Woodhead v Woodhead

[2023] NSWDC 275

District Court

New South Wales

Medium Neutral Citation:

Woodhead v Woodhead & Anor [2023] NSWDC 275

Hearing dates:

1-2 June 2023.

Date of orders:

2 June 2023

Decision date:

02 June 2023

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

The notice of motion is dismissed. I order the Plaintiff to pay the Defendant's costs of the motion.

Catchwords:

CIVIL – NOTICE OF MOTION – APPLICATION TO DISCONTINUE PROCEEDINGS – Breach of deed – Deed included term forbidding recording of party on the property – Recording was done in response to an assault – Whether terms of deed valid.

Legislation Cited:

Evidence Act 1995 (NSW)

Inclosed Lands Protection Act 1901 (NSW)

Surveillance Devices Act 2007 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Texts Cited:

Nil.

Category:

Procedural rulings

Parties:

Plaintiff – Bernadette Woodhead
First Defendant – Nicole Woodhead
Second Defendant – Shannon Uebergang

Representation:

Counsel:
Plaintiff – Mr Blair
Defendants – Mr Stanton
Solicitors:
Plaintiff – Burn City Legal
Defendants - Mackenzie & Vardanega

File Number(s):

2022/00017151

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: On 2 March 2023, the Plaintiff filed a Notice of Motion seeking the following relief:

"1. The discontinuance of the proceeding ordered on 2 September 2022 is set aside.

2. Evidence tendered in the Local Court of NSW in R -v- Angelique Woodhead proceeding number 2022/00370037 may be received in evidence in this proceeding.

3. Judgment for the Plaintiff.

4. The First and Second Defendant must forthwith vacate the property described as Lot 1 in Deposited Plan 12244585, known as 'Jarwonga' situate on Sturt Highway Euston in the state of NSW pursuant to s21(1)(i) Agricultural Tenancies Act 1990 (NSW).

5. The First and Second Defendant pay to the Plaintiff liquidated damages in the sum of $145,00.00 [sic].

6. The First and Second Defendant pay the Plaintiff's interest pursuant to 100[sic] of the Civil Procedure Act 2005 (NSW).

7. The First and Second Defendant pay the Plaintiff's interest pursuant to 101[sic] of the Civil Procedure Act 2005 (NSW).

8. The First and Second Defendant pay the Plaintiff's costs of this motion on an indemnity basis.

9. Such further offers as this Honourable Court deems fit."

When citing New South Wales law in a New South Wales court, it is not necessary to state that the statute relied upon is a New South Wales statute (this notice of motion was drawn by a solicitor practicing in Melbourne).

2. Background to these proceedings can be gleaned from the recitals in a deed bearing date 1 September 2022 entered into between the parties to these proceedings. The Plaintiff is Mrs Bernadette Margaret Woodhead. The First Defendant is her daughter, Ms Nicole Simone Woodhead, and the Second Defendant is her life partner, Mr Shannon Ronald Uebergang. Another principal actor in these proceedings is Ms Angelique Woodhead who is another daughter of Mrs Woodhead and a sister of Nicole.

3. The recitals in the deed to which I referred are these:

"A. By an agreement for lease commencing on 1 October 2018, save and except for the principal dwelling and a structure described as 'the gazebo' and reasonable curtilage therearound ('the Excluded Area'), the Plaintiff demised land properly described as Lot 1 in Deposited Plan 12244585, being the property known as 'Jarwonga' situate on the Sturt Highway, Euston in the state of NSW ('the Property') to the Defendants ('the Lease').

B. The Lease included an option in favour of the Defendants pursuant to which they were entitled to purchase the Property on certain terms.

C. The Plaintiff commenced NCAT proceeding number COM 21/16505. NCAT disclosed jurisdiction whereupon the Plaintiff commenced NSW District Court case number 2022/00017151 ('the Proceeding') pursuant to Part 3A of the Civil and Administrative Tribunal Act 2013(NSW) and the District Court Act 1973 (NSW) section 44(1)(d2).

D. By her Proceeding, the Plaintiff alleged that the Defendants breached the terms of the Lease by:

a. isolating or disconnecting electricity to the Excluded Area from the land demised to the Defendants;

b. isolating or disconnecting water to the Excluded Area from the land demised to the Defendants;

c. failing to conduct all farm business on a sustainable basis according to good farming practices and without deterioration of the Property and comply with all requirements of law in relation thereto; and

d. pay all council rates pertaining to the Property.

E. On 16 November 2020, the Plaintiff caused notices of breach of the Lease to be served upon the Defendants that required the Defendants to inter alia:

a. remedy the breach of Lease insofar as power and water had been isolated or disconnected from the demised land to the Excluded Area; and

b. remedy the breach of Lease insofar as the Defendants had failed to pay council rates.

F. On or by 30 November 2020 the Defendants remedied the alleged breach of Lease in respect of council rates.

G. On 6 January 2021 the Plaintiff caused a notice of termination of the Lease to be served on the Defendants and required the Defendants to deliver up vacant possession of the land demised thereunder. The notice of termination relied upon the Defendants' failure to remedy all the breaches notified in the notices of breach of Lease, and in the alternative, upon a common law repudiation of the Lease by the Defendants.

