Serrafis v Hong
[2014] NSWDC 121
•01 August 2014
District Court
New South Wales
Medium Neutral Citation: Serrafis v Hong [2014] NSWDC 121 Hearing dates: 18/07/2014 Decision date: 01 August 2014 Before: Curtis J Decision: Catchwords: District Court - Notice of Motion seeking jurisdictional issue be tried separately and that the Statement of Claim be struck out - Orders in Family Court res judicata - Issue Estoppel Legislation Cited: Limitation Act 1969
Family Law Act 1975
Uniform Civil Procedure Rules 2005Cases Cited: In the marriage of Kennon (1997) 22 Fam LR 1
Blair v Curran [1939] 62 CLR 464
Macquarie Bank Ltd v National Mutual life Association of Australia (1990) 40 NSWLR 543
Personal Representitives of Tang Man Sit v Capacious Investments [1996] AC 514
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR
Do Carmo v Ford Excavations Pty Ltd [1983-1984] 154 CLR 234
Drayton Coal Pty Ltd v Drain [1995] NSWCA 131
Dedousis v Water Board [1994] 181 CLR 171
Baker-Morrison V New South Wales (2009) NSWLR 454; [2009] NSWCA 35Texts Cited: Res Judicata, 4th Edition 2009 Spencer Bower and Handley Category: Procedural and other rulings Parties: Retina Serrafis (Plaintiff)
Lindsay Hong (Defendant)Representation: D W Elliott appeared for the Plaintiff
R Macaulay apperaed for the Defendant
City Lawyers and Consultants (Plaintiff)
Pryor Tzannes & Wallis (Defendant)
File Number(s): 2013/237176
RULING
The Claim
By statement of claim filed 5 August 2013 the plaintiff claimed damages in respect of personal injuries caused by physical assaults and verbal intimidation and abuse from the defendant, her former husband, between 1998 and 26 June 2009.
The Defence
In answer to the claim the defendant denied the allegations of fact, and also pleaded that:
(a) The subject matter of the statement of claim is res judicata, by virtue of final orders in the Family Court of Australia made on 31 January 2012.
(b) In the alternative, the matters relied upon in the statement of claim were so relevant to the subject matter of the Family Court proceedings that it was unreasonable of the plaintiff not to have raised those matters in that court, and the plaintiff is accordingly estopped from proceeding (Anshun Estoppel).
(c) The claim is barred by the provision of section 50C(1)(a) of the Limitation Act 1969.
The Present Proceedings
By Notice of Motion filed 22 April 2014 the defendant sought orders that jurisdictional issues raised by these defences be separately tried pursuant to UCPR Pt 28 r 2, and that the statement of claim be struck out.
On 18 July 2014 I granted the order for separate determination, and, the parties having prepared their arguments and filed written submissions, heard the strike out application forthwith.
The Plaintiff's Contentions
In response to the plea of res judicata Mr Elliott for the plaintiff submits that the Family Court proceedings did not raise for determination the same issues between the parties as are presently pleaded.
In response to the allegation that the action is statute barred Mr Elliott submits that either:
(a) Before commencing the action Ms Serrafis was an incapacitated person within the meaning of section 50F of the Limitation Act 1969 and the limitation period was, in accordance with that section, suspended; or
(b) She is entitled to an extension of time pursuant to section 60G of the Act because she was unaware of the nature and extent of her injury, and unaware of the connection between that injury and the defendant's conduct, until shortly before commencing the action (Section 60I(1)(a)(i) and (ii)).
Issue Estoppel
Family Court Proceedings
Ms Serrafis and Mr Hong commenced cohabitation in May of 1998. They were married on 5 February 2000 and separated in June 2009. On 25 November 2009 Mr Hong filed an Initiating Application in the Family Court of Australia seeking final orders for the disposition of the financial affairs of the couple. On 5 January 2010 Ms Serrafis filed a response proposing different orders.
In the course of the proceedings before the Family Court Ms Serrafis pleaded her husband's domestic violence as a factor to be considered by the Court in its consideration of orders for spousal maintenance and property settlement pursuant to section 75 and section 79 of the Family Law Act 1975.
Ms Serrafis specifically pleaded that her husband's share of the joint assets should be diminished by 10 per cent and her own share increased by 10 per cent as a consequence of his domestic violence.
Section 75(2) of the Act is concerned with spousal maintenance, and 75(2)(o) requires that the court take into account:
Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
Section 79 is concerned with the division of property interests. Section 79(4) requires that the court, in the disposition of property interests, take into account contributions to the marriage, both financial and non-financial.
