Varmedja v Varmedja

[2007] NSWDC 385

CITATION:	Ruzica Varmedja v Svetozar Ved Varmedja [2007] NSWDC 385
HEARING DATE(S):	27, 28, 29 September 2006, 4, 5 October 2006, 16, 17, 18, 19 April 2007
JUDGMENT DATE:	30 April 2007
JURISDICTION:	Civil
JUDGMENT OF:	Walmsley SC DCJ at 1
CATCHWORDS:	TORTS – Damages for physical and sexual assaults and batteries in marriage - DAMAGES – Whether necessary to make separate award for each of multiplicity of assaults / Lump sum appropriate method / Exemplary damages / Aggravated damages - LIMITATION OF ACTIONS – Whether cause of action barred
LEGISLATION CITED:	Crimes Act 1900 Family Provision Act 1982 Family Law Act 1975 (Cth) Legal Profession Act 1987 Limitation Act 1969 Motor Accidents Compensation Act 1999 Criminal Injuries Compensation Act 1983 (ACT) Evidence Act 1995 Civil Liability Act 2002
CASES CITED:	Regina v Clarence (1988) 22 QBD 23 Regina v Clarke [1949] 2 All ER 448 Cetojevic v Cetojevic [2006] NSWSC 431 De Winter v Johnston, (unreported, Court of Appeal, per Powell JA, 23 August 1995) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 South-West Area Health Service v Gabrielle [2001] NSWCA 477 Briginshaw v Briginshaw (1938) 60 CLR 336 Rejfek v McElroy (1965) 112 CLR 517 Gianoutsis v Glykis [2006] NSWCCA 137 Wainwright and Anor v Home Office [2003] UKHL 53 In the Marriage of C Kennon and D Kennon (1997) 22 FLR 1 Re application for Criminal Injuries Compensation (1991) 103 FLR 297 Dimas v Government Insurance Office (NSW) (1992) 15 MVR 213 Nowlan v Marson Transport Pty Limited (2001) 53 NSWLR 116 Lamb v Cotogno (1987) 164 CLR 1 State of New South Wales v Riley [2003] NSWCA 208 New South Wales v Ibbett (2006) 229 CLR 638 In the Marriage of Marsh (1993) 17 FLR 289 A v M [1991] 2 NZLR 228 Whitfield v De Lauret and Co Limited (1920) 29 CLR 71
PARTIES:	Ruzica Varmedja (Plaintiff) Svetozar Ved Varmedja (Defendant)
FILE NUMBER(S):	4041/05
COUNSEL:	(P) R Sweet (D) K Pierce
SOLICITORS:	(P) Stojanovic Solicitors, Liverpool (D) Armstrong Legal, Sydney

JUDGMENT

HIS HONOUR:
1. The plaintiff claims damages for a series of sexual assaults and batteries of a most humiliating kind she says occurred while she lived with the defendant, her then husband, from April 2001 until she left him on 21 September 2002.

2. The plaintiff was born in Serbia on 22 September 1953 and is aged fifty three. The defendant 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 defendant was married before he married the plaintiff; he has children and grandchildren. The defendant 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 defendant in early 2001 the plaintiff had lived most of her life in Serbia. She and the defendant 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 19 January 2001.

3. The defendant 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 half to two kilometres from the nearest neighbouring house. The plaintiff, when she went to live there, spoke little, if any, English. The defendant, however, did speak English. The plaintiff had no relatives or close friends in this country. The defendant 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 defendant he allowed the defendant to use the apartment as his own whenever he visited Sydney. He gave him a key so the defendant 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 plaintiff’s case that her first few months with the defendant 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 defendant began using the drug Viagra. Following that, her life became an extremely unhappy one. The reason for that according to the plaintiff is that when the defendant 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^st 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 defendant 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 defendant consented to an apprehended violence order for two years on a “no admissions” basis. The “circumstances of complaint” in the complaint and summons read as follows:

“Circumstances of Complaint. The parties were married 29/07/00 and separated 23/09/02. The defendant threatened the complainant on a number of occasions during the marriage saying ‘I can kill myself and I kill you’. The defendant has gun license for one weapon and has another unregistered firearm. The complainant has been told by the defendant that he has friends in the criminal underworld and that if she tries to obtain any of his property that he will contact those friends who are prepared to kill. The defendant tried to frighten the complainant by crashing the motor vehicle they were driving in.”

10. I add that although there is a reference there to the separation as being on 23 September, before me the parties conducted the case on the basis it was the 21st.

11. At about that time the plaintiff consulted a general practitioner and was referred to a psychologist who spoke her language. That psychologist was Stanko Sarac. Ms Sarac saw the plaintiff on 21 January 2003, some three months after the separation. She reported about that meeting on 24 January. Her report said inter alia:

“Ms Varmedja reported that she had recently been experiencing significant sleep disturbance anxiety hypertension and suicidal ideation all believed to have been caused by a recent separation from her husband of two years. Ms Varmedja claimed that she had also felt depressed by her current circumstances and that she could not remain hopeful about her future.”

Under “History of Current Problem”, she said:

“Ms Varmedja reported that she had immigrated to Australia two years ago in order to join her new husband who was living on a farm in Orange, New South Wales. She stated that over the period of two years she realised that her husband was a short tempered individual, capable of unpredictable behaviours. Ms Varmedja recounted being physically and sexually assaulted on numerous occasions by her husband. She stated that her husband kept a rifle under his bed and that he would periodically take it out and say that he would kill her one day. Ms Varmedja also reported that her husband had previously been involved in criminal activity. Ms Varmedja stated that on 21 November 2002 (sic) she fled her husband and moved to a women’s refuge in Blacktown, Sydney. She stated that following seven weeks in the refuge she was moved to emergency accommodation in Liverpool. Ms Varmedja stated that she had also taken an AVO against her husband as he had made death threats to her. Around the same time she reported that she started fearing for her life and had developed psychological problems as a result. She indicated that she had visited her GP and began a course of anti-depressant and sedating medication to help her cope with the situation.”

