Moon v Whitehead

The appeal concerned a dispute between the appellant, Mr Moon, and the respondent, Ms Whitehead, arising from allegations of sexual assault. The appeal was heard by Murrell CJ, Penfold and Burns JJ.

The primary legal issues before the court were whether the Master had erred in finding that the appellant had not proven the respondent consented to sexual intercourse, and whether the appellant had been afforded procedural fairness regarding the award of aggravated damages.

The court affirmed the Master's finding that consent to sexual intercourse must be determined subjectively, meaning it requires a genuine, voluntary agreement. The court reasoned that an objective assessment of consent, based on the appearance of consent, would undermine the fundamental right to bodily autonomy. Regarding aggravated damages, the court found that the Master had erred by awarding them on grounds not pleaded or pursued by the respondent, and also by considering the appellant's conduct during the trial itself as a basis for such damages. The court held that aggravated damages should relate to the nature of the tortious act and its impact on the victim, not the manner in which the trial was conducted.

Consequently, the appeal was upheld in part, with the award of aggravated damages being set aside. The judgment in favour of the respondent was varied to $658,856.00. The appellant was ordered to pay the respondent’s costs of the appeal, subject to any application for a different costs order within 14 days.