A document entitled Financial Questionnaire was filed by Ms Serrafis on 25 January 2012. Paragraph 8 of that document asked that the respondent set out: Matters relevant to section 75(2) and section 79(4)(e).
Ms Serrafis wrote:
Domestic Violence first commenced seven weeks into my marriage see Police Report Number 936 9342 and continued throughout the marriage. See Dr Anne Stephenson's report dated 3 August 2009....
I was unable to perform my duties whilst employed as EA to CEO/Communications Manager at Sydney Markets Limited due to stress...
In the report of 3 August 2010 Dr Anne Stephenson related the history of domestic violence and diagnosed Ms Serrafis as suffering from Post Traumatic Stress Disorder with Hyperventilation/Panic Disorder.
Paragraph 8 also asked that the respondent set out: Effect of any order on earning capacity (s79(4)(d)).
Ms Serrafis wrote:
I suffer extreme heart palpitations, shooting pains in my arms associated with regional pain syndrome. Bad dreams, obsessive-compulsive disorder. I have been diagnosed with Post Traumatic Stress Disorder with Hyperventilation/Panic Disorder. I take 80 mg of Lexapro a day and 3mg of Zanex.
I am very stressed with the legal proceedings which have now been going on for 2.5 years, and I am not well enough to work as has been recommended by my doctor. It has been a very demoralising experience. Prior to the demise of the marriage I always maintained employment in some form.
Ms Serrafis also relied upon an affidavit filed in the court on 4 July 2011 in which she swore:
During the marriage, I left the matrimonial home on numerous occasions for short periods usually for 1 to 2 weeks due to serious domestic violence that was inflicted on me by the husband.
The affidavit referred to five particular incidents, occurring in March 2000 (the knife incident), March 2000 (the Barbara Streisand concert incident), September 2000 (the wedding incident), June 2001 (the shoe incident) and December 2005 (the Sydney Casino incident).
The defendant denied domestic violence generally and also the particular assaults alleged by the plaintiff.
The Family Court matter came on for hearing on Thursday 13 May 2011. Mr Hong appeared in person, and Ms Serrafis was represented by Mr Campton, a counsel experienced in the jurisdiction.
In opening the case for Ms Serrafis Mr Campton said:
My client's case is grounded by way of other contributions that don't go near matching the husband's contribution on an initial basis but develops during the course of marriage in a number of different ways;... her wage earning contribution being more onerous than it otherwise should have been of the Kennon nature.
She is presently in the circumstance where she is not in employment, she is receiving treatment in relation to what she says are injuries and disabilities arising from the fact in terms of cohabitation, so that she is in receipt of benefits....
...Part of her case will involve evidence of a medical nature regarding the injuries she suffered during the course of the marriage, some of which are of a significant nature. She will call evidence from her treating psychiatrist as to her present disabilities, and the treatment she is receiving in relation to those disabilities of a mental health character.
The Family Court proceedings were resolved by Consent Final Orders made on 31 January 2012 pursuant to which Mr Hong paid Ms Serrafis the sum of $126,000.
The Kennon Precedent
The contribution of a Kennon nature to which Mr Campton referred was a reference to the decision of the Family Court In the Marriage of Kennon (1997) 22 Fam LR 1.
In that case the wife claimed the benefit of an adjustment to her property interests pursuant to section 79 in recognition of the domestic violence of her husband. She also sued the husband for damages at common law in respect of the domestic violence. That proceeding was cross vested to the Family Court and heard concurrently with a claim for relief pursuant to section 79.
The trial judge awarded damages of $43,000 in respect of a number of specified assaults. Although he accepted that domestic violence during the marriage could be taken into account under section 79 in assessing the wife's contributions, he concluded that to the extent that the incidents of domestic violence had affected her health, they had been adequately compensated for by the damages award.
The Appellate Court held that the trial judge's statement of principle was correct. The majority ((Fogarty and Lindenmayer JJ) said:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s.79.
Their Honours recognised that an action for damages may create an issue estoppel arising from the determination and the necessary components of that determination (p7) and also referred to the increasingly common practice of including a claim for damages in the family law proceedings via the cross vesting legislation (p11).
I have some reservations as to the observations in the judgement concerning the supposed necessity at common law to identify and particularise each individual event in a chain of events that have the cumulative effect of causing actionable damage. That is a circumstance to which the common law has adapted in relation to actions for damages in respect of diseases of gradual onset, such as industrial deafness and lung diseases caused by intermittent tortious exposures.
Nevertheless the decision in Kennon is authority for the proposition that section 79 of the Family Law Act 1975 provides a monetary remedy to a person aggrieved by domestic violence.
