Host v Igo[1998] QDC 60

[Before Forde D.C.J.]

BETWEEN

AND

JUDGMENT

Judgment Delivered: 7 April 1998

BETWEEN

AND

REASONS FOR JUDGMENT - FORDE D.C.J.

Delivered the 7th day of April 1998

1. Introduction

The plaintiff, Kerry Ina Host, changed her name by deed poll to Kerrina Victoria King after this action was commenced. The plaintiff sues Andrew John Igo, formerly her de facto husband. Her claim is for damages for assault and battery in action 1786/96. In the other action, 1796/96 which was remitted from the Supreme Court (945/96), the plaintiff seeks to set aside a deed dated 18 February 1994 between the plaintiff and the defendant which related to the settlement of their property interests upon separation.

2. Background

The plaintiff was born on 6 May 1958 and the defendant was born on 18 December 1953. The parties met in late 1991. Within several weeks of meeting the defendant, the plaintiff commenced to stay over at his house. The defendant had been married three times previously. His third wife, Catharina Theodora Rynja, was called as a witness in these actions. She gave evidence of the manner in which the defendant treated her during the marriage and his modus operandi. The evidence was led as similar fact evidence. That question was reserved and shall be dealt with later in these reasons.

There was a further occasion on 18 June 1992 at the Metway Bank at Geebung. The plaintiff says that the defendant wanted her to guarantee an account for his business. The plaintiff was unwilling to sign a guarantee but the defendant became quite authoritative and would not accept a “no”. The defendant said that “it was too late now to refuse”, and the parties went in and signed the guarantees.

The plaintiff had lived formerly at Seventeen Mile Rocks. By December 1991 the plaintiff had sold her home and had approximately $45,000 for investment purposes. The plaintiff had worked with the Education Department from about 1984. In 1985 she commenced duties at the Secondary Correspondence School, later called the School of Distance Education. This had been necessitated by a problem with her throat as a main stream teacher. She was diagnosed with Sydomeglo virus and vocal nodules. The importance of this relates to her career pattern thereafter, and moreover, whether the behaviour of the defendant affected her ability to teach. She continued in her duties with the School of Distance Education up until 1990 when she undertook further studies in 1991 to train as a resource teacher. In the second semester of 1991 she expressed a desire to move away from the School of Distance Education and got a transfer to Mt. Gravatt High School, but unfortunately suffered voice difficulties once again. The plaintiff ended up at Junction Park School Support Centre at the end of that year. She became depressed. She was transferred back to the Brisbane School of Distance Education in 1992 but not at her request. In 1992 she said she was “coping” with her employment. She continued her studies at the Kelvin Grove College where she had commenced training as a resource teacher. In fact, her new position at the School of Distance Education was as a secondary resource teacher.

Throughout 1992 the plaintiff was living with the defendant at 23 Swanson Parade, Carina. She made no contribution to the purchase of that property. However, within a week or so of meeting each other, the parties started to look with a view to purchasing a property together. The properties looked at included a property at 24 Enterprise Court, Scarborough which is part of the Newport development. I accept the plaintiff's evidence that within a week they had looked at the property at Enterprise Court but that it was not purchased until a later date. The reason for this was that the property had been sold, but the contract fell over. Subsequently there were further negotiations between the plaintiff and the defendant on one hand, and the vendor on the other. The plaintiff was led to believe that the original contract was for $420,000. Subsequently, the plaintiff and the defendant purchased the said property for $340,000. The plaintiff contributed $45,000 to the purchase. On that basis, the plaintiff and the defendant became tenants-in-common in a portion of 40% to the plaintiff and 60% to the defendant.

There was one incident prior to the contract being entered into. The plaintiff was asked to attend the office of the defendant's accountant, Mr Sabdia. She was kept waiting for some time and so she left. The defendant was upset with her conduct. He made a remark to her about being “stupid for leaving”. He subsequently produced some figures at home and it was on that basis that the parties decided to proceed with the purchase. Because the plaintiff was unable to contribute as much as the defendant, the defendant offered to lend the plaintiff several thousand dollars and she would be required to pay him back. He said she would “just have to work harder” to pay the money off. As a result, the plaintiff made an extra effort in relation to preparing the Carina house to be tenanted. Between December 1992 and March 1993, the plaintiff was joined by her mother who had come from Queanbeyan outside Canberra. The parties were living at Enterprise Court. During this time, the plaintiff alleges that she was locked out of her bedroom and would sleep in a spare room on a mattress. After her mother left, the parties went on a holiday to Guam. On 10 May 1993, the plaintiff was told by the defendant that she was one in “a long line of women” and that he had never loved her. The plaintiff then went to stay with her mother shortly after that. I find that she had returned to Enterprise Court before Mr. Monarch had arrived.

