Moon v Whitehead

[2015] ACTCA 17

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Moon v Whitehead

Citation:

[2015] ACTCA 17

Hearing Date:

22 February 2015

DecisionDate:

22 May 2015

Before:

Murrell CJ, Penfold and Burns JJ

Decision:

The appeal is upheld to the extent that the award of aggravated damages is set aside and judgment in favour of the respondent is varied to $658,856.00.

The appellant to pay the respondent’s costs of the appeal unless an application for a different costs order is made within 14 days.

Category:

Principal Judgment

Catchwords:

TORTS – Trespass to the Person – sexual assault – sexual intercourse without consent – whether consent to be determined objectively or subjectively.

DAMAGES – personal injury – trespass to the person – sexual assault – sexual intercourse without consent – aggravated damages – whether aggravated damages can be awarded for manner in which the trial was conducted by the appellant – whether aggravated damages can be awarded on grounds not advanced by the respondent.

APPEAL – Appeal from the Master – whether the Master erred in finding that the appellant had not proved that the respondent consented to sexual intercourse – whether the appellant was afforded procedural fairness on the issue of aggravated damages – appeal partially upheld – judgment varied. 

Cases Cited:

Arthur v Anker [1996] 2 WLR 602,

Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379
Basely v Clarkson (1681) 83 ER 565
Connell v Commonwealth (unreported, New South Wales Court of Appeal, Glass J.A., 23 September 1982)
Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714
Fox v Percy (2003) 214 CLR 118
Gaundar v Hogan [2014] ACTCA 4
House v The King (1936) 55 CLR 499
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218
Vine v Waltham Forest London Borough Council [2000] 4 All ER 169

Texts Cited:

Peter W Young, The Law of Consent (The Law Book Company Limited, 1986)

Parties:

Michael Moon (Appellant)

Sharon Whitehead (Respondent)

Representation:

Counsel

Mr AJ Bartley with Mr FJ Tuscano (Appellant)

Mr Steven Hausfeld (Respondent)

Solicitors

Ken Cush & Associates (Appellant)

Snedden Hall & Gallop (Respondent)

File Number:

ACTCA 1 of 2014

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Master Harper

Date of Decision:         5 December 2013

Case Title:  Sharon Whitehead v Michael Moon

Citation: [2013] ACTSC 243

Murrell CJ and Burns J:

1. On 5 December 2013, Master Harper entered judgment for the respondent (the plaintiff below) against the appellant (the defendant below) in the sum of $668,856.00, including $10,000.00 for aggravated damages, together with costs. According to the Amended Notice of Appeal filed in Court by leave on the day of the hearing, the appellant now appeals from the orders made by the Master on the following grounds:

   a.The Court below erred in finding that the defendant did not have the consent of the plaintiff to have sexual intercourse with her;

   b.The Court below erred in finding that the…