Under “Current Situation” she said:

“Ms Varmedja reported that she was currently experiencing social, physical and psychological problems. Social problems include expiry of emergency accommodation agreement and necessity to look for another residence; legal action against her husband and eventual settlement. She is also unable to speak English or look for work. She reported that she had no social support network in Sydney. Ms Varmedja reported that she was experiencing problems with her sight. She explained that on occasions she would completely lose her sight. She also explained that she was currently undertaking investigations for diabetes. Psychologically Ms Varmedja indicated that she could not sleep, concentrate or feel safe. She reported feelings of being followed and avoided public places. She explained her belief that her husband was able to engage people who could find her and harm her. Ms Varmedja stated that over the last few days she was getting suicidal thoughts which she could not get rid of, but she denied having made any plans. She reported no prior history of suicidal ideation and assured our service that she would not cause any harm to herself.”

Under the heading “Opinion” she said:

“Based on Ms Varmedja’s self report she appears to be suffering from adjustment disorder with mixed anxiety and depressed mood (acute)(F43.22). She had developed emotional and behavioural problems that have occurred in response to an identifiable stressor (leaving her husband) and this had significantly impaired her social functioning. Although it is difficult to predict the duration of Ms Varmedja’s psychological condition it is essential that she receives assistance in a number of areas. These are outlined in the management plan below.”

Then, under the heading “Plan”, are included these:

“Brief support of psycho-therapeutic intervention will be applied to assist Ms Varmedja with regard to her sleep difficulties, anxiety and depressive symptoms. Presence of suicidality will be assessed at every session.”

12. At about the time she consulted that psychologist she consulted her current solicitor, Mr Stojanovic, who speaks Serbian. He took instructions and commenced proceedings in the Federal Magistrates Court for a property settlement. In her supporting affidavit for that application she said, among other things, that she had given the defendant all of the money that she had brought with her to Australia, namely $13,250, that he had used it and she had received nothing for it. She said that he had substantial assets. In paragraph 24 of her affidavit sworn on 29 August 2003, she said this:

“24. After the respondent recovered [the respondent had been ill and had had surgery early in 2002] he began to beat and sexually abuse me and treated me like a slave. He had previously abused me before he fell ill and the abuse became more violent and frequent, and I fled from the respondent on 21 September 2002.”

13. In his affidavit in reply in the Federal Magistrates Court, the defendant, referring to their marriage and the plaintiff’s coming to Australia, mentioned inquiries which the plaintiff had made in August 2000 about bringing her son to live in Australia. As to paragraph 24 of her affidavit in which she accused him of violence and sexual abuse in the marriage, he said:

“I categorically reject and deny those allegations.”

14. He went on to say that their relationship had cooled following his surgery and “I lost interest in sex” [23].

15. As to the apprehended violence order, which she had referred to in her affidavit, he said this:

“When I was served with the applicant/complainant summons for apprehended violence I did not obtain legal advice but went down to the court on my own. I spoke to the applicant’s solicitor and denied the allegations in the complaint. I am now advised that the complaint was dismissed upon my written undertaken without any admissions by me.
…
In response to the allegations therein I say:


1. I have never threatened the applicant in any way specifically. I have never threatened to kill her or myself.

2. I have a gun license and own a licensed gun. When a tenant moved out an air rifle was left by him. I use my gun only rarely, if needed, on the farm.

3. I do not know anything about or anyone in the criminal underworld. I have never threatened the applicant in this regard, as alleged.

4. On one occasion I had driven the applicant home to Orange from Sydney. Approximately 300 metres from home, as I turned on to a gravel S-bend a kangaroo jumped in front of the car. As I swerved to avoid the kangaroo another one jumped from the other side. As I again swerved the other way the car slid sideways and came to rest with my door against a tree. It was frightening for both of us, but it was neither intentional nor aimed at the applicant.”

16. The plaintiff told me that at about the end of July 2001 she and the defendant went to stay at Dr Hodoba’s Newtown apartment for about six months, returning to Orange at weekends. The purpose of that arrangement was to permit her to learn English. It appears that while living in Newtown she enrolled at the Adult Migrant English Programme at the Australian Centre for Languages at Rockdale. While she was there she sought help about her marriage from one of the counsellors, Barbard Podhorecka. For the purpose of this case the plaintiff’s solicitor got in touch with her. Her written response, which was tendered by the defendant, says:

“I am writing to you in compliance with your client Ruzica Varmedja’s request of 19 May 2006, to provide her with a report on the counselling session she attended while she was a student of Adult Migrant English Program (AMEP) at Australian Centre for Languages (ACL), Rockdale, some years ago. This centre closed at the end of June 2003 and consequently all the AMEP counselling service at the centre ceased operating at the same time. It is with great regret that I inform you that I am unable to provide you with the requested report, as I have been unable to locate the files containing the records of Ms Varmedja’s counselling sessions with me. I have used all possible means to locate the files, including visiting the Mission Australian Counselling Service archives site, and physically going through the boxes containing client’s records, dating back to September 1998. From the Adult Migrant English Program records I have accessed it appears that Ms Varmedja was attending this program from 3 April 2001 to 18 January 2002. During this period she was enrolled at ACL Rockdale from 31 July 2001 to 18 January 2002. To the best of my recollection I can confirm Ms Varmedja admitted herself to Mission Australia AMEP counselling at ACL Rockdale, because of marital/domestic violence problems, settlement difficulties and immigration issues.
I regret that I am unable to assist you further on this matter. If you have any inquiries on this matter please contact the manager of AMEP counselling service.”

