Richards v Byrnes
[2009] VCC 99
•6 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL
FAMILY PROPERTY DIVISION
Case No. CI-08-03665
| VICTORIA GABRIELLE RICHARDS | Plaintiff |
| v | |
| LESLIE DOUGLAS BYRNES | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 February 2009 |
| DATE OF JUDGMENT: | 6 February 2009 |
| CASE MAY BE CITED AS: | Richards v Byrnes |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0099 |
REASONS FOR JUDGMENT
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Catchwords: DOMESTIC PARTNERSHIP – Relationships Act 2008 – transitional provisions – application for leave pursuant to section 43(2) for leave to apply for an order for adjustment of interests in property – considerations relevant to the grant of leave – application granted: Relationships Act 2008, sections 43(1) and (2), 45(1)(a)-(d), 51 and 74(1)
LIMITATION OF ACTIONS – personal injuries – intentional trespass to the person:
Limitation of Actions Act 1958, sections 5(1A) and 23A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Jenkins | BJT Legal |
| For the Defendant | Mr C Nisiforou | Rhonda G Wilkinson |
| HIS HONOUR: |
Introduction
1 The plaintiff filed an Originating Motion and a Summons on Originating Motion on 4 September 2008 seeking the Court’s leave to have time extended to bring a proceeding under Part IX of the Property Law Act 1958[1] and a proceeding at common law to recover damages against the defendant.
[1] Part IX of the Property Law Act 1958 was repealed by the Relationships Act 2008. The former Act was repealed on 1 December 2008 and the latter Act came into operation on that day
2 The proceeding has something of a history, which I will set out below:
•
The proceeding was returnable before Her Honour Judge Kennedy on 2 October 2008, at which time Her Honour ordered, inter alia, that the proceeding be heard at a time convenient to me, on 23 October 2008.
•
On 23 October 2008, the plaintiff appeared in person by video link from Port Phillip Prison. Mr M de Young, solicitor with Victoria Legal Aid, was visiting the prison that day and agreed to act as amicus curiae. The plaintiff had just undergone surgery for a cancerous condition affecting his voice box and was unable to communicate verbally. It was indicated to me by the plaintiff through Mr de Young that he would be released from prison some time in January 2009, enabling him to appear on the next return date on 19 January 2009.
•
On 19 January 2009, Mr G Jackson of counsel appeared for the defendant. The defendant was not at court. Mr Jackson informed me that the defendant was still undergoing a term of imprisonment. He applied for an adjournment. I adjourned the proceeding to 2 February 2009. I made orders that the plaintiff and the defendant file any further affidavit material before 2 February 2009.
3 On 2 February 2009, Ms Jenkins of counsel appeared for the plaintiff and Mr C Nisiforou of counsel appeared for the defendant. Both informed me that there was no further impediment to the proceeding going ahead.
The Material before the Court
4 In support of her applications, the plaintiff tendered the following affidavits:
• An affidavit which she swore on 25 August 2008 exhibiting a draft Statement of Claim pleading a claim under Part IX of the Property Law Act 1958 and a claim at common law to recover damages based upon assaults occasioned on her by the defendant. • A further affidavit which she swore on 22 January 2009. 5 In answer to the applications made by the plaintiff, the defendant swore an affidavit on 29 January 2009.
6 Neither the plaintiff for the defendant were required for cross-examination. Both parties were content to proceed on the affidavit evidence and oral submissions.
The Application under the Relationships Act
7 When the Originating Motion and the Summons on Originating Motion were filed the rights of parties to a domestic relationship were governed by Part IX of the Property Law Act 1958.
8 Part IX of the Property Law Act 1958 was repealed by the Relationships Act 2008 with the former Act being repealed and the latter Act coming into operation on 1 December 2008.
9 Section 74(1) of the Relationships Act 2008 provides that any right or entitlement that a person had under Part IX of the Property Law Act 1958 immediately before the commencement day of the Relationships Act 2008 (1 December 2008) is taken, or on and after that date, to be a right or entitlement of the person under the Relationships Act 2008.
10 Therefore, the proceeding is governed by the provisions of the Relationships Act 2008.
11 Section 43(1) provides that where domestic partners have ended their domestic relationship, an application for adjustment of property interests pursuant to section 41(1) must be made within two years after the day on which the relationship ended.