H. Further, on 6 January 2021, the Plaintiff demanded that the Defendants pay the Plaintiff's legal costs pursuant to the Lease in the sum of $2,007.80. The Defendants failed, refused or neglected to pay that sum. The Plaintiff alleged that consequentially the Defendants either further breached the Lease or alternatively became indebted to her for that sum.

I. The Plaintiff claimed relief in the Proceeding in the nature of:

a. an order that the Lease is terminated and/or for vacant possession of the land pursuant to the Agricultural Tenancies Act 1990 (NSW) section 21(1)(i);

b. damages, or alternatively compensation pursuant to Agricultural

Tenancies Act 1990 (NSW) section 19A(1) and 21(1)(f); in the sum of $312,032.00;

c. a debt, or alternatively damages in the sum of $2,007.80;

d. interest pursuant to statute; and

e. costs.

J. The Defendants deny the Plaintiff's Claims in the Proceeding.

K. Within the Proceeding, although without having brought a counterclaim, the Defendants alleged that the Plaintiff had been unjustly enriched by reason of her failure, refusal or neglect to pay electricity costs to the Defendants.

L. The Plaintiff denies the Defendants' allegations.

M. For the purpose of avoiding any further expense and without any admission as to liability by any Party, the parties have agreed, subject to the terms of this Deed, to resolve and settle all disputes and Claims in connection with the Proceeding, on the terms set out in this Deed."

4. The substantive proceedings were listed for hearing before this Court on 30 August 2022 with an estimate of three days. On 30 August 2022, the matter commenced before her Honour Judge Norton SC. Certain orders were made by her Honour on that day and it was adjourned until 31 August 2022. On 31 August 2022 her Honour adjourned the matter to Thursday, 1 September 2022 not before 12 noon. The Court's records are unclear as to what happened on 1 September but on 2 September her Honour granted leave to the Plaintiff to file a notice of discontinuance.

5. The affidavit of Mr Mark Sehler, the Plaintiff's solicitor, which is Exhibit A on this application, contains these two paragraphs:

"4. On 1 September 2022, the parties entered into terms of settlement by executing a settlement deed ('Deed') for the purposes of resolving all disputes in connection with the proceeding in accordance with the terms set out in the Deed...

5. On 2 September 2022, the District Court of New South Wales entered orders by consent for the discontinuance of the proceeding and noted in recitals that the Plaintiff is free to file an application to revive the proceedings by setting aside the discontinuance. A copy of the orders dated 2 September 2022 is at [19]."

6. The formal order recorded on that page contains a third notation to this effect:

"The plaintiff is free to bring subsequent proceedings or file an application to revive the proceedings by setting aside the discontinuance."

7. That is the first head of relief sought by the Plaintiff in the notice of motion. The Plaintiff alleges that there have been breaches of the deed of settlement. Clause 7 of the deed is this:

"The Defendants shall not surveil [sic] or keep any recordings of the Plaintiff, her guests, Agents or nominees whatsoever."

8. Clauses 21 to 25 of the deed bear a heading "Sale of the Property". Those clauses are these:

“21. The parties shall cooperate and do all things necessary to cause the Property to be sold by public auction as follows:

(a) the Plaintiff shall appoint a real estate agent for the purpose of causing the Property to be advertised for sale by public auction and to conduct such an Auction, which Auction shall take place no later than 1 December 2022;

(b) the Property shall have a reserve price of $2,000,000.00;

(c) during the Auction, if the reserve is not reached or exceeded by on the second call for final bids by the auctioneer, the Property’s reserve price shall be deemed to be $1,800,000.00;

(d) should the property pass in at Auction, the Plaintiff shall negotiate with the highest bidder and may in her absolute discretion then enter into a contract of sale of the Property;

(e) Should the Property be passed in at Auction and a contract of sale not executed within 4 calendar days thereafter, then:

(i) the Plaintiff must list the property for sale by expression of interest;

(ii) Expressions of interest must be received by no later than 1 February 2023;

(iii) The Plaintiff will accept the highest expression of interest received that equals or exceeds the sum of $1,800,000.00.

(f) Should the property fail to sell by expression of interest, the Plaintiff shall list the Property for private sale and may in her absolute discretion accept such offer or offers that may be made from time to time at her absolute discretion, whereupon the proceeds of any such sale shall be received into the Plaintiff’s real estate agent’s trust account and disbursed in accordance with clause 22(a) and (b) herein.

22. The proceeds of any sale of the Property shall be paid into the Plaintiff’s real estate agent’s trust account and disbursed as follows:

(a) any and all costs associated with the Auction and/or any subsequent steps required to sell the Property pursuant to this Deed are paid from the proceeds of sale first;

(b) Thereafter, the remaining balance of the proceeds of any such sale shall be disbursed to the Parties as follows:

(i) Sixty per cent (60%) to the Plaintiff absolutely; and

(ii) Forty per cent (40%) to the Defendants jointly and severally.

23. Notwithstanding anything in clause 21 and 22 herein, should the Plaintiff receive any offer or offers to purchase the Property for a contract sum that exceeds $2,000,000.00 prior to any Auction or other sale mechanism referred to herein, the Plaintiff may in her absolute discretion accept such an offer and such contract sum shall be received into the Plaintiff’s real estate agent’s trust account and disbursed in accordance with clause 22(a) and (b) herein.