17. On 8 September 2003 the plaintiff and defendant reached a settlement of their family law dispute. It involved, among other things, payment of a sum to her by the defendant of $45,000. The parties were divorced on 29 March 2004.

18. The plaintiff saw a psychiatrist, Dr Kecmanovic, for this case. He reported about her on 11 November 2004 and 7 April 2006. The history in the reports was largely in accordance with what the plaintiff told me about the history of her marriage with the defendant. In the first report Dr Kecmanovic expressed the view that she had symptoms of mixed depression and anxiety, according to DSM IV. As to causation he said:

“The hardships in general and harassment and verbal and physical abuse in particular she endured while she was with the defendant have caused the said psychiatric condition.”

He concluded:

“The prognosis of her mental symptoms is bleak.”

19. After the initial visit, it appears she saw Dr Kecmanovic fifteen times over twenty one months. On 7 April 2006 he next reported about her. In that report he said:

“In my view the repeated assaults and batteries, particularly the sexual assaults, as well as threats, were the main cause of mental symptoms she developed.
…

Counselling and anti-anxiety agents proved unsuccessful.
…

She is not likely to mentally improve in years to come.”

20. The plaintiff saw another psychologist, Mr Stambouliah, on 14 June 2006. He reported at about that time. She gave him a history which was broadly in accordance with the history she gave me about her marriage. Dealing with the alleged abuse Mr Stambouliah said:

“Ms Varmedja first consulted a general practitioner, Dr Hodoba (now retired) who practised in the unit below theirs in Rockdale, but would not dare divulge any of her abuse. Ms Varmedja first commenced English language classes in Orange New South Wales, then at ACL at Rockdale. She divulged to the college counsellor about her sexual abuse. On 21 September 2002 Ms Varmedja left her husband of two years and complained to the Immigration Department about his behaviour. She was referred to Centerlink then to a women’s refuge. She lived in a housing for single women unit since December 2004. Ms Varmedja stated that her life was significantly changed by the effects of the abuse she received from her husband. She stated that she became very scared of being attacked and hurt in her own flat. She nightly barricades her unit door and locks all the windows and doors. She continued to recall what had happened to her in the form of flashbacks of her husband’s face when he was angry with her, and hurting her, and nightmares about him coming into her unit to hurt her, which made her wake up in a fright, and check her unit’s security. Mrs Varmedja had not returned to Orange and was scared of being anywhere near there, or even hearing the name (she cried when I mentioned the place). She stated that she did not trust people, and men especially, and became very scared of having sex with any man. She was scared of any physical touching with another man, and is turned off sex. Whenever she watched sex scenes on television she had a neutral reaction. She also avoided violent movies and switched off any channels that displayed violence. She also related an experience when she saw a man that looked like her husband at a Parramatta shopping centre, which made her feel very scared and she ran home. She was always very hyper-vigilant when leaving her unit, looking out for anyone around, or following her, because she was scared that someone will be sent to kill her (as threatened by her husband). She often became scared in the dark and has to catch a taxi home, if out late. Mrs Varmedja suffered from poor sleep (middle due to nightmares) sad and depressed, teary, loss of interest and pleasure in most things or activities, social withdrawal, poor appetite (put on weight) tiredness, trouble concentrating and forgetful, agitated, poor self confidence, loss of libido, feelings of guilt and self blame, feeling that life was not worth living (with suicidal ideation with one serious contemplation and plan in 2003), nightmares(now once or twice per week), pessimistic and hopeless about the future, and indecisive and helpless.

…

It is noted that she had done 500 hours of English language but that her fluency remained poor and she would like to go back and live in Serbia.”

…

“According to the diagnostic and statistical manual of the American Psychiatric Association Fourth Revision (DSM IV) Ms Varmedja presented with significant chronic post-traumatic stress disorder and chronic adjustment disorder, with depression symptoms associated with her chronic pain and functional sequelae of the physical and psychological injuries received since May 2001. She received considerable psychological, psychiatric and medicinal treatments, but remained psychologically symptomatic and vulnerable to decompensation under pressure. Mrs Varmedja would benefit from ongoing post-trauma, stress and depression treatment aimed at learning self-help techniques to control her pain, fear and distress symptoms. A clinical psychologist could provide this treatment. The Australian Psychological Society could refer her to the nearest professional [the number is set out]. She would require approximately twenty sessions. The current APS recommended rate is $181 per hour. She should also continue to consult her treating psychiatrist for support and medication.”

21. There was no cross-examination of either of the two psychologists, or of the psychiatrist, whose reports were tendered. I took Mr Pierce of counsel, who appeared for the defendant, to rely on the fact that all of them relied on certain underlying assumptions, and that if I did not accept the plaintiff’s case on which they were based, then I would reject their opinions.

22. The plaintiff called in her case the Newtown apartment owner, Dr Hodoba, and his wife, Mrs Katerina Hodoba. The plaintiff also read, as part of Dr Hodoba’s evidence in chief, an affidavit sworn by Dr Hodoba on 26 September 2006. The affidavit of Dr Hodoba was admitted over objection, the defendant’s position being that all of the evidence in it should come orally, rather than through the affidavit. However I rejected that submission in the interests of the efficient running of the case. The plaintiff’s counsel also tendered as an exhibit an affidavit which Mrs Hodoba swore on 26 September 2006.

