Simmons (a pseudonym) v Wheeler (a pseudonym)

[2023] ACTSC 191

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Simmons (a pseudonym) v Wheeler (a pseudonym)

Citation: 

[2023] ACTSC 191

Hearing Date: 

20 July 2023

Decision Date: 

20 July 2023

Before:

Curtin AJ

Decision: 

(1) Pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 I order that the names of the parties not be published.

(2)    I order that the parties be referred to by the following names:

a.    the first plaintiff be referred to as “Maddie Simmons”;

b.    the second plaintiff be referred to as “Jenny Simmons”;

c.     the first defendant be referred to as "Geoffrey Wheeler”;

d.    the second defendant be referred to as "Paul Mitchell Simmons”;

e.    the third defendant be referred to as “Jeremy Connor”;

f.   the fourth defendant be referred to as “Paul Mitchell Simmons as Executor for the Estate of Nicholas Rodger Simmons”.

(3)    Grant leave to the parties to make an application to set aside Orders 1 or 2 above on the next occasion the matter is before the Court.

(4)    The application in proceeding dated 17 July 2023 is dismissed.

(5)    The second defendant is to pay the plaintiffs’ and the first defendant’s costs of the application.

Catchwords: 

PRACTICE AND PROCEDURE – CROSS-VESTING LEGISLATION – Application to transfer proceedings to Supreme Court of Queensland in accordance with the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) – not in the interests of justice for the proceedings to be transferred – application dismissed

PRACTICE AND PROCEDURE – application to separate trial of the second defendant – interrelationship between issues – potential overlap of evidence and argument – same witnesses would be called at both trials – difficulty of separating harm caused by each defendant – risk of inconsistent findings if trials separated – re-traumatising effect on plaintiffs of giving evidence and being cross-examined as to sexual assaults multiple times – application dismissed

Legislation Cited: 

Court Procedures Rules 2006 (ACT), r 217

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111

Federal Court Rules 1979 (Cth), O 6 r 6

Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT), s 5

Cases Cited: 

Australian Securities and Investments Commission v Axis International Management Pty Ltd [2009] FCA 250

Bishop v Bridgelands Securities (1990) 25 FCR 311

Carter v Commissioner of Taxation (2001) 109 FCR 215

Dean-Willcocks v Commissioner of Taxation 2003 45 ACSR 298

Henschel v Brittany Crepe Company Pty Ltd [1981] Qd R 173

Hinze v Zed [1926] SASR 77

Knight v Beyond Properties Pty Ltd (No 2) [2006] FCA 192

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Mann v Board of Health (ACT) (1996) 67 FCR 383

National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited [1996] FCA 1228

Newman v Hold Pty Ltd [2001] VSC 282

Texts Cited:

LexisNexis, Halsbury’s Laws of Australia (online at 20 July 2023)

Parties: 

Maddie Simmons (a pseudonym) ( First Plaintiff)

Jenny Simmons (a pseudonym) ( Second Plaintiff)

Geoffrey Wheeler (a pseudonym) (First Defendant)

Paul Mitchell Simmons (a pseudonym) (Second Defendant)

Jeremy Connor (a pseudonym) (Third Defendant)

Representation: 

Counsel

T Crispin ( Plaintiffs)

J Ronald ( First Defendant)

M Hunter (Second Defendant)

Solicitors

In Private Law ( Plaintiffs)

Prail Lawyers ( First Defendant)

Somerville Laundry Lomax Solicitors (Second Defendant)

File Number:

SC 363 of 2022

CURTIN AJ:  

EX TEMPORE (REVISED)

Introduction

1․This is an application seeking that a separate trial be ordered in respect of the second defendant or alternatively, that the whole of the proceedings be transferred to the Supreme Court of Queensland.

2․For the reasons that follow, the application is dismissed.

Background

3․The proceedings involve claims by two plaintiffs (who were sisters) against three defendants. There is a claim against an estate of a deceased person, which is separate and distinct from the sexual assault allegations, and need not be further described as it is not relevant to the present application.

