SMD v JDW - [2022] NSWDC 156

District Court

New South Wales

Medium Neutral Citation: SMD v JDW [2022] NSWDC 156
Hearing dates: 12 May 2022
Date of orders: 12 May 2022
Decision date: 12 May 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1) Orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) directing that there be no publication of the names or addresses of either party (or any information tending to reveal the identity or address of either party) upon the grounds that:
(a)   The order is necessary to avoid causing undue distress or embarrassment to the plaintiff who was the victim of a crime of a sexual nature committed by the defendant when the plaintiff was a child;
(b)   It is otherwise necessary in the public interest for the order to be made and the public interest significantly outweighs the public interest in open justice.
(c)   The parties’ names are accordingly changed to SMD v JDW.
(2)   Judgment for the plaintiff for $534,000.
(3)   Defendant pay plaintiff’s costs.
(4)   Liberty to restore in relation to interest and costs.
(5)   Exhibits retained until further order.

Catchwords:
TORT - Assessing damages for sexual assault - defendant convicted of criminal offences against the plaintiff over a lengthy period - general and aggravated damages - whether a claim for exemplary damages could be made notwithstanding the imposition of a substantial term of imprisonment on the defendant - exemplary damages not awarded - past and future economic loss - future out of pocket expenses

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 3B(1), 15B and 18(1)
Court Suppression and Non-publication Orders Act 2010 (NSW) s 7
Victims’ Rights and Support Act 2013 (NSW)

Cases Cited:
AM v KW [2005] NSWSC 876
Cheng v Farjudi (2016) 93 NSWLR 95
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
Michael Dryden v David John Jones [2018] NSWDC 223
Miles v Doyle (No 2) [2021] NSWSC 1312
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57
Wagner v Nine Network Australia Ltd [2019] QSC 284; [2020] QCA 221
Woodward v R [2017] NSWCCA 44

Category: Principal judgment
Parties: Plaintiff:
Ms SMD
Defendant:
Mr JDW (self-represented)
Representation:
Counsel:
Plaintiff:
Ms M Campbell
Solicitors:
Plaintiff:
Brydens Lawyers

File Number(s): 2021/ 00070672

Judgment

The parties and the proceedings

The plaintiff brings proceedings for damages for injury and other loss arising from intentional torts, being the various sexual assaults committed by the defendant upon the plaintiff over a period of years when she was a child.
The plaintiff and the defendant are brother and sister. The defendant is now in prison having been convicted of a series of sexual assault charges concerning the plaintiff. He did not file a defence, and he told the court that understood that these proceedings are by way of assessment of damages. He does not contest any of the factual material. He led no evidence did not seek to cross-examine and told the court:

“I know…

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.

Continue reading SMD v JDW

Details

AGLC: SMD v JDW [2022] NSWDC 156
Case: [2022] NSWDC 156
Decision Date: 12 May 2022

CaseChat Overview and Summary

The matter before the court involved a plaintiff, SMD, who brought an action against the defendant, JDW, for sexual assault. The dispute centred around the assessment of damages, given that the defendant had been convicted of criminal offences against the plaintiff over a lengthy period. The Supreme Court of New South Wales was tasked with determining the appropriate compensation for the plaintiff's suffering and losses.

The court had to consider whether a claim for exemplary damages could be made despite the defendant's substantial imprisonment term. Additionally, the court assessed general and aggravated damages, alongside past and future economic losses and future out-of-pocket expenses. Ultimately, the court ruled that while exemplary damages were not awarded due to the existing punishment, the plaintiff was entitled to compensation for the extensive harm suffered. The court detailed the reasoning behind the award of general and aggravated damages, ensuring a comprehensive assessment of the plaintiff’s losses and the impact of the assaults.

In its judgment, the court awarded the plaintiff $534,000 in damages. This amount reflected the totality of the plaintiff's losses, including general and aggravated damages, and future economic losses and expenses. The court also mandated that the defendant pay the plaintiff's costs. To protect the plaintiff's privacy, the court issued orders under the Court Suppression and Non-publication Orders Act 2010 (NSW), prohibiting the publication of the parties' names and addresses. The court further ordered that the exhibits be retained until further notice.

Orders

Orders of the court

Order:

(1) Orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) directing that there be no publication of the names or addresses of either party (or any information tending to reveal the identity or address of either party) upon the grounds that:

(a) The order is necessary to avoid causing undue distress or embarrassment to the plaintiff who was the victim of a crime of a sexual nature committed by the defendant when the plaintiff was a child;

(b) It is otherwise necessary in the public interest for the order to be made and the public interest significantly outweighs the public interest in open justice.

(2) Judgment for the plaintiff for $534,000.

(3) Defendant pay plaintiff’s costs.

(4) Liberty to restore in relation to interest and costs.

(5) Exhibits retained until further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SMD v JDW [2022] NSWDC 156
Hearing dates:	12 May 2022
Date of orders:	12 May 2022
Decision date:	12 May 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) directing that there be no publication of the names or addresses of either party (or any information tending to reveal the identity or address of either party) upon the grounds that: (a) The order is necessary to avoid causing undue distress or embarrassment to the plaintiff who was the victim of a crime of a sexual nature committed by the defendant when the plaintiff was a child; (b) It is otherwise necessary in the public interest for the order to be made and the public interest significantly outweighs the public interest in open justice. (c) The parties’ names are accordingly changed to SMD v JDW. (2) Judgment for the plaintiff for $534,000. (3) Defendant pay plaintiff’s costs. (4) Liberty to restore in relation to interest and costs. (5) Exhibits retained until further order.
Catchwords:	TORT - Assessing damages for sexual assault - defendant convicted of criminal offences against the plaintiff over a lengthy period - general and aggravated damages - whether a claim for exemplary damages could be made notwithstanding the imposition of a substantial term of imprisonment on the defendant - exemplary damages not awarded - past and future economic loss - future out of pocket expenses
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 3B(1), 15B and 18(1) Court Suppression and Non-publication Orders Act 2010 (NSW) s 7 Victims’ Rights and Support Act 2013 (NSW)
Cases Cited:	AM v KW [2005] NSWSC 876 Cheng v Farjudi (2016) 93 NSWLR 95 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 Michael Dryden v David John Jones [2018] NSWDC 223 Miles v Doyle (No 2) [2021] NSWSC 1312 New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 Wagner v Nine Network Australia Ltd [2019] QSC 284; [2020] QCA 221 Woodward v R [2017] NSWCCA 44
Category:	Principal judgment
Parties:	Plaintiff: Ms SMD Defendant: Mr JDW (self-represented)
Representation:	Counsel: Plaintiff: Ms M Campbell Solicitors: Plaintiff: Brydens Lawyers
File Number(s):	2021/ 00070672