Davis v Viglianti, in the matter of Viglianti
[2024] FedCFamC2G 505
•7 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Davis v Viglianti, in the matter of Viglianti [2024] FedCFamC2G 505
File number(s): SYG 866 of 2023 Judgment of: JUDGE CAMERON Date of judgment: 7 June 2024 Catchwords: BANKRUPTCY – Creditor’s petition – Based on judgment debt – Application to go behind judgment – Relevant considerations. Legislation: Bankruptcy Act 1966 (Cth), s 30
Civil Liability Act 2005 (NSW), s 3B
Cases cited: Davis v Viglianti [2017] NSWDC 452
Davis v Viglianti (No 2) [2018] NSWDC 413
Wolff v Donovan (1991) 29 FCR 480
Katter v Melhem (No 2) [2014] FCA 1176
Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132
Corney v Brien (1951) 84 CLR 343
Petrie v Redmond [1943] St R Qd 71
Hutchins v Maughan [1947] VLR 131
Carter v Walker (2010) 32 VR 1
Stolfa v Owners Strata Plan 4366 [2009] NSWSC 589
In re Fraser; Ex parte Central Bank of London [1892] 2 QB 633
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 4 April 2024, 1 May 2024 Place: Sydney Counsel for the Applicant: Mr D. Edney Solicitor for the Applicant: ICL Lawyers Counsel for the Respondent: Mr J. Polese Solicitor for the Respondent: GP Legal ORDERS
SYG 866 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF GIANGCARLO JOSEPH VIGLIANTI (ALSO KNOWN AS GIANCARLO JOSEPH VIGLIANTI)
BETWEEN: ADAM DAVIS
Applicant
AND: GIANGCARLO JOSEPH VIGLIANTI (ALSO KNOWN AS GIANCARLO JOSEPH VIGLIANTI)
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1.The creditor’s petition be listed for hearing before a registrar on a date to be fixed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
On 23 June 2016 the applicant, Adam Davis, brought proceedings in the District Court of New South Wales against the respondent, Giancarlo Viglianti, (DC Proceeding) seeking damages for assault and battery and alternatively for negligence in relation to injuries he had suffered in the course of his duties as a police officer while attending Mr Viglianti’s home in the early hours of 28 June 2013. On 15 December 2017, judgment on those claims was given for Mr Davis: Davis v Viglianti [2017] NSWDC 452 (First Judgment). On 20 December 2018 Gibson DCJ delivered a further judgment which dealt with pre-judgment interest and costs: Davis v Viglianti (No 2) [2018] NSWDC 413 (Second Judgment). Relevantly, the Second Judgment updated the damages originally awarded to Mr Davis to $501,989 to include an amount for interest (Judgment Debt). The damages awarded included sums of $80,000 for general damages and $20,000 for aggravated damages.
Mr Viglianti was also convicted by a magistrate of:
…
(b) permit trap to be set/placed with intention to inflict grievous bodily harm …
(c) reckless grievous bodily harm …
On 29 May 2023 Mr Davis commenced this proceeding by filing a creditor’s petition seeking the sequestration of Mr Viglianti’s estate on the basis that Mr Viglianti had failed to comply with a bankruptcy notice served on him on 8 April 2023 (Bankruptcy Notice). The Bankruptcy Notice required him to satisfy the Judgment Debt and accrued post-judgment interest.
On 10 August 2023 Mr Viglianti filed a notice of grounds of opposition to the creditor’s petition relevantly alleging that:
1.The debt is not true and owing;
2.There are substantial reasons for the Court to go behind the judgment, namely that there has been a miscarriage of justice;
3.There is other sufficient cause or reason as to why the court should decline to make the order.
Mr Viglianti’s case involved an invitation to the Court to exercise its discretion to go behind the DC Judgment. These reasons concern that issue.
BACKGROUND MATTERS
A history of the events leading to the commencement of the DC Proceeding was provided in the Second Judgment at [1] as follows:
The plaintiff, a police officer, suffered significant injuries to his right hand when he attended the defendant’s premises in the course of his police duties. He and other officers had been called to the defendant’s home because of texts he had sent to his former girlfriend, who was residing in the same building, which suggested self-harm. The plaintiff did not reply to knocks and calls at his front door. It was late at night, but from the street police could see a light in the living room which revealed a rope of [sic] cord dangling from the ceiling. The plaintiff was directed by his superior officer to climb a ladder to look into the room where the rope or cord was hanging. As he did so, the plaintiff rested his open hand on the window sill to steady himself. In the course of so doing, he came into contact with a series of razorblades that had been set into the window sill using Blu-Tack. The plaintiff’s injuries required him to be immediately conveyed to Auburn Hospital where he underwent surgery.
First Judgment Findings
In the First Judgment, Gibson DCJ made the following findings:
(a)Mr Viglianti knew the window of his unit had been installed with a razor blade trap;
(b)Mr Viglianti was liable for intentional battery on the basis that he had set the trap and intended that police officers or any other person trying to enter the unit be injured;
(c)in the alternative, Mr Viglianti was liable in negligence on the basis that as the owner and occupier of the unit, it was negligent to permit the unit to have such a dangerous trap installed.