4․In summary, the two plaintiffs allege that they were sexually assaulted by each of the first to third defendants when the plaintiffs were children.

5․The first plaintiff alleges that when she was three or four years of age between 1969 and 1974, the first defendant sexually assaulted her in the manner described in the Statement of Claim. The first plaintiff says that the second defendant sexually assaulted her in around 1975 to 1980. The first plaintiff says that the third defendant sexually assaulted her in around 1978 to 1980.

6․The first plaintiff alleges that as a direct consequence of the sexual assaults alleged against the three defendants, she suffered post-traumatic stress disorder and suffers from the following disabilities:

a.     Chronic anxiety.

b.     Depression.

c.     Suicide attempts in 1992, and 1995 and suicidal behaviour.

d.     Difficulty in maintaining social relationships.

e.     Insomnia and nightmares.

f.     Past alcohol and substance abuse.

g.     Disordered eating.

h.     Difficulty trusting others.

7․The second plaintiff alleges that the first defendant sexually assaulted her between 1969 and 1974. She alleges that the second defendant sexually assaulted her in around 1975 to 1980, and the third defendant sexually assaulted her in around 1978 to 1980.

8․The second plaintiff alleges she suffered from post-traumatic stress disorder and suffers from the disabilities set out in [26] of the Statement of Claim, which are:

a.     Chronic anxiety.

b.     Insomnia.

c.     Vulnerability to depression.

d.     Difficulty in maintaining social relationships.

e.     Past excessive alcohol use.

f.     Aversion to physical intimacy.

9․Both plaintiffs claim general damages, damages for the cost of psychological treatment, aggravated and exemplary damages.

10․All three defendants deny they assaulted the plaintiffs.

11․The second defendant resides in northern NSW, approximately nine kilometres from the town of Ballina. His solicitors are located in Ballina.

12․The second plaintiff lives in Coffs Harbour, NSW. The first plaintiff resides in Canberra. The first defendant also resides in Canberra.

Decision

13․The second defendant’s application is, in summary, to the effect that any costs incurred by him in defending himself in these proceedings would be less if a separate trial was ordered or the whole of the proceedings were transferred to the Supreme Court of Queensland.

14․I accept that if either of those two orders were made there would likely be a reduction in costs incurred by the second defendant. Having said that, if there were a separate trial of the second defendant there would, in my view, likely be an increase in costs to the other parties. Why that is so I will explain shortly.

15․In addition to costs considerations, the second defendant, in seeking the order for the transfer of the whole of the proceedings to the Supreme Court of Queensland, submitted that the issues in the case include “the application, interpretation and indeed consideration of the determination or development of Queensland law.” I disagree.

16․The second defendant submitted that the Statement of Claim alleges that the second defendant engaged in criminal acts against the plaintiffs. I do not agree. The case is brought in tort and while the actions of the second defendant (if proved) may indicate a criminal act, the fact remains that the case brought against him is civil and pursuant to the principles in such claims arising from the common law of Australia. There is, as the High Court has said, but one common law being the common law of Australia and there is no separate common law for each state and territory of the Commonwealth: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563.

17․The second defendant submits that the Queensland criminal law would have some part to play in determining any liability of the second defendant because of the age of the second defendant at the time of the alleged assaults. At that time he was approximately 10 to 15 years of age.

18․I do not agree that any Queensland criminal statute would have a part to play in determining issues in relation to liability. In Halsbury’s Laws of Australia online edition at [415-90], the learned authors state:

In the case of a tort, which requires only an intentional act and not an intention to cause harm, a minor will be liable if he or she was capable of intending the act.

19․What the criminal statutes may say about criminal responsibility do not, in my view, have any part to play in that calculus and no authority has been cited to me in this application supporting the proposition advanced.