24. Any contract of sale of land of the Property pursuant to this Deed and subject to clause 27 herein, shall provide that settlement of such contract of sale of the Property shall not take place prior to 2 March 2023, unless the Defendants have vacated the Property prior to that date, whereupon such vacation of the Property, settlement of any contract of sale may take place the following day.

25. The Plaintiff must provide a written copy of:

(a) any offer to purchase the Property received in writing from time to time within 48 hours of receipt of the same; and

(b) any proposed contract for the sale of the property to the Defendants in advance of any Auction and in any event, no later than 48 hours prior to the proposed execution of any such contract.”

9. Clause 26 is headed "Confidentiality" and is this:

“26. The Parties must not disclose or permit to be disclosed, the terms of this Deed or details of any discussions and negotiations between the Parties in relation to this Deed except:

(a) with the consent of all Parties; or

(b) to the legal, financial, or other advisors of the Parties; or

(c) to the extent required by law; or

(d) as reasonably required to give effect to the terms of this Deed.”

10. Clauses 27 to 31 bear a heading "Default" and are these:

“Default

27. The Parties agree that if the Defendants default in respect of their obligations under this Deed, the Defendants must forthwith vacate the Property.

28. If the Defendant default in respect of their obligations under this Deed, the Defendants irrevocably consent to the Plaintiff applying to reinstate this proceeding and to enter judgment against the Defendants for orders to the following effect:

(a) the Defendants forthwith vacate the Property pursuant to the Agricultural Tenancies Act 1990 (NSW) section 21(1)(i);

(b) an order for payment of liquidated damages in the sum of $145,000.00 to the Plaintiff;

(c) a debt for any outstanding amount properly owed pursuant to this deed, including without limitation, any amount in respect of which the Defendants indemnify the Plaintiff, if any;

(d) interest pursuant to the Civil Procedure Act 2005 (NSW); and

(e) the Defendants pay the Plaintiff’s cost of and incidental to procuring judgment on the indemnity basis.

29. For the purpose of obtaining judgment pursuant to the preceding paragraph, the Defendants agrees that:

(a) this Deed may be produced to the court as the Defendants’ irrevocable consent to such a judgment; and

(b) an affidavit by a solicitor acting for the Plaintiff will be sufficient evidence of:

(i) a default under the terms of the Deed; and

(ii) insofar as any such default result in any amount of money to be paid to the Plaintiff, any amounts which might have been received in respect of the same and any amounts which remain outstanding.’

30. It is mutually acknowledged that the order proposed in clause 28(b) herein is not a penalty and is a genuine pre-estimate of the Plaintiff’s loss and damage arising from the need to remove existing vines, vineyard infrastructure and remediate the land thereupon.

31. In the event that the Plaintiff obtains judgment pursuant to clause 28 herein, the Defendants irrevocably release the Plaintiff from any liability pursuant to Agricultural Tenancies Act 1990 (NSW) section 18, or any other claim or cause of action in law or equity in respect of any vine or vineyard infrastructure or plant or equipment on the Property at the time of such judgment. “

11. The deed, that is before me, has been signed, sealed, and delivered by both the First and Second Defendants. I assume that a counterpart held by the Defendants has been signed, sealed, and delivered, by the Plaintiff. The first breach of the deed relied upon by the Plaintiff is a breach of cl 7. The verb contained in the deed, and also used by counsel for the Plaintiff, is not part of the King's English. English has adopted from French the word “surveillance”, albeit that it is pronounced as if it were English when it is in fact French. It is derived from the French verb “surveiller”. If the verb as such had passed into English, its proper spelling would be “surveille”. However, I accept that it was apt to describe the visual observation of any person, place, or thing. Clearly clause 7 was designed to prevent the Defendants keeping under observation, or making any recording of the Plaintiff, her guests, her agents, or her nominees, albeit that there was no description of how she was to nominate who such persons might be.

12. The alleged surveillance was detected when Nicole made certain allegations to police about the behaviour of her sister Angelique on Sunday, 27 November 2022. The complaint made to the police by Nicole on 27 November 2022 led to three charges being laid against Angelique in the Local Court at Wentworth. The charges were summed up by Trad LCM in her reasons for decision given on 27 February 2023. The opening paragraphs of her Honour's reasons are these:

"Angelique Woodhead comes before the Court charged with three offences arising out of an incident on 27 November 2022. Those allegations are sequence 1 pursuant to s195(1)(a) of the Crimes Act in relation to an allegation of damage to an Apple iPhone, the property of the complainant, Nicole Woodhead. The allegation is that she either intentionally or recklessly damaged that property.

Sequence 2 is an allegation of common assault. The domestic relationship alleged for that in sequence 1 is that they are sisters and that is not in contest. The common assault is pursuant to s 61 of the Crimes Act and the Court has heart [sic] a number of allegations either in combination or as one in the alternative could constitute a common assault purportedly on the evidence of the complainant.

Finally, there is an allegation pursuant to s 41(a) of the Inclosed Lands Protection Act of unlawful entry onto proscribed lands and that is at sequence 3. There is a plea of not guilty in relation to each of the allegations before the Court."

