disputed whether the tribunal had jurisdiction to deal with a claim for property that was the subject of a dispute arising from the dissolution of a personal relationship, disputed that the respondent had failed or refused to hand over the items to the applicant, and raised several other matters and contested the valuations provided as lacking evidentiary justification.
The respondent also filed a counterclaim for the sum of $10,000, claiming damages for assault and trespass on the part of the applicant. The details of the claim, as set out in the material provided by the applicant, are as follows. The applicant acknowledged that he went to the respondent’s office to recover a painting. The applicant said that in the course of recovering the painting,
"against his wishes, I pushed past Mr Davey into the middle of his foyer area and retrieved a painting of my grandfather’s albeit with slight damage."
On 12 June 2013, the tribunal granted the application to set aside the default judgement. That order noted that the respondent waived any service irregularity, and ordered the respondent to file a response within 14 days. The order also restrained the respondent to the extent possible from dealing with, or causing others to deal with, the items the subject of the application.
On 11 July 2013, the applicant submitted a letter to the tribunal amending the original claim to reduce the value claimed for the goods themselves to the sum of $3300, claiming an amount of damages sought for detention of the goods of $3220 and the tribunal's filing fee of $127. The amount of the claim was thereby reduced to $6647. The letter indicated that a number of items the subject of the original application had been recovered by the applicant from a Mr Davis, who had custody of the goods and had stored them. In this letter, the applicant added to his claim with amounts for reimbursement of accommodation and meals and for fuel for the trip from Adelaide.
On 16 July, the applicant filed with the tribunal copies of an extensive amount of material that the applicant had lodged with the Law Society of the Australian Capital Territory, claiming that the respondent had been guilty of unsatisfactory professional conduct. Included in that material was a letter from the respondent to the Professional Standards Director of the Law Society, responding in detail to the complaint and also alleging that the applicant had assaulted the respondent.
The matter came before the registrar of the tribunal on 17 July 2013, but no settlement was achieved. The matter was adjourned to 21 August 2013 for hearing on the issues of standing and jurisdiction. That order was amended by an order of 6 August 2013, which also set out detailed orders as to the material that the parties will need to submit to the tribunal. Further material was provided by the applicant on 9 August 2013, including a letter from the Law Society, indicating that they had dismissed the allegation of misconduct against the respondent arising from the complaint by the applicant.
On 27 August 2013, the matter was heard before Appeal President
Mr W G Stefaniak. Mr Stefaniak determined that the applicant had standing in the matter and that the tribunal had jurisdiction. The matter was set down for hearing on 8 October 2013. The order of 27 August 2013 noted that the claim now only related to six of the items originally claimed in the application, with a value of $3300. Consequential orders were made to facilitate the hearing.
On 8 October 2013, the respondent contacted the tribunal to request that he appear by telephone. Due to his impecunious state he had no means of travelling to Canberra. The respondent also submitted that he was incapacitated from appearing due to a medical condition. The medical certificate attesting to this was provided. At the hearing, I asked the respondent whether in the light of his medical certificate he was able to represent himself that day, and he agreed that he was. The applicant had previously indicated that he would appear by telephone due to the difficulty of travelling to Canberra. The person that he had previously nominated as a representative was not available on the day.
It is necessary to recount some of the history of this matter. The respondent and Mr Eric Bray ("Eric") had lived together in a personal relationship in a property in Weston, ACT, for about 10 years. The property was in the name of Eric, but the respondent asserted that he had contributed substantially to the cost of the property and its upkeep. He also asserted that he had provided substantial living expenses to Eric over a period of time when Eric was unable to provide for himself. It does not appear to be in dispute that the items the subject of the application were kept at the house, and, presumably, used by both the respondent and Eric.
The respondent and Eric ceased their relationship, it appears, with considerable acrimony. Eric left the house and, as a result of unpaid mortgages and other financial pressure, the house was sold. The personal property in the house, which may or may not have included the goods the subject of the amended application, were placed in a storage unit.
