Varmedja v Varmedja - [2008] NSWCA 177

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Varmedja v Varmedja [2008] NSWCA 177

FILE NUMBER(S):
40282/07

HEARING DATE(S):
17 June 2008

JUDGMENT DATE:
8 August 2008

PARTIES:
Svetozar Ved Varmedja
Ruzica Varmedja

JUDGMENT OF:
Hodgson JA Tobias JA McColl JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 4041/05

LOWER COURT JUDICIAL OFFICER:
Walmsley DCJ

LOWER COURT DATE OF DECISION:
30 August 2007

COUNSEL:
A: D T Kennedy SC / B Longville
R: C Simpson SC / R Sweet

SOLICITORS:
A: Armstrong Legal, Sydney
R: Stojanovic Solicitors, Liverpool

CATCHWORDS:
DAMAGES – Whether damages awarded were excessive – Whether primary judge erred in awarding aggravated and exemplary damages – Whether aggravated and exemplary damages were excessive
LIMITATION OF ACTIONS – Whether cause of action barred – Whether primary judge erred in extending limitation period pursuant to Limitation Act s 60C – Evidence of plaintiff and solicitor as to reasons for delay – Whether judge had proper regard to matters listed in s 60E
MISCARRIAGE OF JUSTICE – Failure of plaintiff to particularise allegations – Allegation of incompetence of trial counsel – Failure of trial counsel to ask that statement of claim be struck out as embarrassing – Absence of defendant from trial during evidence of plaintiff
TORTS – Physical and sexual assaults and batteries

LEGISLATION CITED:
Evidence Act 1995 (NSW)
Legal Profession Act 1987 (NSW)
Limitation Act 1969 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Conray v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2001) 54 NSWLR 207
Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638
R v Birks (1990) 19 NSWLR 677
R v Ignjatic (1993) 68 A Crim R 333
State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Whitfeld v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71

TEXTS CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40282/07
DC 4041/05
HODGSON JA
TOBIAS JA
McCOLL JA
Friday 8 August 2008

SVETOZAR VED VARMEDJA v RUZICA VARMEDJA

Judgment

HODGSON JA: I agree with Tobias JA.
TOBIAS JA: On 30 April 2007 his Honour Judge Walmsley SC awarded the respondent damages in the sum of $232,791.55 against her former husband, the appellant. The respondent had sued the appellant with respect to a series of physical and sexual assaults and batteries to which she had allegedly been subjected between April 2001 and 21 September 2002 on which date the respondent left the appellant. They were subsequently divorced in 2004.
By reason of the combined operation of s 18A of the Limitation Act 1969 (NSW) (the Act) and the definition of “breach of duty” in s 11(1) thereof, a limitation period of three years applied to each of the assaults and batteries of which the respondent complained. It was therefore common ground that the limitation period within which the respondent was required to commence proceedings against the appellant in respect of the injuries, both physical and mental, which she had sustained as a consequence of the assaults and batteries progressively expired from 1 May 2004 to 21 September 2005.
As the respondent did not institute proceedings against the appellant until 19 September 2005, her claims were statute barred except with respect to those assaults and batteries which occurred in the two or three days prior to the parties separating.
To remedy that situation, on 22 September 2006 the respondent filed a notice of motion in the District Court seeking an extension of the limitation period pursuant to s 60C(2) of the Act. Due to circumstances to which I shall refer, and with the agreement of both parties, the primary judge undertook the hearing of the whole of the proceedings upon the basis that in his final judgment he would deal first with the respondent’s notice of motion for an extension of time and, if that application was upheld, he would then proceed to deal with the substantive issues which had been the subject of evidence and submissions before him.
In his judgment of 30 April 2007 his Honour concluded (at [68]) that it was just and reasonable to order that the limitation period for each of the causes of action sued upon by the respondent be extended. The appellant appeals against that decision.
Having extended the limitation period in respect of each of the respondent’s causes of action, his Honour then proceeded to deal with the merits of her claim. Relevantly to the issues on the appeal, he made the following findings:

(a)           That he preferred and accepted the respondent’s evidence where it differed from that of the appellant;
(b)           That the appellant assaulted the respondent and committed the batteries which she had alleged and that they had had the effect set out in the psychological and psychiatric reports tendered on her behalf;
(c)           That he was reasonably satisfied in accordance with the principles articulated by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that between 1 May 2001 and 21 September 2002 the appellant had subjected the respondent to a total of 25 acts each of anal and oral intercourse without consent and 200 acts of vaginal intercourse without consent;
(d)           That the respondent was entitled to compensatory damages in the sum of $150,000;
(e)           That the respondent had sustained increased mental suffering and hurt feelings due to the manner in which the appellant had behaved and was thus entitled to an award of aggravated damages which he assessed in the sum of $25,000; and
(f)            That the appellant’s treatment of the respondent could reasonably be described as a “conscious wrongdoing in contumelious disregard of” the respondent’s rights, thus entitling her to award of exemplary damages which he assessed in the sum of $50,000.

The appellant appeals against each of those findings. He further asserts that there was a miscarriage of justice due, in essence, to the following matters:
(a) the absence of the appellant from the courtroom at the direction of his trial counsel (who did not appear on the appeal) during the examination and cross-examination of the respondent and her solicitor;
(b) the failure of his trial counsel to apply for an order that the respondent’s Statement of Claim be struck out as embarrassing or to seek an adjournment due to the failure of the respondent to particularise her claim until the commencement of the trial; and
(c) the admission by the primary judge of evidence pursuant to s 97 of the Evidence Act 1995 (NSW) relating to an incident whilst the appellant was an inpatient in Orange Hospital.
At the conclusion of the hearing of the appeal, the appellant sought the Court’s leave to amend his Notice of Appeal by adding a further ground to the effect that the primary judge had erred in failing to give any or adequate reasons for his findings as to general and aggravated damages.
The nature of the respondent’s case before the primary judge
The history of the parties’ relationship and the nature of the case alleged by the respondent was accurately summarised by the primary judge in the following paragraphs of his judgment which I gratefully adopt:
“2.The [respondent] was born in Serbia on 22 September 1953 and is aged fifty three. The [appellant] was also born in Serbia. He was born on 3 March 1927 and is eighty. She was previously married in Serbia. She has an adult son from that marriage. Her son lives in Serbia. The [appellant] was married before he married the [respondent]; he has children and grandchildren. The [appellant] came to live in Australia in 1960. He has lived here ever since, becoming an Australian citizen in 1967. Until she came here to live with the [appellant] in early 2001 the [respondent] had lived most of her life in Serbia. She and the [appellant] first met in Serbia in 1995. They continued to have some contact after that and on 29 July 2000 married there. He returned to Australia in September 2000 and she joined him here on 9 January 2001.
3.The [appellant] had for some years lived on a farm he owned, about 11 kilometres out of Orange, in New South Wales. The farm was somewhat isolated, being one and a half to two kilometres from the nearest neighbouring house. The [respondent], when she went to live there, spoke little, if any, English. The [appellant] however, did speak English. The [respondent] had no relatives or close friends in this country. The [appellant] had some friends including a close friend who lived in Sydney, who had come from the same Serbian village. His name was Dr Hodoba. He was a general medical practitioner who, though now retired, practised for many years in the Sydney suburb of Newtown. Above his rooms was a small apartment. He did not live in the apartment but his family used the cooking facilities there on days when he worked. Because of his friendship with the [appellant] he allowed the [appellant] to use the apartment as his own whenever he visited Sydney. He gave him a key so the [appellant] could come and go as he pleased. The consulting rooms were not isolated from the apartment. Someone with access to the apartment could walk into the waiting room, or even the surgery.
4.Dr Hodoba, like many general practitioners, would be given free drug samples by drug company representatives. His habit was to keep them in his surgery from where he would, from time to time, hand them out free to patients. Some of these samples included the drug Viagra, a popular and relatively new drug used to restore potency in men with erectile problems.