The plaintiff said that the relationship started to have some problems when Mr Monarch came to stay and the plaintiff was required to buy groceries for all three. David Monarch was a friend of the defendant. They worked together in England for some years in a mine. Mr Monarch came to Australia with a view to settling here and stayed with the plaintiff and the defendant from June 1993 until October 1993. The first assault pleaded is alleged to have occurred on 5 June 1993. Prior to this, the plaintiff said there had been some physical violence as early as July 1992. The defendant had grabbed her arms with his hands and the plaintiff struck him on the face and he struck her on the arms and left the room. In September 1992 he raised the question of financial matters between the parties and called the plaintiff a “manic depressive”, and told her she was “hopeless”. The defendant typed up a draft on his computer for a proposed property settlement. By November 1992 the plaintiff gave evidence that she was “in a bad way and was more depressed than she could remember.” She made a suicide attempt by running the engine of the car in the garage. It followed an unpleasant exchange between the parties. The defendant told the plaintiff that she could get out of the house. Subsequently, she saw Dr Bowles who prescribed Prozac for her. Dr Bowles saw the plaintiff up until May 1993, that is prior to the first assault pleaded.

This short history provides a background to the events which occurred on 5 June 1993. This version of events is not particularly controversial and I generally accept same.

3. Plaint No. 1786/96 - Assaults

It is convenient to deal with the allegations of assault in chronological order.

First Incident - 5th June 1993

In the Plaint it is alleged that the parties were in the kitchen of Enterprise Court on this date. It is alleged that there were no other persons present in the house. The allegation made by the plaintiff is that the defendant wrongfully assaulted her by hitting and pushing her with both of his hands and kicking her with both his feet several times on her mouth, face, arms, ribs and body, causing her to fall to the ground. The plaintiff had moved back into the said Enterprise Court by this time. The argument on 5 June 1993 occurred, the plaintiff said, at about 7 p.m. There were raised voices about the BMW being involved in an accident. The plaintiff said that the defendant struck her several times about the head and shoulders and she fell to the floor. She alleges that he then kicked her. When she stood up, she threw a pot plant after him which did not hit him, and it fell on to the tiles on the floor and broke. Soon after she rang her mother and asked her to come to the house. Subsequently, her mother, Mildred Heather King, attended at her home and gave evidence as to the condition of her daughter. When the plaintiff opened the door to her, Mrs King said that she observed the plaintiff to be red in the face, and crying uncontrollably, almost hysterically. She observed red welt marks on her face and scratches on the side of her face. She did not smell any alcohol or signs of alcohol. She did not smell any cigarette or marijuana smoke. She urged her daughter to call the police. She subsequently took her to a doctor's surgery. Apart from the defendant, she did not see anyone else at the house. She had arrived at the house at approximately 7.30 p.m. It is common ground that the plaintiff spent that evening at the house at Enterprise Court.

The Version of the Defendant and Mr. Monarch

The defendant gave a different version of events. The defendant said that it was planned for himself and the plaintiff and Mr Monarch to go to Moreton Island. The plaintiff decided that morning not to go. The defendant said he and Mr Monarch arrived back at about 5 p.m. and were back at the house between 6.30 and 7 o'clock. The plaintiff was sitting in the lounge watching television. It appeared that she had been smoking. The defendant believed it was marijuana. He also observed that she had been drinking. He suggested that she was affected by alcohol. Mr Monarch gave similar evidence, except that he did not believe that she was too drunk. He overhead the conversations when the defendant told the plaintiff not to smoke in the house, and the plaintiff's reply that it was “her house and she could do what she wanted”. He subsequently heard a heated argument. He heard the defendant say “put that down”. He got up and saw that the parties were struggling with a “plant pot”. He kept out of the way. He did not see any other violence. He heard the voices raised. He then heard something break. The defendant's version is set out at p. 340:

When asked why he moved so quickly to report a matter of that nature to the police, he said “Why did I? The intention was to shock Ms Host with regard to the marijuana, although I didn't mention that. It was just - I thought that behaviour warranted some kind of shock treatment”.