12 Section 43(2) permits the Court to grant leave to a domestic partner to apply for an order at any time after the end of the period referred to in subsection (1) if the Court is satisfied that greater hardship would be caused to the party applying if that leave were not granted than would be caused to the other party if that leave were granted.
13 Sections 43(1) and (2) are in the same terms as sections 282(1) and (2).
The Relevant Considerations for Leave
14 What constitutes hardship is not defined in the Act. In Harris v Harris,[2] Gillard J rejected a submission that hardship means “substantial detriment”, saying that it was a word which was well understood and that there was nothing to be gained by substituting other words for it. He added that the relevant subsection required the Court to consider the relative hardships depending on the outcome of the application.[3]
[2] (1997) 22 Fam LR 263
[3] at 267
15 He added some flesh to its meaning when considering what was said in In the Marriage of Neocleous,[4] in which Fogarty and Nygh JJ said:
“Hardship is caused by the inability of a person to pursue a claim which in the circumstances of the case appears on the prima facie evidence to be substantive and not merely trifling.”[5]
[4] (1993) 16 Fam LR 557
[5] at 561
16 Gillard J considered that what Fogarty and Nygh JJ said, in the context of section 44(4) of the Family Law Act 1975, was apposite to the matter before him, and added:
“I have no hesitation in saying that if leave is not granted the plaintiff will
suffer hardship and the hardship can be described as substantial.”[6]
[6] at 267
17 In Joyce v Delany,[7] Williams J referred to Harris v Harris (supra) and The Marriage of Neocleous (supra) with approval.
[7] [2004] VSC 338
18 There are two other considerations relevant to the exercise of the discretion whether to grant leave or not. Some assessment of the likely outcome of the proceeding is necessary when considering the respective hardships to the plaintiff and the defendant, and some explanation for the delay between the end of the domestic relationship and the commencement of the proceeding must be provided.
19 In Lockett v Duckett,[8] Cummins J considered that the plaintiff had to establish a prima facie case that was by no means untenable, as the standard of satisfaction. In McGibbon v Marriott,[9] Warren J (as she then was) considered that the plaintiff had to establish at least an arguable case.
[8] (2004) 32 Fam LR 346, at paragraph 23
[9] [1999] VSC 381, at paragraph 18
20 In order to make some assessment of the likely outcome of the proceeding it is necessary to consider sections 45 and 51 which require me to consider the contributions made by the plaintiff and the defendant to the acquisition, conservation or improvement of any property, or to the financial resources of one or both of the plaintiff and the defendant and contributions made in the capacity of homemaker or parent.
21 There are a number of authorities which essentially stand for the proposition that the plaintiff must provide at least a reasonable explanation as to why there has been a delay in instituting the proceeding.[10]
[10] McGibbon v Marriott (supra) per Warren J, at paragraph 7; Lockett v Duckett (supra), per Cummins J, at paragraph 20, and Stott v Murphy [2004] VSC 373, per Cummins J, at paragraph 14. In both cases, Cummins J disagreed with Gillard J in Harris v Harris (supra) applying.
22 In Lockett v Duckett (supra), Cummins J, in applying McGibbon v Marriott (supra), added, when discussing what the plaintiff needed to prove to establish a reasonable explanation for such delay:
“However I consider that the standard is not a rigorous or high standard of satisfaction, but rather a standard of reasonableness; that is, a reasonable explanation, allowing, in particular, for the emotional and human factors involved in domestic arrangements and the complex of factors involved in such arrangements.”[11]
[11] at paragraph 21
23 He repeated that observation in Stott v Murphy.[12]
[12] [2004] VSC 373, at paragraph 14
24 In Giller v Procopets,[13] Ashley JA considered whether it was necessary for an applicant in the position of this plaintiff to adequately explain delay in bringing a proceeding. He concluded that in the exercise of the Court's discretion whether to grant leave, the Court is entitled to take into account the presence or absence of an explanation for delay, but the failure to adequately explain the delay does not preclude a favourable exercise of discretion.[14]
[13] [2008] VSCA 236
[14] paragraph 58
25 Neave JA reviewed what was said in Lockett v Duckett (supra), Harris v Harris (supra) and McGibbon v Marriott (supra) relevant to delay. Neave JA referred to the passage in McGibbon v Marriott from which I have quoted in paragraph 22 above, with approval.[15]
[15] paragraph 309
The Plaintiff's Case for Leave
26 In paragraph 2 of her first affidavit, the plaintiff referred to the draft Statement of Claim exhibited to her affidavits, saying that to the best of her knowledge and belief the facts contained in the Statement of Claim were true and correct, and she added particularly the facts relevant to the contributions which she made.