5.It is the [respondent]’s case that her first few months with the [appellant] in Australia were happy ones, or, as she put it, ‘Until April he was very correct to me, our relationship was quite all right, there was no violence, there was no pressure of any kind to do anything’. But she says that in about April 2001 she observed that the [appellant] began using the drug Viagra. Following that, her life became an extremely unhappy one. The reason for that according to the [respondent] is that when the [appellant] began to use Viagra, his erections were much stronger and his penis much larger than she had been accustomed to, and he took much longer to ejaculate and she found vaginal intercourse very painful. Further, she says, he made it known to her at that time that he gained sexual excitement from having anal and oral sex, and he desired now to begin to have both of those forms of sexual activity as well. Because of the change in his penis size and the longer time he took to climax she now began to suffer vaginal bleeding following intercourse. As to his pursuit of anal and oral sex, she says she did not want it or enjoy it. She told him she no longer wanted vaginal sex and did not want anal or oral sex. But he began to engage in very threatening behaviour to make her comply with his sexual wishes. He threatened to kill her or to have her deported or killed. In connection with the threats to kill, he told her that he had killed a fiancée he had once had in Serbia when she had danced with someone who was inappropriate. She says he began to beat her, using for that purpose items such as a stick, a curtain rod, or a shotgun. Occasionally he would point the barrel of the shotgun at her head while making his threats. On one occasion he threw lighted matches at her body and the matches burned her. On another occasion he drove their car in an erratic fashion until it hit a tree, at the same time explaining to her that that was how easy it would be to have her punished. Then there was an occasion when he cut off her hair when she displeased him. Finally, on 21 September 2002, she told him she was leaving. His response was to attempt to strangle her.
6.By reason of the threats, she said, she did comply with his requests for anal and oral sex and his ongoing requests for vaginal sex. By reason of the sexual acts she suffered anal pain and bleeding and continued to have vaginal bleeding and vaginal pain, and suffered a great deal of humiliation.
7.Following her departure from the Orange farm on 21 September 2002 she went to stay at a women’s refuge. With the assistance of a refuge counsellor, on 13 November 2002 she applied for an apprehended violence order.
8.On 21 November 2002 the [appellant] surrendered an unregistered air rifle to the Orange police. He did not at that stage hand over another firearm he had, which was the single barrel 12 gauge shotgun, to which I have earlier referred. For that firearm he had, and had long held, a firearms licence.
9.On 27 November 2002 at Blacktown Local Court the [appellant] consented to an apprehended violence order for two years on a ‘no admissions’ basis. …”
The pleadings
The respondent’s Statement of Claim was filed on 19 September 2005. It contained the following allegations:
“1.The [respondent] and [appellant] were married on 29 July 2000 in Yugoslavia.
2.The [respondent] arrived in Australia on 19 January 2001 and lived with the [appellant] on a property owned by the [appellant] at ‘Allambie Park’ 13 Cullya Road, Orange, NSW 2800.
3.The [respondent] separated from the [appellant] on 21 September 2002.
4.The [respondent] and the [appellant] were divorced on 29 March 2004.
5.During the period from about April 2001 to 21 September 2002 the [appellant] physically, mentally and sexually assaulted the [respondent] on numerous occasions as a result of which the [respondent] suffered injury, disability, loss and damage.”
No particulars were supplied with respect to the allegations contained in para 5 of the Statement of Claim, nor were they ever sought.
The appellant filed a Defence to the Statement of Claim in the following terms:
“1.The [appellant] admits paragraphs 1, 3 and 4.
2.As to paragraph 2, the [appellant] admits that the [respondent] arrived in Australia on 19 January 2001 but otherwise denies the paragraph.
3.As to paragraph 5 the [appellant] denies that he physically, mentally and sexually assaulted the [respondent] as alleged.”
It will thus be appreciated that the appellant did not in his Defence raise any limitation question. The possibility that the substantial part of the respondent’s claim might be statute barred was first raised with the appellant’s legal representatives by counsel for the respondent a little over a week prior to the commencement of the hearing on 27 September 2006.
It would appear that when the matter was so raised, the appellant’s legal representatives confirmed that their client would rely upon a limitation defence and this was confirmed to the primary judge at the commencement of the hearing on 27 September.
In anticipation of that defence, the respondent’s solicitors filed a Notice of Motion on 22 September 2006 seeking an extension of the limitation period pursuant to s 60C(2) of the Act. No formal pleading of the limitation defence was made by the appellant although an amended Defence was filed on 4 October 2006 which, in a rather oblique way, could be said to have raised that defence.
The grounds of appeal
As amended, the appellant’s grounds of appeal are as follows:
Ground 1 – the primary judge erred in extending the limitation period pursuant to s 60C of the Limitation Act 1969.
Ground 2 – there was a miscarriage of justice due to:
(a)     the appellant not being present in court during the trial proceedings most of the time;
(b)     the appellant not being present in court during trial proceedings in which the details of the respondent’s claim were not disclosed until the respondent gave evidence;
(c)     the failure of counsel for the appellant to have the Statement of Claim struck out as embarrassing and to seek an adjournment; and
(d)     the admission of tendency evidence.
Ground 3 – the primary judge erred in accepting the evidence of the respondent and in entering a verdict in her favour.
Ground 4 – the primary judge erred in failing to apply the Briginshaw standard and in failing to give reasons as to the application of the requisite standard of proof including the Briginshaw standard.
Ground 5 – the award of general damages was excessive.
Ground 6 – the trial judge erred in awarding aggravated damages.
Ground 7 – the award of aggravated damages was excessive.
Ground 8 – the trial judge erred in awarding exemplary damages.
Ground 9 – the award of exemplary damages was excessive.
Ground 10 – (subject to leave being granted) the trial judge erred in failing to give any or any adequate reasons for his finding as to the general damages and aggravated damages.
It is convenient to consider each of these grounds seriatim. In so doing, I shall with respect to each set out the relevant evidence and the findings of the primary judge, the appellant’s challenge to those findings and my reasons for accepting or rejecting that challenge.
Ground 1 – The primary judge erred in extending the limitation period pursuant to s 60C(2) of the Limitation Act 1969
In exercising the power conferred on him by section 60C, the primary judge was required by s 60E(1) of the Act to have regard to the factors listed in that section as well as to all the circumstances of the case. It is therefore appropriate to deal with each of those factors as his Honour’s consideration of them formed the basis for his conclusion that it was just and reasonable to extend the limitation period.
The s 60E(1)(a) factor – the length of and reasons for the delay
The respondent’s application to extend the limitation period was supported by affidavits from herself and her solicitor, supplemented in cross-examination of the solicitor and extensive evidence in chief and cross-examination of the respondent. The relevant paragraphs of the respondent’s affidavit in support of the application were as follows:
“10.During the period that I was at the refuge, I received assistance in dealing with the trauma I had suffered during the previous period that [I] was with the [appellant]. I did not know how severe my mental condition was, but I felt depressed, the refuge arranged for me to see medical practitioners, and I was subsequently referred to Dr Kecmanovic, a psychiatrist who can communicate with me in my language.
11.I saw Dr Kecmanovic on 5 November 2002. It was not until my consultation with Dr Kecmanovic that I understood the full extent and nature of my mental condition. This was the first occasion that I was diagnosed with a mental condition which I say is directly connected to the experiences I suffered from the defendant during April 2001 to September 2002.
12.I continued to receive treatment from Dr Kecmanovic, and I went back to Serbia in December 2003, to visit my family. I returned to Australia in February 2004. I resumed my consultations with Dr Kecmanovic shortly after I returned to Australia.
13.Throughout this period, I have been fearful of the [appellant], and still have [t]his fear. From my earlier experiences with the [appellant], I believe that he is capable of inflicting physical harm to me an[d] I am extremely frightened.
14.My mental condition has not improved and [I am] determined to take proceedings against the [appellant]. I did not take proceedings at an earlier time, because I had hoped that my condition would improve.
15.I understand that I should have commenced proceedings by not later than April 2004. However, I recently returned from overseas prior to that time, and had only seen Dr Kecmanovic on 17 March 2004 and 27 April 2004. I have continued to see him almost on a monthly basis since then, as my condition has not improved.”