That explanation was not convincing. It struck me more as an attempt by the defendant to cover his tracks after having hit the plaintiff. Mr Monarch went up to his room after the fracas. He was not in a position to see the whole of the events in the kitchen. The medical evidence provides some support for the plaintiff's version of events. The plaintiff attended on Dr Colleen Dore at the 24 Hour Medical Centre at Redcliffe on 6 June 1993. Exhibit 46A (a) and (b) is a record of the notes:

In my view this evidence corroborates the plaintiff's version that she was struck by the defendant on the face. To that extent, I accept the version of the events given by the plaintiff on that evening that the plaintiff struck her several times about the head and shoulders and that she fell to the floor. There was probably a scuffle as she lay there. She got up and then she threw a pot plant at the defendant.

The result of this event was that the plaintiff was crying in a loud and uncontrolled way for many hours. She had a bad headache, and took medication. The plaintiff's mother came around and took her to the doctors the next day. A week or so after that assault there was some further talk about finalisation of property matters. The plaintiff denied that David Monarch had arrived at that stage. I do not accept the plaintiff's version of events in that regard as there are photographs of the parties at Noosa on or about 4 June 1993 which would seem to indicate that Mr Monarch had well and truly arrived. He stayed at the house throughout his visit to Australia. Mr Monarch gave evidence that apart from the incident in the kitchen on 5 June 1993 that he saw no evidence of violence or abuse between June 1993 and October 1993. He described the relationship as a reasonable one. I am prepared to accept the evidence of Mr Monarch in this regard. In relation to other matters, e.g. the plaintiff smoking marijuana and drinking, Mr. Monarch had given a statement to the solicitors for the defendant, but was willing to speak with the solicitor for the plaintiff, Mr. Pennisi. Mr Pennisi is now married to the plaintiff. Mr Monarch was an unsophisticated person who had never been involved in this litigious process before. He was taped by Mr Pennisi in a telephone conversation on 12 March 1998. In evidence, it was put as “1997” but Mr. Monarch arrived back in Australia in late 1997 (transcript p. 444). Therefore, it was probably in 1998 that he spoke to Mr. Pennisi. At one stage he decided to speak no further to Mr Pennisi on the grounds that he could “incriminate himself” given the statement that he had already made to Mr Daley, the solicitor for the defendant. I accept his evidence in this regard that he thought he had overstepped the mark in talking to Mr Pennisi for so long and wanted to end the conversation. Even though Mr Daley, according to Mr Monarch, had told him not to say anything to Mr Pennisi, the conduct of Mr Monarch in the circumstances was understandable. He spoke generally to Mr Pennisi about the trip to Moreton Island, the nature of the relationship and the poor eating habits of the plaintiff. He expressed the view that they only argued on one occasion as mentioned, and observed no physical contact, apart from that time. I find that Mr. Monarch was probably trying to support his long term friend the defendant in part of his version of events without particular regard to the accuracy of same. Some of his answers were tailored and in some respects are inconsistent.

Second Incident - 21 November 1993

In the pleadings, the plaintiff alleges that the parties were in the lounge room at Enterprise Court aforesaid. There were no other persons present. She alleges that the defendant struck her across the left side of her face with his right hand, causing her to fall to the floor and suffer facial pain and swelling and bruising to the right thigh.

The plaintiff went for a holiday in September or October 1993. After she returned she had a conversation with the defendant in the dining room at Enterprise Court aforesaid. It was a Sunday afternoon. The plaintiff said that the defendant came into the family room and said that he had some friends coming over and to turn the television off. The plaintiff refused to turn the television off and when she got out of her chair, he struck her on the left side of the face and strode away. She saw the defendant the next day but did not think she spoke to him. No medical treatment was sought.

The plaintiff then gave evidence that a neighbour, Bradley Chanter, came to her house on an occasion. Although her evidence in this respect followed the incident on 21 November 1993, I am not satisfied that Mr Chanter visited her house on that occasion. When one looks at his evidence, he said that he visited the plaintiff at her home with some mail which had been inadvertently delivered to his premises. He thought it was a Saturday as he had just got home from work. He did not work on a Sunday. He observed the plaintiff to have very deep red marks on her face. She appeared to be upset. He offered to help her but she did not accept his offer. She informed him that the defendant had gone out. He believed it was some time in the summer of 1993. The plaintiff has a type of skin problem viz erthema which causes red blotches or flushes from time to time on it. Dr Hamilton in cross-examination agreed that such marks on a person's face, forehead and cheeks could appear as the size of tennis balls. This is the condition I find that Mr. Chanter observed. One cannot be satisfied that what Mr Chanter observed related to any event as pleaded. It should be noted that the next event pleaded, namely 16 January 1994, was also a Sunday. The 5th of June 1993 was a Saturday. It seems more likely that this incident may well have occurred on some other occasion, possibly in summer, but on a Saturday. Mr Chanter seemed adamant that it was on a Saturday after he returned from work. The last event pleaded was on 6 February 1994 and that also is a Sunday.