13. The transcript of proceedings in the Local Court is annexed to an affidavit sworn by Nicole on 3 May 2023, which is Exhibit 1 on this application. Nicole was not required for cross-examination. Another annexure to her affidavit is a transcript of a DVEC which Nicole gave to Constable Thomas Gates, the lock up keeper at Euston Police Station. The DVEC commenced on Sunday, 27 November 2022 at 3.41pm. Nicole told Constable Gates that she was 55 years old. She told the constable that, firstly, she would tell the truth, and secondly, that she would consent to the recording of his interview with her. She admitted that her sister was Angelique Woodhead. The constable asked Nicole what had happened on that day. The transcript of the DVEC commences thus:

"Okay um... starting off they um turned up and I am not too sure what time they wanted access to the shed which I gave them access and opened the front door so it let more light in, we were civil my mother was there um and Angelique was looking for things to take that belonged to my mother earlier along in the piece but they've been in there for 22 years ah they spoke about um house floor tiles that mum was wanting and I said that they could possibly be on a pallet down the back um and that I would go down at some stage and have a look and get them for her and she was in agreeance to that, Angelique wanted to go down the back um and I said no she could not go down on my land um that I would get the tiles ah with that then they left and they went up to the main house um and I went I was here for about half an hour and I thought right I'll go down and take my daughter's ute and the trailer and I will see whether I can get the tiles myself and with that Angelique and mum and a Jennifer Gadston were driving back so that they'd already been down onto our place we've got 300 stock down there head of stock um so Angelique stopped the vehicle I stopped and I said where have you been why did you go down there and she said that she got out of the vehicle approached the ute that I was still sitting in and said 'I'm going to fucking kill you, you are nothing but a cunt' um and then she snatched my phone out of my top pocket and proceeded to smash it on the back of her car on the tailgate and was twisting it and I was fighting to get it back with that we have fallen to the ground um I’ve picked up my phone back up I started recording Angelique was hitting me in the head um and yelling and my mother got out of the car and she was crying and said 'please stop' and Angelique got back in the vehicle and they drove off and I got back in my vehicle came home but all I was trying to do was get my phone back um and then I called the Police."

14. In answer to specific questions Nicole said that Angelique punched her to the side of her head with her fist of her right hand. She also showed an injury to one of her knees. When asked by the constable how Nicole felt at the time of the interview, she said this:

"A bit distressed it um not distressed no I'm ok I've settled down I was very upset".

15. Nicole went on to deny being under the influence of either liquor or any drug. In the Local Court, evidence was adduced from Nicole, from the Plaintiff, Mrs Woodhead, and from Ms Jennifer Gadstone. That evidence was adduced by the Police Prosecutor, Sergeant Begg. Mr Deppeler of counsel appeared for Nicole under instructions from Mr Mark Sehler, the current solicitor for the Plaintiff. As was her right, Angelique did not give or call any evidence. Her Honour convicted Angelique of the offence of damaging the mobile phone that was owned by Nicole. Her Honour, however, was not satisfied beyond reasonable doubt of the other two charges. The charge laid under the Inclosed Lands Protection Act 1901 was the wrong charge. As I have quoted, Angelique was charged under s 4(1)(a) of the Act and she ought to have been charged under s 4(1)(b) of the Act. Section 4(1) of the Inclosed Lands Protection Act 1901 is this:

"(1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding—

(a) 10 penalty units in the case of prescribed premises, or

(b) 5 penalty units in any other case.”

16. One will note that there is a maximum penalty of ten penalty units in the case of "prescribed premises", or a maximum penalty of five penalty units in any other case. Prescribed premises is defined in s 3(1) in these terms:

"prescribed premises means land occupied or used in connection with any of the following—

(a)  a government school or a registered non-government school within the meaning of the Education Act 1990,

(b)  a child care service,

(c)  a hospital,

(d)  a nursing home within the meaning of the Public Health Act 2010,

and any building or structure erected on that land, but does not include all or part of any building or structure that is for the time being occupied or used for a purpose unconnected with the conduct of such a school, child care service, hospital or nursing home.”

17. A piece of agricultural land owned by Nicole is not a prescribed premises, but inclosed agricultural land does fall within s 4(1)(b). Accordingly, the charging police officer, who I assume was Constable Thomas Gates, charged Angelique under the wrong provision of the Inclosed Lands Protection Act 1901 and that mischarging was not detected by the police prosecutor, Sergeant Begg.

18. Her Honour was clearly concerned about whether the police had proved the common assault beyond reasonable doubt. A short excerpt of film taken by Nicole during her interaction with Angelique was tendered in evidence in the Local Court. It has been played and tendered in this Court. The video is all of seven seconds long. There are a number of still photographs in evidence taken from it before me. They clearly show an assault being committed upon Nicole by Angelique. For example, the photograph numbered C NW 1 on p 86 of the Court book shows Angelique in front of her LandCruiser wearing a darker green shirt than Nicole's lighter lime green shirt. Her hand can be seen with a watch band grabbing hold of Nicole's shirt front and the hand of Nicole trying to push Angelique away. Still photograph numbered C NW 1B shows Angelique's arm grabbing hold of Nicole's lighter lime green shirt with her left hand. I have seen Nicole in my Court yesterday and today and the photograph clearly shows the face of a close relative of hers that is obviously the face of Angelique rather than the face of Nicole.