The relevant paragraphs of the solicitor’s affidavit were as follows:
“2.In September I acted for the plaintiff in relation to property orders sought against the defendant under the Family Law Act. Those proceedings were finalised on 7 September 2003, when consent orders were made, which provided that the [appellant] pay the [respondent] $45,000.
3.On or about 2 April 2004, I received instructions from the [respondent] that she was consulting Dr D Kecmanovic, Consultant Psychiatrist in relation to treatment of severe depressions, which she instructed me arose out of various sexual assaults by the [appellant] and from threats made by the [appellant] during the course of her relationship with him.
4.On 30 April 2004, I requested a medical report from Dr Kecmanovic.
5.In June 2004, I received a report from Dr Kecmanovic dated 11 June 2004. ….
6.On 1 July 2004 I had a conference with the [respondent], and obtained further instructions from her, including instructions as to the report from Dr Kecmanovic.
7.I formed the view that based upon the [respondent’s] instructions, there was sufficient evidence to commence a claim against the [appellant]. However, the report of Dr Kecmanovic did not appear to sufficiently address the effect of the assaults detailed to me by the [respondent] on the development of her psychiatric condition.
8.The [respondent] was unable to provide funds to obtain further medical reports, and I have been representing the [respondent] in these proceedings on a contingency basis.
9.On 5 May 2005 I had a further conference with the [respondent] where she instructed me that her physical and mental condition had deteriorated and [she] had found it extremely difficult to cope since her last conference with me. She instructed me that she was diagnosed with breast cancer and that she needed to undergo a biopsy to determine if her condition could be treated, or whether she would require an operation.
10.She instructed me that she could not cope with life, particularly with her immediate family being in Serbia. She instructed me that she was leaving for Serbia on 15 May 2005 to see her son, and to try and obtain a visa for him to come to Australia. She told me that she would be returning on 2 August 2005.
11.On 15 September 2005 I had a conference with the [respondent]. At this conference, she provided further instructions as to specific incidents of assaults which she alleged against the [appellant]. She instructed me to commence proceedings as soon as possible against the [appellant].
12.I formed the view that based upon the further instructions from the [respondent], and the fact that the medical report of Dr Kecmanovic dated 11 June 2004 gave opinion of a psychiatric condition, there was sufficient basis to commence proceedings, and certify under s 198L of the Legal Profession Act 1987.
13. The Statement of Claim was filed on 19 September 2005.”
As I have indicated, the respondent’s solicitor was cross-examined by trial counsel for the appellant. The thrust of that cross-examination was an attempt to establish when it was that the solicitor had sufficient instructions as to the details of the alleged assaults and batteries so as to be able to advise the respondent that she had a case for damages against the appellant. When it was suggested to him that he had sufficient details with respect to the alleged incidents of assault at the time of the Family Law proceedings between the parties in 2003, he denied that he then had specific instructions as to dates and times and as to the details of the alleged assaults and batteries and that the only instructions he had were of “vague general allegations”. When asked when the respondent first provided more details of the allegations of assault and battery, he thought it was around February 2004. As at September 2003, when the Family Law proceedings were settled, he “wasn’t satisfied there was any cause of action at that time”.
Generally speaking the cross-examination went nowhere. However, in re-examination the following exchange occurred:
“SWEET: Q.         You indicated to my friend that at about the time of the Family Law proceedings there were vague, general allegations?
A.           Yes
Q.           What did you mean by that term?
OBJECTION. QUESTION ALLOWED.
A.           She was complaining about her treatment during her marriage. Then she raised certain things of a general nature of what that ill-treatment amounted to and that was about it.
A.           You also indicated to my friend that you were not satisfied that there was a cause of action at that time?
A.           Yes.
Q.           I take it that that was a reference to a cause of action arising out of certain alleged assaults and/or batteries?
A.           Correct.
Q.           Why was it that you were not satisfied that there was a general cause of action at that time?
A.           The form of her instructions which were so general and the absence of any medical evidence.
Q.           Proceedings in this matter weren’t instituted until 19 September 2005?
A.           Correct.
Q.           Are you able to say why it was that proceedings weren’t instituted prior to that time?
A.           Well firstly getting the precise instructions and having sufficient medical evidence available.”
The thrust of paras 11 and 12 of the solicitor’s affidavit set out in [20] above was that it was not until approximately 15 September 2005 when the respondent gave him further instructions as to the specific incidents of the alleged assaults that he considered that there was a sufficient factual foundation upon which he could provide a certificate under s 198L of the Legal Profession Act 1987 (NSW) when commencing proceedings (see now: s 347 of the Legal Profession Act 2004 (NSW)).
It was accepted by the appellant that the solicitor was not challenged with respect to this evidence. Nor was he challenged with respect to his evidence in para 8 of his affidavit – that the respondent was unable to provide funds to enable the obtaining of further medical reports, a factor upon which the primary judge relied: see below.
The respondent was cross-examined with respect to when she became aware that she had a claim for damages against the appellant. In her evidence in chief she agreed that she was advised by her solicitor at the end of 2003 that she was entitled to seek damages for what had happened to her.
When it was suggested to her that it was not until she saw her solicitor in September 2005 that she specified the dates upon which she was assaulted, she responded by saying that she had previously provided her solicitor with certain dates but that some dates she could not recollect because of the medication she was taking at the time. She said that she provided a statement to her solicitor at the beginning of 2004 mentioning the dates which she could remember at that time, but that they did not include all the dates.
The primary judge accepted (at [31]) the solicitor’s evidence “without reservation”. His Honour noted that on 2 April 2004 the respondent had told her solicitor that she was having treatment for severe depression which she said had arisen from various sexual assaults and threats by the appellant in the course of their cohabitation.
After the solicitor had received a report of the respondent’s treating psychiatrist, Dr Kecmanovic, dated 11 June 2004, he conferred with the respondent on 1 July 2004, forming the view that there was sufficient evidence to commence a claim but expressing concern that Dr Kecmanovic’s report did not properly address the part played by the physical assaults in producing the respondent’s psychiatric condition. He therefore concluded that another report was required.
The primary judge then narrated the following evidence:
“33.After the meeting her solicitor had with her on 1 July [2004] there was a gap of about ten months before he saw her again. He said that she was unable to provide funds for more medical reports and he was acting on a contingency basis. So I infer the ten month delay occurred because he was not inclined to use his own money to buy reports and the [respondent] had no money to pay for them.
34.On 5 May 2005 he saw the [respondent] again. She told him that her physical and mental conditions had deteriorated and she had been diagnosed with breast cancer. As she was missing her family she was travelling to Serbia to see her son. He saw her on the next occasion on 15 September 2005. This time she told him of the specific assaults and asked him to start proceedings. He told me that he felt then for the first time that he would be justified in signing the certificate for the statement of claim under s 198L of the Legal Profession Act 1987.
35.In cross-examination Mr Stojanovic said that she had told him in a general sense during the Federal Magistrates Court proceedings about the facts giving rise to the causes of action, including that she had unwanted and forced sex, and that the [appellant] had threatened to shoot her if she did not comply, but he had received no instructions that she had been injured. He did not think it relevant to raise these matters other than in a general way in the Federal Magistrates Court proceedings and did not think she had a viable cause of action because the instructions were too ‘general’. She did not give him any ‘precise detail of any specific event’. He said the delay in commencing proceedings had occurred for the same reason.”
His Honour next turned to the respondent’s evidence, noting that she had said that when she saw Dr Kecmanovic on 5 November 2002, she then:
“… understood the full extent of my mental condition. This was the first occasion that I was diagnosed with a mental condition which I say is directly connected to the experience I suffered from the [appellant].”
His Honour then recounted the following evidence:
“She told me that when she settled her family law dispute she had no idea she could sue for damages by reason of having sex against her will, or for the physical threats and injuries. Of course, that does not explain why it took until September 2005 for her solicitor to file the statement of claim, or even put the [appellant] on notice that he might be sued.”
Having noted that the first of the assaults complained of was said to have occurred in May 2001 at the latest, the statement of claim should have been filed on 30 April 2004 in order to ensure that it was in time with respect to all causes of action alleged. His Honour continued (at [48]):
“…The delay for the earliest alleged assault was therefore a little over sixteen months. For assaults alleged to have occurred in September 2002, the delay was only a week or so. The alleged attempt to strangle was on or immediately before 21 September 2002. So it was apparently within time, if on 21 September. Overall, I do not regard the delay as lengthy, even for the oldest of the causes of action, for these reasons: her mental condition, her lack of English, her lack of cultural links here, her apparent fear of the defendant, her lack of funds, her solicitor’s concern not to start proceedings until he could certify that she had a viable cause of action, and his disinclination to pay for medical reports, and several visits to Serbia by the [respondent] to see her son, who she had not seen for some years. I infer that the [respondent’s] mental condition and financial position contributed substantially to the delays. It is not in issue that she went to live in a refuge after leaving the [appellant]. She had only been in Australia for two years and had little community support, few friends, no relatives and poor English.”
The primary judge then rejected the appellant’s submission that the delay had not been properly explained. He said (at [49]):
“Some of the reasons may not be good to some, but in her situation they are, I think, perfectly explicable. I accept the explanation.”
In his challenge to this finding the appellant relied heavily upon a number of statements in the judgment of Ipp AJA (as his Honour then was), with whom Spigelman CJ and Sheller JA agreed, in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2001) 54 NSWLR 207.
Reliance was placed upon the following passage from his Honour’s judgment (at 224 [88]):
“The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the Courts.”
That statement of his Honour was made under the subheading “The particular significance of a deliberate decision to allow a limitation period to expire”. Earlier in the same paragraph his Honour had said (omitting citations):
“I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure to satisfactorily explain the delay will not be decisive. Ordinarily the issue of prejudice will be of paramount importance. Nevertheless the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused.”
After stating the “rule” upon which the appellant relied, his Honour continued (at 225) as follows (omitting citations):
“90The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. …
91A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave. ...”
The main thrust of the appellant’s submissions under this head was that the respondent was well aware that the limitation period was due to expire in “April 2004” and that a decision not to “take proceedings at an earlier time” was not only deliberate but also made on an informed basis. Accordingly, the respondent had made a deliberate decision to knowingly allow the limitation period to expire. It would not appear that this submission was advanced before the primary judge.
The evidentiary foundation for this submission was said to be the first sentence of para 15 of the respondent’s affidavit which for convenience I repeat:
“I understand that I should have commenced proceedings by not later than April 2004”.
In my opinion it is plain that the sentence in the respondent’s affidavit relied upon does not establish that in April 2004, or at any other time prior to swearing her affidavit, that the respondent was aware that there was a limitation period or that, in order to comply with it, it was necessary that she give instructions to institute proceedings prior to the end of April 2004. Clearly, she was stating that it was her understanding (present tense) at the time she swore her affidavit that she should have commenced proceedings no later than April 2004.
Furthermore, neither the respondent nor her solicitor was cross-examined to suggest that she received advice from her solicitor that there was any limitation period or as to when it would expire. In all probability it was overlooked in the same manner as the appellant’s legal representatives had overlooked it until counsel for the respondent brought it to their attention shortly prior to the commencement of the hearing.
Accordingly, the present case is distinguishable from Itek where the applicant had made a deliberate decision to allow the statutory period to expire and was unable to provide any satisfactory explanation for that decision. It follows that the submission that the respondent made an informed and deliberate decision to allow the limitation period to expire should be rejected.
The appellant then challenged each of the reasons relied on by the primary judge as explaining the delay in the institution of proceedings. In particular he submitted that none of those reasons were adopted by the respondent or her solicitor in their evidence. The only stated reason of the respondent, as set out in para 14 of her affidavit, was that she did not take proceedings “at an earlier time because I had hoped that my condition would improve”.
A consideration of paras 12, 13 and 14 of the respondent’s affidavit makes it clear that when she said that she did not take proceedings at an earlier time because she hoped that her condition would improve, the earlier time to which she was referring was prior to February/March 2004 when, after returning from overseas, she saw Dr Kecmanovic and was informed that her mental condition, which had not improved by then, was unlikely ever to improve.
The delay to which the primary judge was referring in that part of [48] of his judgment that I have recorded in [32] above, related to the period subsequent to 30 April 2004. Accordingly, the appellant’s submission based upon para 14 of the respondent’s affidavit should also be rejected.
The appellant next challenged the primary judge’s inference that the respondent’s mental condition and financial position had substantially contributed to the relevant delay. It was submitted that there was neither medical evidence nor evidence from the respondent that her mental condition had any effect upon her ability or capacity to provide instructions to her solicitor to institute proceedings. Indeed, prior to 2004 she had been a willing and active party in Family Law proceedings as well as in an application for an AVO. However, in his report of 11 June 2004 Dr Kecmanovic said that the respondent was:
“… depressed. She felt decried and dejected. She displayed a motivational syndrome, consisting of diminished drive, apathy and deterioration in life-style. She appeared unable to break the usual vicious circle of guilt, self-blame and anger. She showed difficulty in focussing on the issues. It was obvious that her capacity to be cheered by pleasant events and social support was impaired.” (Emphasis added)
In my opinion the fact that as at June 2004 the respondent’s mental condition was such that she had difficulty in focussing on the issues, was more than adequate to entitle the primary judge to infer that her mental condition had substantially contributed to the delay. So far as her financial position was concerned, there was no challenge to the statement by her solicitor that she was unable to provide funds to obtain further medical reports and that he was representing his client on a contingency basis.
The appellant further challenged the finding by his Honour that the respondent’s lack of English, lack of cultural links and fear of the appellant constituted satisfactory reasons for the delay. None of those matters, it was submitted, could have prevented her from instituting proceedings, especially as she had already been a party to Family Law proceedings and proceedings for an AVO and was able to give instructions to her solicitor in her native language. Furthermore, her alleged fear of the appellant had not caused her to desist from instituting the proceedings referred to.
There is substance in the appellant’s submission that the matters referred to would not of themselves provide satisfactory reasons for her failure to institute proceedings after approximately the end of 2003 when she first became aware that she might have a case for damages against the appellant. But those matters do provide reasons which explain her failure to institute proceedings prior to that time and, in particular, when she was still cohabitating with her husband.