As far as the Court is aware, Mr Viglianti has not appealed the orders made in the DC Proceeding.
GROUNDS OF THE PRESENT APPLICATION
In an amended outline of written submissions filed on 11 April 2024, Mr Viglianti submitted that this Court should go behind the District Court’s judgment that he was liable to Mr Davis for assault and battery, and alternatively in negligence, because deficiencies in the First Judgment meant that he had suffered a substantial miscarriage of justice. He argued in that connection:
(a)The Court’s discretion to “go behind” the Judgment should be exercised because there is or has been a prima facie case made out, or substantial reasons shown to go behind the judgment or substantial miscarriage of justice:
i. Namely, in relation to the decision itself;
1.The Decision respectfully contains errors of fact, law, and findings based on insufficient or a misunderstanding of the evidence, such that the Decision is “so questionable as to give rise to substantial reason to doubt the judgment debt”;
2.Respectfully, one of the significant errors of law was the application of directness, without proper consideration for consequential damage nor immediacy, and no consideration of the entire circumstances.
3.Respectfully, a further significant error of law was the reliance placed on the summary of evidence and findings of fact in criminal proceedings;
4.The Decision is, in some respects, self-contradictory.
5.The Decision maker had determined the Respondent’s conduct as 'reckless’, therefore falling under the parameters of the Civil Liability Act;
6.Otherwise, had made an error of law for failing to the issue of whether a finding of recklessness would trigger the provisions within the CLA and thus causing substantial detriment to the Defendant’s case;
7.If the decision was correct (which is denied) in so awarding damages, the “alternative damages” should have been applied and thus reduce the award of damages by a further $100,000.00;
8.The assessment and consideration of damages lacked proper consideration and reasoning. In fact, there was no reasoning nor consideration at all or there was not adequate reasoning, in relation to general damages, aggravated damages, repayment of workers compensation payments (which was also unavailable to the Defendant, further reducing the claim by $42,089), early retirement (which was not assessed nor properly addressed) and past and future domestic assistance.
9.The Defendant was not the proper Defendant and the onus placed by the Decision, where the Defendant “should have removed the blades”, was an onus unreasonably placed upon him when he was not the owner nor responsible for the common property on the outside of the windows.
10.In circumstances where the Defendant’s position put forward in the ERISP [Electronically Recorded Interview with Suspected Person] was barely considered, and in other the sense, was heavily relied upon in favouring the Plaintiff’s position, the ERISP was not admissible because:
a.Was not given opportunity to decline questions nor have a lawyer present;
b.Was induced by police intimidation and should have been excluded by virtue of s 84 Evidence Act;
c.Admissions which were detrimental and prejudicial to the Defendant’s case were present and should have been excluded;
11.Further the Decision maker prejudged whether an objection could be made to the ERISP.
12.The Respondent was not afforded procedural fairness nor natural justice.
(particulars and references omitted)
It was also submitted that:
b)There was intentional and noticeable intimidation of uniformed police officers present in Court to which the Defendant had to give evidence in those circumstances where he was fearful and intimidated;
c)The adequacy, competence and effectiveness of both his solicitors and counsel were poor and this would have been a successful point on appeal …
d) The Court may infer that given the Respondent’s mental state (and further Dr Nielssen’s opinion that the Respondent would not have been able to properly instruct his lawyers during the district court proceedings), the ineffectiveness of his representatives, the fact that his father paid for the home (and is the beneficial owner), pays for all his expenses (questioning his financial capabilities), intimidation by the police and the freezing order on the property, that the Defendant was at a severe disadvantage and not afforded natural justice and would not have had the ability to appeal, which is of itself is submitted that the Court should find a miscarriage of justice.
e) The Plaintiff failed in proving that there was in fact “a rope” despite the Defendant’s clear evidence that it was a chord from renovations. The Decision maker accepted a mere proposition without any evidence to support it and the entire decision is based on there being a rope which caused a “immediate concern that the Defendant would self-harm.
(particulars and references omitted)
LEGISLATION
Section 30 of the Bankruptcy Act 1966 (Cth) (Act) relevantly provides as follows:
30 General powers of Courts in bankruptcy
(1) The Court:
(a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and
(b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.
…
At the time of the injury the subject of the DC Proceeding, the Civil Liability Act 2005 (NSW) relevantly provided:
3BCivil liability excluded from Act
(1)The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:
(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death …
AUTHORITIES
In Wolff v Donovan (1991) 29 FCR 480 Lee and Hill J said at 486:
If a party seeks to have the judge in bankruptcy decide as a preliminary question whether reason is shown for questioning whether behind the judgment there is really a debt, before proceeding to determine the issue as to whether there was in truth a real debt, the party should request the judge to rule that such a procedure be adopted.