19. A further photograph numbered CNW 2 again shows Angelique in front of her motor vehicle holding onto the shirt of Nicole. Photograph C NW 3 is a further shot of Angelique in front of her vehicle and one can see inside the vehicle the outline of two passengers within the vehicle. Unless those passengers are identified by Nicole or Angelique, their identity is unknown. However, Nicole discloses that they were in fact her mother, the Plaintiff, and Ms Gadstone, but one cannot discern that from the photograph itself or from the film itself. There are other still photographs taken from the film numbered C NW 3A and 3B which, again, show the outlines of passengers in the car, but who they are cannot be discerned. Photograph numbered C NW 4A and 4B show Angelique making a fist with her right hand, and that fist heading towards the head of Nicole in photograph C NW 4B.

20. Taking a look at the photographs from the film clearly indicates unlawful interference by Angelique with the person of her sister, Nicole. Angelique's behaviour is not angelic. It is not only tortious, it is criminal. However, there were clearly the outlines of other persons in the film and in the still photographs, but one cannot discern who they might be. Clearly, Nicole was seeking to protect her own interests to protect herself from being attacked by Angelique and, coincidentally, there were the images which she took on her camera which managed to make out the outline of the Plaintiff and Ms Gladstone without being sufficient to identify either of those ladies.

21. The affidavit of Nicole, Exhibit 1 in these proceedings, clearly, intelligibly, and consistently sets out how the altercation between Nicole and Angelique came about. To understand it clearly, one must have regard to annexure B 1 which is a sketch map made by Nicole. I do not know if it be correctly oriented but when I look at the north point on an aerial photograph, which is exhibit B2 to her affidavit, it appears to be roughly oriented north south, north being at the top. The sketch map shows on the left-hand side, the side of a round structure identified as Lake Benanee. On the top of the map on the eastern shore of Lake Benanee is a parcel of land owned by Nicole that has a southern boundary with a stretch of land owned by Mr Justin Turner. There is a boundary fence containing a gate to Mr Turner's land. The distance from the gate on that boundary to the tip on Nicole's land is 1.1 kilometres. All told there is 1.28 kilometres between the northern boundary of land owned by Mr Justin Turner and the land that is Jarwonga, and a parcel of that contains Mrs Woodhead's house and its excluded area, and the shed which was also used as a residence by Nicole and her partner, Mr Uebergang.

22. The distance from the southern boundary of Mr Turner's land to Mrs Woodhead's house is 300 metres and there is then a further 200 metres south of the mother's house to the shed used by Nicole and her partner. Just as there is a gate in the boundary fence on the northern boundary of Mr Turner's land, there is a fence in the southern boundary of his land giving access to Jarwonga. In order to search the tip to find the tiles, Angelique had to drive through Mr Turner's land and then through Nicole's land to reach the tip. The car being driven by Nicole met up with the car being driven by Angelique when they were travelling in opposite directions, Nicole going to her property and Angelique driving from her property. The incident occurred some 430 metres south of the northern boundary of Mr Turner's land. The nature of the land can be seen in two further stills taken from the short length of video, see NW 6 and see NW 7.

23. The road is in fact a dirt track and the track appears to be mainly red earth as described by Nicole to the police, and as described by her in the Local Court, and as described in the affidavit which is Exhibit 1. The intervention was this according to Exhibit 1.

"18. At the time I saw Angelique I was on Justin Turner's property. I stopped my vehicle at the same time Angelique stopped her vehicle, which was on Mr Turner's land. I stayed in the Ute and said to Angelique words to the effect: 'Why did you go down there? Why did you go down the back when I said no’?

19. Angelique responded with words to the effect, as she was getting out of the and opening the tail gate on the boot of her Land Cruiser and said: 'I got the fucking tiles'. She then approached me, and said to me 'You are a cunt and I am going to kill you'.

20. As soon as she said that, she then snatched my phone out of my top pocket of my shirt and raced to the back of her vehicle and proceeded to smash my phone on the tailgate of her vehicle. I had my phone in the top pocket of my shirt as I always do, so I can keep in contact with my partner, particularly because of the amount of rain we have received and flooding everywhere. If I got into trouble in the wet, by having the phone with me I was able to contact him to help me out.

21. By the time I got out of the Ute and went up to her, she had thrown my phone onto the ground and was stomping on it. I reached down to get it and she pushed me over and we both fell.

22. I wrestled with Angelique to get her off me and get the phone back, then I pressed record because at that time I was in fear of my life and that she was going to further attack me and she proceeded to punch me in the head three times and that is when I activated the video, which I took of her attacking me. I did so because I feared for my life and I feared that she was going to further inflict injury upon me, apart from the earlier incident when she punched me and subsequently when she pushed me over and attacked me, causing me to try to defend myself while we wrestled and scuffled on the dirt.

23. While I was attempting to defend myself and taking a video and photos of Angelique to prove that she was attacking me, because I was intending to go to the Police. This was the first time I knew of the presence of Jennifer Gadsden [sic] who was sitting in Angelique's vehicle. I also saw my mother in Angelique's vehicle.

24. I took photos of Angelique to protect myself and for proof of what she did to me because I feared injury not only to myself but also the damage to my property which she committed, smashing the phone as she did.

25. I saw Angelique get back into the vehicle and I got back into my vehicle and I turned around and went home. I then called the Police and I told them that she had said to me that she was going to kill me. This was repeated in the DVEC statement taken from me in the day after Senior Constable Gates attended my property."

