Schilling v Smith

[2022] NSWDC 298

District Court

New South Wales

Medium Neutral Citation:

Schilling v Smith [2022] NSWDC 298

Hearing dates:

25 & 26 July 2022

Date of orders:

27 July 2022

Decision date:

27 July 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Pursuant to UCPR r 28.2, the question of liability of the first defendant Adam Smith is to be determined as a separate question to the assessment of the plaintiff's claim for damages;

2. Verdict and judgment for the plaintiff against the first defendant Adam Smith on the question of liability;

3. The part-heard hearing on the question of damages is fixed to resume before me at 10.00am on 8 August 2022;

4. In the interim, liberty for the plaintiff to apply to the Court for the making of facilitative case management orders, including orders for substituted and abridged service of damages documentation on the first defendant.

Catchwords:

TORTS – intentional torts – assault; battery; sexual assault; determination of liability as a separate question pursuant to UCPR r 28.2

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 14, s 56, s 58(2)

UCPR r 28.2

Cases Cited:

Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36

Trobridge v Hardy (1955) 95 CLR 147; [1955] HCA 68

Category:

Principal judgment

Parties:

Daniel Schilling (Plaintiff)
Adam Troy Smith (First defendant)

Representation:

Counsel:
Mr T Meakes (Plaintiff)
No appearances for the defendants

Solicitors:
Wyatts Lawyers (Plaintiff)
(First defendant’s solicitor filed a notice of ceasing to act on 18 February 2022)

File Number(s):

2020/106671

Publication restriction:

None

Judgment

Nature of case

1. By statement of claim filed on 20 April 2020, the plaintiff, Daniel Schilling, now aged 37 years, brings these proceedings alleging that on 26 January 2014, he was the victim of a series of intentional trespasses to his person. These comprised brutal physical assaults, and a humiliating sexual assault, perpetrated by the first defendant, Adam Troy Smith, as the principal assailant, and others at his instigation. The plaintiff was aged 29 years at the time.

2. In his statement of claim, the plaintiff has also named two other defendants as his alleged assailants, namely, Rebecca Mannion, a friend of Mr Smith, and Vanessa Ann Barrett, Mr Smith’s girlfriend. The statement of claim was only served on Mr Smith, so the plaintiff’s case has only proceeded against him to this point.

3. The proceedings have had a chequered procedural history that involved many interlocutory listings to this point, including orders made by other Judges for substituted service and freezing orders. Adam Smith, who works in the building industry, had retained a solicitor who filed an appearance on his behalf. However, that solicitor has filed a notice of ceasing to act on 18 February 2022. Adam Smith has not participated in the proceedings since that time. However, I am satisfied that the hearing date for this case was drawn to his attention.

Facts

4. At about 10.00pm on Australia Day, 26 January 2014, in company with a friend, the plaintiff went to licensed premises known as the Deepwater Inn, in Deepwater, New South Wales. The plaintiff and his friend went there on an errand to purchase some supplies. After leaving those premises and whilst walking outside on a public footpath the plaintiff was confronted by Adam Smith who, assisted by a group of others who were also present, proceeded to physically and verbally assault him.

5. In those events, Adam Smith head-butted the plaintiff in the face, punched him in the face, repeatedly kicked and punched him whilst he was on the ground. He was then dragged on the ground to a point where his pants were pulled down to his knees, fingers were inserted into his anus, followed by an injurious forcible insertion of a beer bottle into his anus, resulting in anal tears in addition to his many other physical injuries.

6. The first defendant, Adam Smith, carried out those brutal acts without the plaintiff’s consent. Those acts constituted unlawful intentional assaults on the plaintiff in aggravated circumstances.

7. Those actions resulted in subsequent criminal prosecutions. After reviewing the disputed facts, on 17 October 2014, on a plea of guilty, the sentencing Magistrate made findings against Adam Smith to the effect that the plaintiff was set upon by his attackers whereupon, he was punched and kicked whilst lying on the ground and sexually assaulted. The sentencing Magistrate remarked on those events in recording that the first defendant, Adam Smith, was motivated to exact verbal and physical punishment on the plaintiff over a perceived wrong, the occurrence of which the plaintiff has convincingly denied.

8. In those Local Court criminal proceedings, as against Adam Smith, the sentencing Magistrate remarked that: “Adam Smith has seemed to appoint himself the Sheriff of Deepwater, … assisted by his deputies, the co-offenders”: Exhibit “B”, p 291.

9. In those Local Court proceedings, Adam Smith was sentenced to a term of imprisonment of 16 months with a non-parole period of 8 months. As he is the only defendant who filed an appearance in these proceedings, it is not necessary to here recount the details of the sentences meted out to the other persons who were involved in the assault of the plaintiff.