In Katter v Melhem (No 2) [2014] FCA 1176 Wigney J relevantly said at [72]:
… if the judgment in question followed a full investigation at a trial at which both parties appeared, the Court will not reopen the matter unless a prima facie case of fraud or collusion or miscarriage of justice is made out: Corney v Brien at 356-357 (Fullagar J). In Re Flatau; Ex parte Scotch Whisky Distillers Ltd (1888) 22 QBD 83 at 86, Fry LJ said: “this power has never, so far as I am aware, been extended to cases in which a judgment has been obtained after issues have been tried out before a [c]ourt”. In Corney v Brien, Fullagar J said (at 358) that he had not been able to find any such case since Fry LJ made this statement in 1888.
In Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132 at 143 [37], it was held by the plurality, Kiefel CJ, Keane and Nettle JJ, that:
… the Bankruptcy Court should go behind a judgment where sufficient reason is shown for questioning whether behind the judgment there is in truth and reality a debt due to the petitioning creditor ...
Their Honours held that a bankruptcy court’s power to go behind a judgment is not limited to cases of fraud, collusion or miscarriage of justice, it being observed that a court may take that step simply because the judge considers it necessary in a particular case so as to be satisfied that there is a debt owing to the petitioning creditor. Further, scrutiny by a bankruptcy court of the debt propounded by a judgment creditor “in no sense involves an attempt to impeach the judgment” or to determine whether it might be set aside. The court is concerned with whether the debt on which the judgment is based is truly a basis for the making of a sequestration order.
Referring to Corney v Brien (1951) 84 CLR 343 at 353 their Honours also stated, at 151 [68]:
For the purposes of s 52 of the Act, a judgment may usually be taken to be sufficient evidence of a debt in that a judgment against a debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings. Accordingly, a Bankruptcy Court will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability. (reference omitted)
Chief Justice Latham had earlier said in Petrie v Redmond [1943] St R Qd 71 at 76:
The Bankruptcy Court does not examine every judgment debt. Special circumstances must be established before it will do so. It is impossible to lay down any general rule.
EVIDENCE
Respondent’s evidence
Giancarlo Viglianti
Mr Viglianti filed an affidavit affirmed on 13 September 2023. He deposed to a personal history during 2012 and 2013 of untreated depression, unsuccessful relationships and of having breached ADVOs. He said that he had not received a fair trial in the DC Proceeding because his solicitor failed to attend it and he had been represented by a barrister whom he had never met, who did not know the details of the case or what it “was really about” and who “failed to properly deal with why the police entered into my home at 2.00am”. He further deposed:
I was also intimidated by the fact that the plaintiff had two or three uniformed police officers present in the court during the trial for a civil hearing and that her Honour Judge Gibson actually allow [sic] the police officers to remain in the court room in uniform. Their presence really upset me and made it impossible for me to quell my anxiety.
In cross-examination, Mr Viglianti admitted that he had known that razor blades were on his unit’s windowsill and that he had wanted them to be there for “more security”. He also admitted that they had been dangerous and a trap. Mr Viglianti said in relation to the location of the razor blades that had injured Mr Davis:
That was the only window that was actually – be able to be unlocked from the outside. So in some sort of way, it felt like a security measure, rather than anything else.
Bruno Gelonesi
Mr Viglianti’s solicitor in this proceeding, Mr Gelonesi, filed an affidavit affirmed on 2 November 2023 which annexed copies of the First Judgment and transcripts of the DC Proceeding.
Dr Nielssen
Mr Gelonesi also filed an affidavit affirmed on 30 November 2023 which annexed a copy of a report of Dr Nielssen, psychiatrist, dated 28 November 2023. Dr Nielssen’s methodology included an interview of Mr Viglianti on 13 November 2023 an informal interview of his father, Carlo Viglianti, and review of the materials annexed to Mr Gelonesi’s affidavit, relevantly the transcript of the DC Proceeding and the First Judgment.
Dr Nielssen’s opinion was that Mr Viglianti suffered from anxiety disorder and substance use disorder. He reported that:
From the history provided by Mr Viglianti, and the evidence before the [District] court, it seems he was significantly depressed in the period after the end of his relationship in April or May 2013.
Dr Nielssen also reported that it was possible that Mr Viglianti had suffered from an underlying mental illness, such as schizophrenia, and that paranoia might have contributed to his anxiety. The doctor continued:
Regardless of whether Mr Viglianti has an anxiety disorder, defined as irrational fear of disabling intensity, or a psychotic illness, which can be loosely defined as a disorder in which there is loss of contact with reality as perceived by others, he has a significant psychiatric disability and is only able to survive at his current level with the constant support of his father. His conditions are chronic and were present in both 2013 and 2017 …
CONSIDERATION
The power to go behind a judgment following a hearing on the merits is an exceptional one. The issue in the present case is whether Mr Viglianti has shown that there is sufficient reason to question whether behind the First Judgment there is in truth and reality a debt due to Mr Davis.