24. In this matter I am satisfied on the civil standard of proof that Angelique trespassed on the land belonging to Nicole, that she maliciously or recklessly damaged the phone belonging to Nicole and that she assaulted Nicole occasioning her actual bodily harm. I am satisfied of that, despite gravity of the charges, and I direct myself in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336. However, these days it is probably only necessary to refer to s 140(2) of the Evidence Act 1995 which contains the provision that in deciding a civil case I am required to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged. Essentially, that is the statutory re-enactment of Briginshaw.

25. The Plaintiff urges upon me certain statements made by Ms Gladstone in her evidence where she recalled hearing words spoken to the effect that there were allegations made by Angelique for Nicole to stop filming her, which I am urged to accept, indicates that Nicole was filming Angelique from the very beginning of their interaction when each was in a vehicle when those vehicles had come to a stop near each other on Justin Turner's land. I do not accept that. I accept that the only recording she made is the seven seconds of video film which were displayed in this Court and displayed in the Local Court. There is no earlier recording, and if there were, the Crown in its duty and the police in accordance with their duty as a prosecutor ought to have put that before the Court because it would have gone some way to exonerating Angelique of the charges made against her. That did not occur. The inference to be drawn is that there was no such filming prior to when Nicole maintains that she started the filming in order to protect her own vital interests.

26. Relevant to this are certain provisions of the Surveillance Devices Act 2007. Section 4(1) of that Act contains a definition of "optical surveillance device". That is defined to mean:

"optical surveillance device means any device capable of being used to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment.”

27. A camera contained in a smartphone is an optical surveillance device. Section 8, s 11 and s 12 of the Act are these:

"8   Installation, use and maintenance of optical surveillance devices without consent

(1)  A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves—

(a)  entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or

(b)  interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.

Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(2)  Subsection (1) does not apply to the following—

(a)  the installation, use or maintenance of an optical surveillance device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,

(b)  the installation, use or maintenance of an optical surveillance device in accordance with a law of the Commonwealth,

(c)  the use of an optical surveillance device and any enhancement equipment in relation to the device solely for the purpose of the location and retrieval of the device or equipment,

(d)  the installation, use or maintenance of an optical surveillance device by a law enforcement officer in the execution of a search warrant or crime scene warrant (including the use of an optical surveillance device to record any activity in connection with the execution of the warrant),

Note—

See also section 255 of the Children and Young Persons (Care and Protection) Act 1998.

(d1)  the use of an optical surveillance device by a law enforcement officer in the conduct of a search or inspection (including the use of an optical surveillance device to record any activity in connection with the search or inspection) that is permitted without a warrant under the following—

(i)  the Child Protection (Offenders Registration) Act 2000,

(ia)  the Drug Supply Prohibition Order Pilot Scheme Act 2020,

(ii)  the Firearms Act 1996,

(iii)  the Restricted Premises Act 1943,

(iv)  the Terrorism (Police Powers) Act 2002,

(e)  the use of an optical surveillance device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation,

(f)  the use, in accordance with section 50A, of body-worn video by a police officer.

(2A)  Subsection (1) does not apply to the use of an optical surveillance device to record visually or observe the carrying on of an activity if—

(a)  a party to the activity is a participant in an authorised operation and, if the participant is a law enforcement officer, the participant is using an assumed name or assumed identity, and

(b)  the person using the optical surveillance device is that participant or another participant in that authorised operation.

(3)  In this section—

authorised operation and participant in an authorised operation have the same meanings as in the Law Enforcement (Controlled Operations) Act 1997.

Note—

The definition of participant in an authorised operation includes a civilian participant within the meaning of the Law Enforcement (Controlled Operations) Act 1997.

crime scene warrant has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.

search warrant means a search warrant issued under—

(a)  any of the following provisions of the Law Enforcement (Powers and Responsibilities) Act 2002—

(i) Division 2 (Police powers relating to warrants) of Part 5,

(ii)  Part 6 (Search, entry and seizure powers relating to domestic violence offences),

(iii)  Division 1 (Drug premises) of Part 11, or

(a1) a provision specified in Schedule 2 to the Law Enforcement (Powers and Responsibilities) Act 2002, or

(a2) Part 3 (Covert search warrants) of the Terrorism (Police Powers) Act 2002, or

(b) section 40 of the Independent Commission Against Corruption Act 1988, or

(c) section 17 of the Crime Commission Act 2012, or

(d) Division 2 or 3 of Part 4 of the Criminal Assets Recovery Act 1990,

(e) section 79 of the Law Enforcement Conduct Commission Act 2016.

…

1. Prohibition on communication or publication of private conversations or recordings of activities

(1)  A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.

Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(2)  Subsection (1) does not apply to the following—

(a)  if the communication or publication is made—

(i)  to a party to the private conversation or activity, or

(ii)  with the consent, express or implied, of all the principal parties to the private conversation or activity, or

(iii)  for the purpose of investigating or prosecuting an offence against this section, or

(iv)  in the course of proceedings for an offence against this Act or the regulations,

(b)  if the communication or publication is no more than is reasonably necessary in connection with an imminent threat of—

(i)  serious violence to persons or of substantial damage to property, or

(ii)  commission of a serious narcotics offence.