On the other hand, her lack of funds prevented her solicitor from obtaining any further medical reports and he had given unchallenged evidence of his concern not to commence proceedings until he could certify that she had a viable cause of action by providing the certificate required by s 198L of the Legal Profession Act.
As the respondent submitted, the factual underpinning necessary for the appellant to make out this submission was never put to the respondent’s solicitor at trial. Nevertheless, the appellant submitted that there was more than sufficient evidence of the giving of instructions sufficient to found a viable cause of action and that the respondent’s solicitor’s explanation to the contrary was “mere window dressing”.
It was never suggested to the solicitor that this was so and it is, with respect, a submission to the effect that the solicitor was giving false evidence or, at the very least, indulging in exaggeration when he swore that it was not until he received further instructions from the respondent in September 2005 that he considered that there was a sufficient basis to institute proceedings. In the absence of any challenge to the solicitor’s evidence on this aspect of the matter, the appellant’s submission should be firmly rejected as being without foundation.
The facts accepted by the primary judge were that after February 2004 it took the conferences with his client on 2 April 2004, 1 July 2004, 5 May 2005 and 15 September 2005 for the solicitor to obtain the degree of specificity he considered necessary before he could certify that the Statement of Claim alleged a reasonable cause of action. His Honour accepted that evidence, as he was entitled to do, and it was open to him to consider that it constituted, at least in part, an acceptable explanation for the delay. The appellant’s challenge to his Honour’s finding that the delay had been acceptably explained should be rejected.
The s 60E(1)(b) factor – the question of prejudice
Section 60E(1)(b) of the Act requires the court to consider the extent to which, having regard to the delay, there is or may be prejudice to a defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period, is no longer available. As was observed by Simpson J, with whom Beazley JA agreed, in Conray v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60 at [136], the provision requires identification of any evidence that has been lost since the expiration of the limitation period. Any evidence lost prior to that date is not, for this purpose, relevant. McColl JA expressed a similar view in that case at [91]:
“I accept that in focussing on the prejudice to a defendant arising from the delay by reason of the fact that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available, s 60E(1)(b) looks to the period between the expiration of the limitation period and the time of the extension application.”
This is not to say that the Court should not examine the period between the time the cause of action accrued and the limitation period expired: it is required to consider any prejudice, presumptive or actual, sustained by a defendant during as well as after that period as the governing requirement of s 60E(1) is that the court must have regard ”to all the circumstances of the case”’. Nevertheless in terms of s 60E(1)(b), the issue is whether any evidence which would have been available if the proceedings had been commenced within the limitation period, is no longer available.
In his amended Defence, the appellant particularised in para 6.2 some 12 instances of what he asserted to be actual prejudice. The primary judge rejected each of those matters. Of present relevance was particular 6.2.9 which asserted that the records of an alleged complaint by the respondent to counsellors had been lost. Only this particular of prejudice was addressed by the appellant in oral submissions. However, in his written submissions on the appeal the following was also asserted:

