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, 3 April 2022, the day before the defence was due.
In that email the defendant first complains of having to defend the proceedings self-represented whilst being incarcerated. Secondly, he states that the legal resources he once had at his disposal, presumably in the defence of the criminal proceedings, have “dried up”.
Thirdly, he asks the Court to enable him to become informed “around what is the desired outcome of the aggrieved party”, asserting that he no longer owns “any property, equity or assets of any value”. Separately, the Court record reveals that he has twice informed the Court when appearing in person that he is “bankrupt”.
The plaintiff now seeks a freezing order over the defendant’s assets. The basis for the application is that, according to the evidence before the Court relied on in support of the application, each of the defendant’s assertions of impecuniosity is untrue. The defendant is not bankrupt, or at least is not a registered bankrupt, and he is registered as the proprietor of real property in this jurisdiction.
In circumstances where he has not filed or served any defence to the claim but has only pointed to his alleged lack of assets, his correspondence with the Court prompted the plaintiff and those advising her to harbour a concern as to the prospect of any judgment in her favour being hollow if the defendant attempts to achieve the position he asserts to be the case, namely by divesting himself of any assets.
Separately, there is evidence before the Court that the plaintiff has been ostracised from the rest of the family, including her own mother, and that other members of the family have threatened her as a result of the allegations accepted by the jury in the criminal proceedings. For those reasons, there would appear to be a real threat of dissipation of assets, hence the application.
The application for freezing orders was lodged yesterday and brought before the Court this afternoon on an urgent basis ex parte. It invokes the Court's authority pursuant to r 741 of the Court Procedures Rules. The principles to be applied in making a freezing order pursuant to the power conferred by that rule were considered by Mossop J in National Gallery of Australia v Beljan [2018] ACTSC 78. In that case, his Honour said at [30]:
“[I]n order to warrant the making of a freezing order it is necessary to establish:
(1)That the plaintiff has a vested and accrued cause of action against the defendant;
(2)That a danger exists that if the plaintiff is successful, it will not be able to have the judgment satisfied by reason of the defendant absconding, removing assets from the jurisdiction, disposing of them within the jurisdiction or otherwise dealing with them in a manner that puts them beyond reach; and
(3)The balance of convenience favoured the granting of relief.”
In the present case it is clear that the plaintiff has a vested and accrued cause of action against the defendant which, in light of his conviction in the criminal proceedings, must be regarded as arguable if not strong.
There is in the material on the Court file a copy of the sentencing judgment of Burns J who sentenced the defendant for the offences for which he is now serving his term of imprisonment. That judgment makes plain that the facts asserted by the complainant in the criminal proceedings would, if the same evidence were given in the civil proceedings, establish a cause of action for intentional assault, likely sounding in substantial damages for the kind of psychiatric injury that would flow from such assaults.
Secondly, I am satisfied that there is a danger that if the plaintiff is successful she will find that any assets belonging to the defendant have been put beyond her reach. Plainly this is not a case in which there is a risk of the defendant absconding. His non-parole period expires in 2026.
However, the material set out in the supporting affidavit of Annie Schubert suggests a risk of an intention to defeat any potential judgment, as does the correspondence from the defendant to which I have referred. I have had regard in that context to the fact that the defendant has not filed a defence to the proceedings and it is difficult, in light of the jury's verdict, to see what his defence might be.
I note also in that context that it is not necessary for the plaintiff to establish on the balance of probabilities that assets will be dissipated, only that there is an appreciable or substantial risk of that occurring. I am satisfied of that element. In those circumstances, the question of the balance of convenience is readily resolved in favour of the plaintiff. For those reasons, I am satisfied that it is appropriate to grant some of the relief sought.
I note that order 3 in the application seeks to have the defendant disclose his assets to this Court on a date to be set. Having regard to the urgent nature of the present application and the fact that it has been heard ex parte, I would prefer to defer the consideration of that relief to a time when the proceedings are again before the Court inter partes.
Otherwise I am satisfied that it is appropriate to make orders in the terms sought in the form of general order filed together with the application as follows:
(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.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 4 May 2022 |