On 20 October 2009, the respondent sent an e-mail to Malcolm Bray, the father of both the applicant, and Eric. In that e-mail, he set out the circumstances of the breakup of the relationship between himself and Eric, and that the house was going to have to be sold to meet the liabilities owing by Eric. He also said as follows:
"Any of yours and Bev's belongings will be carefully packed and stored for a period of three months until your family decides what you want done with it.”
It appears that the items of Eric, together with some items of the respondent, were stored in some form of storage facility of a Mr Davis. It is not clear who was responsible for paying the costs of such storage. However, in the e-mail of 2009 referred to in the preceding paragraph, and also in an e-mail sent by the respondent after receiving one from Eric on 27 July 2011, the respondent stated:
"Selling of “Bray family assets" is a waste of time and will not net much. There are things of your mothers which should not be sold. I do not have the time or the inclination to hold a jumble sale. I will continue to hold such things "on trust" as I have done since you departed Canberra two years ago."
The applicant made a complaint to the Law Society of the ACT against the conduct of the respondent, who is a solicitor. That allegation included, amongst other matters, that the respondent had refused to hand over to the applicant the items which were referred to as the "Bray family assets". That letter referred to attempts that the applicant made to recover the assets, to allegations of what the respondent had said in response to those claims, and to the serious interpersonal difficulties which had arisen between the applicant and the respondent.
Ultimately, The complaint was dismissed by the Law Society on 3 June 2013.
The applicant sought to make arrangements to come to Canberra to try and recover the items in dispute, but the respondent was not cooperative in facilitating such a meeting. Ultimately, the applicant went to the business premises of the respondent and recovered one painting (the ownership of which does not seem to be in dispute), which gave rise to the counter claim for damages for assault.
The respondent was increasingly unwilling to answer telephone calls or deal with the applicant, and he obtained an interim personal protection order against the respondent, presumably on the basis of harassment. There is nothing in the material before me, which indicates that there was any form of personal threat or violence offered by the applicant to the respondent.
On 18 May 2013, the applicant together with Ms Wendy Bray obtained an amended personal protection order from the ACT Magistrates Court, which allowed the applicant to recover from the respondent the assets claimed by him. Notwithstanding the terms of the order, on 19 May 2013 when the police sought to serve the order on the respondent, he allegedly avoided service.
Ultimately, when served with the order, the respondent disputed ownership of the property the subject of this application.
At the hearing of the matter on 8 October 2013, both parties appeared by telephone. The respondent denied that he had the items the subject of the amended application, or that he had wrongfully dealt with them. He was unable to provide any information about what had happened to the items following the packing up of the house and the lodging of the items together with other things in storage. He emphasised the fact that he had given Malcolm notice of what was happening in 2009, and that it was now some years later when the family were seeking to impose liability on him for the loss of those items. He was no longer in Canberra, and had no knowledge of them. He had also lost items that were supposed to have been in storage, and was unaware of their location.
The applicant asserted that as the respondent had originally packed up the items and lodged them in storage, he must be aware of what had happened to them. It was asserted that the applicant must have removed them to Melbourne when he went to live there, or had otherwise disposed of them.
There is no way in which these two versions of events can be reconciled and it is of course very difficult to make assessments of credibility when both parties are appearing by telephone and the tribunal cannot see the parties in person. Notwithstanding this, the tribunal must make a determination as to whether the applicant’s claim is made out to be required level of proof – that is, the civil standard of the balance of probabilities.
One can understand the concern of the applicant to recover items of personal and family significance, as these appear to be. However, the e-mail evidence produced by the applicant indicates that at least at in 2009, and again in 2011, the respondent did indicate that he had control over certain assets regarded as the "Bray family assets" and that he was in some sense looking after them.