23. Dr Hodoba told me that he had known the defendant since the end of the Second World War and had seen the plaintiff and the defendant on occasions while they stayed at his Newtown apartment between July 2001 and January 2002. In his affidavit, beginning at paragraph 7, he said:

“During the time that they were living at Newtown I recall an incident with the plaintiff. I cannot recall when this incident occurred; I was in my surgery when the plaintiff showed me a mark in her groin area. I examined her and remember seeing a bruise which was about the size of a ten cent coin, in her groin area. At the time she said to me words to the effect of ‘he hit me with a stick’. During the period that the plaintiff and defendant were residing at Newtown I also recall another incident which took place between the defendant and Milan Mijuskovic, who was then a patient of mine. Mr Mijuskovic had a mental condition and he was a local homeless person with no address. Mr Mijuskovic was playing chess in the waiting room of my surgery. I had provided chess playing facilities for my patients. I remember hearing loud talking and when I went into the waiting room to investigate the matter I saw the defendant hit Mr Mijuskovic with an open hand but with considerable force. I said to the defendant, in a loud and forceful manner, words to the effect of ‘don’t do that, you have no right to do that’. The incident was over.”

Paragraphs 10 to 12 of the affidavit said this:

“The defendant underwent surgery at Orange Hospital and I recall taking the plaintiff from Sydney to Orange to visit the defendant. I recall that when visiting the defendant in hospital the defendant had a small cane with leather ends attached to the cane. I saw the defendant flicking the cane at the plaintiff whenever she came close to the defendant. I had a conversation with the defendant in words to the following effect. I said, ‘What are you doing?’. He said ‘She wants to steal my money’. I said ‘I don’t want to get involved, I just brought your wife to see you’. On the next day after visiting the defendant at Orange while I was at my home in Sydney I received a telephone call from the defendant and I had a conversation with him in words to the following effect: He said ‘Someone wants to screw my wife’. I said, ‘Well, it’s not me. You or your wife, together or separate, are never to use my flat at Newtown. I will be changing the locks.’ I then hung up the telephone and from that time I did not want, nor have I had anything to do with the defendant. I then changed the locks at the Newtown flat.

…

I have been informed by Stephen Stojanovic, solicitor, that during the hearing of this matter the defendant has claimed that I had given him a Viagra tablet. I have never given any Viagra to the defendant and at no time had the defendant ever asked me to provide Viagra. I had samples of Viagra which were provided from time to time by representatives of pharmaceutical companies, and I had kept these samples in a small store room next to my surgery at Newtown. The number of Viagra tablets varied from time to time, sometimes there were no tablets and sometimes up to ten or more tablets. I had given some tablets to my patients, but never did in relation to the defendant. The storeroom was not locked as it did not contain any valuables or restricted medical products.”

In her affidavit of 26 October 2006 Mrs Hodoba said this:

“From about July 2001 until about January 2002 the plaintiff and defendant lived in the unit above the surgery at Newtown. I was aware that while they stayed at the unit the plaintiff was attending English classes. The plaintiff and defendant stayed at the unit during the week and usually returned each weekend at their farm at Orange. I recall that one afternoon after the plaintiff returned from her classes she saw me in the surgery. When she saw me she started to cry and said to me words to the effect ‘Look what he did to me’. She then showed me a bruise which was in the area of her groin. I had a further conversation with the plaintiff in words to the following effect. She said ‘It hurts’. I said ‘There’s the doctor, go and see him’. When the above conversation ended I saw the plaintiff go into the surgery on her own.”

24. The defendant was the only witness called in his case. His counsel did not tender or call any medical or psychological evidence. It was the defendant’s case that the plaintiff was always a willing party to acts of sexual intercourse between them, that contrary to her evidence, he had never used Viagra, that there had never been any anal or oral sex, and in fact as to oral sex there had been two occasions when she had attempted to initiate it, but when he had rejected her advances. He agreed that he did own a shotgun but denied that he had ever struck or threatened her with it. Although he conceded she did once have some bruising, he said he did not cause it. He agreed that there had been a car accident but said it had been caused by the sudden presence of kangaroos on the road. Further, his case was that all but one of the alleged assaults and batteries had occurred more than three years before she commenced these proceedings, and so were barred by time. As to her application to extend time, which I heard together with her claim, he submitted through his counsel that I should refuse it.

25. Counsel for both parties agreed that I should hear the plaintiff’s application to extend time together with her action and that evidence in one was to be evidence in the other.

26. It is to be recalled that at common law a husband was given immunity for rape: see Regina v Clarence (1988) 22 QBD 23; but not if there were a decree of judicial separation: Regina v Clarke [1949] 2 All ER 448. This common law immunity was abolished in New South Wales in 1989 by the Crimes (Amendments Act) number 198 of 1989. See for the current law, section 61T Crimes Act, 1900.

27. The case was originally set down for two days. It continued for five days last September. There was no running transcript available to counsel or to me at the time. Then the matter was adjourned to meet my court arrangements and could not resume until 16 April, concluding on 19 April. Neither counsel drew my attention to any authorities relevant to the position of a trial judge asked to deal with both the application to extend time and the action together. However, my research suggests that it is common in applications under the Family Provisions Act for a trial judge to hear both simultaneously. Of course, the statutory test for an applicant for an extension of time under the Family Provisions Act is not the same. However, there are similar considerations which apply. An application for an extension under s 16 Family Provisions Act involves a consideration of the sufficiency of the explanation for the delay, whether there has been any prejudice to the beneficiaries occasioned by the delay in bringing the claim, whether there has been any unconscionable conduct by either party, and the strength of the applicant’s case: Cetojevic v Cetojevic [2006] NSWSC 431 (per Campbell J, at paragraph 48). See also on this issue De Winter v Johnston, (unreported, Court of Appeal, per Powell JA, 23 August 1995).