District Court Proceedings
The Amended Statement of Claim pleads in paragraph 3 that:
During the course of the marriage the defendant intentionally assaulted and physically and psychologically intimidated and abused the plaintiff.
Succeeding paragraphs repeat the five allegations particularised in the Family Court affidavit, an additional knife incident occurring in April 2008, and an allegation that:
Generally and repeatedly on numerous occasions throughout the marriage and relationship the Defendant often tell (sic) the Plaintiff that he had a gun and that he was going to shoot the plaintiff, Defendant was physically and emotionally abusive to the plaintiff and regularly denigrated her, calling her "a loser", "a bitch" and deliberately intimidating and emotionally tormenting her. (sic)
Consideration
In Spencer Bower and Handley, Res Judicata, 4th ed, Butterworths, 2009 the learned authors write:
A judgement (or order) by consent is a res judicata. The court is discharged from the duty of investigating or further investigating the matters and does not pronounce a judicial opinion; but at the request of the parties it gives judicial sanction and coercive authority to an agreement which, except by statute, could not otherwise operate as a bar. Judgements, orders and awards by consent are as efficacious as those pronounced after a contest in creating cause of action estoppel and merging the cause of action sued on.
The causes of action claimed by Ms Serrafis in the Family Court proceedings merged in the Final Orders made by the Court on 31 January 2012; thereafter they had no independent existence (Blair v Curran [1939] 62 CLR 464). The question in issue is what causes of action merged in those orders.
In MacquarieBank Ltd v National MutualLife Association of Australia Ltd (1990) 40 NSWLR 543 at 616 Powell JA said:
The principle upon which the doctrine of cause of action estoppel or res judicata is founded is that, once a cause of action has been put in suit and judgement has been entered upon it, the cause of action has merged into the judgement so that it is no longer available to be put in suit; and by way of extension, when the same facts support rights to differing remedies against the same defendant, the party having the benefit of such rights cannot recover a judgement giving a remedy in respect of more than one of them, the cause of action on both being merged in the judgement in the one (Emphasis added).
His Honour's observations reflect the Advice of Lord Nicholls of Birkenhead in Tang Man Sit v Capacious Investments Ltd [1996] AC 514 where he wrote:
Faced with alternative and inconsistent remedies, a plaintiff must choose between them.
At 558-559 Clarke JA in Macquarie Bank said:
The difficulty in determining whether, as in this case, the unsuccessful plaintiff is estopped from maintaining the second proceedings arises primarily from an uncertainty as to the meaning of the expression "cause of action". In Republic of India v India Steamship Co, Lord Goff referred to the principle stated by Diplock LJ in LeTang v Cooper to the effect that a cause of action consists of the minimum facts which a plaintiff is required in law to plead and (if traversed) prove in order to obtain the relief which he claims. This is a similar statement to one made by Williams J in Carter v Egg and Egg Pulp Marketing Board. However, in Anshun, Brennan J, in referring to the imprecision in the meaning of the term, said that it is sometimes used to mean the facts which support a right to judgement, sometimes to mean a right which has been infringed, and sometimes to mean the substance of an action as distinct from its form.
...
What I think is necessary is an examination of the factual circumstances relied upon to establish the right to relief in each case in order to determine whether there is a sufficient identity between them to found the conclusion that the same cause of action was in question in both cases. Again the fact that both claims arise out of the same incident may be most material.
There can be no doubt that curial disposition of the litigation in the Family Court required findings as to whether or not the incidents of domestic violence alleged by Ms Serrafis had occurred. A finding either way would have created an issue estoppel preventing the unsuccessful party asserting to the contrary in any subsequent proceeding.
I have concluded that, because the remedies claimed in the Family Court and the District Court are both monetary sums, and because the right to each remedy arises from the same facts, matters and circumstances, the judgement in the Family Court bars Ms Serrafis from prosecuting this action for damages.
The additional matters alleged in the statement of claim (the knife incident in April 2008, and threats to shoot the plaintiff) are merely additional examples of the domestic violence which may have increased the value of the monetary adjustment claimed. In any event those matters were so relevant to the subject matter of the dispute in the Family Court that it was unreasonable not to have raised them in that litigation (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).
If I am wrong in these conclusions, given the jurisdiction and practice of the Family Court to entertain common law claims for damages upon the same facts and circumstances that are to be canvassed in the statutory claim for relief pursuant to section 79, it was objectively unreasonable for Ms Serrafis (who is bound by the conduct of her solicitors) not to include a claim for damages in the earlier proceedings.
Conclusion
Upon the facts established in this application the statement of claim is an abuse of process because it is futile and doomed to fail. It must be struck out pursuant to UCPR Pt 14 r 28.5.
