Yaj1 v Opera Australia

[2021] NSWSC 771

Supreme Court

New South Wales

Medium Neutral Citation:

YAJ1 v Opera Australia [2021] NSWSC 771

Hearing dates:

25 June 2021

Decision date:

25 June 2021

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Note the undertaking made by the second defendant in terms of exhibit 1.

(2)   Note that the plaintiff, by her counsel Mr Loukas, has given the usual undertaking as to damages.

(3)   Order the second defendant, within 14 days, to file and serve on the applicant an affidavit:

(a)   setting out all of his assets worldwide, specifying their value, location, and details including any mortgages, charges or other encumbrances to which they are subject, the extent of his interest in any of these assets, and, in the case of any bank accounts which he controls, the name of the bank in which the account is held, the name of the branch, the name of the account, the name of a person in whose name the account is held, the account number, and the balance of the account as at the date of the affidavit; and

(b)   in respect of the proceeds of sale of the property known as the Lewisham property:

(i)   the amount received by the second defendant and the date on which the amount or amounts were received;

(ii)   what the second defendant did with the proceeds and, whether they if they, or any part of them, were used to purchase an assets, what the asset is and where is it located, whether any part of the proceeds remains and if, so, how much and in what account or in what form.

(4)   The costs of the plaintiff’s notice of motion are to be the plaintiff’s costs of the cause.

(5)   Matter adjourned to 15 July 2021 at 9.15am.

Catchwords:

CIVIL PROCEDURE — Statement of claim — Plaintiff seeking damages, an interim asset freezing order and an ancillary order that the second defendant disclose all of his assets and what occurred with the proceeds of a sale of real estate — Second defendant swore an affidavit in which he deposes as to some of his assets — Affidavit presently sufficient in lieu of the freezing order — Second defendant ordered to swear, file and serve an affidavit

COSTS — Party/Party — Costs of the motion are to be the plaintiff’s costs in the cause

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Part 25

Cases Cited:

Blatch v Archer (1774) 98 ER 969

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Category:

Procedural rulings

Parties:

YAJ1 (Plaintiff)
Opera Australia (First Defendant)
David Edward Lewis (Second Defendant)

Representation:

Counsel:
B Loukas (Plaintiff)
H Halligan (Second Defendant)

Solicitors:
Karp O’Neil Lawyers (Plaintiff)
Carroll & O'Dea Lawyers (First Defendant)
Boyd House and Partners (Second Defendant)

File Number(s):

2021/115868

Publication restriction:

Non-publication of any information or material that may lead to the identification of the plaintiff (Court Suppression and Non-publication Orders Act 2010 (NSW), s 7)

Judgment (ex tempore)

1. By statement of claim filed on 26 April 2021, YAJ1 (the plaintiff) seeks damages against Opera Australia (the first defendant) and David Edward Lewis (the second defendant) arising from sexual and physical assaults alleged to have been perpetrated against her by the second defendant during the time she was engaged by the first defendant as a child chorister in the children’s chorus of Opera Australia. At the relevant time, the first defendant employed the second defendant as as an adult chorister.

2. The allegations made in the statement of claim are, in essence, that the second defendant assaulted the plaintiff, and that the first defendant was in breach of the duty of care which it owed to the plaintiff, and that both are liable to her for substantial damages for the injuries she sustained as a result.

3. By notice of motion filed on 7 May 2021, the plaintiff sought various orders including a freezing order, a non-publication order, and an order that the parties mediate. As a result of discussions between the parties, and orders made by Garling J on 4 June 2021, the plaintiff filed an amended notice of motion on 27 May 2021. The only relief sought in the amended notice of motion, apart from costs, is a freezing order, as well as an order requiring the second defendant to verify his assets and liabilities in an affidavit.

4. On 1 June 2021, the second defendant gave an undertaking not to dispose or otherwise unduly diminish any of his current assets unless provided for in the following exceptions. The exceptions relate to a provision of $1,000 per week for ordinary living expenses, reasonable legal expenses, and dealing with or disposing of any of his assets in the ordinary and proper course of his business. The plaintiff, for whom Mr Loukas appears, accepts the undertaking in lieu of the freezing order but pressed the claim for an affidavit by the second defendant deposing not only as to his present assets but which also sets out what happened to the proceeds of sale of real estate which he owned with his former wife Vanessa Lewis which was settled on 30 November 2018.

5. It is important for present purposes to note the relevant chronology. In August 2017, the second defendant was charged with, and pleaded guilty to, a number of offences which relate to the subject of the proceedings. At about that time he separated from his wife, Vanessa Lewis, to whom he had been married since 5 November 2000. Their divorce was finalised in August 2018. The sale of their former matrimonial home, a residential property in Lewisham (the Lewisham property), completed on 30 November 2018. The net proceeds were in the order of $1m of which the second defendant was to receive approximately $500,000. The plaintiff has adduced affidavit evidence from Vanessa Lewis as to these matters.