(a)           Due to the general terms in which the alleged assaults had been pleaded in para 5 of the Statement of Claim and the fact that it was not until the first day of the trial on 27 September 2006, more than five years after the first alleged assault, that the respondent became aware of more specific details as to those allegations, the appellant was required to mount a defence against the claim which had been brought out of time and which involved extremely serious allegations, the nature, extent, duration and detail of which he was, until that time, completely unaware. As a consequence, the appellant suffered actual and significant prejudice.
(b)           Given the nature and extent of the allegations as they ultimately were exposed in the evidence, the appellant was denied the opportunity of subpoenaing relevant medical records, especially as the alleged repeated sexual assaults were said to have caused the respondent significant injury and pain.
(c)           That when dealing with the question of prejudice his Honour appears to have proceeded on the assumption that the details of the respondent’s claim had at all times been within the appellant’s knowledge whereas he only became aware of the nature and extent of those allegations on the first day of the trial. Accordingly, any available medical records would have been of critical importance to any complaints that the respondent might have made to medical or other health professionals.

Each of these submissions should be rejected. First, it was hardly open to the appellant to complain about the late particularisation of the respondent’s allegations given that no request for particulars had been made after the Statement of Claim was filed and no steps were taken to strike it out upon the ground that it was embarrassing. Failure to undertake these steps is relied upon by the appellant with respect to the second ground of appeal to which I shall refer below.
Second, the primary judge found that apart from one occasion involving Dr Hodoba (the general medical practitioner and friend of the appellant with a surgery and flat in Newtown referred to in the extract of the primary judgment at [10] above), the respondent’s evidence was that she had not complained about the appellant’s conduct to any health professional prior to her seeing Ms Sarac, a psychologist, on 21 January 2003, some three months after her separation from her husband. In her report of 24 January 2003, Ms Sarac stated under the heading “History of current problem” that the respondent “recounted being physically and sexually assaulted on numerous occasions by her husband”. A copy of that report was provided by the respondent’s solicitors to the then solicitors for the appellant as an attachment to a Statement of Particulars dated 29 June 2006, some three months prior to the commencement of the trial.
The same observation can be made with respect to the respondent’s complaints to Dr Kecmanovic, whose reports dated 11 June 2004 and 7 April 2006, were also supplied as attachments to the Statement of Particulars as was a report by Mr H Stambouliah, psychologist, dated 21 June 2006. There was nothing to prevent the appellant from subpoenaing the medical records of those practitioners. The appellant’s submission that he was prejudiced by being unable to do so is without merit.
The main issue of prejudice identified by his Honour was that particularised by the appellant in para 6.2.9 of his amended Defence and which related to the records of a counsellor at the Australian Centre for Languages (the Centre) at Rockdale. The Centre conducted an Adult Migrant English Program (AMEP) in which the respondent was a student during the six months she and the appellant spent at Dr Hodoba’s Newtown apartment between July 2001 and January 2002. Whilst so enrolled the respondent sought assistance with respect to her marriage from Ms Barbara Podhorecka, a counsellor with the AMEP counselling service at the Centre.
On 19 May 2006 the respondent requested Ms Podhorecka to provide her with a report on the counselling session she attended whilst she was a student of the AMEP. By letter dated 29 June 2006, addressed to the respondent’s solicitor, Ms Podhorecka advised that the Centre had closed at the end of June 2003 and she had been unable to locate the files containing the records of the respondent’s counselling sessions with her. She stated:
“I have used all possible means to locate the files, including visiting the Mission Australia Counselling Service archive site and physically going through the boxes containing clients records dating back to September 1998. From the Adult Migrant English Program records I have accessed it appears that [the respondent] was attending this program from 3 April 2001 to 18 January 2002. During this period she was enrolled at [the Centre] from 31 July 2001 to 18 January 2002. To the best of my recollection I can confirm [the respondent] admitted herself to Mission Australia AMEP counselling at ACL Rockdale, because of marital/domestic violence problems, settlement difficulties and immigration issues.”
In her evidence in chief, the respondent said that she had seen Ms Podhorecka as her language teacher. Ms Podhorecka had noticed that something was wrong with her and so took her to see the counsellor. When she was asked what was wrong with her “then I was compelled to say that I had a problem, that I was being abused.” When asked whether she was reluctant to tell someone that she had been abused sexually, she responded, “I did not dare say”. When asked why, she replied “because he [the appellant] threatened me that if I say anything to anyone he would kill me”.
Before the primary judge the appellant submitted that the delay in instituting the proceedings had caused the loss of the records referred to in Ms Podhorecka’s letter so that his client had not had a fair trial. It was submitted that the counselling records were crucial.
At [61] the primary judge found that the records in question could not have assisted the appellant to establish that no complaint with respect to the sexual abuse of the respondent had been made. He accepted that there was no reference in the letter to the domestic violence having a sexual context but that there was other evidence of reasonably prompt complaints of sexual violence when the respondent saw the psychologist, Ms Sarac in January 2003. Importantly for present purposes, his Honour found that there was no evidence that the records were available beyond the time of their creation.
The appellant renewed in this Court the submission that had been made before the primary judge, namely, that he was prejudiced in obtaining a fair trial due to the loss of Ms Podhorecka’s records. However, there are two answers to that submission. First, as the primary judge found, there was no evidence that those records would have been available if the proceedings had been commenced within the limitation period. Second, they would not have revealed anything other than the fact, referred to by Ms Podhorecka in her letter of 29 June 2006, that the respondent had “marital/domestic violence problems”. In particular, they would not have revealed any complaint of sexual abuse as the respondent herself stated that she had not complained of such abuse. Accordingly, in my opinion no error on the part of the primary judge has been demonstrated with respect to the issue of prejudice.
The s 60E(1)(c), (d) and (e) factors – the time at which the respondent became aware of her injuries, their nature and extent and their connection with the appellant’s conduct
The appellant next submitted that the primary judge had dealt inadequately with subparagraphs (c), (d) and (e) of s 60E(1) which require the court to have regard to the time at which the injury became known to the respondent (subparagraph (c)); the time at which the nature and extent of the injury became known to her (subparagraph (d)) and the time at which she became aware of a connection between the injury and the acts of the appellant (subparagraph (e)).
The primary judge dealt with the matters arising under these provisions in the following terms (at [65]):
"Next, I turn to the time at which the injury became known to the [respondent]. The physical injuries I am satisfied she knew of immediately on their occurrence. However, he depressive illness was not diagnosed, she said, until 5 November 2002. There is no evidence to the contrary.”
It is clear from his Honour’s reasons that he was dealing with the matters to which he was required to have regard pursuant to subparagraphs (c) and (d) of s 60E(1). The appellant’s real complaint was that he did not have regard to the matter referred to in subparagraph (e). Interestingly, the appellant did not refer in his amended Defence to subparagraph (e) but asserted the following:
“6.5(Alleged by the [respondent]) the injuries, and their nature and extent, were known to the [respondent] well within the limitation period (s 60E(1)(c)), (d) and (h)).
6.6No conduct of the [appellant] induced the [respondent] to delay the bringing of the action (s 60E(1)(e)). The [respondent] delayed the bringing of this action without warning to the [appellant].”
It is clear that the reference in para 6.6 to s 60E(1)(e) is a typographical error and is a reference to s 60E(1)(f).
Nevertheless, it was common ground that the respondent was aware of the connection between her psychiatric injury and the appellant’s abuse of which she complained when she saw Dr Kecmanovic on 5 November 2002, a matter acknowledged by the primary judge at [38]. The connection between the physical injuries she sustained and the sexual abuse by the appellant which she alleged, was self-evident.
That his Honour asserted that he had had regard to all the matters in s 60E(1) was confirmed by him in [68] of his judgment where he stated his conclusion with respect to the respondent’s application in the following terms:
“However, having regard to all the matters in s 60E, the evidence and the submissions, I am persuaded that the prejudice, presumed and actual, was not such as to have made the chances of an acceptably fair trial unlikely. Further, I consider that it is just and reasonable that the [respondent] have an extension of time, and that the matter proceed to trial.”
Although it is true that his Honour’s reference to having regard to all the matters in s 60E is made in the context of the claim by the appellant that he was relevantly prejudiced by the delay in the institution of the proceedings, that did no more than reflect the appellant’s primary submission in resistance to the making of an order extending time. In my opinion the appellant has not established that the primary judge failed to have proper regard to s 60E(1)(c), (d) and (e).
The s 60E(1)(f) factor – any conduct of the appellant which induced the delay
Section 60E(1)(f) required the primary judge to have regard to any conduct of the appellant which induced the respondent to delay bringing proceedings. His Honour dealt with this issue as follows:
“… If the [respondent’s] evidence is accepted, it could reasonably be said (and I find this to be so), that the conduct by the [appellant] did induce delay in the sense that it put the [respondent] in fear of him and induced in her an inability to complain or otherwise seek help while she was still with him. It is to be recalled that until 2001 she had spent her whole life, or most of it, in either Yugoslavia or Serbia and spoke little English while with the plaintiff, and had no relatives or friends here. As to the period after she left, it may be said the conduct continued to have effect. It is her case, as I have noted, that the [appellant’s] conduct led to her depression. The depression, I am satisfied, contributed to the delay.”
The appellant complained with respect to the last sentence of the foregoing paragraph of his Honour’s judgment. He submitted that there was no evidence to support a finding that any conduct of the appellant induced or caused the respondent to delay commencing the proceedings. It was pointed out that after the respondent left the appellant in September 2002, she was capable of providing her solicitor with instructions with respect to the Family Law proceedings in 2003 and the Apprehended Domestic Violence proceedings in November 2002. At no time did she claim that her medical condition prevented her from pursuing her claim in damages and the evidence established that in late 2003 she sought and received advice from her solicitor as to the possibility of bringing such a claim.
There could be little doubt that at least until the respondent left the appellant in September 2002, by which time 17 months of the primary limitation period had expired, the appellant’s conduct and the respondent’s fear of him, as found by the primary judge, more than explained her failure to institute proceedings during that period. In January 2003 she was seen by Ms Sarac, psychologist, as recorded at [58] above, to whom she repeated her fear of her husband notwithstanding that she had left him. At that time Ms Sarac stated that the respondent was suffering from adjustment disorder with mixed anxiety and acute depressed mood in response to an identifiable stressor (leaving her husband) which was significantly impairing her social functioning.
I have already noted (at [46]) that Dr Kecmanovic, in his report of 11 June 2004, relevantly stated that the respondent, “showed difficulty in focussing on the issues”. In May 2005 she informed her solicitor that her physical and mental condition had deteriorated and that she found it difficult to cope since her last conference with him in July 2004.
The respondent’s psychological condition was not put in issue at trial. As I have already indicated, her solicitor’s evidence was that he was only able to elicit instructions with sufficient specificity to enable him to certify the Statement of Claim in September 2005. The inference drawn by his Honour that the respondent’s condition, which he found was brought about by the appellant’s conduct and was a contributing factor to the delay, was one which, in my view, was open to him on the evidence. The appellant’s submissions with respect to this issue should therefore be rejected.
The s 60E(1)(g) factor – the steps (if any) taken by the respondent to obtain medical and legal advice and the nature of that advice
The appellant’s final submission with respect to the extension of time application was that the primary judge had not considered the matter referred to in s 60E(1)(g). This was correct, to the extent that his Honour did not explicitly discuss them.
However, the appellant had not referred to subparagraph (g) in para 6 of his amended Defence. Nor did he submit to his Honour that the respondent could have seen solicitors or doctors earlier than she did. There was no objection to the tender of the respondent’s medical evidence and there was no challenge to the solicitor’s evidence as to the respondent’s “lack of funds” with which to obtain further medical reports. Furthermore, his Honour in his narrative of the facts referred to the occasions when the respondent had seen her psychiatrist, psychologist and solicitor. The advice received from each was also referred to although not specifically in the context of subparagraph (g). Furthermore, the appellant did not suggest that his trial counsel had relied on subparagraph (g) in support of his submission that it would not be just and reasonable to extend the limitation period. In these circumstances, the appellant’s submission on appeal that the primary judge erred in failing to have regard specifically to subparagraph (g) cannot be sustained.
It follows from the foregoing that in my opinion the appellant’s challenge to the trial judge’s finding that it would be just and reasonable to order that the limitation period be extended should be rejected.
Ground 2 – There was a miscarriage of justice