28. Clearly, a trial judge deals first with the extension application. Indeed, this was the course both counsel before me submitted I should take. The trial judge proceeds further, only if he or she considers an extension should be granted.

29. Although I have embarked on the hearing of both the application and the case itself, consistently with authority and the way both counsel submitted I should proceed, I will consider first the application to extend time.

30. Consistently also with the approach suggested for a trial judge by the Court of Appeal in Nowlan v Marson Transport Pty Limited (2001) 53 NSWLR 116, at an early stage in the proceedings I asked Mr Pierce of counsel to identify the defendant’s grounds for opposing the application to extend time. He initially identified these: the delay, (which I took to amount to a submission that his client could not have a fair trial as he could not investigate matters earlier), the fact that the parties following their separation had reached a settlement of their Family Law Act rights by consent orders in the Federal Magistrates Court and the defendant assumed that that was the end of his disputes with her (thus a form of estoppel); the fact that particulars had only recently been given, and finally that the allegations being false, there was no utility in making the relevant order. Mr Pierce later abandoned the argument based on settlement of the family law proceedings and ultimately relied essentially on prejudice through the inability of his client to have a fair trial, and futility.

31. The application to extend time was supported by affidavits from the plaintiff and her solicitor. Both affidavits were somewhat lacking in detail. Both deponents were cross-examined at length. Mr Pierce did not suggest that Mr Stojanovic, the plaintiff’s solicitor, was not frank. In any event, I accept his evidence without reservation. As a witness, he was careful, considered and consistent. He had acted for the plaintiff in her Federal Magistrates Court proceedings. On 2 April 2004 she told him she was having treatment for severe depression which she said had arisen from various sexual assaults and threats by the defendant in the course of their relationship. On 30 April 2004 he wrote to the relevant doctor, Dr Kosmanovic, for a medical report. He received the report dated 11 June 2004, from which I have quoted above. He conferred with the plaintiff on 1 July 2004. He formed the view there was sufficient evidence to begin a claim, however was concerned that the report from Dr Kosmanovic did not properly address the part played by the physical assaults in producing the psychiatric condition, so concluded that another report was needed.

32. The defendant, during the course of the hearing, called for Mr Stojanovic’s notes of that, and the subsequent conference, with the plaintiff. He tendered those notes. They record a history largely in accordance with what the plaintiff told me in evidence, and with the histories given by her to the psychiatrist and the two psychologists.

33. After the meeting her solicitor had with her on 1 July 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 plaintiff had no money to pay for them.

34. On 5 May 2005 he saw the plaintiff 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 defendant 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.

36. In the course of cross-examination it was put to him, more than once, that in an advice from the plaintiff’s counsel Mr Sweet about the case, he had recited that Mr Stojanovic had told him the plaintiff had brought the proceedings only because she had been treated badly by the defendant, and that he had not sought to correct Mr Sweet’s assertion, although he did not consider it a correct assertion.

37. I do not see the significance in this that Mr Pierce appears to have seen. The statement, if the plaintiff has been truthful to me, is undoubtedly correct. It is hard to see why else she would have sued had she not been treated badly. It is not, as I see it, inconsistent with her bringing this case.

38. In her affidavit of 22 September 2006 the plaintiff said that during the period from April 2001 to 21 September 2002 she had been fearful of the defendant and that after she left him she remained fearful and indeed obtained the AVO. She said after she went to live in the refuge upon leaving the defendant, employees there helped her to see doctors, and she was then referred to Dr Kosmanovic who spoke her language. And it was only when she saw him in 2002, she said, when she:

“...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 experiences I suffered from the defendant.”

39. She said she has been under his treatment ever since. (Indeed, it is clear from his reports that he is still treating her). Explaining why she did not sue earlier she said:

“I did not take proceedings at an earlier time because I had hoped that my condition would improve. I understand that I should have commenced proceedings by no later than April 2004, however I recently returned from overseas prior to that time, and had only seen Dr Kosmanovic on 17 April 2004. I have continued to see him almost on a monthly basis since then, as my condition has not improved.”

40. 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 defendant on notice that he might be sued.

41. The plaintiff was subjected to a very lengthy and searching cross-examination on her credit and other matters. Preparation of her cross-examination would not have been assisted by her lengthy and somewhat confusing examination in chief to supplement the sparsely drawn affidavit. The evidence in chief on the first day was further confused, at least to a degree, by difficulties the interpreter appeared to have. At one stage the plaintiff’s solicitor had to correct her. (This occurred by consent ultimately). Further, as there was no running transcript the position of counsel for the defendant in cross-examining the plaintiff was, I have no doubt, more than usually difficult.

42. Though the plaintiff contended that she had had limited opportunities to complain about her situation and to seek help, it was put to her that she had had a number of opportunities to tell doctors she visited, of the defendant’s conduct, had it really troubled her. She conceded that she had seen doctors in Orange at various times, but said that she was not able to talk to them about his conduct as he usually accompanied her as her interpreter. In any event, she said, she was in fear of him and was concerned about what he might do if she did complain. There were some people she could speak to in Orange, she said. But it appears they were friends of the defendant. She said she did try to get help from someone at a local TAFE in Orange, and he did promise to visit her one day, but her husband, on learning she was having a visitor, locked the gate into the farm, and the visitor never did come.

43. She conceded that she could have made telephone contact with people and that she had in fact had telephone contact with her relatives in Serbia. But she said she was only permitted to use the phone to phone Serbian relatives, and although she did complain to relatives there, and had opportunities to seek help, she had not taken them. Her relatives in Serbia, she said, were aware that she was upset and she did tell them that she was in a bad situation. She said she had no mobile phone until she left him.

44. It was put her that there was a computer in the home and that she could have used that to get help. But she said that she was not permitted to use it.

