ND v AB - [2022] ACTSC 99

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	ND v AB
Citation:	[2022] ACTSC 99
Hearing Date(s):	8 April 2022
DecisionDate:	8 April 2022
Before:	McCallum CJ
Decision:	(1) That this application be heard ex parte. (2) Orders be made in accordance with the enclosed notice for an ex parte freezing order. (3) Costs are to be reserved. (4) These orders should be served on the defendant as soon as practicable. (5) Relist the proceedings in the Deputy Registrar’s list on 9 May 2022.
Catchwords:	CIVIL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Application for freezing order — Application made ex parte — Defendant claiming impecuniosity — Where search discloses him to be a proprietor of real property —Whether there is a risk of dissipation of funds
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 741
Cases Cited:	National Gallery of Australia v Beljan [2018] ACTSC 78
Parties:	ND ( Plaintiff) AB ( Defendant)
Representation:	Counsel A Burr ( Plaintiff) None (ex parte) ( Defendant)
Solicitors Blumers ( Plaintiff)
File Number(s):	SC 394 of 2021

McCallum CJ:

In these proceedings the parties are referred to by pseudonyms pursuant to an order of the Court made in chambers by consent. The reason for taking steps to preserve the anonymity of the parties is that the plaintiff was the complainant in criminal proceedings against the defendant for sexual assault offences and is related to him, so that any identification of him may identify her.

The proceedings before the Court are civil proceedings between the same parties in which the complainant sues the defendant for damages for personal injury, including post-traumatic stress disorder, depression, anxiety and related psychological sequelae.

The proceedings were commenced in September last year. They suffered some delay as a result of the fact that the defendant, who is currently serving a term of imprisonment for the offences which coincide with the basis for the civil claim, sought to obtain legal advice. The proceedings were adjourned on a number of occasions, including on the motion of the Deputy Registrar who sought to assist the defendant in his efforts to obtain legal advice.

Those efforts ultimately proving unsuccessful, the defendant was finally ordered to file a defence within 14 days. That order was made on 21 March 2022. The period for filing the defence has accordingly now expired. It may be noted that the order was made in circumstances where the defendant had been on notice of the proceedings since being served with the originating process and related documents on 5 October 2021.

No defence has been filed within the period allowed and I was informed this afternoon by Ms Burr, who appears for the plaintiff, that no defence has been served. Indeed, the only correspondence that has been received by either the plaintiff or the Court from the defendant is an email from the defendant forwarded by his sister (who by inference is either the mother or aunt of the complainant) and received by the Court on Sunday,…

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 ND v AB

Details

AGLC: ND v AB [2022] ACTSC 99
Case: [2022] ACTSC 99
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an ex parte application in the matter of ND v AB. The plaintiff, ND, is seeking damages for personal injury and psychological sequelae from the defendant, AB, who is her relative and who has been imprisoned for sexual assault offences against her. The defendant has failed to file a defence within the allowed time and has communicated to the court that he lacks the assets to satisfy any judgment against him. ND has applied for a freezing order over the defendant’s assets on the basis that there is a risk of dissipation of assets and that she has a vested and accrued cause of action against the defendant. The court was required to decide whether the plaintiff had established the necessary grounds for a freezing order, namely that she had a vested and accrued cause of action, that there was a danger of dissipation of assets, and that the balance of convenience favoured granting relief.

The court found that ND had a vested and accrued cause of action against AB, given his conviction for the offences that form the basis of the civil claim. The court also found that there was an appreciable or substantial risk of dissipation of assets, based on the defendant’s correspondence and failure to file a defence. The balance of convenience was readily resolved in favour of the plaintiff, given the risk of dissipation of assets and the arguable strength of the plaintiff’s cause of action. The court granted the relief sought in the application, including an ex parte freezing order over the defendant’s assets, with costs reserved and proceedings relisted for further hearing.

Orders