10. Following his conviction, Adam Smith exercised his right of appeal to the District Court from the sentence that was imposed upon him in the Local Court. In that appeal, on 22 April 2015, the head sentence of imprisonment was varied to 14 months and the non-parole period was reduced to 6 months on account of an established special circumstance that became the subject of a non-publication order, following a pre-sentence report that referred to information concerning another person who was not involved in the events. On appeal, the sentencing Judge said of Adam Smith’s attitude, that there was “a continuing lack of remorse for the offending conduct”. His Honour went on to remark:

“The assaults on Mr Schilling were disgraceful. They were not justified by any objective evidence. They involved a drunken, violent pursuit of a man in the middle of the night in which all three appellants (now relevantly only two) viciously assaulted him. He was punched and kicked repeatedly in a position of vulnerability and he was pursued with the intent of more violence being inflicted upon him”

[Exhibit “B”, p 320]

11. The plaintiff gave compelling evidence of the assaults to which he was subjected at the hands of Adam Smith. He also gave compelling evidence of those events, and of his physical and psychological suffering that has continued since those events. The plaintiff’s account, which is summarised below, was convincing, and was not otherwise inherently improbable. Absent challenge, in the circumstances, I accept his evidence in its entirety.

12. It seems that on the night in question, when the plaintiff attended the Deepwater Inn with his friend in order to purchase and take away supplies, he was wrongly accused of having behaved and spoken inappropriately towards the partner and a daughter of Adam Smith. I accept the plaintiff’s evidence that he did no such thing, contrary to what was asserted and was believed to be the case by Adam Smith.

13. Adam Smith believing otherwise, took the law into his own hands. When the plaintiff was outside the premises, he proceeded to repeatedly, viciously and humiliatingly, attack the plaintiff in a manner and in circumstances already described at paragraph [5] above. In those events the plaintiff was, for a sustained period, in genuine fear for his life.

14. During a moment of inattention on the part of his assailants, the plaintiff managed to get away from his assailants and hide in various places whilst Adam Smith gathered a large posse of helpers to search for the plaintiff. They were using utility vehicles fitted with hunting lights of the kind used for pig and kangaroo hunting in order to search for him. In those events, they searched the streets of the small town of Deepwater looking for the plaintiff, whilst audibly threatening further violence to him, if he was found.

15. I accept the plaintiff’s evidence that Adam Smith was the person who led that posse searching for him. I also accept that he was also the person making intimidatory vocal threats against the plaintiff within the plaintiff’s hearing whilst he was in hiding. The end result for the plaintiff was that he had a terrifying time over a prolonged period of time, all the while thinking that his life was at risk.

16. In those events, the plaintiff sought shelter at a number of nearby premises and moved between premises. He hid on verandas concealing himself by the positioning of available furniture. He also later hid under houses, and ultimately, in a drain, to avoid being seen in the spotlights and the other lights of the vehicles that were being deployed to search for him by Adam Smith and his posse, with mal intent clearly on the agenda.

17. When the plaintiff thought it was safe to do so he started making his way out of town on the highway. He was picked up by a good Samaritan passer-by in a 4-wheel drive vehicle. After briefly explaining what had happened to him that man took the plaintiff to Glen Innes Hospital.

18. At that time the plaintiff was shaking. He was in pain. He was embarrassed. He was in disbelief as to what had happened to him. He felt, justifiably, that his dignity had been taken from him, and that “his whole world had just gone”. He felt too embarrassed to disclose the fact that he had been sexually assaulted. This was understandable given his devastating earlier experience. He does not recall how he got home from the hospital.

19. At his home, for whatever reason, his girlfriend at the time refused him entry into the house. He was therefore forced to sleep in the backyard. In the morning, he gained entry to his home, and when he removed his clothing he realised from the sight of his clothes, which were soiled with blood and faeces, that he had incurred a serious anal injury.

20. He then went to the Glen Innes Police Station to report that he had been assaulted by Adam Smith. There, he was refused assistance, apparently because of a social relationship between Adam Smith and some police officers who were then at Glen Innes. The plaintiff gave the following account of those events:

“Q. Did they give you a reason as to why they couldn't do anything?

A. No, they just said there's nothing they could do because back then, the police officers that were actually at Glen Innes back then, Adam used to have barbeques with them and the Deepwater Police at their place at least once or twice a month. And then as soon as his name was mentioned, they said, "There's nothing we can do", so I actually didn't even get to go inside the police station to actually make any, any complaints since they heard his name. They just said, "Sorry, there's nothing we can do", and then I got taken down to Armidale Police Station.

Q. Who took you there?

A. Christie(?), the lady's house I went over to go to the bottle shop to get her Sambuca to take back to her. And then Armidale Police couldn't actually believe what happened.”

[T33.17 – T33.30]

21. The Armidale detectives took a statement from the plaintiff as to the events in question. They took photographs of his injuries. They took his bagged clothes and sent him to Armidale Hospital for an examination to seek evidence of a sexual assault.