Ground 1 Errors of fact and law
The argument that the First Judgment contained errors of fact and law was based on contentions that:
(a)there had been no evidence of a rope hanging from the ceiling of Mr Viglianti’s unit on the night in question;
(b)the evidence had not been sufficient for the District Court to conclude that Mr Davis had been concerned on the night in question that Mr Viglianti “might have been attempting to self harm”;
(c)the finding that Mr Viglianti had laid a trap was not supported by the evidence, which indicated that the windowsill was, for all intents and purposes, inaccessible from outside the building;
(d)her Honour erred by relying on evidence and reasoning from the criminal proceedings, and failed to engage in her own independent consideration and reasoning process based on the evidence before her;
(e)some of Mr Viglianti’s admissions were accepted but not others;
(f)her Honour’s conduct of the trial was not impartial;
(g)an adverse conclusion as to Mr Viglianti’s credit was reached on an incomplete consideration of the evidence;
(h)the question of contributory negligence was not properly considered;
(i)the finding of assault and battery had not been open because Mr Davis had contributed to his injury by a positive act, namely climbing a ladder to the window and placing his hand on the windowsill;
(j)although it was found that Mr Viglianti’s conduct had been reckless, no finding was made concerning whether recklessness would cause the Civil Liability Act to be engaged;
(k)the findings as to damages were flawed;
(l)Mr Vigilanti had not been the proper defendant and the unit block’s owners’ corporation should have been joined instead;
(m)the record of Mr Viglianti’s police interview was inadmissible and should not have been admitted into evidence;
(n)there were serious questions concerning the adequacy, competence and effectiveness of Mr Viglianti’s solicitors and counsel in the DC Proceeding; and
(o)Mr Viglianti’s mental state at the time of the trial of the DC Proceeding had been such that he would not have been able to properly instruct his legal representatives.
Rope or cord hanging from the ceiling?
Mr Vigilanti submitted that whether what had been hanging from the ceiling of his unit in the early hours of 28 June 2013 had been a rope or a cord was a matter of fact crucial to Mr Davis’s apprehension that he had been at risk of self-harm. Mr Viglianti argued in that connection that it might not have been reasonable to hold an apprehension that he had been at risk of self-harm if the thing hanging had been a cord, such as an extension lead, rather than a rope. However, the terms of the First Judgment make it clear that the distinction was not relevant to the outcome of the proceeding. Relevantly the First Judgment said:
5When they arrived, the plaintiff and other police officers observed, because curtains were drawn back, that a light was on in the premises. As a result, a cord could be seen hanging from a beam in the ceiling. There was concern that the defendant, who had not opened the door despite police knocking loudly and calling out “Police”, could be considering self-harm. The officer in charge, Sergeant Damian Poidevin, attempted to mount a ladder to look into an open window, but was unable to maintain a steady foothold on the ladder. The plaintiff offered to go in his stead, and climbed up to an open window to look in. He saw a rope of [sic] cord dangling from the ceiling but did not observe a body hanging from it. He called out to the defendant to open the door but there was no answer.
6As he did so, the plaintiff rested his open hand on the window sill to steady himself. In the course of so doing, he came into contact with a series of razorblades that were set into the window sill using Blu-Tack. The plaintiff’s injuries required him to be immediately conveyed to Auburn Hospital where he underwent surgery.
…
16Looking up from the street before they entered the building, the plaintiff and other police had been able to [see] a light on in the defendant’s unit because the curtains or blinds were drawn. As a result of the light being on, they could see what appeared to be a rope or cord hanging from a timber beam in the ceiling. In light of the pre-existing concerns about the defendant’s well-being, this immediately escalated the level of police concern as the reason for the rope or cord hanging from the ceiling had to be determined with some urgency.
17 The plaintiff described what happened next as follows:
“Q.Was there anything else you could see when you looked up?
So, just cause of the viewing angle, it was quite a steep angle, but we could see part of the roof and there was - it looked like a timber beam was on the ceiling and it had what looked like a piece of cordage hanging from that, that beam.
…
23The plaintiff was firm in his statement that he was not proposing to enter the premises from the window (T 29). He was endeavouring to look into the window where the rope or cord was hanging from the ceiling, information about which would determine whether a more urgent response to the defendant’s failure to open the door to police.
…
28 [Mr Davis] clarified the instructions he received in relation to climbing up to the window as follows:
“Q.Could I just clarify what instructions you got, or why you were going to the window?
A.It was to have a look at what the cordage was hanging from the ceiling, to clarify what that was, and also to raise him. The inference I made was that if I saw something at the end of the cordage like him attempting to self-harm, that that would escalate our response.
…
36Sergeant Poidevin was clear in his assessment of the risk that he was, in the words of the plaintiff’s counsel, “going to the unit to stop a suicide”. He considered it was necessary to gain access to the unit through some means other than the front door and looked for other methods of entry. He observed an open window and explained how he knew it was the defendant’s window, and how he obtained a ladder from the defendant’s garage:
“A.Because it corresponded with where the front door of the premises would have been; that window was in line with that, it would have been his unit. The interior light was on, there were vertical blinds that were completely drawn open, and there was a sliding window that was slightly ajar. I could also see from my vantage point inside the unit towards the roof, there was a beam, and over that beam there was a length of light coloured, or white coloured, like a cord material. I couldn't see what the end of that cord had affixed to it, but had concerns that perhaps the defendant may have self-harmed, may have hung himself.