45. The defendant gave evidence. He conceded, as I have noted, that he owned a single barrel shot-gun. He denied however that he had ever used it to threaten the plaintiff. He denied he had ever threatened her about anything. He said he had had another firearm, but had surrendered that in an amnesty in 1997. Documents in evidence confirm that. But he had kept the case of that firearm. That case had been kept under the bed. He denied he had ever used Viagra, although he asserted that he had once been given a Viagra tablet by Dr Hodoba and had later shown the tablet to the plaintiff. He said he had kept it in a shoebox at his home until a few months ago, when he discarded it. He denied that he had ever assaulted the plaintiff. He denied that he had ever bruised her. He denied he had any sexual relations with her without her consent. He denied there had ever been any anal or oral intercourse. But he said that on two occasions she had approached him in the shower and had tried to have oral sex with him, but he had not been interested. He said there was a computer in the home for her use, but she had not used it, so he gave it to his grandchildren. He confirmed that his car was in an accident in September 2002 but said that the plaintiff was asleep at the time and that he had said nothing to her. He agreed that he had later consented to an AVO against himself, but said that was without admissions and that he had not done any of the things asserted in the application.

46. In cross-examination it was put to him that he had sworn an affidavit in the Federal Magistrates Court concerning the motor accident when he had said the incident was “frightening for both of us”. Therefore the plaintiff could not have been asleep, as he had asserted. And it was also put, contrary to the proposition that he only ever had one gun, that he had another. He conceded that he did also have an air rifle at the home which a visitor to a former tenant had left there. But he said he had handed that in to police almost as soon as he discovered it was there.

47. He denied that there had been any change in his ability to have erections when he was with the plaintiff. But he did speak of an occasion in 1998 when he said he had consulted Dr Hodoba about poor blood circulation leading to difficulty in obtaining erections. He said Dr Hodoba had then suggested that he try Viagra, and had in fact given him one tablet, which he never used. But his erections did then return in a normal fashion, not due to Viagra use, but due to diet changes after he had read an article in Womens Weekly about eating different food, such as celery, nuts, fish oil and vitamins. He denied the plaintiff had suffered any anal bleeding or post coital vaginal bleeding. He agreed that she told him on an occasion that she had suffered bruising to the inner leg area, but said he had not seen it. He said, in effect, that he was happy when she left him, and that there had not been any argument. He agreed that the plaintiff had told him on one occasion at Orange that her TAFE teacher was to visit, but denied having locked the gate to prevent the visit. He agreed that a previous fiancée of his had been shot dead after dancing with somebody who was inappropriate, but not by him. He said that a curtain had once fallen down at the Newtown flat where she said he had struck her with a curtain rod, but that when it had fallen he had got a ladder and put it back up.

48. The application to extend time was made under s 60C of the Limitation Act. Under that Act the limitation period may be extended for up to five years if the court decides that it is just and reasonable. Section 60E requires me to have regard to the circumstances of the case, and in particular to the extent relevant, the following matters: A. Length and Reasons for Delay: The statement of claim was filed on 19^th September 2005. Although it does not allege trespasses by name, that is the way the parties proceeded, viz that all wrongs alleged were deliberate assaults with or without a battery. The first of the assaults complained of is said to have occurred in May 2001, (NB Paragraph 5 of the statement of claim speaks of the period “From about April 2001 to 21 September 2002”). Thus, at the latest, the statement of claim should have been filed on 30 April 2004 in order to ensure it was in time for all causes of action alleged. 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 plaintiff to see her son, who she had not seen for some years. I infer that the plaintiff’s mental condition and financial position contributed substantially to the delays. It is not in issue but that she went to live in a refuge after leaving the defendant. She had only been in Australia for two years and had little community support, few friends, no relatives and poor English.

49. Despite Mr Pierce’s submission that the delay was not properly explained, I am persuaded that it is properly explained. Some of the reasons may not be good to some, but in her situation they are, I think, perfectly explicable. I accept the explanation.

50. The next element to consider is the extent to which, having regard to delay, there is or may be prejudice to the defence, by reason that evidence that would have been available if the proceedings had commenced within the limitation period, is no longer available. In his amended defence the defendant alleges “significant prejudice in obtaining a fair trial”. Before me, in final address, Mr Pierce contended that his client had not had a fair trial.

51. A very lengthy list of particulars is set out in [6.2] of the amended defence in support of this defence. I did not understand any actual reliance, however, on 6.2.1 (Death of plaintiff’s mother since relevant events). In the course of the cross-examination of the plaintiff she said that while she lived with the defendant she had agreed to assign her interest in a family property in Serbia to her sister. Documents were sent for her signature, and there were international telephone calls about the matter. It was put to her she could have used these opportunities to ask for help if things were as bad as she alleged, either from the lawyer involved in the matter or her family. In the end however Mr Pierce did not rely on his client’s not knowing the Serbian lawyer’s name or the name of any court officer involved in the property transfer, on the prejudice issue. (See 6.2.2 and 6.2.3 of the amended defence).

52. It was put to the plaintiff that while she lived with the defendant she had sent cards and letters to her family without mentioning her predicament. I took her to agree with this. In the end Mr Pierce did not to my observation place great weight on this issue, particularly that these documents were not available. In any event, I cannot see that they have any great relevance or weight, given she conceded they contained no complaints about the defendant’s conduct (6.2.4).