It may well be that the plaintiff had been verbally abused by the defendant. Certainly her reaction to stressful situations seems to produce a skin flush. It may well have been that she had been abused or threatened by the defendant on this occasion, however I am not satisfied that it relates to any one of the assault events as pleaded. In any event, the “course of conduct” as alleged does not mean that the plaintiff can succeed. To the extent that the treats constituted an assault, she can. That is an act which gives rise to a reasonable expectation of immediate or apparent ability to carry out the threats: Wilkinson v. Downton (1897) 2 QB 57; Bunyan v. Jordon (1937) 57 CLR 1.

After this event on 21 November 1993, the plaintiff says that she was insulted from time to time by the use of foul language or use of such words as “fuck off, idiot”. In spite of this, the plaintiff assisted with planning the defendant's 40th birthday party. It seemed a somewhat elaborate affair on 18 December. The next day the defendant went overseas.

Third Incident - 16 January 1994

In the Plaint, it is pleaded that this incident occurred downstairs in the short hallway between the entry area and the kitchen at Enterprise Court aforesaid. There were no other persons present in the house at the time. It is alleged that the defendant assaulted the plaintiff by striking her across the bottom of the face with his open right hand, causing her to fall to the floor and to suffer pain to the bottom of her face and bruising to the left hip. No medical treatment was sought.

The plaintiff returned from overseas in early January 1994. He wanted to discuss financial arrangements and the plaintiff asked that her mother, Mrs King, be allowed to be present. He agreed to this. He was very authoritative and overbearing at this meeting according to the plaintiff. Mrs King, whose evidence I generally accept, confirmed that she attended for this meeting. She said that the defendant said that if he had to sell Enterprise Court, that it would be a “fire sale”. She said the plaintiff was very upset throughout the whole of this discussion. In her own words she said that the terms that were being put to the plaintiff were not acceptable to her. The defendant organised for the valuation of Enterprise Court with PRD Realty according to the plaintiff. Mrs Julia Dietz was a real estate agent with PRD. She gave evidence that she was formerly known as Julia Crook and identified Exhibit 9 which was a valuation of Enterprise Court aforesaid. She said it was the plaintiff who first contacted her to come and look at the property. In fact, it seems that the dealings with the parties were always through the plaintiff. The plaintiff said that the defendant was reluctant to share any proceeds from the sale of Enterprise Court. He would use such words as “fuck off’. Negotiations between the parties continued and they met at the office of Mr Daley, the solicitor for the defendant. The defendant had typed up an outline of the proposed settlement. It is reflected in Exhibit 5. The plaintiff said that she was not happy with the settlement proposal. On 16 January 1994, she said she was attempting to talk to the defendant about getting her full share of the property, which was about $70,000. She says the defendant grew enraged and called her “a fucking idiot” several times and walked off. This conversation took place in the kitchen. As he started to walk off she followed him and he turned around and struck her and she fell down and he struck her again. She attempted to grab his testicles which she says surprised him, and he got up and left. She said the first blow was to the side of the face and the second one to the shoulder. He used his open right hand. She spoke to him on three or four occasions after this incident on 16 January according to the plaintiff. He would either hang up or tell her to “fuck off”. She seemed to be still residing at Enterprise Court during some of these incidents but subsequently moved to Carina. She subsequently attended at Mr Daley's office in relation to Exhibit 5. Mr Daley had prepared a deed.

It is difficult to be satisfied that this assault occurred on 16 January 1994. The plaintiff was still negotiating with the defendant about property matters. It is surprising that someone with her intellect and determination would remain on the premises with the defendant if these events occurred. There is some psychiatric evidence that women become embarrassed and go into a state of denial about events in these circumstances. Accepting that as a possible theory for her attitude, having viewed the plaintiff in this case, I cannot be satisfied that these events occurred as she described, except to the extent that they can be corroborated in some way. There may well have been occasions where the defendant has verbally abused the plaintiff, given the breakdown of their relationship. This may well have affected her in a psychological sense and that aspect will be dealt with later in these reasons. However, as discussed, mere threats or abuse are not actionable.