27 The draft Statement of Claim essentially pleads, in paragraph 8:
•
That the plaintiff and the defendant entered into a domestic relationship between March 1985 and January 2000.
•
That they lived together in Victoria for at least one-third of the period of the relationship and were both living in Victoria at the time when the Statement of Claim was drafted.
•
There is one child of the relationship, Shane Anthony Burns, born 22 April 1987.
•
That at the time when she commenced the domestic relationship with the defendant, the plaintiff was pregnant, presumably as a result of a prior relationship, and after the commencement of the domestic relationship a child was born, John Douglas Burns, on 16 October 1985, who was, at all material times, part of the household of the plaintiff and the defendant.
•
That she and the defendant are the joint proprietors of a property known as 437 Dalglieshes Road, Beaufort.
•
That she contributed the whole of her income for the whole of the relationship for the benefit of herself, the plaintiff and the children; that she contributed a lump sum of $10,000 used for fencing and the acquisition of livestock and other purposes; that she was actively involved in farming activities on the property, and she contributed a further lump sum of $15,000 which was spent on the property and to the benefit of the family in about 1992.
•
That she was raped on two occasions by the plaintiff. In paragraph 2 of her second affidavit sworn on 22 January 2009, she said that she was raped on the first occasion on 23 June 2000 and on the second occasion on 1 October 2000.
28 The draft Statement of Claim also pleads, in paragraph 7, that the plaintiff made contributions in her capacity as a homemaker and parent, essentially saying that she performed the majority of household duties, including cleaning, washing, cooking and shopping, and was the primary caregiver for the children.
29 Sections 285(a) and (b) of the Property Law Act 1958 provide that a court may make an order adjusting the interests of the domestic partners in property of one or both of them that seems just and equitable having regard to the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or the financial resources of one or both of the partners, the contributions made in the capacity of homemaker or parent.
30 Section 45(1) is in similar terms. However, in addition to the considerations referred to in section 285, an order for adjustment of interest in property must take into account the nature and duration of the domestic relationship and any relevant matter referred to in section 51, which deals with orders for maintenance.
31 In her first affidavit, the plaintiff said, in paragraph 2, that she was not aware that she could commence a proceeding in relation to the matters referred to in the draft Statement of Claim until she received a letter from a solicitor acting on behalf of the defendant dated 23 October 2007 relevant to a proposed property settlement. Following receipt of that letter she engaged Mr Myers of BJT Legal, who advised her that she had a cause of action against the defendant, presumably under Part IX of the Property Law Act 1958.
32 In answer to the plaintiff’s evidence, the defendant said, in paragraph 6 of his affidavit, that the plaintiff was aware that she could commence a proceeding under Part IX of the Property Law Act 1958 at the time of separation in January 2000. He based that state of knowledge on what the two children told him, that if they (the children) told the defendant where they were then the plaintiff would force the defendant to sell the property. Furthermore, he said that he then obtained court orders which made him solely responsible for the care, welfare and development of the children.
33 In paragraph 6 of his affidavit, the defendant denies that the plaintiff made substantial contributions towards the acquisition, conservation and improvement of the property. Whilst the defendant does not say that he made such contributions, I infer that is what he meant when denying that the plaintiff made such contributions. He went on to say that he made substantial payments on the plaintiff's behalf during the course of the domestic partnership as a result of the plaintiff's drug habit and her conviction for dealing in drugs in 1986 or 1987, and at some time later, and for reasons which are not explained as to their relevance, the defendant refers to the plaintiff being discovered in bed with another man in 1993 or 1994, resulting in her shooting herself.
34 In paragraph 7 of his affidavit, the defendant says that the plaintiff was not in any form of paid employment through the domestic relationship.
35 It is quite clear from the foregoing that the allegations made by the plaintiff and the defendant regarding the financial and non-financial contributions are in stark contrast.
36 On the basis of the authorities which I have reviewed, I need to be satisfied that that, prima face, the plaintiff's case appears to be substantive and not trifling, and that she would endure hardship by not being entitled to pursue that claim. Furthermore, I should weigh into consideration the delay on the part of the plaintiff in bringing the proceeding and her reasons for delay.
37 It is nearly impossible to divine from the stark contrast in the evidence of the plaintiff when compared with that of the defendant whether the allegations made by the plaintiff should be accepted or those of the defendant in the absence of testing of the evidence through cross-examination of either the plaintiff or the defendant.