53. The plaintiff alleged that she did say on one occasion to a receptionist in a doctor’s surgery in Orange, that she was having trouble with her husband. But the lack of the receptionist’s name was not ultimately relied on on this issue. (See 6.2.5). The plaintiff said that she visited various doctors in Orange when she lived with the defendant, including, when she stopped menstruating, a gynaecologist. The name of one general practitioner, Dr Freeman, was referred to at least. There was no evidence before me, either from the defendant or the plaintiff, to suggest that either had subpoenaed the records of the practice where Dr Freeman practised. In the end I did not take Mr Pierce to point to any particular aspect of prejudice caused by, as has occurred since these events, Dr Freeman’s retirement. (See 6.2.6). Neither party called him or indeed any evidence to show that he was unavailable. Mr Pierce did contend prejudice had been caused by the lack of the name of the gynaecologist. But I am not persuaded that he could have cast any light on any issue, even if his name were ascertained. Further, I am not satisfied that there was any difficulty about identifying him – or subpoenaing him or his notes. Her evidence as to whether or not she complained of anal injuries to him was a little unclear, but in the end I did not take her to say that she did complain to him of any anal injury. Nor did she say she complained of such injuries to any other doctor. She only saw the gynaecologist, I took her in the end to say, in connection with unusual menstrual issues (6.2.7).

54. By the time of the resumed hearing, Dr and Mrs Hodoba had been found so 6.2.8 does not arise. There is a real issue raised by 6.2.9 in the amended defence and I shall return to consider that in a moment.

55. Subparagraphs 6.2.10 (a), (b) and (c), are somewhat curious. Counsel for the defendant cross-examined the plaintiff to the effect that she did not have certain academic and work qualifications or experience she asserted: (see for example the history to Mr Stambouliah, which was largely in accord with her evidence in chief and in cross-examination on those issues). However, in the end I did not take Mr Pierce to assert that the lack of testamurs or the like, in Australia, had contributed to any relevant prejudice. The reference to the “alleged fate of fiancée in Serbia” is, I conclude, to the plaintiff’s assertion as to what the defendant told her had happened to a former fiancée. Again, I did not take Mr Pierce to try to make good that assertion in his final address.

56. In 6.2.11 prejudice is alleged as to inability to contest injuries and causation. But there was no medical evidence tendered by the defendant, nor any evidence of any difficulties which had been caused to the defendant in that area, by reason of any delay. Nor did Mr Pierce cross-examine any of the plaintiff’s experts to that effect, or at all. Nor, ultimately, did I understand him to say that he relied on this defence.

57. The balance of paragraph 6 of the amended defence amounts to submissions, as I see them.

58. As to paragraph 7 of the amended defence, Mr Pierce ultimately did not assert that there was any Anshun or other form of estoppel and indeed said he would not rely on it. He did submit that, having settled the Federal Magistrates Court application, his client had assumed that all matters had concluded as between himself and his former wife. However, the defendant did not say, as I understood his evidence, that he had shifted his position, or taken any steps to his detriment, by reason of his settlement with the plaintiff.

59. As to paragraph 8 of the amended defence, the motor vehicle incident, was one which Mr Pierce relied on strongly, at times, because there were no relevant notices given under the Motor Accidents Compensation Act, 1999. So he asserted that she could not claim any damages in relation to that accident. But this I think betrays a misunderstanding of the reason this incident was asserted. She did not claim to be injured in the collision. She put the incident forward as an example of threatening conduct, to show what he was capable of if she did not go along with his sexual wishes. The deliberate collision was relied on, ultimately however, as an assault, but not as a battery.

60. I said that I would return to consider the particular of prejudice in 6.2.9. This I took to be the main issue on prejudice. It is to be recalled that while attending TAFE at Rockdale in 2001 to 2002, the plaintiff saw a counsellor. I have quoted from that counsellor’s letter. Her name arose in the plaintiff’s examination-in-chief, at page 8, on 28 September 2006, when she gave evidence of having been beaten by a curtain rod when showing reluctance for anal sex. She said the defendant that day said words to this effect:

“‘Because you did not satisfy me by having anal sex or by allowing me to have anal sex, this is a warning for you’ and he hit me a few times with the curtain rod.

Q. I think you said yesterday that you sustained some bruising as a result of--
A. Yes.

Q. What are you able to tell his Honour about that bruising?
A. I went to school and I showed those to the counsellor?

Q. Who was the counsellor?
A. Her name was Barbara Polenski and at that time I attended an ICL school in Rockdale. She was a counsellor.

Q. When was it that you first met her in relation to the incident with the curtain rod?
A. As soon as I started attending Rockdale School they have noticed something on me or in relation to me.”

(Then, leaving out the next question.)

Q. Had you seen the counsellor before the incident when the curtain rod occurred, or did you see the counsellor for the first time after the incident with the curtain rod?
A. I had seen her prior to that.

Q. Are you able to say why it was, why you saw the counsellor?
A. They had noticed in school, the teacher had noticed in school that something was wrong with me, according to my behaviour. And she took me to see a counsellor where they asked me what was wrong with me, what was the problem and then I was compelled to say that I had a problem, that I was being abused.

Q. What were you reluctant to tell someone, that you had been abused sexually--”

(There was an objection, which was overruled). She said “I did not dare say,”. She was asked, “Why was that?” and she said, “Because he threatened me that if I say anything to anyone he would kill me.”