…
68 The significance of the light being on is that as a result, the police were able to see the cord dangling from a beam in the ceiling, which I am satisfied was the real reason for the police deciding that they need to investigate further to see if the defendant was about to self-harm. This cord, which I am comfortably satisfied was allowed to remain there by the defendant for this purpose, was the key element in the trap the defendant set.
…
80I do not accept the defendant’s claim that he left the cord hanging from the ceiling rafter because he was carrying out some unspecified form of repairs or work in his home.
81 I am comfortably satisfied that the defendant deliberately placed a cord over a beam in the ceiling, deliberately left a room light on and curtains drawn so that this cord could be seen from the street. He also deliberately opened the bathroom window. He did these things in the hope that any person who observed the rope or cord dangling from the ceiling would be sufficiently alarmed to alert either family members and/or his former girlfriend (who was living upstairs) and/or the police. His plan was that any or all of these persons, if unable to persuade him to answer the door by knocking (which I am satisfied he heard and deliberately did not answer), would come to the window to try to contact him and, in so doing, suffer fright and injury. I am comfortably satisfied, pursuant to s 140 Evidence Act 1995 (NSW), that he left open a window that was normally shut for this purpose of causing injury.
That lengthy quotation demonstrates that it was of no material significance for the police who attended on 28 June 2013 or, with respect, to Gibson DCJ in her assessment of the formers’ motivation to climb to Mr Viglianti’s windowsill, whether the thing hanging over the beam in his unit on 28 June 2013 was a rope or a cord.
Whether the evidence had been sufficient for the District Court to find that Mr Davis had been concerned on the night in question that Mr Viglianti might have been attempting to harm himself
The passages that have just been quoted also indicate that there was evidence to support the conclusion in the First Judgment that the circumstances in the early hours of 28 June 2013 caused Mr Davis to be concerned that Mr Viglianti might have been attempting to harm himself.
Whether the evidence had been sufficient for the District Court to find that Mr Viglianti had laid a trap
The same quoted passages together with the following additional passages demonstrate that the evidence before the District Court had been sufficient for it to find that Mr Viglianti had laid a trap:
54 The magistrate, in his judgment, described the razors as being “blades from a Stanley knife” that were “embedded in a substance and affixed to the bottom runners on the outside of the window” in such a way that “the base was hidden with only the blades protruding.” The fact that these items were on the outside of the window, although of limited importance in the criminal proceedings, is significant for the facts of this case.
55 The magistrate was satisfied that the defendant’s “own evidence was that he placed the items there sometime in late 2012 and he knew that they continued to be there”, holding that “the inescapable conclusion is that the accused did knowingly permit the device to be placed and I so find.” His Honour noted that the defendant told police the razors were just there as a warning and that he did not intend to harm anyone (ERISP Q 231 and Q237) but that “on the evidence” he was satisfied that the razorblades were placed and allowed to remain there “not for the purpose of protecting the property, but rather for the purpose of injuring any prospective intruder”. The combined effect of the evidence was that the blades could not be seen by anyone on the ground and were not placed so as to be a visible deterrent to a trespasser. The primary intention was to injure anyone attempting to get through the window, which had been left partly open for this purpose.
…
59The defendant’s evidence was that the razorblades were “placed there by another gentleman that was there before just on one of the windows” (T 50). He acknowledged that this “gentleman” was someone who was living with him at the time but said that the only man he could remember was “Luke”. He said that Luke had “made mention” of the razorblades “in passing” (T 51), but as that window was never opened “I didn’t worry about it at all”. The defendant denied that he put the razorblades in the window or that he knew he would be arrested and that the police might try to enter from that window (T 55).
60He was asked about the razorblades and whether he had ever removed them, and he said “I took ones off one [sic], I can't really remember the full story, how it all went, but. [sic]” (T 58)
61 The defendant gave another explanation when, at T 58, Mr Symons asked:
“Q.Mr Viglianti, are you sure you didn't put the razorblades on the window sill?
A.Well at that time I was on drugs, so it was hard for me to say what I said or not.” (T 58)
62 However, the defendant had given specific, detailed and responsive answers during the record of interview. When Mr Symons took the defendant to these specific statements, the defendant’s response was to deny making them or to say he did not remember:
“Q.Mr Viglianti, you told the police that you put the razorblades there, that's right, isn't it?
A.Well, as far as I was aware I didn't say that at all, no.
Q.That is what the transcript [of the Record of Interview] says?
A.I know what's written there, but I don't remember saying that at all.
Q.I put to you that you told the police that you put the razorblades there?
A.Well, for one it says, "Three", there was only two and I said I left them there, I didn't put them there.
Q.The transcript clearly says that you put the razorblades there?
A.I know what the transcripts says, I can read it. I don't remember saying that at all.
Q.You knew the razorblades were there, didn't you?
A. I did know they were there, yes, that's correct.” (T 61)
63 These answers are not to the defendant’s credit. He finally agreed that he knew the razorblades were there (at T 62), but only at the end of these evasive and untruthful responses.
