JD v ZYX - [2022] WASCA 136

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JD -v- ZYX [2022] WASCA 136
CORAM:   BUSS P
MURPHY JA
FRASER AJA

HEARD:   13 APRIL 2022
DELIVERED          :   13 APRIL 2022
PUBLISHED           :   27 OCTOBER 2022
FILE NO/S:   CACV 24 of 2021
BETWEEN:   JD
Appellant
AND
ZYX
First Respondent
WA NEWSPAPERS LTD & CHANNEL 7 PERTH PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number            :   CIV 874 OF 2019

Catchwords:

Procedure - Civil proceeding - Application for a permanent stay - Delay in commencing the civil proceedings - Loss or destruction of material documents - Whether a trial of the civil proceedings would be manifestly unfair to the appellant as the defendant or an abuse of process

Legislation:

Nil

Result:

Appellant's application for leave to amend the grounds of appeal dismissed
Leave to appeal refused
Appeal dismissed
Appellant to pay the respondent's costs of the appeal, including any reserved costs, to be assessed if not agreed

Category: B

Representation:

Counsel:

Appellant	:	Ms K Nairn QC & Mr M J McPhee
First Respondent	:	Mr T Lampropoulos SC & Mr T J Hammond
Second Respondent	:	No Appearance

Solicitors:

Appellant	:	M J McPhee Barrister & Solicitor
First Respondent	:	Rightside Legal
Second Respondent	:	Steedman Stagg Lawyers

Case(s) referred to in decision(s):

Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256
Connellan v Murphy [2017] VSCA 116
Cox v Journeaux [No 2] (1935) 52 CLR 713
House v The King [1936] HCA 40; (1936) 55 CLR 499
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218
R v Edwards [2009] HCA 20; (2009) 255 ALR 399
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392
ZYX v JD [2019] WADC 164
ZYX v JD [No 2] [2021] WADC 20

BUSS P:

I agree with Fraser AJA.

MURPHY JA:

I agree with Fraser AJA.

FRASER AJA:

In March 2019, the first respondent commenced a claim against the appellant for damages for sexual assaults. She alleges the appellant sexually abused her between 1968 and mid-1973, when she was a child. She also alleges her injuries were aggravated by continuing sexual abuse and other misconduct of the appellant between 1974 and 1991, when she was aged between 18 and 36, in respect of which she claims exemplary or aggravated damages. The appellant denies he engaged in the alleged sexual abuse.
An application by the appellant for a permanent stay of the action against him was heard on 10 June 2019 and dismissed by Chief Judge Sleight on 26 September 2019.[1] The first respondent subsequently filed an affidavit disclosing that in 2005 or 2006 she had destroyed diaries relating to the periods the subject of her claim on a bonfire.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JD v ZYX

Details

AGLC: JD v ZYX [2022] WASCA 136
Case: [2022] WASCA 136
Decision Date

CaseChat Overview and Summary

JD, the appellant, sought to appeal against an order of the District Court of Western Australia which dismissed an application for a permanent stay of a proceeding brought by ZYX, the first respondent. WA News Ltd and Channel 7 Perth, the second respondent, did not participate in the appeal. The appellant's case on appeal was that the District Court had erred in dismissing the application for a permanent stay. The appeal was heard by Buss P, Murphy JA, and Fraser AJA. The appellant's application for leave to amend the grounds of appeal was dismissed. Leave to appeal was refused and the appeal was dismissed. The appellant was ordered to pay the first respondent's costs of the appeal, including any reserved costs, to be assessed if not agreed. The primary judge had dismissed the appellant's application for a permanent stay on the basis that there was no established risk that a fair trial was not possible, but had found that the destruction of the first respondent's diaries may pose a significant impediment to the appellant's defence. The appeal grounds contended for errors in the primary judge's evaluative judgment without identifying any specific error. The proposed grounds of appeal were not permitted. The orders made after argument were appropriate in light of the absence of apparent merit in the proposed grounds of appeal, the lateness of the application for leave to amend the grounds of appeal, and the circumstance that after a trial on the merits the appellant will retain the right to appeal upon the ground that a permanent stay should have been granted.

Orders