20․Alternatively, if I were wrong on that matter, this Court is well placed to consider the statute law of other jurisdictions so far as they may be applicable in this case. Therefore, aside from cost and convenience considerations, I am not persuaded the Supreme Court of Queensland is in any better position to decide the issues in this case than the Supreme Court of the Australian Capital Territory.

21․The second defendant’s evidence on the application was to the effect that there is a lack of direct flights from Ballina to Canberra, and his solicitors practice in Ballina. He says there are direct flights between Coffs Harbour and Brisbane, the implication being it would be more convenient for the plaintiff who resides in Coffs Harbour to attend hearings in the Supreme Court of Queensland at Brisbane. The second defendant also says that his chosen counsel has chambers in Sydney.

22․In terms of costs, it is put against the second defendant that so far as the plaintiff who resides in Coffs Harbour is concerned, Brisbane has no cost advantage over the case being conducted in the ACT.

23․The plaintiffs’ solicitor and barrister reside and practice in the ACT.

24․The first defendant resides in the ACT and his solicitors and counsel also practice in that jurisdiction.

25․The third defendant has not attended today. An application was made before today by way of email for the third defendant to be excused. That application was refused in chambers. Despite that refusal, the third defendant has not appeared today but has sent a message via the second defendant to the effect that the third defendant will abide the Court’s decision but otherwise neither opposes nor consents to the application.

26․As I have said earlier, I accept there would be some cost savings to the second defendant were there to be a separate trial conducted against him in the Supreme Court of Queensland. However, in my view, there are countervailing considerations of much greater importance.

27․Those considerations are as follows: the three defendants deny the assaults, there will necessarily be issues of credit which arise and if there be a separate trial, there is a risk of conflicting findings as to the credit, at a minimum being the credit of the plaintiffs.

28․In addition to denying the assaults, each defendant would, as an alternative defence, assert that if they were found liable then it was one or more of the other defendants who had caused all or most of the harm allegedly suffered by the plaintiffs. That would lead to the position that if the case against the first and third defendants was conducted in Canberra, and a separate case was heard against the second defendant in Brisbane, then the first and third defendants would in the former case seek to assign the majority of blame for any harm proved to the second defendant. Conversely, in the latter case, the second defendant would seek to assign all or most of the harm proved to the first and third defendants. This circumstance would also give rise to the possibility of conflicting judgments.

29․It also leads to the possibility that if the trials were split and the trial against the first and third defendants was heard in Canberra then the second defendant may be subpoenaed to attend and to be cross-examined in any event and, equally, if there were a separate trial in relation to the second defendant in the Supreme Court of Queensland, the first and third defendants might also be subpoenaed to attend and give evidence in those proceedings.

30․That very real possibility would not only substantially increase the cost to the plaintiffs but would increase the cost to the first and third defendant and negate a lot of the possible cost savings to the second defendant in having a separate trial, but more importantly than those cost considerations, to my mind, is the risk I have referred to earlier in this judgment of conflicting judgments.

31․There are two other significant considerations. The first of those is the re-traumatising effect on the two plaintiffs of giving evidence and being cross-examined as to sexual assaults and any harm caused in two cases rather than one. It is to be noted that the first plaintiff asserts that as a result of the sexual assault, she attempted suicide in 1992 and 1995 and has otherwise engaged in suicidal behaviour.

32․If the trial remained as it is presently constituted, that is, against all three defendants, it is likely that only one counsel will be permitted to cross-examine the plaintiffs on damages, at least up to a point where the issues to be cross-examined on were common to all three defendants. Should there be a separate trial those plaintiffs would need to be cross-examined twice. The Court is well aware of the traumatising effect of cross-examination on many witnesses but particularly in sexual assault cases and that circumstance is to be avoided if at all possible.

33․Following on from that consideration is the difficulty in this case of separating any harm caused by each defendant (assuming all other matters are proved against them). Both plaintiffs have been examined by a forensic psychologist and a forensic psychiatrist.

34․The forensic psychologist was asked:

The degree to which any psychological disorders or other mental health conditions or injuries, are attributable to the conduct of each potential defendant and whether the degree or cause of injury can be specially attributed to each potential defendant.

