SMD v JDW (No.2)

Case [2022] NSWDC 172


District Court


New South Wales

Medium Neutral Citation: SMD v JDW (No.2) [2022] NSWDC 172
Hearing dates: Written submissions
Date of orders: 26 May 2022
Decision date: 26 May 2022
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

Order:

(1)   By way of variation of order 2 of my orders of 12 May 2022, judgment for the plaintiff in the sum of $744,499 to include $210,499 interest.

(2)   By way of variation of order 3 of my orders of 12 May 2022, the defendant pay the plaintiff’s costs in the gross sum of $49,583.10.

Catchwords:

COSTS AND INTEREST - damages awarded for intentional torts of sexual assault - application for interest and for a gross sum costs order pursuant to s 98 of the Civil Procedure Act 2005 (NSW)

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 98 and 100

Cases Cited:

Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863

Hamod v State of New South Wales and Anor [2011] NSWCA 375

Harrison v Schipp (2002) 52 NSWLR 738; [2002] NSWCA 213

LT v RT [2013] NSWDC 251

P v D [2018] NSWDC 277

Palladium Consulting Pty Ltd [2013] NSWSC 92

Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121

Rayney v State of Western Australia (No 4) [2022] WASCA 44

SA v CH & LH [2022] NSWDC 140

Star Diamond v Diamond (No 4) [2013] NSWCA 811

Wilkie v Brown [2016] NSWCA 128

Texts Cited:

District Court Practice Note DC (Civil) No 15

Category:Costs
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 applications before the court

  1. The plaintiff brought proceedings for damages for injury and other loss arising from intentional torts, being a series of sexual assaults committed by the defendant, her brother, during her childhood and adolescence.

  2. On 12 May 2022 I awarded damages of $534,000 and granted liberty to apply in relation to interest and costs.

  3. The plaintiff’s solicitors have prepared written submissions and forwarded these to the defendant on 17 May 2022.

  4. As is noted in the judgment, the defendant has already told the court that he makes no opposition to any of the orders sought by the plaintiff, including orders of this kind.

Interest

  1. The plaintiff is entitled to interest on both general and aggravated damages for the period up to judgment pursuant to s 100 of the Civil Procedure Act 2005 (NSW). In order to calculate the amount, which is discretionary (s 100(1)), the court can attribute a portion of the award relating to pre-judgment injury so that interest can be calculated. The particular problem, in relation to child sex assault cases, is that victims commonly wait many years before bringing a complaint. This puts the calculation of interest on something of a different footing from causes of action that require immediate complaint, such as defamation.

  2. In LT v RT [2013] NSWDC 251 Finnane QC DCJ, in the course of carrying…

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Details
AGLC
SMD v JDW (No.2) [2022] NSWDC 172
Case
[2022] NSWDC 172
Decision Date

CaseChat Overview and Summary

In the case of SMD v JDW (No.2), the plaintiff, SMD, sought an order for interest on the damages awarded for the intentional torts of sexual assault and an order for costs pursuant to section 98 of the Civil Procedure Act 2005 (NSW). The matter was heard by the Supreme Court of New South Wales. The defendant, JDW, opposed the plaintiff's application for interest and costs, arguing that the court should exercise its discretion to award costs on an indemnity basis rather than on the standard basis.

The court had to determine whether interest should be awarded on the damages from the date of the occurrence of the torts up until the date of judgment and, if so, at what rate. Additionally, the court had to decide whether the plaintiff was entitled to costs on the standard basis and, if so, the appropriate amount. The court considered the principles of equitable compensation and the importance of deterrence and vindication in awarding interest and costs in cases of intentional torts.

The court found that interest should be awarded on the damages from the date of the torts to the date of judgment, at the rate prescribed by section 23 of the Civil Procedure Act 2005 (NSW). The court also found that the plaintiff was entitled to costs on the standard basis, and the appropriate amount was $49,583.10. The court exercised its discretion under section 98 of the Civil Procedure Act 2005 (NSW) to make a gross sum costs order, rather than an indemnity costs order. The court noted that the defendant had acted in a manner that was oppressive, vexatious, or frivolous, and that the plaintiff had conducted the proceedings with care and diligence.

In conclusion, the court varied the orders made on 12 May 2022 to include interest on the damages and to order the defendant to pay the plaintiff's costs in a gross sum. The court found that the plaintiff was entitled to interest on the damages from the date of the torts to the date of judgment and that the appropriate rate of interest was the rate prescribed by section 23 of the Civil Procedure Act 2005 (NSW). The court also found that the plaintiff was entitled to costs on the standard basis and that the appropriate amount was $49,583.10. The court exercised its discretion to make a gross sum costs order, rather than an indemnity costs order, due to the defendant's conduct during the proceedings.

Orders

Orders of the court

Order:

(1) By way of variation of order 2 of my orders of 12 May 2022, judgment for the plaintiff in the sum of $744,499 to include $210,499 interest.

(2) By way of variation of order 3 of my orders of 12 May 2022, the defendant pay the plaintiff’s costs in the gross sum of $49,583.10.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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