It was submitted with respect to this ground that there was a miscarriage of justice due to the following:
(a)           The appellant not being present in court during the trial proceedings, especially when the respondent was giving her evidence.
(b)           The appellant not being present in court during the trial proceedings in circumstances where the details of the respondent’s claim were not disclosed until the respondent gave evidence.
(c)           The failure of trial counsel for the appellant to have the statement of claim struck out as embarrassing or to seek an adjournment.
(d)           The incorrect admission of tendency evidence.
Leaving aside the challenge to his Honour’s finding with respect to the admission of what he referred to as tendency evidence, the thrust of the appellant’s submission to this Court was that his trial counsel was grossly incompetent in the following respects. First, he directed his client to remain outside the court whilst the respondent and her solicitor gave evidence; second, he failed to move the Court to strike out the Statement of Claim upon the ground that it was embarrassing; and third, he failed to seek an adjournment of the hearing when it became apparent that the respondent was proposing to give detailed evidence of the alleged assaults and batteries which had not been previously particularised in the Statement of Claim and of which the appellant had had no notice.
It is important to note that the appellant has not sought to support these allegations with respect to the conduct of the trial by his trial counsel by calling any evidence either from himself or from his then solicitors on these issues. However, it is correct that prior to the respondent’s solicitor giving oral evidence, her counsel sent her outside. At that point the appellant’s counsel informed his Honour that he had also sent his client outside.
The appellant was cross-examined with respect to his absence from the courtroom. When asked the reason for absenting himself, he said that it was at the suggestion of his barrister. The following exchange then occurred:
“Q.         And you say that that was because your barrister told you not to be in court before then, is that right?
A.           Yah.
Q.           And do you know why it was that you were not to be in court?
A.           Well, he explained to me why.”
The appellant denied that the reason why he left the courtroom was that he could not face up to the allegations that were being made against him. However, the point is that whereas on the appellant’s evidence his trial counsel explained to him why he should not be in the courtroom whilst the respondent was giving evidence, no attempt has been made to inform this Court of that reason. The failure is significant given the appellant’s submission that counsel’s direction that he remain outside the courtroom in circumstances where he was unaware of the nature and extent of the allegations which were to be the subject of the respondent’s evidence, was indicative of his gross incompetence. Of course, the reason given to the appellant for him to remain outside court was a matter of privilege but one which it was open to the appellant to waive. The same comment applies to the appellant’s then solicitors. No evidence was called as to their understanding of the reason why their client was required to remain outside the court whilst the respondent and her solicitor gave oral evidence.
In the foregoing circumstances, the submission that counsel’s direction to the appellant to remain outside court whilst the respondent’s case was presented constituted gross incompetence on his part leading to a miscarriage of justice must be firmly rejected. One can speculate as to any number of reasons why counsel so directed the appellant. He denied that he simply could not face hearing details of the allegations against him. But given that his defence to the respondent’s claims was one of complete denial, a possible reason was that counsel may well have taken the view that his client may have reacted in front of the primary judge to the respondent’s evidence in a manner which would have been counter-productive to his case.
Accordingly, in my opinion no miscarriage of justice has been demonstrated as a consequence of particulars (a) and (b) referred to in [80].
As to particular (c), it must be noted at the outset that first, no particulars of the respondent’s Statement of Claim were ever sought. Second, the appellant’s trial counsel was only briefed shortly before the commencement of the hearing. Third, counsel made it clear to his Honour that he was prejudiced when at the commencement of the hearing the respondent’s counsel produced a five page chronology which set out the dates upon which it was alleged that the appellant sexually assaulted the respondent in one form or another. The chronology was tendered to his Honour as an aide memoir with respect to the oral evidence which it was anticipated the respondent would give.
When this issue was raised with his Honour, he indicated that it could not come as any surprise to the appellant or his counsel that the respondent alleged a series of assaults over the period between April 2001 and September 2002. He made it clear that if a stage came when the appellant was prejudiced in some way, then the question of prejudice could be raised with him. Counsel responded that he reserved his position in that regard. The following exchange then took place between his Honour and counsel:
“HIS HONOUR:    Well I think [counsel] the way I see it is – I assume there’ll be evidence given along the lines of what’s in the chronology and they all seem to be matters between the two dates in the Statement of Claim and I suppose they amount to giving the particulars of the precise, or more particulars of precise dates of occurrences and what is said to have occurred on those particular days.
[COUNSEL]:         Subject to what may fall from the plaintiff and then otherwise your Honour I’d be content to adopt that position for the purpose of being able to decide whether or not I can meet the application, the application which previously was pleaded broadly by the matters in paragraph 5 in the Statement of Claim.
HIS HONOUR:     Yes all right, well if we get to that stage you might let me know. I’ll accept the chronology as an aide memoir and the medical reports as exhibit A.”
The respondent’s evidence in chief took up approximately half of Day 1 (27 September 2006) of the trial. At the commencement of the Day 2 (28 September 2006) the respondent sought to amend her Statement of Claim by adding a claim for aggravated and exemplary damages, which was opposed. The appellant’s counsel again raised the nature of the broad claims in the Statement of Claim and the lack of particularity. Complaint was made of the failure of the respondent to particularise her claim in the manner in which she was now seeking to do. When his Honour suggested that the respondent’s evidence in chief which had so far been elicited was merely seeking to add “some meat to the bones”, counsel replied that the problem was that prior to the attempt to add the “meat”, there were only “bones”.
Ultimately, the following exchange took place:
“HIS HONOUR:    From what you’ve said to me I don’t take you to say that you would be so disadvantaged that you really want an adjournment of this case so that you can get some instructions and interview witnesses and all the rest of it.
[COUNSEL]:         My difficulty is this your Honour. We still don’t know what the [respondent’s] allegations are. We’re finding out about those, to the extent we’re finding out about them in whatever fashion, from the witness box.
HIS HONOUR:     Well I appreciate that but – anyway you haven’t made any application to me yet.
[COUNSEL]:         I’d need to hear what the [respondent’s] evidence is and reserve my position your Honour and then in my submission we are prejudiced and the delay hasn’t really been explained and, given the delay, it may well be it’s a matter that’s not cured by an adjournment. But I’d have to reserve my position.”
The respondent’s evidence in chief then continued for approximately one half of Day 2. At its conclusion trial counsel for the appellant commenced his cross-examination which continued uninterrupted for the rest of that day and the whole of Day 3 (29 September 2006). It is not suggested by the appellant that his trial counsel again raised the question of prejudice.
At the end of Day 3, the further hearing of the matter was adjourned to 4 October 2006 when the cross-examination of the respondent resumed and continued for a substantial part of that day. The balance of the day was taken up with her re-examination. Accordingly, at that point the respondent had been in the witness box for three and a half days. On 5 October 2006 (Day 5 of the trial) the further hearing of the proceedings was adjourned to 16 April 2007. On 17 April 2007 (Day 7), the respondent was recalled and was further examined and cross-examined. The Court was informed that a transcript of the respondent’s evidence given on 27, 28 and 29 September 2006 was available when her cross-examination continued on 4 October.
In these circumstances it hardly lies in the mouth of the appellant to submit that his trial counsel did not have every opportunity to obtain final instructions from his client with respect to the respondent’s evidence for the purpose of enabling him to cross-examine her thereon. This is particularly so where the appellant’s response to each and every allegation of the respondent was one of total denial.
As to the appellant’s submission that his trial counsel should have applied to strike out the Statement of Claim as embarrassing, whoever else might be blamed for not making any such application, it could hardly fall upon counsel who had only been briefed in the matter some days before the commencement of the hearing. I note that in argument the appellant did not seek in any way to criticise the conduct of his former solicitors.
During the course of oral argument on the appeal the appellant sought to make much of the chronology which was tendered at the commencement of the hearing as an aide memoir to the primary judge. It formed the basis of a submission that the appellant’s trial counsel should have objected to the detailed evidence sought to be led from her in chief as going outside the chronology. In this context it was submitted that the chronology constituted the particulars which ought to have been provided at a much earlier time. It was also submitted that the chronology revealed that the respondent alleged that sexual intercourse without consent only took place throughout the entire period on four occasions, being April 2001, May 2001, on 10 August 2001 and at the end of August 2001. Against each of these dates the document stated: “The Plaintiff alleges sexual assault by Defendant, namely, sexual intercourse without consent”.
This submission overlooks the fact that the chronology asserts on six other occasions an allegation of “sexual assault by Defendant, namely, anal sex, oral sex and sexual intercourse without consent”. The injustice to the appellant, so it was submitted, was that his Honour ultimately found that between 1 May 2001 and 21 September 2002, the appellant had committed 200 acts of vaginal intercourse without consent against the respondent, whereas the chronology at best alleged only some ten occasions when that occurred.
In my view this submission is without substance. First, it misconstrues the chronology. The latter lists specific dates upon which it was alleged that the appellant sexually assaulted the respondent by having sexual intercourse without her consent and then nominates January, February, March, April, May, June, July and August 2002 as months in respect of which the “Plaintiff alleges sexual assault by Defendant, namely anal sex, oral sex and sexual intercourse without consent”. As I understand the appellant’s submission, the chronology is said to indicate that sexual intercourse without consent only took place on one occasion in each of those months. True it is that each allegation refers to “sexual assault” (singular) and not “sexual assaults” (plural). On the other hand, the description refers to three separate and distinct forms of assault and so alleges at least three sexual assaults within the month.
Second, it would have been unrealistic for the appellant’s trial counsel to assume that the chronology only alleged one act of sexual intercourse without consent in each of the months referred to. If there was an ambiguity it fell upon counsel to seek clarification. There is no suggestion that he was in any way misled by the chronology or that he objected to questions which were intended to elicit the number of times a particular type of assault took place on the basis that such evidence was outside the “particulars” in the chronology. Accordingly, the appellant’s submissions based on the chronology are unsustainable.
Finally, when responding to questions from this Court querying whether the respondent was cross-examined about a particular aspect of her evidence, the appellant submitted that the fact that she was not was indicative of the incompetence of his trial counsel and was thus supportive of the fact that he had not received a fair trial and that a miscarriage of justice had occurred. The bold submission was made that the matter should never have gone to trial due to the incompetence of counsel. Reliance was placed upon the following passage from the judgment of Gleeson CJ, with whom McInerney J agreed, in R v Birks (1990) 19 NSWLR 677 at 685:
“The relevant principles, may be summarised as follows:
1.A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3.However, there may arise cases where something has occurred in the running of a trial perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. Whey they arise they will attract appellate intervention.”
In R v Ignjatic (1993) 68 A Crim R 333, Hunt CJ at CL, with the agreement of Finlay and Levine JJ, said (at 336) (omitting citations):
“The sole ground of appeal in relation to the appellant's conviction is that a miscarriage of justice had occurred as a result of the incompetence or negligence of his counsel and solicitor at the trial, in four specified respects to which I will refer shortly. The law to be applied by this Court in such a situation was recently stated in Birks. As a general rule, an accused person is bound by the way in which the trial is conducted on his behalf, regardless of whether his instructions were carried out, and a conviction will not be set aside because decisions by his legal representatives as to the conduct of the trial were made without or contrary to instructions or because those decisions involved errors of judgment or even negligence. Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will interfere.”
The allegation of incompetence in each of these cases and, in particular, in Birks is completely different to the alleged incompetence of the appellant’s trial counsel in the present case. In Birks after the jury had retired, counsel for the accused informed the trial judge that contrary to his instructions he had inadvertently failed to cross-examine the complainant on important matters, that failure having been addressed by both the prosecutor and the judge. The latter refused to discharge the jury. In Ignjatic the alleged incompetence was the failure of the accused’s counsel and solicitor to have him psychiatrically examined before trial, their failure to object to the admission of his record of interview and in calling him to give sworn evidence. None of these matters was held to have led to a miscarriage of justice.
But even if there was incompetence on the part of counsel which is certainly not self-evident, that of itself is insufficient to attract appellate intervention unless it was so serious, grave or “flagrant” as to have caused an actual miscarriage of justice. In my view it has not been demonstrated that there was any such miscarriage.
I turn finally to particular (d) referred to at [80] above which challenges the admission by the primary judge of certain tendency evidence. In para 10 of his affidavit sworn 26 September 2006, Dr Hodoba deposed as follows:
“The [appellant] underwent surgery at Orange Hospital and I recall taking the [respondent] from Sydney to Orange to visit the [appellant]. I recall that when visiting the [appellant] in hospital, the [appellant] had a small cane with leather ends attached to the cane. I saw the [appellant] flicking the cane at the [respondent] whenever she came close to the [appellant].”
This evidence was admitted without objection.
As his Honour observed (at [97]), the appellant’s trial counsel cross-examined Dr Hodoba not to the effect that the incident did not occur but that it was not as bad as it seemed. The respondent gave no evidence concerning that incident. The appellant in his evidence did not assert that the incident did not occur; he gave no evidence relating to it.
The primary judge queried with counsel for the respondent the relevance of that evidence. It was submitted that it amounted to tendency evidence in that it demonstrated a tendency on the part of the appellant to humiliate the respondent. His Honour admitted the evidence pursuant to s 97(1) of the Evidence Act 1995, which provides, relevantly, as follows:
“(1)Evidence of the … conduct of a person … is not admissible to prove that a person has or had a tendency … to act in a particular way … if:
(a)the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence; or
(b)the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”
His Honour considered (at [99]) that the evidence of the incident at Orange Hospital did have significant probative value as it indicated a similarity of conduct to that alleged, namely, a tendency to act against the respondent in a physically humiliating way. Although no notice had been given as required by s 97(1)(a), his Honour noted that no complaint was made about the absence of notice or that the appellant would suffer any prejudice as a consequence of that fact. In this respect his Honour had a discretion to direct that the tendency rule was not to apply to the subject evidence despite the respondent’s failure to give notice under s 97: see s 100(1).