Fourth Incident - 6 February 1994

The subject deed in this case was signed on 18 February 1994. In the pleadings it is alleged that on 6 February 1994 at Enterprise Court aforesaid, the defendant wrongfully assaulted and beat the plaintiff by striking her with his open right hand across the side of her head, causing her to suffer pain to the side of the head. She said that she was too scared to have a legal fight with the defendant and did not have the money for a legal fight, or the energy. She said that the defendant always made it very clear that if he had to sell Enterprise Court there would be a fight.

The plaintiff was at Enterprise Court until 12 February 1994. In describing the incident on 6 February, she said she was playing some music on her CD and the telephone rang. He asked that she turn the music down, which she did, and she mistakenly thought after a while that he was off the phone. Unfortunately this was not the case and he said “I told you to turn that music down” and slapped her across the face. He used his open right hand. She fell over. She stated that this event occurred before she signed the deed.

4. CREDIBILITY ISSUES

1. Plaintiff

It was submitted by the defendant that the plaintiff cannot be accepted as a witness. The following matters were referred to as evidence of this:

Medical certificates were obtained by her from doctors (exhibits 26,28, 29 and 30) which certify her as being unfit for work from 27 January 1995 to 25 March 1995. The accident report form (exhibit 24) - this provides a similar description to a letter from the plaintiff dated 1 February 1995 to the Principal of the Brisbane School of Distance Education, Mr Rasmussen (exhibit 27). She states as follows:

In a letter of 17 March 1995 (Exhibit 31) the Workers Compensation Board requested further details and asked whether there was any other factor which could have caused or aggravated the plaintiff's condition. In response to that letter the plaintiff provided a detailed statement (Exhibit 32). It was prepared in consultation with her then de facto and present husband a solicitor Mr Pennisi. He was acting for her at the time. The claim made no mention of the difficulties which arose from the relationship with the defendant.

2. Report from Miss Hallam, Psychologist (Exhibit 33).

The plaintiff did not make any mention of any assault by the defendant or his having abused her. It is submitted by the defence that these matters are not explicable upon the footing that the plaintiff was in a “denial phase” in terms of the cycle described by Dr Hamilton in the transcript at page 261.25 nor on the footing that she was too embarrassed to make mention of them. It must be recalled that the plaintiff did make mention of that fact to Mr Sabdia, the solicitor, when she saw him in or about June 1993. The plaintiff's counsel explained this away by saying that although she was prepared to mention it on one occasion she was not prepared to repeat the allegation when it occurred on subsequent occasions. If that be the case why then did not she mention it at least to the psychiatrist or the psychologist on at least one occasion? I am satisfied that at least in relation to the assault on 5 June 1993, that the plaintiff did not mention that event in her workers compensation claim as it would not have been in her best interests to so do. It is not necessary to decide whether Mr Pennisi who acted for her at the time was in a position to know all the facts.

3. The Defendant

The defendant denied that he assaulted the plaintiff on any occasion. In relation to the incident on 5 June 1993, reference has been made to his version of events. Needless to say, I found his version of events on this evening inconsistent with the medical evidence. He described an incident which involved a physical confrontation with the plaintiff e.g., he admits she threw a pot plant at him.

Because I reject the plaintiff's evidence in relation to the other assaults on the balance of probability, it does not mean that I accept totally the defendant's evidence. Obviously there was a volatile relationship between the parties which involved ongoing verbal abuse, one to the other.

On 5 June 1993, I find that the defendant realised that he ought not have hit the plaintiff and rushed off to the police station to “get in first”. This action by him reflected a panic reaction. I find, on occasions he abused the plaintiff in a threatening or overbearing manner. The evidence of Mrs. King, a credible witness, supports this finding. I specifically reject his evidence and that of his friend, Mr. Monarch, that the plaintiff was smoking marijuana and affected by alcohol on 5 June 1993. This was a clumsy attempt by the defendant and Mr. Monarch to discredit the plaintiff. Mrs. King was adamant that her daughter was not affected nor could she smell smoke.

The defendant even denied Mrs. King was there that night. His subsequent conduct in going to her home on 5 October 1996 (transcript 207.30(f) and the letter of 20 November (Exhibit 52) reflects adversely on his credit. The former was an attempt to harass Mrs. King as a possible witness. The latter was an attempt to discredit her.

The affidavit of the defendant, filed in the Supreme Court and sworn on 17 May 1990 did not paint a full picture of his financial position. It was filed on an application to remove the caveat lodged by the plaintiff on Enterprise Court. There were other aspects relating to the tenancy at Carina and applications for finance which also reflect adversely his credibility.