While it appears that the applicant did attempt to recover the items from the respondent and there was apparently some acknowledgement that the respondent had control of them at some stage, the respondent asserts vigorously that he no longer has them and does not know where the items are. They may have been lodged and lost in storage, they may have been kept by the respondent or they may have been lost in the general difficulty following the breakdown of the relationship and the move of the respondent to Melbourne. None of this is clear.
In a claim of this nature, it is incumbent upon the applicant to satisfy me on the balance of probabilities that the respondent either has possession of the items claimed or has unlawfully dealt with them in a way that wrongfully deprives the applicant of their use and enjoyment. The respondent maintains that the "chain of ownership" is not sufficient to indicate that the applicant has sufficient title or standing to bring the claim for recovery of the items. That issue has been determined by the earlier hearing of 27 August 2013.
Accepting (as I do) that the applicant has the standing to bring this claim and that the tribunal has jurisdiction, the difficulty remains for the applicant that he must satisfy me on the balance of probabilities that the respondent either has the items, or has wrongfully dealt with them. There are circumstances to which the applicant points that raise concerns in my mind about the way in which the respondent has conducted himself in this matter, but those concerns do not amount to evidence that will support a finding on the balance of probabilities that he either has the items the subject of the application, or that he has improperly dealt with or converted them. All of the evidence from the applicant in this troubled matter does not go that far.
As the applicant has failed to discharge the burden of proof imposed upon him, this claim is dismissed.
There was a counter claim raised by the respondent against the applicant. The respondent maintained that the applicant and Ms Wendy Bray had attended without an appointment at the respondent’s office, and had removed the painting that the applicant identified as part of the “Bray family assets." This action of itself is not disputed by the applicant. The respondent claims that in the course of doing this, the applicant pushed past the respondent in a way that constituted an assault. The respondent was seeking damages from the tribunal for this alleged assault, on the basis that it was a tort and therefore within the jurisdiction of the tribunal under section 16 (b) of the ACAT Act. The damages would arise because of the assault constituting the tort, and the respondent conceded that the amount of the damages would be in the jurisdiction and discretion of the tribunal.
While it may be that such an application could be made out in circumstances where the tribunal was satisfied that there had been a criminal act, in the present case, I cannot be so satisfied. In my opinion, as the allegation founding the damages application is one of criminal conduct, I would need to be satisfied beyond reasonable doubt that an assault had occurred. Essential to such a finding as this is that there was an element of deliberate or guilty intent to assault, on the part of the applicant towards the respondent. Wendy Bray in her statutory declaration of 2 September 2013 indicates that the applicant pushed past the respondent in order to retrieve the painting. She describes the action as "like someone pushing past people to exit a crowded train or lift."
Nothing in the material filed in the tribunal or in the comments of the parties at the hearing could satisfy me to the required degree that there was an intention by the applicant to assault the respondent. It appears that the actions of the applicant were no more than to move forward past the respondent to recover a piece of property which the respondent does not seem to dispute was the property of the applicant. Pushing past someone in a crowded lift or carriage may be rude and cause some discomfort, but it cannot of itself amount to assault without the necessary criminal intent. I am not satisfied to the required degree that the applicant had such intent and therefore the claim of the respondent to damages for the tort of assault must fail.
The order of the tribunal on the original application, as varied, is that the application of the applicant be dismissed. The tribunal also orders that the application by the respondent for damages against the applicant be dismissed.
………………………………..
Mr. C. Chenoweth – Senior Member
PUBLICATION DETAILS
FILE NUMBER: | XD 12 / 1505 |
PARTIES, APPLICANT: | Martin Bray |
PARTIES, RESPONDENT: | John Patrick Davey |
REPRESENTATIVE FOR APPLICANT | Jonathan Bray |
REPRESENTATIVE FOR RESPONDENT | Self Represented |
TRIBUNAL MEMBERS: | Mr. C. Chenoweth |
DATES OF HEARING: | 8 October 2013 |
PLACE OF HEARING: | ACAT, Canberra |
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