64 The defendant gave similar inconsistent responses in relation to other factual issues. He said that all of the lights in his premises were off (T 51) although the plaintiff and Sergeant Poidevin were not cross-examined about seeing lights on and seeing the rope over the beam as a result (a rope the defendant did not deny having placed there). He asserted that lighting from other buildings made the razorblades readily visible to the naked eye and that these could be seen as far away as “down the driveway” (T 68) while at the same time claiming the window had “always been closed” (T 69), including that night (T 68). I consider all these answers, which are inconsistent with the observations of the plaintiff and Sergeant Poidevin as well as with certain of the answers the defendant gave in the record of interview, to be untruthful.
65The defendant’s admissions in the ERISP and his evidence in the Magistrate’s Court (as appearing from the judgment) are inconsistent with these denials. The defendant not only knew that the razorblades were on the window sill but, I am comfortably satisfied, put them there in the sense that, on his own admission, he rearranged the razorblades which had been put there by another person.
If there was any residual doubt on the question, Mr Viglianti’s evidence to this Court should allay it.
Mr Viglianti also submitted that the role of the ladder climbed by Mr Davis had not been considered although there could have been no operative trap without a ladder to give access to the windowsill. Her Honour said:
82 I also see it as potentially relevant that a ladder was readily accessible in the defendant’s garage but, as the availability of this ladder was not put to the defendant as part of the plan, I have not taken this into account.
and it was not suggested that Mr Viglianti had made anything of the issue such that it required greater consideration.
Her Honour erred by relying on evidence and reasoning from the criminal proceedings, and failed to engage in her own independent consideration and reasoning process based on the evidence before her
Her Honour relied on evidence that had been led before her, including material that had also adduced before the magistrate, and referred to the findings that the magistrate had made on that evidence, but did not adopt the magistrate’s findings. At page 112 of the transcript of the DC Proceeding, her Honour stated that she had the magistrate’s reasons for decision in the criminal case before her, which set out:
… what the magistrate sums up as being [Mr Viglianti’s] evidence …
and noted that that evidence had:
… gone in without objection.
The transcript of the DC Proceeding also records that the ERISP was admitted into evidence without objection as part of the plaintiff’s tender bundle. There was no “error of law” in having regard to such material.
In relation to the remainder of the contention, with respect, as a very experienced judge her Honour would not have, and did not, depend on the magistrate’s findings for her own. Mr Viglianti did not identify any passage in the First Judgment which suggested otherwise. The argument in question lacks evidentiary support.
Some of Mr Viglianti’s admissions were accepted but not others
The matters that Mr Viglianti complained had not been accepted were not admissions but self-serving statements concerning his physical condition at particular times. It is hardly surprising that these were less persuasive than his admissions against his interest which were accepted.
Her Honour’s conduct of the trial was not impartial
Mr Viglianti submitted that:
… whenever the Plaintiff’s representative went off course in cross examination, in the sense that it would not extract the necessary “conflicting evidence” her honour [sic] intervened and corrected the Plaintiff’s representative and encourage a course of questioning that would assist the Plaintiff.
Mr Viglianti cited two passages appearing on a page of the District Court transcript to support this assertion. The first judicial intervention was to reject a question based on a misstating of prior evidence and to explain how it might be asked fairly. The second intervention involved the rejection of a confusing question containing multiple elements and explaining that the elements had to be put separately. Such interventions merely facilitated the efficient progress of the hearing. Without her Honour’s assistance, the cross-examiner would have taken a lot longer than he did to get to the place he ultimately reached. I also note that no objection was taken at the time to her Honour’s interventions or an invitation made to her Honour to disqualify herself.
An adverse conclusion as to Mr Viglianti’s credit was reached on an incomplete consideration of the evidence
The relevant finding was made at [84] of the First Judgment where her Honour said:
84 I am satisfied that the defendant is not a witness of credit. The inconsistencies in his evidence were coupled by his resentful and angry demeanour in the witness box. I am satisfied that in his anger and resentment at the end of his relationship with his former girlfriend, he sent the text in question and, when that did not have the desired response, he created the trap that lured the plaintiff to his window, in that the plaintiff and the police officers who accompanied him were concerned that the defendant could have self-harmed. I do not accept the defendant’s denials in relation to the placement of the razorblades and I would not accept his evidence on any issue unless he was corroborated by a witness of credit.
Those conclusions were open on the evidence. In support of a contrary conclusion Mr Vigilanti referred to his mental health but did not identify the condition which he may have suffered, how it affected him or why it would explain the inconsistencies in his accounts. Reference was made to Dr Nielssen’s report but it was written years after the events in question and was largely based on Mr Viglianti’s own untested assertions. More importantly, Dr Nielssen did not opine on whether any mental disturbance caused Mr Viglianti to set the trap which Gibson DCJ found had been set or say that any stress or anxiety he suffered during the earlier police and court proceedings caused him to provide answers to questions that were incorrect to his disadvantage.
The question of contributory negligence was not properly considered
The allegation of contributory negligence was not relevant to the finding of assault and battery which determined the DC Proceeding. In any event no evidence of contributory negligence was found.