22. The Armidale Police then formed a task force to seek out and arrest the perpetrators, who were subsequently dealt with in the criminal justice system, including as described at an earlier point in these reasons.

23. The plaintiff and his then girlfriend separated shortly after the assaults. She apparently had some kind of association with Adam Smith. He has since re-partnered and wishes to leave the area. However, he now finds himself in a sense trapped in his present locality because of his new partner’s commitment to the needs of her mother, who is unwell and who needs regular care.

24. Because the plaintiff remains in the area, at times, he finds himself being confronted, harassed, verbally abused and threatened by Adam Smith, including when shopping in the local supermarket. This occurs in a small town where allegiances are longstanding, and there is now little if any goodwill towards the plaintiff as a result of what Adam Smith has falsely put around town about him.

25. Adam Smith’s conduct in that regard has occurred despite the terms of his parole, despite the terms of apprehended violence orders, and despite the requirements of ordinary decency. This has caused the plaintiff much distress and psychological suffering, which serves to exacerbate his physical suffering.

26. Concerningly, the plaintiff has given an account of how certain police officers at Glen Innes have not been of assistance to him when he has made requests for police to deal with the reported behaviour of Adam Smith towards him where, after Adam Smith served his term of imprisonment, unfortunately his threatening conduct has continued unabated. The plaintiff’s account in that regard is not inherently improbable, and absent challenge, it must be accepted.

27. Whilst I accept the plaintiff’s account concerning the ongoing misbehaviour of Adam Smith, towards him, I do not make any findings in relation to any of the police officers at Glen Innes where, in these proceedings, they have not been named and even if they were identified, they have not had a procedurally fair opportunity to consider or respond to the plaintiff’s evidence as cited above.

Findings as to assault

28. On the above facts, I find that Adam Smith viciously assaulted the plaintiff as he has claimed. Assault is made out if it is shown that there has been the merest interference with a person’s liberty by trespass or battery without consent. Such tortious conduct is, prima facie, a grave infringement of the most elementary of common law rights: Trobridge v Hardy (1955) 95 CLR 147; [1955] HCA 68, per Fullagar J, at [3].

29. Where conduct involves intentional violence, as is the case here, this is an aggravating factor. That is especially when the conduct is sustained and repeated, and where thereafter, the menacing behaviour continues, as is the case here.

An emergent procedural problem – separate question

30. As already observed, the plaintiff’s statement of claim was only served on the first defendant Adam Smith. Although the plaintiff has seen him and the other persons in his locality, he is fearful of them and what might be done to him. It is understandable that he has therefore not attempted any form of personal service himself.

31. During the hearing it emerged that some of the material within the Court Books prepared on the plaintiff’s behalf had not been served on Adam Smith. This was a matter of some significance because although it may be safely assumed from the circumstances that he has no intention of participating in the proceedings, the requirements of procedural fairness mandate that in this case, where substantial damages are claimed, including aggravated damages, such material should be served on him.

32. Accordingly, after due consideration, an order was made pursuant to UCPR r 28.2 and in accordance with the requirements of s 56 and s 58(2) of the Civil Procedure Act 2005 (NSW), separating the hearing of the liability issues from the damages issues, along with facilitative ancillary orders.

33. This was in circumstances where the dictates of justice required such a course given the deleterious effect that the outstanding litigation is having on the plaintiff in circumstances where the plaintiff has sustained compensable damage at the hands of Adam Smith: Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [436].

34. In these circumstances, there is a need to balance the respective rights of the parties. On the one hand, the plaintiff is entitled to have his case conclude with due despatch after many procedural delays. On the other hand, the first defendant is entitled to service of all the material relied upon by the plaintiff in his claim for damages.

35. Given the procedural history and the procedural conduct of the parties, I consider that the appropriate balance may be achieved by abridging the service requirements, including by substituted service on the first defendant concerning that portion of the damages material that has not yet been served on him. In my provisional view, service by email would be an acceptable course in the circumstances. This will permit a prompt resumption of the hearing on the damages issues where to date, the first defendant has not shown an intention to participate in the proceedings: s 14 of the Civil Procedure Act 2005.

Orders

36. I make the following orders:

1. Pursuant to UCPR r 28.2, the question of liability of the first defendant Adam Smith is to be determined as a separate question to the assessment of the plaintiff’s claim for damages;

2. Verdict and judgment for the plaintiff against the first defendant Adam Smith on the question of liability;

3. The part-heard hearing on the question of damages is fixed to resume before me at 10.00am on 8 August 2022;

4. In the interim, liberty for the plaintiff to apply to the Court for the making of facilitative case management orders, including orders for substituted and abridged service of damages documentation on the first defendant.

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Decision last updated: 27 July 2022