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(1) Pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 I order that the names of the parties not be published.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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] ACTSC 191
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Maddie Simmons and Jenny Simmons (the plaintiffs) brought claims against Geoffrey Wheeler, Paul Mitchell Simmons, Jeremy Connor, and the estate of Nicholas Rodger Simmons (the defendants) for sexual assaults that allegedly occurred when the plaintiffs were children. The second defendant, Paul Mitchell Simmons, sought to have his trial conducted separately from the other two defendants or to transfer the entire proceeding to the Supreme Court of Queensland. Curtin AJ dismissed the application on the basis that it would not be in the interests of justice to separate the trials or transfer the case to Queensland. The Court found that separating the trials could lead to inconsistent findings and increase costs and trauma for the plaintiffs. Additionally, the Court held that the issues in the case were not better suited for determination by the Queensland Supreme Court.

Curtin AJ noted that if separate trials were ordered, there would be a risk of conflicting findings as to the credit of the plaintiffs and the defendants. Furthermore, the plaintiffs would have to be cross-examined multiple times, causing them additional trauma. The Court also found that it would be difficult to separate any harm caused by each defendant, as the forensic psychologist and psychiatrist could not attribute the harm to any specific defendant. Curtin AJ concluded that the potential for inconsistent findings, the interrelationship between the issues, and the overlap of evidence and witnesses outweighed any potential cost savings to the second defendant. Therefore, the application for a separate trial was dismissed. Curtin AJ also dismissed the application to transfer the entire proceeding to the Supreme Court of Queensland, finding that it was not in the interests of justice to do so. The Court held that there were no issues in the proceeding that the Queensland Supreme Court was better suited to determine, and transferring the case would increase costs for the plaintiffs and the first defendant.

Orders