61. The counsellor, as I have observed, was not called. Mr Pierce submitted that based on what she said in the letter, her letter contained the best of her recollection, so that calling her would not have produced any more information. There was no evidence that either party had tried to find her. It would seem, and I infer from her letter, that she could easily have been found. Indeed, according to the plaintiff in her evidence, she had seen her in about mid 2006. When I suggested to Mr Pierce that her letter appeared to give support to the plaintiff’s case because of its reference to “domestic violence problems”, he said this was imprecise and I would err and act unfairly to the defendant if I gave any weight to those words in the document which he had tendered. He submitted that the delay in starting the proceedings had caused the loss of the records referred to in that letter, and that loss meant his client could not and had not had a fair trial. The counselling records, he submitted, were crucial and were on a par in importance with the missing doctor in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. There the plaintiff alleged a doctor negligently did not warn her of alternatives to hysterectomy. She sued fifteen years later. The doctor had left Australia and could not be found. One can readily see why in a case of alleged failure to explain alternatives to proposed surgery, his absence was found to be so prejudicial to the defendant’s case there could not be a fair trial. I do not accept the analogy here. As is apparent from the secondary evidence in exhibit 1, they would give at least some support to the plaintiff’s case. Secondly, they could not assist the defendant to show no complaint was made of the type alleged. It is true there is no reference to domestic violence having any sexual context, but there is other evidence before me of reasonably prompt complaints of sexual violence in early 2003 when she saw a psychologist who spoke Serbian. Further, it is not the evidence of the counsellor that the delay is connected to the lost records. There is no evidence they were available beyond the time of their creation. According to the letter the Centre has client records going back to 1998. The author of the letter of 29 June 2006 does not say the notes were lost or destroyed because the Centre was closed or because all matters happened so long ago. Finally, (not that it had any obligation to do this,) the defendant did not call Ms Polenski or any evidence to show she had been spoken to and really had no more recollection than the few words in her letter.

62. Mr Pierce submitted the defendant was disadvantaged because it had not known the name of the counsellor until the letter was served. But the evidence shows the defendant has known the name of the counsellor since mid-2006, when the letter was served, as I took him to concede.

63. Having regard for all the evidence in the case I do not regard the absence of those notes as having the significance which is contended for them. Nor do I consider that their absence has led to the defendant’s not having or being able to have a fair trial.

64. Next, Mr Pierce added that absent notes from the gynaecologist there was unfairness too. I have explained earlier how that submission was sought to be made out. However, given that ultimately I took the plaintiff’s evidence to be that she never complained to him about any anal injuries or bleeding, I do not see how his absence could have caused any unfairness or had any influence on whether or not there could have been a fair trial.

65. Next, I turn to the time at which the injury became known to the plaintiff. The physical injuries I am satisfied she knew of immediately on their occurrence. However, her depressive illness was not diagnosed, she said, until 5 November 2002. There is no evidence to the contrary.

66. The next matter is “Any conduct of the defendant which induced the plaintiff to delay bringing the action.” If the plaintiff’s evidence is accepted, it could reasonably be said, (and I find this to be so), that conduct by the defendant did induce delay in the sense that it put the plaintiff 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 defendant’s conduct led to her depression. The depression, I am satisfied, contributed to the delay.

67. Then there is relevantly the extent of the plaintiff’s injury or loss. It is clear that if I accept the plaintiff’s evidence about the physical assaults on her then although there were no long lasting physical sequelae, there were many instances of short periods of pain and suffering which collectively must be said to amount to substantial pain and suffering. The psychiatric condition, according to the psychiatric and psychological reports, is substantial too, if I accept the plaintiff’s evidence which forms the basis for the opinions. I am quite satisfied that as far as “extent or injury or loss” are concerned, there is substantial utility in permitting the case to go forward.

68. I shall deal now with prejudice. In the normal course both parties deal with the prejudice issue on the assumption the trial will be heard at some later time. The absence of evidence caused by the delays in commencing the proceedings may then be the subject of evidence and submissions. The court will normally be invited to assess the extent to which absence of such evidence might affect adversely the defendant’s ability to defend the action. Only if the court is satisfied that the prejudice is not such as to make the chances of an acceptably fair trial unlikely, may an extension be granted: South-West Area Health Service v Gabrielle [2001] NSWCA 477 paragraph 34, per Hodgson JA, (Beazley JA and Rolfe AJA agreeing.) Here I have had the advantage of hearing all issues together and am better placed to assess the defendant’s capacity to have a fair trial. Of course a trial judge is in a difficult position dealing with a submission that the trial he or she has just conducted was not fair. However, having regard for 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 plaintiff have an extension of time, and that the matter proceed to trial. I will now deal with it on that basis.

69. I will deal first with the issue of credit. Having the benefit of having observed the plaintiff being examined and cross-examined over an extensive period, and the defendant for a much shorter period, I prefer and accept the plaintiff’s evidence where it differs from that of the defendant. Mr Pierce relied on a number of apparent inconsistencies in the plaintiff’s evidence in submitting I should not accept the plaintiff. Having heard his careful submissions, and paying regard to the evidence to which he took me, I do see the plaintiff in some areas as having given evidence which was in some ways hard to follow. The parties, as I have noted, were involved in litigation in the Federal Magistrates Court, and each served the affidavits from which I have quoted, including in the plaintiff’s case the reference to the sexual assaults. Mr Pierce put to me that there was a particular paragraph of her affidavit which reflected badly on her credit. This was paragraph 24, which said this:

“In my opinion, as made clear in Grey , while conscious wrongdoing 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 (see Lamb v Cotogno ). Conduct may be highhanded, outrageous and show contempt for the rights of others, even if it is not maliciously or even conscious wrongdoing. However ordinary 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 to be the advantage of the wrongdoer.”

128. In my view the compensatory damages I have awarded for the proved conduct does not sufficiently express the court’s disapproval for the defendant’s conduct and an award of exemplary damages is appropriate. I consider the award should be $50,000.

129. My assessment of damages then, is for general damages or compensatory damages, $150,000, aggravated damages $25,000, exemplary damages $50,000, past out of pocket expenses $3,791.55 and future out of pocket expenses of $4000, the total being $232,791.55. Subject to anything that counsel want to put to me, I propose to make an order to that effect.

130. However, there are questions of costs and interest which may arise and I would invite the parties to calculate the interest so that I can add that.

oOo