6. In about December 2018, the second defendant was sentenced by her Honour Huggett DCJ to a term of imprisonment which included a non-parole period of two years’ imprisonment. The second defendant was taken into custody in December 2018 and was released on parole on 13 December 2020.

7. In opposition to the orders sought in the notice of motion, the second defendant swore an affidavit on 11 June 2021 in which he deposed as to certain of his assets, which include a bank account with a balance in the order of $10,000; a superannuation fund which is presently worth about $75,000; a motor vehicle which is worth approximately $12,000; a camera worth approximately $5,000; and a wine collection said to be worth approximately $2,500. He deposed that since his release from gaol on 13 December 2020 he has been in receipt of Centrelink benefits in an amount of $629 per fortnight. I note for completeness that the second defendant’s affidavit does not contain any statement that the assets disclosed in that affidavit comprise his whole assets.

8. It is noteworthy that nowhere in his affidavit does the second defendant depose as to what transpired with the proceeds of the sale of the Lewisham property. It is significant that, in the two and a half years since he received the proceeds of sale of that property, he has spent two years in custody. This is a marked omission from the affidavit.

9. I have regard to the principles in Blatch v Archer (1774) 98 ER 969, which entitle a Court to have regard to which party has the power to prove particular matters, and also the principles in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 which apply when a party who gives evidence chooses not to give evidence as to a relevant matter. The second defendant is plainly in a position to know what he did with the $500,000. He has chosen not to disclose this matter, although it has been raised as a matter requiring response by reason of the plaintiff’s reliance on Mrs Lewis’ evidence.

10. In light of the undertaking given by the second defendant, I am not persuaded that it is necessary presently to make a freezing order. Mr Loukas did not press for the freezing order in light of the undertaking. I note that I have some reservations about paragraph 3 of that undertaking where the second defendant purports to except from the undertaking assets disposed of in the ordinary and proper course of his business. It would appear that, as the second defendant, is in receipt of Centrelink payments, and no reference is made of any business he is conducting, it would be unlikely that he would be able to invoke the exception. However, as referred to above, it was accepted by Mr Loukas that the affidavit was sufficient, presently at least, in lieu of an interim freezing order.

11. The plaintiff also seeks an ancillary order; namely, that the second defendant disclose all of his assets and what happened with the $500,000. I note that Mr Halligan, who appeared for the second defendant, does not oppose that ancillary order and accepts, as is provided for in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 25.12(2), that an ancillary order can be made even if the principal order, namely, an asset freezing order, is not made if it is made to determine whether the freezing order ought be made.

12. I am satisfied that, in order to protect the processes of the court, it is necessary to require the second defendant to disclose to the Court and to the plaintiff, in a verified form, all of his assets and also what happened with the sum of $500,000.

Costs

13. As to the question of costs, Mr Loukas seeks the costs of the motion and contends that it was necessary that the motion be brought in order to ensure that if the second defendant has assets these are not dissipated pending the final determination of the proceedings. He says that the plaintiff sensibly amended the notice of motion to confine the dispute but still needed to press the notice of motion in order to obtain the orders I have made today.

14. Mr Halligan accepts that the plaintiff has been successful in the notice of motion but submits that the proper order is that the costs of the motion be the plaintiff’s costs in the cause.

15. Freezing orders are in the nature of interlocutory orders, which are made by the Court to protect its processes. Such interference with the defendant’s proprietary interests is, in a sense, only retrospectively justified if the plaintiff obtains a judgment in her favour. In these circumstances, I consider that it is appropriate in the exercise of my discretion to order that the costs of the motion be the plaintiff’s costs in the cause. In other words, if the plaintiff is successful in the proceedings, the costs of the motion must be paid by the second defendant.

Orders

16. Accordingly:

1. Note the undertaking made by the second defendant in terms of exhibit 1.

2. Note that the plaintiff, by her counsel Mr Loukas, has given the usual undertaking as to damages.

3. Order the second defendant, within 14 days, to file and serve on the applicant an affidavit:

1. setting out all of his assets worldwide, specifying their value, location, and details including any mortgages, charges or other encumbrances to which they are subject, the extent of his interest in any of these assets, and, in the case of any bank accounts which he controls, the name of the bank in which the account is held, the name of the branch, the name of the account, the name of a person in whose name the account is held, the account number, and the balance of the account as at the date of the affidavit; and

2. in respect of the proceeds of sale of the property known as the Lewisham property:

1. the amount received by the second defendant and the date on which the amount or amounts were received;

2. what the second defendant did with the proceeds and, whether they if they, or any part of them, were used to purchase an assets, what the asset is and where is it located, whether any part of the proceeds remains and if, so, how much and in what account or in what form.

4. The costs of the plaintiff’s notice of motion are to be the plaintiff’s costs of the cause.

5. Matter adjourned to 15 July 2021 at 9.15am.

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Decision last updated: 25 June 2021