(3)  A person who obtains knowledge of a private conversation or activity in a manner that does not involve a contravention of a provision of this Part is not prevented from communicating or publishing the knowledge so obtained even if the same knowledge was also obtained in a manner that contravened this Part.

1. Possession of record of private conversation or activity

(1)  A person must not possess a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by the use of a listening device, optical surveillance device or tracking device in contravention of this Part.

Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(2)  Subsection (1) does not apply where the record is in the possession of the person—

(a)  in connection with proceedings for an offence against this Act or the regulations, or

(b)  with the consent, express or implied, of all of the principal parties to the private conversation or persons who took part in the activity, or

(c)  as a consequence of a communication or publication of that record to that person in circumstances that do not constitute a contravention of this Part.”

28. The First Defendant, Nicole, relies upon s 11(2)(b)(i). The general prohibition about the employment of optical surveillance devices does not apply if the publication is no more than is reasonably necessary in connection with an imminent threat of serious violence to persons, or of substantial damage to property. She feared violence to her own person and damage to her property. The damage to her property had already occurred but further damage might have been done. Although the phone had been damaged, it was still capable of making the recording which it did and so it was not completely useless or completely broken. It could be further damaged and become completely irreparable and completely useless. Clearly, a course of conduct had already been undertaken by Angelique which amounted to a continuing assault in one way or another upon Nicole.

28. In making the exception to which I have referred, Parliament has acknowledged that there is a legitimate right for any owner of an optical surveillance device to use it to prevent an imminent threat of serious violence to any person or substantial damage to any property. Absent of course the provisions of an Act such as Surveillance Devices Act 2007, a person could use an optical surveillance device for any purpose whatever. However, clearly there is a public interest in that not occurring because everyone is entitled to their privacy. However, considerations about privacy are overborne if the device can be used somehow to protect a person from the threat of violence or property damage.

29. The Plaintiff argues that nevertheless such use of the camera in Nicole's smartphone was forbidden by cl 7 of the deed and in particular relies upon the adverb "whatsoever". Nicole and her partner were well aware of the provision in cl 7 of the deed. For example, pars 38 and 39 of her affidavit in Exhibit 1 are these:

"38. The shed premises which includes our then residence is 15 kms out of town and in 2014 was broken into and a lot of my husband's belongings including 3 cars were damaged. Police investigated and later arrested the person responsible who had carried out a number of break-ins and stealing in the district. He was sentenced to 2 years imprisonment. We were not insured and received no compensation.

39. Following the break-in we installed 3 cameras on the shed for security purposes. After the Court case in Sydney in August/September 2022 we entered into a Deed of Settlement with the Plaintiff which included a clause not to film my mother or her guests. Immediately we returned to Euston we de-activated the 3 cameras to ensure that we did not break the Terms of Settlement and ensure that no photographs were taken as set out in the Deed."

31. However, assume this: one evening, around midnight, Nicole and/or her partner are awoken by noise outside and they come to a realisation that someone may be trying to break into the premises; they would be entitled therefore to turn on the cameras to ascertain who this potential thief or robber might be. No one could criticise them in that regard for doing so. If the person photographed trying to break in was Angelique or some other friend or acquaintance or agent of Mrs Woodhead, then it is hard to justify that action being done in breach of the deed. There was no intention of filming the Plaintiff or her guests, agents, or nominees, but merely to film a person who was potentially carrying out theft or robbery. I have been asked by the Defendants to read down cl 7 of the deed by implying a term.

32. In BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 the Privy Council dealt with circumstances in which terms could be implied. In the joint judgment of Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel, their Lordships said this:

"Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which the parties have not thought fit to express. In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that “it goes without saying”; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.”

33. In my view it is proper to infer a proviso to cl 7 to this effect, "Saving any right arising under law". That satisfies the five simple propositions referred to by their Lordships in the judgment to which I have just referred. In any event I find it very difficult to interpret the words "the Plaintiff, her guests, Agents or nominees" to refer to a person who is a trespasser, a person who has damaged property, and a person who is committing a common assault. I am confident that a lady such as Mrs Woodhead herself would not wish to countenance any such criminally minded person as her guest, her agent, or her nominee. In fact, in my view a proper reading of cl 7 would take out of its purview any person acting unlawfully.

34. We all go about our business in life expecting others to obey the law. If one did not expect others to obey the law, then why would anyone enter a motor vehicle, either as a driver or passenger, and drive it in a public place, through heavy city traffic or even on highways, traversing the States of the Commonwealth when other persons could be driving on the incorrect side of the carriageway and disobeying every road rule known to motorists in this country? We all direct ourselves or operate on the basis that others will obey the law. In my view, it is implicit that those obtaining a benefit under the deed will be obeying the law, and equally it is implicit that those who suffer a corresponding obligation also obey the law. In my view the action of Angelique Woodhead was clearly outside the purview of the protection given to the plaintiff and her guests, agents and nominees.

35. I am not persuaded on the balance of probabilities that there has been any breach of cl 7 of the deed. Furthermore, there is absolutely no intention of filming the plaintiff herself or Ms Gadstone, accepting that Ms Gadstone may have been an acquaintance of, or friend or guest of, the Plaintiff rather than any friend or guest of Angelique as was urged upon me by counsel for the Plaintiff. She is entitled to the protection, and again, the film itself, and still photographs taken from the film, do not identify either the Plaintiff or Ms Gadstone. The only person who could make that identification were the other two persons present, that is Angelique and Nicole.