38 However, there is common ground between the plaintiff and the defendant that they did enter into a domestic relationship; that it commenced in or about March 1985 and continued until January 2000; that one child was born of the union of the plaintiff and the defendant and the other child not born of their union was subsumed into the family unit.
39 It must be that the plaintiff and/or the defendant made direct financial contributions to the acquisition, conservation and improvement of the property and that the plaintiff and/or the defendant made contributions in the capacity of homemaker or parent in a relationship which lasted some fifteen years.
40 Even if the defendant made all of the direct financial contributions, the plaintiff would still have a claim for adjustment of interests in property based upon her contributions in the capacity of homemaker or parent, and with the additional considerations under section 45(1)(c) that the Court can take into account the nature and duration of the domestic relationship; and (d), relevant matters referred to in section 55 relevant to orders for maintenance. It occurs to me that the claim of the plaintiff is broader than it would have been under Part IX of the Property Law Act 1958.
41 Therefore, if the plaintiff's contributions were in the capacity of homemaker or parent she would still be entitled to an adjustment of property interests.
42 It cannot be said by the defendant that the plaintiff has no claim, and indeed, he has not deposed to any material facts suggesting that is the case.
43 The conclusions I have reached are that the plaintiff has at least the claim referred to in paragraphs 38-41 above, and therefore, prima facie, she has a substantive case and not one which is trifling.
44 Again, it is difficult to divine from the evidence of the plaintiff, when compared with that of the defendant, whether the plaintiff knew that she had the rights which she now seeks to exercise at the time of separation, but on that issue I prefer the evidence of the plaintiff because she has been prepared to swear that she did not have that knowledge, and as far as forcing the defendant to sell the property, it is not possible to know what the plaintiff meant by that. As a matter of law she has rights as a joint proprietor, and perhaps if she made that threat she did so on that basis, but to go beyond what I have just said is purely speculative.
45 Therefore, I find that the delay amounts to the acquisition of knowledge on the part of the plaintiff that she had a claim some time in October 2007, and that the delay in acting on that knowledge was between October 2007 and 4 September 2008 when she filed the Originating Motion and Summons on Originating Motion. It is a delay of about eleven months at best. I do not consider the delay to be significant.
46 Therefore, and for the reasons outlined above, I consider the hardship to the plaintiff would be greater than the hardship caused to the defendant if the leave sought were not granted, and I grant the plaintiff leave pursuant to section 43(2) of the Relationships Act 2008 to commence a proceeding against the defendant.
The Application under the Limitation of Actions Act
47 In paragraph 2 of her second affidavit, the plaintiff says that she was assaulted and raped by the defendant on 23 June 2001 and 1 October 2000. She says the defendant was charged with two counts of rape and convicted in August 2002 and was sentenced to a term of imprisonment of ten years, with a minimum sentence to be served of eight years.
48 The defendant does not deny that he was convicted as alleged by the plaintiff, and indeed, Mr Nisiforou conceded that the plaintiff was charged, convicted and sentenced as alleged.
49 In paragraphs 9-11 of the draft Statement of Claim, the plaintiff has pleaded a claim based upon the occurrence of the two rapes and seeks to recover damages for pain and suffering and loss of enjoyment of life.
50 Mr Nisiforou asked for time to obtain instructions from his instructing solicitor as a result of an observation made by me that the defendant had not referred to any matter in his affidavit relevant to the application made by the plaintiff pursuant to the Limitation of Actions Act 1958.
51 I gave Mr Nisiforou the time he requested. On resumption he announced that he was no longer instructed by his instructing solicitor to contest the application, and on my enquiry whether that meant that the application was conceded, he said that he was simply making no submissions on the application and that his instructions were to allow it to proceed unopposed.
52 The turn of events was unusual, considering that some submissions had been made by Mr Nisiforou. I decided that the application should proceed as if it were unopposed and that it was for Ms Jenkins to persuade me on the affidavit evidence and the relevant authorities that I should accede to the application.
53 The causes of action based upon the rapes occurred on 23 June 2000 and 1 October 2000. The period of time that has elapsed is just over eight years.
