Wilden v Jennings (no 1) - [2021] NSWDC 705

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Wilden v Jennings (no 1) [2021] NSWDC 705
Hearing dates: 25 – 28 May 2021; 31 May – 4 June 2021; 14 July 2021; 30 August 2021
Date of orders: 21 December 2021
Decision date: 21 December 2021
Jurisdiction: Civil
Before: Wilson SC DCJ
Decision:
[369]

Catchwords:
CIVIL - Claim brought by (former) wife against husband for damages in respect of alleged sexual abuse during their relationship – Sexual intercourse without consent – Whether rape in marriage actionable.
CREDIBILITY –whether wife’s allegations should be accepted over husband’s denials – wife’s pattern of disclosure.
INTENTIONAL TORT – whether governed by Civil Liability Act 2002.
DAMAGES – entitlement to aggravated and exemplary damages – assessment of damages.
DELAY – whether claim brought out of time.

Legislation Cited:
Civil Liability Act 2002 (NSW) s 3B
Crimes Act 1900 (NSW) s 61I
Criminal Procedure Act 1986 (NSW) s 293A
Evidence Act 1995 (NSW) s 140.
Married Persons (Equality of Status) Act 1996 (NSW) ss 4, 5

Cases Cited:
Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454
Best v Rosamond [2020] NSWCA 90
Briginshaw v Briginshaw [1938] HCA 34
Commonwealth of Australia v Smith [2005] NSWCA 478
Fox v Percy (2003) HCA 22
Luxton v Vines [1952] HCA 19
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
Palmer Bruyn v Parker Pty Ltd [2001] HCA 69
R v R [1991] UKHL 12
State of New South Wales v Gillett [2012] NSWCA 83
Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130

Texts Cited:
None

Category: Principal judgment
Parties: Kirra Michelle Wilden (Plaintiff)
Michael Joseph Jennings (Defendant)
Representation: Counsel:
Mr J Morris SC with Ms L Beange (Plaintiff)
Mr M Thangaraj SC (25 - 27 May 2021) with Ms M Campbell (Defendant)
Solicitors:
Ms M de Luca-Leonard (Plaintiff)
Mr L Hagipantelis (Defendant)

File Number(s): 2020/59460
Publication restriction: None

Judgment

Introduction

These proceedings arise out of a personal relationship between the plaintiff (Ms Wilden) and the defendant (Mr Jennings) during the period of approximately 2010 and 2016.
The couple lived together from about October 2012 through until the time Ms Wilden left Mr Jennings in about May 2016. They married on 24 October 2015.
During the period of cohabitation Mr Jennings, it is alleged, would verbally abuse Ms Wilden.
Further, in the period October 2014 through May 2016, it is alleged that Mr Jennings engaged in forced sexual intercourse with Ms Wilden without her consent.
Ms Wilden claims damages from Mr Jennings.

The Pleadings

An Amended Statement of Claim was filed in Court with leave on 4 June 2021.
Ms Wilden was born on in 1989 and is currently 32 years of age. The period from when they met until when Ms Wilden moved out of the matrimonial home was referred to in the Amended Statement of Claim as ‘the Relationship’.
Paragraphs 10, 11, 12 and 13 of the Amended Statement of Claim set out the allegations…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWDC 705
Decision Date: 21 December 2021

CaseChat Overview and Summary

Wilden v Jennings (no 1) involved a former wife, the plaintiff, bringing a civil claim against her husband for damages related to alleged sexual abuse during their marriage. The central issue was whether sexual intercourse without consent, particularly within a marriage, could constitute the tort of rape. This case was adjudicated in the New South Wales Supreme Court. The court was required to determine whether the Civil Liability Act 2002 applied to such intentional torts, assess the credibility of the parties' conflicting accounts, and decide on the entitlement to aggravated and exemplary damages. The court had to evaluate the timing of the claim and its compliance with statutory limitations.

The legal issues included whether the husband's actions could be classified as rape under the circumstances and if the Civil Liability Act 2002 governed the claim. The court also needed to weigh the credibility of the wife's allegations against the husband's denials, considering the wife's pattern of disclosure over time. Another significant aspect was the determination of the appropriate damages, including whether the wife was entitled to aggravated and exemplary damages, and the assessment of those damages. Finally, the court had to consider whether the claim was brought within the statutory limitation period.

The Supreme Court ruled that the husband's actions constituted rape, despite the marriage, and that the Civil Liability Act 2002 did not preclude the wife's claim. The court found the wife's allegations credible, taking into account her pattern of disclosure. It determined that she was entitled to aggravated and exemplary damages, assessing them accordingly. However, the court found that the claim was brought outside the statutory limitation period, leading to the dismissal of the case.

Orders

Orders of the court

[369]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wilden v Jennings (no 1) [2021] NSWDC 705
Hearing dates:	25 – 28 May 2021; 31 May – 4 June 2021; 14 July 2021; 30 August 2021
Date of orders:	21 December 2021
Decision date:	21 December 2021
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	[369]
Catchwords:	CIVIL - Claim brought by (former) wife against husband for damages in respect of alleged sexual abuse during their relationship – Sexual intercourse without consent – Whether rape in marriage actionable. CREDIBILITY –whether wife’s allegations should be accepted over husband’s denials – wife’s pattern of disclosure. INTENTIONAL TORT – whether governed by Civil Liability Act 2002. DAMAGES – entitlement to aggravated and exemplary damages – assessment of damages. DELAY – whether claim brought out of time.
Legislation Cited:	Civil Liability Act 2002 (NSW) s 3B Crimes Act 1900 (NSW) s 61I Criminal Procedure Act 1986 (NSW) s 293A Evidence Act 1995 (NSW) s 140. Married Persons (Equality of Status) Act 1996 (NSW) ss 4, 5
Cases Cited:	Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 Best v Rosamond [2020] NSWCA 90 Briginshaw v Briginshaw [1938] HCA 34 Commonwealth of Australia v Smith [2005] NSWCA 478 Fox v Percy (2003) HCA 22 Luxton v Vines [1952] HCA 19 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 Palmer Bruyn v Parker Pty Ltd [2001] HCA 69 R v R [1991] UKHL 12 State of New South Wales v Gillett [2012] NSWCA 83 Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130
Texts Cited:	None
Category:	Principal judgment
Parties:	Kirra Michelle Wilden (Plaintiff) Michael Joseph Jennings (Defendant)
Representation:	Counsel: Mr J Morris SC with Ms L Beange (Plaintiff) Mr M Thangaraj SC (25 - 27 May 2021) with Ms M Campbell (Defendant) Solicitors: Ms M de Luca-Leonard (Plaintiff) Mr L Hagipantelis (Defendant)
File Number(s):	2020/59460
Publication restriction:	None