The finding of assault and battery had not been open because Mr Davis had contributed to his injury by a positive act, namely climbing a ladder to the window and placing his hand on the windowsill
The point being made by Mr Viglianti was that any conduct of his had not directly caused the injury suffered by Mr Davis. He pointed to Mr Davis’s use of a ladder and submitted that this prevented his conduct from having the sort of direct relationship with the injury necessary to support a finding of assault and battery. In Hutchins v Maughan [1947] VLR 131 at 133, Herring CJ said:
In 1773 in the famous case of Scott v. Shepherd, Blackstone J said he “took the settled distinction to be that where the injury is immediate, an action of trespass will lie; where it is only consequential, it must be an action on the case.” And he cited the example of a man's throwing a log into the highway; an example later made use of by Le Blanc J. in 1803 in Leame v. Bray where the learned Judge said: “But in all the books the invariable principle to be collected is that where the injury is immediate on the act done, there trespass lies; but where it is not immediate on the act done, but consequential, there the remedy is in case. And the distinction is well instanced by the example put of a man's throwing a log into the highway; if at the time of its being thrown it hit any person, it is trespass; but if after it be thrown, any person going along the road receive an injury by falling over it as it lies there, it is case ... trespass is the proper remedy for an immediate injury done by one to another; but where the injury is only consequential from the act done, there it is case.”
(references omitted)
The relevant law was stated in the following terms by the Victorian Court of Appeal in Carter v Walker (2010) 32 VR 1 at 38-39 [215] (see also at 41 [226]):
Before considering what Battista decided, and its implication for Marcus Walker’s claim, it is desirable to state what we understand the law with respect to battery otherwise to be in Australia:
(1)it is a species of trespass to the person;
(2)it is a so-called “intentional” tort, but care needs to be taken in considering the intention which is relevant;
(3)as a starting point, it involves the defendant doing an act which causes physical contact with the plaintiff;
(4)the act must be voluntary, that is, directed by the defendant’s conscious mind;
(5)contrary to the submission for Marcus Walker, the act must have a direct rather than a consequential impact upon the plaintiff (of this, more later);
(6)it does not require that the defendant intend the plaintiff any harm, or that the plaintiff suffer harm in fact. It is actionable per se;
(7)if the act is voluntary, and the defendant “meant to do it” in the sense of meaning to contact the plaintiff, it will be relevantly intentional;
(8)it may be that an act should also be considered intentional if it is substantially certain that the act will result in contact with the plaintiff; and perhaps also if the act is reckless with respect to contact with the plaintiff. That may be the conceptual justification for the decisions in James v Campbell and Ball v Axtens;
(9)battery may be contrasted, historically, with two other forms of action:
(1) action on the case; and (2) negligent trespass to the person (an early instance of which was Leame v Bray). A feature of the former was that it accommodated consequential rather than direct interference by the defendant upon the plaintiff. A feature of the latter was that it maintained the requirement of directness, but that it accommodated negligent rather than intentional acts in the sense that the defendant’s act, though intended, was careless with respect to contact with the plaintiff;…
(references omitted)
It was not suggested that the razor blades had been placed where they were with the intention of injuring any one in particular, including Mr Davis, and it appears that the ones that were present on 28 June 2013 had been in place for some time. Because of this, the fact that no injury would have occurred if Mr Davis had not taken the intermediate step of climbing the ladder to the windowsill suggests that the injury lacked the necessary directness. However, that would be to ignore the fact that Mr Viglianti had induced Mr Davis to climb the ladder and had lured him to the windowsill. Taken in combination, the various elements of Mr Viglianti’s behaviour amounted to the sort of direct conduct necessary to support a finding of assault and battery.
Should that conclusion be incorrect, Mr Viglianti’s conduct was by any measure negligent and even if the damages of $501,989 he has been ordered to pay were reduced by reason of some contributory negligence on Mr Davis’s part, the remaining sum would still be a large sum and well in excess of the $10,000 statutory minimum for the issuing of a bankruptcy notice and the making of a sequestration order.
Although it was found that Mr Viglianti’s conduct had been reckless, no finding was made concerning whether recklessness would cause the Civil Liability Act to be engaged
The relevance of this point was elusive in the context of the present argument. Her Honour said:
116The findings of fact comfortably support a finding that the defendant set a trap intending to cause injury and the plaintiff’s claim for assault and battery is accordingly made out.
Whether a reckless battery would be governed by the Civil Liability Act rather than by the common law was not relevant to that finding. Nor was it relevant to the alternative finding that Mr Davis was entitled to succeed in his alternative claim for negligence. In that regard, her Honour found:
118 On the basis that the defendant admitted he allowed the razorblades to remain on the window sill, the duty of care the defendant owes to an invitee would clearly be breached. The same would be the case even for a trespasser.
…
121In terms of s 5B Civil Liability Act 2002 (NSW), the risk was foreseeable, and acknowledged by the defendant to be so in his answers to the ERISP. Any person opening the window, even from the inside (the razorblades being on the sill and within striking distance of the hand opening the window) for any reason risked injury, as the presence of razorblades on a window sill would be completely unexpected. That risk was high, not insignificant, and a reasonable person would have either removed the razorblades when the tenant who allegedly placed them there left or alternatively (since the defendant was the registered proprietor) prevented his tenant from putting them there in the first place. Removing some of them was hardly a satisfactory solution. The probability of injury was high given the nature of razorblades.
