Dresden (a pseudonym) v Ross bht Emanuel

[2024] NSWSC 1012

Supreme Court

New South Wales

Medium Neutral Citation:

Dresden (a pseudonym) v Ross bht Emanuel [2024] NSWSC 1012

Hearing dates:

27 June 2024, 24 July 2024

Decision date:

14 August 2024

Jurisdiction:

Common Law

Before:

Button J

Decision:

Settlement approved

Catchwords:

CIVIL PROCEDURE – application for approval of proposed settlement – child sexual assault – where tutor appears on behalf of defendant – where defendant pleaded guilty to and convicted of sexual offences committed against the plaintiff in 1997 – proceedings seeking damages for intentional torts commenced by plaintiff – settlement reached at mediation – liability not in issue as a practical matter – whether proposed settlement is beneficial to the interests of plaintiff – settlement approved

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 76

Evidence Act 1995 (NSW) s 91

Category:

Principal judgment

Parties:

Michael Dresden (Plaintiff)
John Patrick Ross bht Kevin Emanuel (Defendant)

Representation:

Counsel:
M Broom (Plaintiff)
C Hickey (Defendant)

Solicitors:
Wyatts Lawyers (Plaintiff)
Fox & Staniland Lawyers (Defendant)

File Number(s):

2023/237424

JUDGMENT

Introduction

1. This judgment resolves an application for approval of a settlement in proceedings in which a tutor has been appointed. The approval is sought pursuant to s 76 of the Civil Procedure Act 2005 (NSW). The simple test is whether I am satisfied that the settlement is in the best interests of the person under incapacity.

2. The unusual aspect of the matter, in my experience, is that the person under incapacity is not a child plaintiff, or a plaintiff who suffers from a cognitive impairment said to be a consequence of the alleged wrong done to them, but rather is the defendant.

Background

3. The background can be shortly stated. The plaintiff (to whom the judgment refers by the pseudonym Michael Dresden, for reasons that will become apparent shortly) commenced proceedings in this Court seeking damages for the commission of intentional torts against him by the defendant. The claim is that, when the plaintiff was a child, he was sexually assaulted by the defendant, and those acts have had devastating and long-term psychological and psychiatric effects upon the plaintiff. A psychiatric report with which I was provided on the application describes those matters, and need not be referred to in detail. Those effects of the unlawful acts also, of course, had their own consequences upon his earning capacity and financial well-being generally.

4. A mediation was attempted to be conducted. But it quickly became apparent that the defendant, who is an elderly man, was incapable of taking part in it sensibly. The result was that the mediation was postponed, so that a tutor could be appointed. As it happens, the person ultimately arrived at is not a friend or family member of the defendant; rather, he is a solicitor of many years’ experience in this area of law.

5. Eventually, the mediation was concluded successfully, with the settlement now under discussion.

6. During two hearings before me, at the latter of which I had the significant assistance of counsel for the defendant, it was explained that, in fact, the plaintiff had made a complaint to the police many years ago about the criminal conduct of the defendant. That had led to charges, to which the defendant pleaded guilty, leading to convictions, and for which he was punished by imprisonment.

7. The point was made by counsel for the defendant that, although those convictions could not be evidence of the commission of the torts in question, in accordance with s 91 of the Evidence Act 1995 (NSW), the same could not be said of the pleas of guilty. On the contrary, they would constitute powerful if not overwhelming evidence of the commission of the acts in question in these subsequent civil proceedings.

8. On that basis, it was explained that, on any practical analysis, the question is about quantum, not liability.

9. In that regard, counsel put forward the propositions that the damage allegedly done to the plaintiff is very substantial and long-lasting; the courts and the community well appreciate the potential for child sexual assault to have those kinds of effects on its victims; there are obvious benefits to the defendant in having this pending litigation resolved, especially bearing in mind his mental state; in litigation such as this, an exercise in “damage control” is not inappropriate on behalf of a defendant; and finally the defendant has expressed a wish to be able to maintain his current circumstances for the foreseeable future, and the settlement permits that to occur in a financial sense.

10. Furthermore, counsel pointed not only to the expertise brought to the question by the tutor, but also his own experience in this area of law, which extends over five decades.

11. Finally, I also had the benefit of a confidential affidavit from counsel for the defendant, to which I shall refer elliptically and only to the extent necessary.

12. The representative for the plaintiff, of course, said nothing to the contrary.

Determination

13. Turning to my determination, I am well satisfied that this settlement is in the best interests of the defendant, for the following reasons.

14. First, as I have explained, in any practical sense liability is conceded; the only real question before me is my contentment with the quantum at which the parties have arrived.

15. Secondly, the expertise not only of counsel but also of the tutor (and, it may well be, the solicitor for the defendant) regarding that very question is of significance to my satisfaction.

16. Thirdly, I believe that I am entitled to take judicial notice of the fact that child sexual assault can indeed have devastating, lifelong psychological and psychiatric consequences for its victims. In other words, there is nothing about the claim on its face suggestive of exaggeration, or an inability for it to be sustained.

17. Fourthly, the settlement sum arrived at is significantly less than that first sought by the plaintiff. That is not, of course, to make any criticism of it from his perspective; it is simply to say that it cannot in any sense be said that the settlement arrived at is a “surrender” on behalf of the defendant.

18. Finally, as I have said, although the defendant is not in a position to make his own decisions about resolution of the litigation, it is the case that the resolution arrived at accords with his own wishes, generally expressed, about how he would like to live in the future.

19. In all the circumstances, I readily approve the settlement.

Orders

1. Judgment for the plaintiff against the defendant in the sum of $xxxxxx payable within 60 days.

2. Interest payable if the judgment sum is not paid within 60 days.

3. The proceedings are otherwise dismissed.

4. No order as to costs.

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Decision last updated: 16 August 2024