Limitation Act 1969
Against the possibility that I am wrong in concluding that Ms Seraffis is estopped from proceeding on the statement of claim I will address the limitation questions.
On 23 June 2009, shortly after leaving her husband, Ms Serrafis retained Gordon James Lawyers to give her general advice. She then successively retained the services of Anne Einfeld solicitor, and then Gonzales and Co Solicitors, to act in the Family Court matter.
Ms Serrafis gave each of her solicitors the history of domestic violence. She says that none of them told her that she had a viable action against her husband for damages at common law. It was not until August 2013, when she consulted her present solicitor on another matter, that she was told of her entitlement to sue for these damages.
Disability
Section 50F(1) provides that the running of the limitation period is suspended for the duration of a plaintiff's disability. Sections 50F(2) and (4) provide that a person is under a disability when incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action by reason of any disease or impairment of his or her physical or mental condition.
Ms Serrafis bears the onus of satisfying this provision. In the light of her demonstrated capacity to conduct the Family Court proceedings, (in which she independently retained a private investigator), I am unpersuaded that at any time her mental condition substantially impeded management of her affairs in relation to this cause of action.
Ms Serrafis readily conceded in evidence that had her solicitors advised that she commence these proceedings in 2009 she would have done so.
I reject the submission that the running of time was suspended by virtue of any disability suffered by Ms Serrafis.
Assaults before 6 December 2002
Section 18A of the Limitation Act 1969 provides that, in relation to causes of action for personal injury accruing between 1 September 1990 and 5 December 2002 the action is not maintainable if brought after the expiration of three years running from the date on which the cause of action first accrued.
Section 58 and section 60G of the Act provide for an extension of time for these causes of action.
Section 58
Section 58(2) permits an extension of time where it appears to the court that: "any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a day after the commencement of the year preceding the expiration of the limitation period."
Section 57B(1)(b)(i) provides that "the material facts relating to a cause of action include... the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded".
Mr Elliott submits that the availability of a legal remedy in tort for victims of domestic violence was a material fact of which Ms Serrafis was ignorant until 2003, because she was unaware that her husband's assaults were committed in breach of duty.
This submission is not available. The High Court in Do Carmo v Ford Excavations Pty Ltd [1983-1984] 154 CLR 234 held that Section 57B(1)(b)(i) refers only to the acts or omissions alleged to constitute the tort, and not to legal concepts or causes of action.
Section 60G
Section 60G in conjunction with section 60I permits an extension of time in circumstances where, in the words of section 60I(1) the plaintiff was at the expiration of the limitation period "unaware of the connection between the personal injury and the defendant's act or omission".
This provision does not assist Ms Serrafis. The Court of Appeal in Drayton Coal Pty Ltd v Drain [1995] NSWCA 131 held that the provisions of section 60I are concerned with ignorance of the existence of acts or omissions rather than legal conclusions. Gleeson CJ, referring to the decision of the High Court in Dedousis v Water Board [1994] 181 CLR 171, stated that "the legal complexion which may be put upon a set of facts and circumstances (e.g., actionable negligence), and the plaintiff's awareness of that legal complexion is not what matters for the purpose of section 60 I (1)."
It follows that, in relation to assaults occurring before 6 December 2002, the action of Ms Serrafis is barred by section 18A of the Limitation Act 1969, and she has demonstrated no grounds for an extension of time.
Assaults after 6 December 2002
Section 50C of the act provides that, in relation to causes of action for personal injury occurring on and after 6 December 2002, the action is not maintainable if brought after the earliest of either three years running from the date on which the cause of action was discoverable by the plaintiff, or 12 years from the date upon which the cause of action arose.
Section 50D relevantly provides that:
(1) For the purposes of this Division, a cause of action is "discoverable" by a person on the first date that the person knows or ought to know of each of the following facts:
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
The same evidence of Ms Serrafis establishes that, having taken all reasonable steps, she did not know until August 2013, 10 years and nine months after 6 December 2002, that her injuries were sufficiently serious to justify the bringing of an action on the cause of action.
This fact is sufficient to establish that, within the meaning of section 50D(1)(c) the cause of action was not discoverable by Ms Serrafis until 2013 (Baker Morrison v New South Wales [2009] NSWCA 35).
The statement of claim issued within the 12 year limitation created by Section 50C, and is not time-barred.
Orders
The statement of claim is struck out.
I will hear the parties on costs.
Mr D W Elliott instructed by City Lawyers and Consultants appeared for the plaintiff
Mr R Macaulay of Pryor Tzannes and Wallis appeared for the defendant
Decision last updated: 01 August 2014
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