54 The application is brought pursuant to section 23A of the Limitation of Actions Act 1958. There is no doubt that a claim of intentional assault or trespass to the person is amenable to an extension of time pursuant to section 23A(2), subject to the Court having regard to all of the circumstances of the case, including each of the matters enumerated in subsection (3).[16]
[16] Clark v Stingel [2005] VSCA 107
55 The plaintiff has not said anything in her affidavits concerning the length of and reasons for the delay in bringing the proceeding: paragraph (a). I will return to this consideration later.
56 There can be no prejudice on the part of the defendant because section 90 of the Evidence Act 1958 permits the fact that the defendant has been found guilty of two counts of rape to be admissible in evidence for the purpose of proving that the defendant committed those offences, in other words, he cannot now deny that he committed the very acts consistent with those assaults. Therefore, the plaintiff's proceeding will proceed as an assessment of damages: paragraph (b).
57 Paragraph (c) is not relevant, that is, the steps taken by the defendant to make available to the plaintiff the means of ascertaining facts et cetera which might be relevant to her cause of action.
58 In her second affidavit, the plaintiff has described the traumatic nature of assaults occasioned on her during the domestic partnership, and in particular, in paragraphs 6 and following, relevant to the psychological impact of the rapes on her. She describes being fearful of the defendant; suffering from an anxiety disorder requiring medication and taking to drink and requiring psychological counselling: paragraph (d).
59 It is clear that the plaintiff has taken legal advice because she has made this application. However, she has not said anything about the nature of the legal or other advice she has been given or the steps she has taken upon receiving that advice: paragraph (f).
60 This now brings me back to paragraph (a) and also paragraph (e) which deals with whether the plaintiff acted promptly and reasonably when she knew she had a claim against the defendant.
61 The overriding consideration in such an application is to grant the application to extend time if the Court considers that it is just and equitable so to do. In the exercise of that power, the Court is required to have regard to the considerations in subsection (3).
62 Quite obviously the length of and reasons for delay are very relevant, as are the extent to which the plaintiff acted promptly and reasonably, however, considering that the defendant has chosen not to say anything about this application and to allow it to proceed unopposed, in the end reduces the impact of the failure of the plaintiff to say anything about the length of and reasons for delay and the extent to which she acted promptly and reasonably. Questions of delay and failing to act promptly and reasonably go to the question of prejudice. The defendant has not said anything consistent with the delay and the failure of the plaintiff to act promptly and reasonably, resulting in any prejudice to him in defending the claim to damages.
63 In Millard v State of Victoria, [17] Mandie AJA made the following observations in relation to delay:
“I turn to the question of the extent to which, having regard to the delay, there was or was likely to be prejudice to the defendant. In my opinion in the circumstances of this case, while some prejudice is to be presumed as a result of the admittedly substantial delay, there is not likely to be significant or material prejudice to the defendant, and a fair trial can be had notwithstanding the effluxion of time. It is unnecessary to expand upon this conclusion as, before this Court, counsel for the defendant, correctly it seems to me, did not seek to rely upon material prejudice to the defendant as a basis of opposition to the plaintiff’s application.
The ultimate question is whether it is ‘just and reasonable’ to extend the limitation period having regard to ‘all the circumstances of the case’ including, but not limited to, the matters set out in s 23A(3). The Court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.”[18]
[17] [2006] VSCA 29
[18] Paragraphs 40-41
64 Although there has been an unexplained delay on the part of the plaintiff, it is but one of a number of considerations which I must weigh up, and having done so, I apply the reasoning of Mandie AJA, that there is no prejudice to the defendant and there is no reason why there will not be a fair trial of this proceeding despite the effluxion of time of just over eight years since the causes of action accrued.
65 It occurs to me that it would be unjust and not equitable to bar the plaintiff from bringing the action for damages against the defendant. Quite clearly the rapes occurred and the fact of their occurrence cannot now be denied by the defendant. The action for damages will proceed as an assessment of damages. There is no prejudice, therefore, to the defendant, and in any event he will have the opportunity to have the plaintiff examined and challenge the basis upon which she seeks an assessment of damages.
66 Therefore, and for the reasons outlined above, I will extend the period within which the action for damages may be brought.
Formal Orders
67 In relation to the proceeding relevant to the Relationships Act 2008, I grant the plaintiff leave to bring a proceeding by extending the time within which such proceeding should be commenced to 27 February 2009.
68 In relation to the proceeding relevant to the assaults and rapes which occurred on 23 June 2001 and 1 October 2000, I grant the plaintiff leave to bring a proceeding to recover damages with respect to each by extending the time within which such proceeding should be commenced to 27 February 2009.
69 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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