This is a case where one could not act confidently on the evidence of either party except to the extent that there is reliable corroborative evidence. Dr. Dore and Mrs King provide such evidence in relation to the incident on 5 June 1993. The defendant's denial in this regard is therefore rejected. Mr. Monarch in any event was not in a position to see all of the events in the kitchen that evening. His evidence, limited as it was, should be seen as a poor attempt to help the defendant.

4. Statements to Dr Hamilton and Dr Mulholland

The plaintiff told Dr Hamilton that there was no previous history of stress related claims. When Dr Hamilton was made aware of a claim no details were supplied in relation to it. For example, exhibits 25-29 and exhibits 31-33. Dr Mulholland was not told at any stage of the stress related workers compensation claim from January 1995 (transcript page 21.8). It seems remarkable that the plaintiff attempted to compartmentalise her life by not revealing her previous alleged traumas with the defendant. Both Miss Hallam and Dr Hamilton were retained by the plaintiff for assistance. There are other matters raised by the defence which satisfy me that the plaintiff is not a credible witness. For example:

I have not dealt with all of the submissions of the defence in this regard but have reached the view that I am not satisfied on the plaintiff's evidence that the incidence of 21 November 1993, 16 January 1994 and 6 February 1994 occurred. There is no corroboration of those events. There was no subsequent complaint made to any medical practitioner in relation to same. In the absence of such evidence, and on the balance of probability, I am not prepared to find that the events occurred as detailed. The plaintiff's case as established refers to the one incident on 5 June 1993 and some later verbal abuse. The details of the pain and suffering as a result of that have been referred to previously. It may well be that the defendant from time to time did abuse her with the use of words as described and this I am satisfied occurred. The reason for making that finding is that Mrs King supports the plaintiff's evidence to that extent of an abusive attitude. I am satisfied that on several occasions that the defendant did say to the plaintiff “fuck off idiot” or “you fucking idiot” or making adverse comment about her career and intelligence.

5. Similar Facts

The plaintiff's counsel opened a case in relation to calling similar fact evidence. He said that he would call a former spouse of the defendant, Catharina Theodora Rynja. It was suggested that the evidence would establish similarity between the relationship between Ms Rynja and the plaintiff in the following areas:

It is necessary to look at the evidence before determining whether this evidence in fact can be admitted. The question was reserved at trial. In 1985, Ms. Rynja was 29 years of age when she met the defendant. She was virgin at the time. They later attended a barbecue in late 1985. They went to dinner with a group on Valentines Day. On the second occasion that they went out he had oral sex with her. The following Easter he visited her in Townsville and they had sex. They were engaged on 12 July 1986, that is, nearly twelve months after their first meeting. The pre-engagement period was somewhat tumultuous with an on again off again relationship. Within two weeks after being married, the defendant wanted to divorce her. During the honeymoon, he verbally abused her and made her feel like an idiot. He said that “for someone who is so smart with all your degrees, you are not very bright”. I have accepted that he made similar comments about the plaintiff when she was living with him. The verbal abuse got worse as the marriage continued. He would often say “What's in it for me”. Ms Rynja seemed a refined lady who enjoyed studying, going to the theatre and playing sport and travelling. After some months in a unit they moved to Alexandra Hills in or about Easter 1987. By November 1987 he wanted to sell the house because of another development by the Queensland Housing Commission. On one occasion in 1987 he elbowed her forcibly in the chest. At the end of 1988 when her parents were visiting her, Ms Rynja said that she was talking to him about plans for her parents, and then all of a sudden he punched her in the mouth and gave her a fat lip. When she confronted hm about it the next morning, he said “Yes, and if you don't shut up I'll give you another one again”. On another occasion in 1988, about a week before Mothers Day, he all of a sudden jumped on top of her and started strangling her. He then got off and she asked what was happening. He grabbed a wooden twine container and threw it at her, hitting her in the eye. She received a black eye from that incident. As a result of this relationship she became miserable and cut herself off from family and friends. She was too ashamed to tell them what was happening. After living with her sister for a few days, the defendant and her reconciled and went on holidays to Noosa in December 1987. Both he and his daughter were on this holiday. They seemed to ignore her during this holiday. At about Easter 1988 the parties moved into the premises at Swanson Parade, Carina. They separated from December 1989 until April 1990. They got back together again and he talked about having children, and the defendant said that “if we got back together that would be something that would happen”. During the time that they were separated, the parties talked about financial matters. The defendant wanted her to sign an overdraft facility with the Metway Bank and she declined. When they got back together, and in view of the nice way in which she was being treated, she signed the papers. As a result of that the defendant obtained an overdraft facility with Metway. During this relationship the defendant's business, Australian Diversified Engineering Pty Ltd was commenced. Ms Rynja was supposed to have got 5% partnership by way of shares. It was in about 1988. They stayed together until 17 September 1990. During the period from August to September 1990 the defendant was abusive to her. When he did talk to her he would verbally abuse her. She saw a solicitor in September 1990. She also rang the Metway Bank and cancelled the transactions on the Metway account as two signatures were required. She was not kept informed as to how the company was running. She was not told about any of his other assets. Shortly after writing to the Metway Bank, the defendant sat down with her and outlined a property settlement. He was very business like in his settlement proposal. This was in or about September 1990. The defendant said to her that his solicitor has said “Why is she being so stupid”. After being told by Ms. Rynja on the telephone about the cancellation of operations on the Metway account, the defendant swore considerably. He hung up and then rang a few minutes later and proceeded to abuse her further. That evening he came in and said that he was going to make life very hard for her around the house. He then got a large tumbler glass and threw it at her. It hit the wall and smashed. She said that if he threw anything at her again she would call the police. He then appeared in the hallway with a very angry look on his face and threw the television remote control at her and hit her in the ribs. It hurt her considerably and gave her bruised ribs. By this stage she was frightened, ran into the bedroom and then got out through a window. She rang the police from the neighbour's property. When the police arrived the defendant looked very surprised and asked the police whether they had a search warrant. Ms Rynja then got her belongings and left.