Mr Viglianti also submitted in relation to this contention that the foreseeability of Mr Davis’s injuries had not been considered but it can be seen to have been expressly canvassed at [121] of the First Judgment.
The findings as to damages were flawed.
Mr Viglianti did not adduce evidence that would have made this allegation out. Further, the submissions he made in relation to this contention did not amount to a case that the damages he has been ordered to pay could be reduced to a sum anywhere near the $10,000 statutory minimum.
Mr Vigilanti had not been the proper defendant and the owners’ corporation should have been joined instead
Mr Viglianti submitted that an owners’ corporation is responsible “wholly and solely” for all matters on a strata scheme’s common property but the authority he cited, Stolfa v Owners Strata Plan 4366 [2009] NSWSC 589, is not authority for the proposition that the existence of such a responsibility excludes anyone else from being liable for tortious conduct on or in connection with common property. Further, the argument did not demonstrate that any liability that the owners’ corporation might have had to Mr Davis because the razor blades were on common property would have reduced his own liability for damages to a material degree.
The record of Mr Viglianti’s police interview was inadmissible and should not have been admitted into evidence
The police interview was admitted into evidence in the DC Proceeding without objection. Further, evidence was not placed before this Court which supported the allegation that the record of the interview had been inadmissible.
Ground 2 Mr Viglianti had been intimidated by the presence of police officers in court during the DC Proceeding
Mr Viglianti deposed that he had been intimidated by the presence of two or three uniformed police officers at the trial of the DC Proceeding which he said made it impossible for him to quell his anxiety but he did not explain the significance or severity of that anxiety. He has not demonstrated that the presence of the police officers had any material effect on the outcome of the DC Proceeding.
Ground 3 There were serious questions concerning the adequacy, competence and effectiveness of Mr Viglianti’s solicitors and counsel in the DC Proceeding.
Various submissions were made by Mr Vigilanti that were critical of his legal representation in the DC Proceeding but none of his complaints went so far as to suggest that he had been blameless when it came to Mr Davis’s injuries or that Mr Davis’s injuries did not warrant substantial damages being awarded to him. Specifically, he did not demonstrate how, were his complaints to be well made, a different approach to the DC Proceedings would have produced a materially different outcome.
Ground 4 Mr Viglianti’s mental state at the time of the trial of the DC Proceeding had been such that he would not have been able to properly instruct his legal representatives
Dr Nielssen opined that Mr Viglianti had been in no position to give proper instructions to his legal representatives in the DC Proceeding but that opinion was not obviously based on any history given to him by Mr Vigilanti concerning his condition during the trial of the DC Proceeding. The history that was recorded in the report was unspecific as to particular times and events and lacking in particulars of how any anxiety that Mr Viglianti may have experienced during the DC Proceeding went beyond the normal stress of a litigant such that it was pathological in nature or amounted to a psychotic illness, affected his understanding of proceedings and inhibited his communication with his advisers. I have not placed much reliance on the report.
Further, no explanation has been advanced concerning how the contended for psychiatric disability might have had a material effect on the outcome of the DC Proceeding justifying this Court having sufficient concerns regarding that outcome that it would go behind the DC Judgment and examine the matter for itself. It should be kept in mind in that connection that Mr Viglianti told this Court that he had known where the razor blades were and had regarded them as a sort of security system.
CONCLUSION
What Mr Vigilanti attempted in this proceeding was to impeach the judgment in the DC Proceeding in the hope that by doing so questions might be raised concerning whether the debt on which the judgment is based is truly a basis for the making of a sequestration order. As recorded earlier, that sort of approach was deprecated in Ramsay Health Care, the High Court saying at 147 [54]:
In point of principle, scrutiny by a Bankruptcy Court of the debt propounded by a judgment creditor seeking a sequestration order in no sense involves an attempt to impeach the judgment. A Bankruptcy Court is not concerned with whether the judgment should be set aside as upon an appeal …
The question is not whether the DC Proceeding was rightly decided, but whether the debt on which the First Judgment was based is truly:
… a good debt due to the petitioning creditor.
In re Fraser; Ex parte Central Bank of London [1892] 2 QB 633 at 636-637.
Even so, the fact that the finding in the DC Proceeding after a full and apparently fair trial was that Mr Viglianti was liable to Mr Davis, is not to be overlooked. The facts of the matter are not complex and amount to Mr Davis having suffered injury because of Mr Viglianti’s tortious conduct. It would require something more than was pressed in this case to cause the Court to doubt the essential correctness of the outcome of the DC Proceeding.
I am not persuaded that Mr Viglianti does not owe Mr Davis either $501,989 or a smaller but still large sum of money. The invitation to go behind the DC Proceeding’s judgments will be refused and the creditor’s petition listed for hearing before a registrar.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 7 June 2024
0
7
2