35․The answer to that question is captured by the first sentence where the forensic psychologist said:

It is not possible to attribute any greater or lesser degree of impact to any of the potential defendants.

36․The forensic psychiatrist was asked the same question (in substance). The answer given was:

It is difficult to quantify the extent in a specific event or circumstances attributed to the development of [the relevant plaintiff’s] Posttraumatic Stress Disorder. Trauma is cumulative and no direct correlation can be made between a specific episode of trauma and the severity of symptoms.

37․That underlies the possible position that may be taken by the defendants to seek to sheet home to other defendants all or the majority of harm caused (assuming all other matters against them) and the risk of conflicting judgments. Of course, the Court will need to make separate awards if and when one or more of the defendants is found liable to the plaintiffs and that task would almost inevitably lead to conflicting judgments were the cases to be separated.

38․The application for a separate trial is brought pursuant to r 217 of the Court Procedures Rules 2006 (ACT). That rule says:

217Including parties inconveniently etc

(1) If the court considers that including a party to a proceeding may unfairly prejudice another party, may delay the conduct of the proceeding or is otherwise inconvenient, it may—

(a) order separate trials; or

(b) make any other order (including about costs) it considers appropriate.

39․That rule is in substantially the same form as O 6 r 6 of the Federal Court Rules 1979 (Cth) (since repealed). That rule said:

Inconvenient joinder

6. Where any joinder of parties or of causes of action may complicate or delay trial of the proceeding or is otherwise inconvenient, the Court may order separate trials or make such other order as the Court thinks fit.

40․That rule was the subject of Gilmour J’s judgment in the Australian Securities and Investments Commission v Axis International Management Pty Ltd [2009] FCA 250.

41․In that case, the Commission brought proceedings against eight defendants and the proceedings arose from the failure of Firepower BVI in the second half of 2008 in which it was alleged shareholders were thought to have lost up to $100 million from the group’s collapse. One of the defendants sought a separate trial under O 6 r 6 of the Federal Court Rules.

42․His Honour set out the relevant principles at [9]–[13]. His Honour said:

9The relevant principles are not controversial.  The basic principle, which ought to guide the exercise of discretion, is that “the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation”: Bishop v Bridgelands Securities (1990) 25 FCR 311 at 314. This case involved an application for joinder of additional applicants, which raises similar considerations to the present one.

10If inconvenience is alleged, it must be shown that there are factors which make it inconvenient for there to be a joint trial, rather than that a separate trial is more convenient: Mann v Board of Health (ACT) (1996) 67 FCR 383 at 399F.

11Disadvantages to a defendant seeking a separate trial, including the possibility of unfairness, must be weighed against identified advantages to ASIC and to the defendants as a whole and the efficient use of the court’s resources having regard to the commonality of issues raised by each claim: Dean-Willcocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64 at [34]. The court should be concerned to determine what is the most efficient use of the resources of the parties and also of the court: Carter v Commissioner of Taxation (2001) 109 FCR 215 at [23].

12Factors which have been held to weigh in favour of exercising the discretion to order separate trials include:

(a)the issues concerning the party seeking the separate trial are distinct and discrete: Bishop v Bridgeland Securities at 314;

(b)a joint trial will involve the respondent in the expense of being present at the trial of questions with which they are not concerned and it would be unfair for the respondent to be compelled to participate in a large and costly proceeding where it has only marginal involvement: Hinze v Zed [1926] SASR 77 at 84; Knight v Beyond Properties  Pty Ltd (No 2) [2006] FCA 192 at [30] and Newman v Hold Pty Ltd [2001] VSC 282 at [17].