At the outset of the relationship, she borrowed $8,000 in October 1986 to go on a honeymoon. For the business she took out a further $8,500 loan. This was settled upon when the parties resolved their property differences.

Throughout this period Ms Rynja was employed as a teacher earning some $35,000 a year. The parties kept a joint account to pay for outgoings. Ms. Rynja presented as a reliable witness, and I accept her evidence.

It was submitted on the part of the plaintiff that the points of similarity do not have to be “materially identical”, merely “strikingly similar”. The frequency of the domestic violence it was submitted was ample evidence of a pattern of behaviour on the part of the defendant whereby he sought to use violence as a means of “bending each of the women to his own rule”. The plaintiff's counsel referred to Hoch -v- Queen (1988) 165 CLR 292 at 296.

Counsel relied on the following passage:

The submission was made that similar fact evidence is admissible if it is “logically relevant”; “logically probative” that is constitutes “circumstances raising a more probable inference in favour of what is alleged”. Reference was made to various decisions including Sheldon v. Sun Alliance Aust Ltd (1989) 53 SASR 97. It was submitted that purported similar fact evidence in a civil trial which goes no further than showing a general disposition is not admissible. I have reached a view that the evidence in the present case may show a general disposition on the part of the defendant in this case but is not therefore admissible. I am not satisfied there are such “staking similarities”, “a strong degree of probative force” or “a real nexus between the evidence and the fact in issue”. See Zaknik Pty Ltd v. Svelte Corporation (1995) 61 FCR 171 at 176. For similar reasons, the evidence of Miss O'Neill who was previously married to the defendant and who gave evidence that no physical force was used by the defendant during their relationship is also inadmissible.

In the event that the decision to exclude the evidence is wrong, it may be argued that the finding in relation to the plaintiff's credibility was incorrect as the similar fact evidence would have assisted in this determination. Where there is clear evidence which attacks the fundamental credibility of the plaintiff, the use which can be made of similar fact evidence in a case of that nature is somewhat limited. In the present case, save for the fact that the first assault was corroborated by the medical evidence, I would not have been prepared to accept the plaintiff's credibility for the reasons already outlined. It does not follow that if there is evidence of similar facts that one is obliged to accept the evidence from the principal witness, in this case, the plaintiff. In so deciding, I have taken into account the statement of principle in T & T Management Pty Ltd v. Brookes (1979) 53 ALJR 267 at 269.

6. Action 1796/96 Assessment of damages - Plaint 1786/96

The plaintiff's personal details, the nature of the medical evidence accepted and the nature of the assault on 5 June 1993 and the several occasions of abuse have been referred to. Counsel for the plaintiff, in his helpful submissions, submitted that the range of the award should be between $25,000 and $40,000. He referred to the fact that both compensatory, aggravated and exemplary damages are pleaded. In view of the fact that I do not accept all the evidence of the psychiatrist, Dr. Hamilton, the damages have to be therefore limited under those heads of damage. I would assess general damages for pain and suffering and loss of amenity at $20,000. This includes any trauma generated by the litigation and the time it will take to recover from the ordeal.