36. The breach of cl 7 is the default referred to by Mr Sehler in his affidavit affirmed on 2 March 2023, which is Exhibit A in [17] to [25]. In his affidavit, affirmed 14 March 2023, which is Exhibit B, Mr Sehler refers to a further default. Paragraphs [10] to [16] of that affidavit are these:

1. On 20 February 2023, I wrote an email to the Defendants’ solicitor and notified the Defendants of the Plaintiff’s intention to commence the present motion and outlining the Plaintiff’s instructions to her real estate agent(the ‘20 February Letter’). A copy of the email is at page [1] of MS-03.

2. On 21 February 2023, I emailed Mr Jason Lawler (‘Lawler’) of Professionals Mildura who is the real estate agent handling the sale of the Plaintiff’s Jarwonga property with instructions in respect of the disbursement of money received at settlement. A copy of the email is at page [2] of MS-03.

3. On 21 February 2023, the Defendants’ solicitor emailed me a letter as the Plaintiff’s solicitor. A copy of the email and letter is at pages [3] to [4] of MS-03.

4. I am instructed that on 3 March 2023, the sale of the Plaintiff’s Jarwonga property settled and the balance of the sale was deposited into Lawler’s trust account.

5. On 3 March 2023, Lawler emailed me attaching a letter (‘Confidentiality Disclosure Letter’) he had received from the Defendants’ solicitor. In the Confidentiality Disclosure Letter, the Defendants’ solicitor included a copy of page 9 of the Deed which disclosed certain clauses or parts of clauses. A copy of the email by Lawler attaching the Confidentiality Disclosure Letter is at page [5] of MS-03. A copy of the Confidentiality Disclosure Letter emailed to Lawler by the Defendant is at pages [6] to [8] of MS-03.

6. On 6 March 2023, I emailed the Defendants’ solicitor regarding their correspondence to Lawler. A copy of the email is at page [9] of MS-03.

7. By reason of the disclosure of the terms of the Deed by the Defendants in the 3 March Letter containing clause 22, I verily believe that the disclosure of Deed by Defendants’ solicitor as their agent constitutes a default of the Defendants’ continuing obligations pursuant to clause 26 in the Deed, and consequently, in addition to those matter deposed to in my First Affidavit, the Plaintiff is entitled to judgment in the proceeding and the orders sought on the present motion. “

   37. On 3 March 2023, Mr Simon MacKenzie of MacKenzie & Vardanega, Griffith, wrote to Mr Jason Lawler, a real estate agent at Mildura, a letter, the substance of which is this:

"RE: WOODHEAD AND TURNER

We refer to the above matter and confirm we act for the defendants Nicole Woodhead and Shannon Uebergang.

As you are aware under an agreement reached between our clients and Bernadette Woodhead, copy relevant Clause 22 attached, proceeds are to be divided 40% of the nett [sic] sum to be payable to our clients. The amount receivable is $774,101.21.

We enclose authority duly completed and look forward to funds being deposited as soon as possible."

38. The annexure contains a direction by the Defendants to pay their 40% share of the proceeds of the sale of Jarwonga to the trust account of MacKenzie & Vardanega. There then is a copy of p 9 of the deed. The whole of p 9 can be read. The top of p 9 commences with subclause (e) of cl 21, followed by subclause (f) of that provision. Those have been ruled through in the usual Z shape pattern. Clause 22 is then set out and at the foot of the page is cl 23 but that has been ruled through in the usual Z shape pattern. One can see therefore that Mr MacKenzie intended to direct the real estate agent to cl 22 itself which provides for the payment of 40% of the net proceeds of the sale of Jarwonga to the Defendants jointly and severally. The remaining 60% of the net proceeds of the sale were to be paid to the Plaintiff.

39. Quite frankly, this does not appear to have taken the real estate agent by surprise. He generated an email to Mr Mark Sehler bearing date 3 March 2023 at 9.59am. It enclosed a copy of the communication from Mr Vardanega. The substance of the email is this:

"Hi Mark, someone is keen to get their hands on money, obviously I won't act on anything until your instructions are final. Please let me know your thoughts cheers jason."

40. That is followed by a formal farewell and a photograph of Mr Jason Lawler, a licensed real estate agent in Victoria and New South Wales. He clearly was not amazed by having his attention drawn to anything with which he was unfamiliar and clearly was indicating to Mr Sehler that the Defendants were "eager" to receive their share of the proceeds of sale. I have earlier had cause to set out the confidentiality provision of the deed and one will note that an exception is "to the legal, financial, or other advisors of the Parties". One will also note the exception of "as reasonably required to give effect to the terms of this Deed". Writing to the real estate agent, who was the agent acting for the Plaintiff on the sale of Jarwonga falls within each of those exceptions and clearly the Defendants had a right to direct the agent not to pay them directly but to pay money to their solicitor to be held on trust by him.

41. This alleged breach of the deed is, to use terminology very properly used by Mr Stanton, frivolous and without merit, and certainly not sufficient to warrant any finding that the deed has been breached. In fact, in my view, the whole of this application is frivolous, vexatious, and without any proper justification.

42. The notice of motion is accordingly dismissed. I order the Plaintiff to pay the Defendant's costs of the motion.

Decision last updated: 25 July 2023