13    Factors which have been held to militate against making such an order include:

(a)the potential overlap of evidence and argument, including the need for the same witnesses to be called at both trials: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited [1996] FCA 1228 at [17]; Dean-Willcocks v Commissioner of Taxation 2003 45 ACSR 298 at [18];

(b)the interrelationship between issues which are not capable of being resolved independently of each other: Mann v Board of Health (ACT) at 400F;

(c)the potential disqualification of the judge that hears the first trial, if adverse findings are made as to the creditability of witnesses: National Mutual Property Services (Australia) Pty Ltd v Citbank Savings Limited at [16]; Dean-Willcocks v Commissioner of Taxation at [18]; and

(d)the undesirability of inconsistent findings as to the same transactions: Henschel v Brittany Crepe Company Pty Ltd [1981] Qd R 173 at 175-176.

43․In my view, the same principles apply to an application brought under r 217 of the Court Procedures Rules. Most particularly I am persuaded that the undesirability of inconsistent findings, the interrelationship between issues which are not capable of being resolved independently of each other, the potential overlap of evidence and argument, the need for the same witnesses to be called at both trials (all issues referred to by his Honour), outweigh any potential cost saving to the second defendant.

44․The second defendant also seeks to have the whole of the proceedings transferred to the Supreme Court of Queensland pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT). The second defendant relies on ss 5(2)(b)(ii) and (iii). Section 5 is in the following terms:

5Transfer of proceedings

(1) If—

(a)a proceeding (in this subsection called the relevant proceeding) is pending in the Supreme Court; and

(b)it appears to the Supreme Court that—

(i)     the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Family Court and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court; or

 (ii)    having regard to—

(A)   whether, in the opinion of the Supreme Court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court; and

(B)   the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(C)   the interests of justice;

it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be; or

 (iii)   it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court;

the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.

(2) If—

(a) a proceeding (in this subsection called the relevant proceeding) is pending in the Supreme Court (in this subsection called the first court); and

(b) it appears to the first court that—

(i)     the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

 (ii)    having regard to—

(A)   whether, in the opinion of the first court, apart from this Act and a law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and

(B)    the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of that other State or Territory and not within the jurisdiction of the first court apart from this Act and a law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(C)    the interests of justice;

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

 (iii)    it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

45․For the reasons I have set out above, I do not agree that it is in the interests of justice for the whole of the proceedings to be transferred to the Supreme Court of Queensland. Whilst that may result in a cost saving to the second defendant, it will increase costs incurred by the plaintiffs and the first defendant.

46․There may be no direct flights from Ballina to Canberra but there are direct flights from the Gold Coast to Canberra and the Gold Coast is only approximately a little over an hour’s drive from Ballina.

47․In my view, there is no issue in these proceedings which the Supreme Court of Queensland is in a better position to determine than the Supreme Court of the Australian Capital Territory. 

48․I should add that no party sought any suppression or pseudonym order. However, given the age of the plaintiffs at the time of the alleged events, and the nature of the claims, such orders should be made. Such orders should include the defendants because of their previous relationships to the plaintiffs and the danger that if the defendants are identified then it increases the chances of the plaintiffs being identified. As the parties were not heard on those orders, and should they wish to contest the making of those orders, they are granted leave to do so on the next occasion the matter is before the Court.

Orders

49․For all those reasons, I make the following Orders:

(1)Pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 I order that the names of the parties not be published.

(2)I order that the parties be referred to by the following names:

a.     the first plaintiff be referred to as “Maddie Simmons”;

b.     the second plaintiff be referred to as “Jenny Simmons”;

c.     the first defendant be referred to “s "Geoffrey Wheeler”;

d.     the second defendant be referred to “s "Paul Mitchell Simmons”;

e.     the third defendant be referred to as “Jeremy Connor”;

f.the fourth the fourth defendant be referred to as “Paul Mitchell Simmons as Executor for the Estate of Nicholas Rodger Simmons”.

(3)Grant leave to the parties to make an application to set aside Orders 1 or 2 above on the next occasion the matter is before the Court.

(4)The application in proceeding dated 17 July 2023 is dismissed.

(5)The second defendant is to pay the plaintiffs' and the first defendant's costs of the application.

.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin.

Associate:

Date: