Varmedja v Varmedja

Case [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

  1. HODGSON JA: I agree with Tobias JA.

  2. 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.

  3. By reason of the combined operation of s 18A of the Limitation Act 1969 (NSW) (the Act) and the definition of “

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Details
AGLC
Varmedja v Varmedja [2008] NSWCA 177
Case
[2008] NSWCA 177
Decision Date

CaseChat Overview and Summary

This case concerned an appeal from a decision of the primary judge regarding damages and the extension of a limitation period. The parties involved were Varmedja (the appellant) and Varmedja (the respondent). The dispute centred on whether the damages awarded were excessive, specifically concerning aggravated and exemplary damages, and whether the primary judge had erred in extending a limitation period pursuant to section 60C of the *Limitation Act*.

The legal issues before the court were twofold. Firstly, whether the primary judge had erred in awarding aggravated and exemplary damages and, if so, whether those damages were excessive. Secondly, the court had to determine whether the cause of action was barred by the limitation period, and if the primary judge had properly exercised their discretion to extend that period under section 60C of the *Limitation Act*, having regard to the matters listed in section 60E, including the evidence provided by the plaintiff and her solicitor regarding the reasons for the delay.

The court considered the principles governing the extension of limitation periods, noting that a limitation provision represents Parliament's intent that proceedings be commenced within the stipulated time, with an extension being an exception. It was held that a deliberate decision to allow a limitation period to expire is a powerful factor against granting leave, ordinarily making it difficult to provide a sufficiently cogent explanation for such a decision. The appellant argued that the respondent had deliberately allowed the limitation period to expire based on a sentence in her affidavit stating she understood she should have commenced proceedings by April 2004. However, the court found that this sentence did not establish the respondent's awareness of the limitation period or the necessity to commence proceedings by that date at the time the period was due to expire.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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