The difficulty with the respondent’s submission is that the appellant’s answer that the gun was pointed in her direction or came into contact with her body “Probably five to six times” was confined by the questioner to the period between May and June 2001. On the other hand, her response that she had been struck by the gun around 30 times was related to a different period, namely, after the parties returned to Orange from Newtown in January 2003. In these circumstances, the alleged inconsistency resolves itself.
The fifth alleged inconsistency related to the respondent’s evidence with respect to the frequency of the appellant’s demands for sex, and the frequency of sexual encounters between April and June 2001. The respondent gave evidence that between those dates the appellant made a number of demands for sex which she had refused. When asked how many times had those demands been made, she responded: “Twice a month”. It was submitted that she subsequently gave evidence of having refused to engage in sex with the appellant after April 2001. When asked as to the number of occasions between April and June 2001 that she refused to have sex of any description, she responded: “Every second day, every second day, normal sex”. When asked whether there was ever any occasion prior to June 2001 that the appellant had sexual intercourse with her without her consent, she responded in the affirmative. When asked on how many occasions that occurred, she said that it was on numerous occasions, she was not counting. On the same page of the transcript the appellant gave evidence of having non-consensual “normal” sex with the appellant between May and June 2001 on three to four occasions a week.
The first exchange relied upon by the appellant when the respondent said that the appellant made a number of demands for sex which she refused and that those demands were made twice a month, was in the context of his demand for oral sex. The second exchange, when she said that every second day she refused to have sex of any description between April and June 2001, was in the context of any sort of sex including vaginal sex. If this be correct, there is no inconsistency. As to the third and fourth exchanges, there is in my view no apparent inconsistency. Upon the basis that the questioner was, as appears to be the case, seeking a response as to the number of occasions prior to June 2001 that the appellant had sexual intercourse with her without consent, the respondent’s responses of “on numerous occasions, I wasn’t counting” and “three to four times a week” or “a few times a week”, are not, in my view, inconsistent. In both exchanges the reference is clearly to vaginal intercourse without consent. I accept that there may have been some lack of communication between counsel and the respondent as to the precise form of sex to which some of the questions related. If so, that does not lead to inconsistencies which reflect adversely upon her credit.
The sixth alleged inconsistency relates to the respondent’s evidence concerning the parties’ engagement in “vaginal sex” or “normal sex” between April and June 2001. The respondent gave evidence that she was not happy to have normal sex with the respondent up until June 2001 (being a reference to vaginal sex) as a consequence of the appellant’s use of Viagra and its effect upon him. Later she gave evidence that she did not have “normal” sex with the appellant between “May and June 2001” – the particular exchange relied upon is as follows:
“Q.         After May 2001, did you have normal sexual intercourse with him between then [and] June 2001?
A.           *No.*
Q.           Did he ask you to have normal sexual intercourse with him between then and June 2001?
A.           *No.*
Q.           Did he ask to have normal sex with you between May 2001 and June 2001?
A.           *Sometimes*.” (*not through an interpreter)
The inconsistent evidence was said to be the following:
“Q.         On how many occasions did normal sex occur between May and June 2001 without your consent?
A.           Numerous occasions.
Q.           Are you about to do any better than numerous? For example, was it something like a thousand or more like 10 or what’s an approximately figure, please?
A.           Three to four times per week.”
The difficulty with these two exchanges is that there was some confusion in the questions, particularly as to what the respondent understood at the time the questions were asked as to what was “normal sexual intercourse”. Between those two exchanges she said that before the appellant commenced taking Viagra in April “we were having normal sex”. A reading of the whole of this part of the transcript indicates the confusion to which his Honour seems to be referring (at [74]) in terms of the respondent’s understanding of the particular type of sex that was the subject of the relevant questions. Although I would be prepared to accept that there may well be some inconsistency in her answers, in context they hardly reflect upon her credibility. The primary judge was of that view, with which I respectfully agree.
The seventh alleged inconsistency was said to relate to the respondent’s evidence as to the frequency of sexual acts whilst she and the appellant were residing at Dr Hodoba’s apartment above his surgery at Newtown. She gave evidence that whilst the parties were at Newtown oral sex occurred infrequently and that the same applied to anal sex during that period. The inconsistency alleged is that when asked as to approximately how many occasions did “sexual intercourse of any description take place in Newtown”, she responded: “Let’s say two or three times a week roughly”. The inconsistency alleged simply does not exist. The first set of questions related to the frequency of oral and anal sex whilst the parties were residing at Newtown whereas the alleged inconsistent responses relate to “sexual intercourse of any description” which would clearly include vaginal intercourse. The inconsistency, if any, is more apparent than real.
The eighth and final instance of alleged inconsistency relates to an incident at Newtown which occurred in August 2001 involving the use by the appellant of a curtain rod. The respondent gave evidence that the appellant hit her on the leg in the area of her crotch with a curtain rod. In cross-examination she said that the curtain rod actually broke into pieces on her back. Dr Hodoba gave evidence that he observed a circular bruise about the size of a 10 cent coin on the inside of the respondent’s upper groin. Mrs Hodoba gave evidence that at no time did any of the curtain rods in the flat need replacing. To my mind the inconsistency alleged is somewhat ethereal. There was no suggestion that the respondent was not struck by the appellant with the rod. The only possible inconsistency appears to be the respondent’s evidence that the rod broke and Mrs Hodoba’s evidence that no curtain rod needed replacement after the parties left Newtown. I do not regard this as a matter of any moment.
In the event the respondent’s evidence was that the rod broke into two pieces. Mrs Hodoba’s evidence was that the curtain rod did not need to be replaced. That does not mean it was not repaired by whomever. Again, the inconsistency is more apparent than real.
The appellant also asserted that the respondent had given an inaccurate history to Mr Stambouliah, during her consultation with him on 14 June 2006. It was submitted that she had given inconsistent evidence about what had been raised during that consultation. It was submitted that the respondent had initially agreed that she had advised Mr Stambouliah that the first time she had consulted a general practitioner was when she consulted Dr Hodoba. When it was put to her that she had “made no reference to having earlier attended any doctors in Orange?”, she responded: “Well, he [Mr Stambouliah] never asked me”. It was submitted that her credibility suffered when she attempted to later explain why she had advised Mr Stambouliah that the first medical practitioner she had consulted was Dr Hodoba. A reading of the parts of the transcript relied upon makes it clear that the respondent understood Mr Stambouliah to be asking her whether she had been able to see a doctor in order to complain about the appellant’s abuse of her. The only such doctor that she had in fact complained to was Dr Hodoba in relation to the incident relating to the curtain rod. When one regards this evidence in context, the submission that the respondent’s credibility suffered as a consequence is unsustainable.
It follows from the foregoing that none of the matters relied upon, whether taken singly or together, are capable of establishing facts which compel the inference that his Honour’s acceptance of the respondent’s evidence was misplaced. Even if the alleged inconsistencies in her evidence are accepted, they are not in my opinion of such weight in the overall context of that evidence as to justify a finding that her assertions with respect to the appellant’s physical and sexual abuse of her were glaringly improbable.
The appellant’s ultimate written submission was as follows:
“Having regard to the unreliable and inconsistent evidence given by the respondent, the seriousness of the allegations, the lack of complaint evidence, the almost complete lack of contemporaneous medical evidence concerning physical injury and the complete absence of any contemporaneous medical evidence concerning sexual assault, it is submitted that the trial judge’s findings of fact concerning the respondent’s credit and the allegations of battery and sexual assault cannot stand. It is submitted that the evidence was not capable of establishing to the required standard the precise facts as found by his Honour in paragraph 105 of the judgment. …”
At [104] his Honour made the following findings:
“I shall turn to consider the factual basis for the individual torts. I am satisfied, and I find, that in about May 2001, the [respondent] observed the [appellant] begin to take Viagra and that his erections thereafter were much larger and that she now found vaginal intercourse painful and suffered bleeding after vaginal intercourse. Further, I find that when he began to take Viagra the defendant took much longer to reach a climax. Accordingly vaginal intercourse took a lot longer than it had before. I find that she then told him that it was painful and that he hurt her and caused bleeding and asked him not to have intercourse with her again of a vaginal kind. However, he overrode her wishes and continued to have vaginal intercourse. I find that at about the same time, viz in May-June 2001 he asked her for anal and oral sex and that she said that she did not want those forms of sex, but he proceeded to make a series of threats, such that she did succumb, and had both anal and oral sex with him at his request, although she did not want to, and did not consent to it. I find she did not consent to vaginal intercourse either, after he first began using Viagra.”
At [105] his Honour identified the torts alleged which he considered were required to be identified and proved individually on the balance of probabilities. He then identified some 18 such torts. He concluded that he found that there were:
“… altogether twenty-five acts each of anal and of oral intercourse without consent, and two hundred acts of vaginal intercourse without consent, between 1 May 2001 and 21 September 2002.”
In my opinion it was amply open to the primary judge to make these findings and to accept the respondent’s evidence in so doing.
Finally, the appellant raised a further matter with respect to the respondent’s credibility not referred to in his written submissions. At [82] of his reasons his Honour considered that there was a degree of exaggeration on the respondent’s part as to how difficult it was for her to make telephone calls to members of her family in Serbia. However, he did not see that as a highly significant matter. The appellant nevertheless submitted that the evidence of the respondent with respect to her telephone calls to her family in Serbia reflected adversely upon her credibility. Essentially, it was submitted that in her evidence the respondent had said that she only telephoned Serbia once a month, whereas when the Telstra records with respect to international direct calls to Yugoslavia from the farm in Orange were subpoenaed and tendered, they revealed large numbers of calls, including up to five calls per day, made by the respondent to her sister, mother and adult son in Serbia.
The matter was first raised with the respondent in cross-examination on Day 2 of the trial. Having acknowledged that she made overseas calls to her mother and son in Serbia, she said that after returning to Orange from Newtown in January 2002 “when the situation became really serious for me”, the appellant did not allow her to telephone her family once a week but only once a month. She agreed that this restriction by the appellant on her use of the telephone commenced in June 2001. She then volunteered that there were occasions when she used the phone when the appellant was not in the vicinity. The following exchange encapsulates this aspect of her evidence:
“Q.         So when was it, so for how long was it that you were only allowed you say to ring your relations in Serbia once a month?
A.           Already in May 2001, already in May or June I could not ring once a week my relations back in Serbia. I could only sneak a phone call when he wasn’t present right there.
Q.           And how long did that go on for?
A.           That dictatorship routine was on until the end.
Q.           So you’re only allowed one call a month and it was to be at night time because that was meant to be cheaper?
A.           7pm onwards yeah.
Q.           And you say you would otherwise sneak a call when he wasn’t there?
A.           Yes I had to ring and I had to talk to someone. There were occasions when I just had to say something to someone and talk because I had absolutely no one on the farm, no one to talk to.
Q.           But you say that was very occasional?
A.           Occasional when she rings family right?
Q.           Yes?
A.           Yes, I know I rang more than just occasionally, quite often actually I managed to ring and I just said what was happening to me.
Q.           And you did that when he wasn’t there?
A.           Usually it was the occasions when he was just not in the room or when he had a shower or something, then I would do that, I would ring.
Q.           And, sorry, in your evidence before you refer to you’d occasionally phone out?
A.           Okay, when I said occasionally what I meant is it wasn’t like every day but it would have been once in three days.
Q.           How often was it?
A.           I managed to sneak in a phone call every time I could. In other words if he was having a shower or something but those were very short phone conversations. I could only say ‘I’m not very well’ or something like that. They were no occasions where I could have a long conversation.
Q.           So they were a matter of seconds were they?
A.           No, I cannot say that they were a few seconds. Sometimes there was only a few seconds but there were times when it was like up to five minutes of conversation.
A.           But you said they were very short?
A.           Well they were short yeah.
…
Q.           And in the time when you snuck those phone calls as you say in those few minutes or few seconds you had ample time to say that your husband had been mistreating you in whatever way or to suggest that you were being hurt for example and to ring the police or contact the embassy and that it was urgent?
A.           The occasions when I rang more often were more once we came back from Newtown. That’s when I rang more frequently and you must understand that people I spoke to like my mother while she was alive or my sister, they were not educated people who would be able to think of ringing an embassy or something like that but when the situation got bad for me when we got back that was the time when I told more to my sister and son and that’s when my sister said she would ring the police.”
I interpolate that, as might be appreciated from a reading of the above exchange, the context of the cross-examination related to whether she complained of her treatment by the appellant to her family in Serbia during these calls.
When the respondent was recalled on 17 April 2007, she was further cross-examined with respect to the Telstra phone records. It was put to her that, having had access to the records, it was simply not true that in 2002 she would ring Serbia only once a month, to which she responded that she had not said this. It was also put to her that the evidence she gave that when she returned to Orange in January 2002, she was allowed to ring once a month, was untrue. Her response was:
“It was true but, you know, I called and I used any opportunity to call”.
The following exchange then occurred:
“Q.         And you gave further evidence, and as appears further on page 54, my question was, ‘This period when you say you were told you could only ring once a month in 2002, when did that period start’, and you answered, ‘That started actually in June 2001 and he said I could only ring once’. That answer just wasn’t true, was it?
A.           He allowed me to call my family or my son once a week but I admitted that I really grabbed any opportunity to call my parents and really to complain to them. Whenever I had the chance I did call, I said so.
Q.           You’re only saying that now that you’ve been confronted with those records, aren’t you?
A.           It’s not true because the question then was, how I was allowed, how he allowed me to call, and probably the answer was what I told you.”
The respondent submitted that when one considers the evidence to which I have referred, it becomes clear that at all times she was drawing a distinction between the occasions when the appellant allowed her to telephone her relatives in Serbia and the fact that she telephoned those relatives far more often, albeit surreptitiously when the appellant was absent. In my opinion the respondent’s evidence makes good that distinction and thus undermines the alleged inconsistency in her evidence upon which the appellant relied as illustrating her lack of credibility.
All in all, the appellant has been forced to clutch at straws in support of his ultimate submission which I have recorded at [141] above. That submission is without merit and should be rejected, as should Ground 3.
Ground 4 – The trial judge erred in failing to apply the Briginshaw standard and in failing to give reasons as to the application of that standard
The primary judge was well aware of the necessity in the circumstances to apply what was referred to in the appellant’s submissions as the Briginshaw standard: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362. It required a case such as the present that the affirmative of an allegation be made out to the reasonable satisfaction of the tribunal of fact.
His Honour acknowledged (at [92]) that in the present case, which came down to one person’s word against another and where the allegations amounted to criminal offences, proof to the so-called Briginshaw standard was required.
I have already referred (at [143] above) to his Honour’s specific findings with respect to each of the individual torts that he identified at [105] of his judgment. After totalling the number of acts of anal, oral and vaginal intercourse without consent, his Honour expressed his conclusion in these words:
“I find established to the Briginshaw standard and am reasonably satisfied that these matters occurred (see also s 140(2) of the Evidence Act.)”
At the end of the day the appellant was forced to rely upon his submissions with respect to Ground 3 to support his contention that his Honour could not have been reasonably satisfied that the affirmative of the various allegations made by the respondent had been established. Rejection of that ground undermines the appellant’s submission on the present ground.

It was nevertheless submitted that his Honour was required to analyse the evidence and to give reasons as to why he accepted certain evidence over other evidence, but that he had not done so. This submission is without foundation. Ground 4 should be rejected.
Grounds 5 to 10:
Ground 5 – the award of general damages was excessive.
Ground 6 – the trial judge erred in awarding aggravated damages.
Ground 7 – the award of aggravated damages was excessive.
Ground 8 – the trial judge erred in awarding exemplary damages.
Ground 9 – the award of exemplary damages was excessive.
Ground 10 – The primary judge erred in failing to give any or any adequate reasons for his finding as to the general damages and aggravated damages.
These grounds may be dealt with together. It was common ground that the primary judge should assess a global figure for damages for all torts that he had found proven to the requisite standard. Although his Honour acknowledged that ex-spouses or partners do not usually sue for assaults and batteries, in the present case there were a large number of separate torts alleged which collectively, on the psychiatric evidence, had caused the respondent significant psychiatric injury. Each of the assaults, his Honour found, made a contribution to the respondent’s ultimate psychiatric condition.
The appellant called no evidence to contradict the medical reports tendered by the respondent. Nor were any of the authors of those reports required for cross-examination. Having regard to that evidence and acknowledging (at [118]) that when one adopts a lump sum value with respect to a series of assaults and batteries, one is required to give the assessment a sense of proportion, his Honour determined (at [120]) general damages in the sum of $150,000.
The appellant submitted that if entitled to anything, the respondent was entitled to a small award only. Further, he submitted that his Honour did not provide any reasons as to why the sum of $150,000 was considered appropriate. I would reject both submissions. Given the number and nature of the assaults and, in particular, their humiliating impact and given the evidence of the respondent’s treating psychiatrist, Dr Kecmanovic, that the prognosis for the respondent’s mental condition was bleak and that it was unlikely to improve in the years to come, I have no doubt that an award of $150,000 was well within the range of damages capable of being awarded in the exercise by the primary judge of sound discretionary judgment.
As to the submission that his Honour did not give reasons for awarding that sum, the judgment is replete with references to the respondent’s evidence as to the pain and suffering as well as the humiliation that she sustained as a consequence of what were clearly grave assaults and batteries over an extended period of time. Although his Honour accepted that the physical injuries sustained by the respondent with respect to those assaults had resolved, the psychiatric condition from which she was suffering and which was caused by the assaults was continuing. In particular, his Honour made the following findings relevant to the assessment of damages:
“106.I find that by reason of the assaults and the batteries from 1st May 2001 to 21st September 2002 the [respondent] suffered a significant chronic post traumatic shock disorder and chronic adjustment disorder and depression with symptoms associated with pain and functional sequelae from the physical and psychological injuries at the hands of the [appellant].
107.I find that she had and continues to have psychological symptoms and has a need for treatment and will need it in the immediate future. She told me she had seen Dr [Kecmanovic] more than sixty times since 2002 and is still seeing him. She has taken Valium since 2002 and for a time also took Cipramil. She says, and I accept, that she still lives in fear of the [appellant] and hides in her flat if the phone rings if she does not know who has called.”
It follows that the appellant’s submission that his Honour failed to give reasons as to why he considered the sum of $150,000 to be appropriate should be rejected.
The primary judge awarded aggravated damages in the sum of $25,000. In so doing he applied the principles set out by the High Court in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 9-10 and this Court in State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496. His Honour also referred to the decision of the High Court in NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638 at 646 [31]. He was particularly aware of the necessity to avoid double counting, referring to the judgment of Hodgson JA, with whom on the issue of damages Sheller JA and Nicholas J agreed, in Riley at [130], [131] to [133]. The primary judge’s finding under this head of damage was as follows:
“125.Given my findings of the [appellant’s] conduct towards the [respondent], I consider that what he did went beyond ordinary human fallibility, so as to justify an award of aggravated damages on top of the ordinary award: Riley at [142].”
The appellant submitted that if the primary judge awarded damages for hurt feelings as part of ordinary compensatory damages, then any award of aggravated damages must only be of an amount necessary to bring the damages up to the upper end of the available range. His complaint was that the primary judge had given no real indication that his award of aggravated damages in the sum of $25,000 represented further compensatory damages. Rather, in awarding such damages he focussed on the appellant’s conduct rather than the effect of that conduct upon the respondent. I disagree.
It is true that any additional aggravated damages must be compensatory and must not already have been included in an award of ordinary compensatory damages: Riley at 528 [131]; 529 [133]. However the appellant’s conduct cannot be ignored. As was stated in the joint judgment of the High Court in Lamb at 8:
“Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like.” (Emphasis added)
In the present case it was the appellant’s insulting and humiliating conduct towards the respondent which was the foundation of his Honour’s finding that that conduct went beyond “ordinary human fallibility” as Hodgson JA described the relevant wrongdoing in Riley at 528 [131]. It matters not that the same conduct gives rise to an entitlement not only to aggravated damages but also to exemplary damages. In the one case, the damages are compensatory in nature in that they compensate the particular plaintiff for the hurt feelings as a consequence of the insulting and humiliating conduct of the defendant. In the other, the conduct of the defendant gives rise to an award of damages that is unrelated to any question of compensating the plaintiff. Nevertheless, the same conduct may give rise to both. In my opinion no error on the part of the primary judge has been demonstrated with respect to his finding that the respondent was entitled to aggravated damages.
The only rider I would make to the foregoing is that it might be considered more appropriate for his Honour not to have separately assessed general damages and then added an additional sum by way of aggravated damages but to have assessed both heads of damage by determining an amount towards the top of the range of compensatory damages. However, particularly in cases where there is a real question whether or not aggravated damages should be ordered, there could be merit in a judge indicating one figure without it (an estimate of a mid-range figure) and the aggravated damages (bringing the result towards the upper end of the range); and in the absence of any basis for suggesting there has been double counting, I would not consider that his Honour’s approach bespeaks appellable error.
As to exemplary damages, the primary judge (at [127]) recognised that they were exceptional and rarely awarded. He cited the following passage from the judgment of Hodgson JA in Riley at 530 [138]:
“In my opinion, as made clear in Gray, while conscious ‘wrong-doing in contumelious disregard of another’s rights’ describes the greater part of the field in which exemplary damages may properly be awarded, it does not fully cover that field. Similarly, malice is not essential: Lamb v. Cotogno. Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court’s disapproval or (in cases where the defendant stood to gain more than the plaintiff lost) demonstrate that wrongful conduct should not be to the advantage of the wrong-doer.”
His Honour concluded that his findings with respect to the appellant’s treatment of the respondent could reasonably be described as a “conscious wrongdoing in contumelious disregard of another’s rights”, citing Whitfeld v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71 at 77 and Riley at 530 [138]. He concluded:
“128.In my view the compensatory damages I have awarded for the proved conduct does not sufficiently express the court’s disapproval for the plaintiff’s conduct and an award of exemplary damages is appropriate. I consider the award should be $50,000.”
The appellant submitted that an award of exemplary damages can apply only where the conduct of the defendant merits punishment which is only where his conduct is wanton or it discloses fraud, malice, violence, cruelty, insolence or the like or, as it is sometimes described, where the defendant acts in contumelious disregard of the plaintiff’s rights. The appellant’s conduct was so described by his Honour and rightly so. He further submitted that the primary judge had focussed on the appellant’s conduct towards the respondent in deciding to award both aggravated and exemplary damages and had thus engaged in double counting. The submission was made, which I would reject, that his Honour did not differentiate between the two heads of damages.
The appellant then submitted that the main thrust of exemplary damages is deterrence, both specific and general. In the present case the parties no longer resided with each other, the respondent had the benefit of an Apprehended Violence Order and there was no suggestion that the appellant had conducted himself in any inappropriate manner towards the respondent since the end of 2002. In these circumstances, it would be appropriate for the issue of deterrence to be dealt with by the criminal law.
In my view these submissions should be rejected. No proper basis exists for the submission that any question of deterrence should be left to the criminal law in the present case as the appellant has not been prosecuted. The fact that he might have been of good behaviour since the parties separated is irrelevant. Furthermore, the appellant did not address the issue of general deterrence and, importantly, the necessity for the Court to express its disapproval of the appellant’s conduct.
In the present case, that conduct was high handed, outrageous and showed complete contempt for the rights and feelings of the respondent. It was malicious and deliberate. The respondent was forced to undergo and undertake humiliating sexual acts without her consent and in circumstances where she was threatened with dire consequences if she did not succumb to the appellant’s demands. A stronger case for exemplary damages is difficult to imagine.
So far as his Honour’s award of $50,000 is concerned, his reasons for awarding such a relatively substantial sum are reflected in his findings with respect to the nature of the appellant’s conduct. No case has been demonstrated to suggest that the amount awarded was outside the range of exemplary damages awards which were open to the primary judge to assess in the proper exercise of his discretion.
Conclusion
For the foregoing reasons in my opinion each of the grounds of appeal advanced by the appellant should be rejected. I would therefore propose that the appeal be dismissed with costs.
McCOLL JA: I agree with Tobias JA.

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LAST UPDATED:
8 August 2008