In view of the findings, a nominal global figure has to be allowed in relation to these matters. I allow the sum of $1,500. It is accepted that that is an arbitrary figure in relation to which exact mathematical calculation seems impossible in this case.

Summary

7. Action 1796/96 (Formerly Writ 945/96)

In the Amended Statement of Claim, the plaintiff seeks to set aside the deed dated 18 February 1994. It is alleged that the plaintiff's execution of the deed and delivery of same was procured by duress and undue influence of the defendant. In argument, the plaintiff relied upon economic duress and has sought leave to amend the pleading if it is necessary. In my view it was necessary to be more specific in this regard and leave is granted, despite objection (Exhibit 60). It is convenient to set out therefore the following pleading with appropriate underlining.

I am satisfied that the defendant in this case has established that the conduct of the defendant as at 5 June 1993 and the subsequent limited verbal abuse contributed nothing to the plaintiff's decision to sign the deed on or about 18 February 1994. The reasons for this are as follows:

Even though as Mrs King said, the defendant may have been firm in his dealings with the plaintiff, he was willing to make changes to the deed which were not in his interests. The plaintiff was not in a position to take over the mortgage of Enterprise Court. I am satisfied that the plaintiff acted independently and that she was in a position to exercise a free judgment based on the facts as existed at the time. Mrs. King said she knew that her daughter was not really accepting of the original proposals. However, later changes were made. Mrs. King was talking of the January 1994 meeting. As found, there was over six months since any violence had been perpetrated upon her. Although the defendant may have been more eloquent in his statement of the facts, it does not follow that as a matter of law he occupied a position of ascendancy or power over her which would have reduced her to a state of subjection. The psychiatric evidence in this regard is not helpful in view of the findings referred to. Any diagnosis by Dr. Hamilton, for example, is flawed by the failure of the plaintiff to prove the substratum of facts relied upon for that opinion. The plaintiff had gone to seek independent advice and in fact the solicitors had certified to the bank that such independent advice had been given. The plaintiff's counsel argued that that is only relevant in relation to her dealings with the bank. Even accepting that to be the case, the solicitors, on the plaintiff's instructions, had made changes to the agreement which would evidence to any thinking person that she had had an effective role in determining the terms and conditions of the agreement. This may offer one explanation as to why neither Mr. Sabdia nor Mr. Sinclair could say that they had given her independent advice about each and every clause. Some six months elapsed between visits to them and the net result was that she had improved her position.

Legal Principle - Duress and Undue Influence

In Equiticorp Financial Services Ltd (NSW) v. Equiticorp Financial Services Ltd (New Zealand) (1992) 29 NSWLR 260, Giles J referred to various cases. In Chrisendo Management Pty Ltd. v. Westpac Banking Corporation he cited McHugh J A at 46 as follows:

Giles J also referred to the dissenting speeches of Lord Wilberforce and Lord Simon in Barton v. Armstrong (1973) 2 NSWLR 598. In Pao On v. Lau Yiu Long (1980) A.C. 614, the Judicial Committee accepted at 635 that the observations of Lord Wilberforce and Lord Simon in Barton v. Armstrong were consistent with the majority judgment in that case, and represented the law relating to duress. That principle is stated as follows: (634)

Barton v. Armstrong (1973) 47 ALJR 781 is a case where it was alleged by Mr Barton that death threats had been made against his life and that those threats were made by Mr Armstrong or his agent. The Privy Council, in dealing with cases of duress, said that if Armstrong's threats were a reason for Barton's executing the deed, he was entitled to relief even though he might well have entered into the contract if Armstrong had uttered no threats to induce him to do so. The High Court said that there was no onus upon Barton to establish that he would not have made the agreement but for Armstrong's threats. On the contrary, it was held that Armstrong had to establish, if he could, that the threats which he was making and the unlawful pressure which he was exerting for the purpose of inducing Barton to sign the agreement and which Barton knew were being made for this purpose, in fact, contributed nothing to Barton's decision to sign. I apply this onus to the defendant in the present case.

In determining this question, one could glean from the judgment that the following matters ought to be considered:

Jacobs JA in the Court of Appeal (1973) 2 NSWLR 598 at 613 said:

It was submitted that the basis of the jurisdiction is a prevention of an unconscientious use of any special capacity or opportunity that may exist to arise effecting the will or freedom of judgment. It may be proved by showing that the transaction was the outcome of such an actual influence over the mind of the party complaining that it cannot be considered the free act of that person: Johnson v. Buttress (1936) 56 ELR 113 at 134 (per Dixon J). Counsel for the defendant submitted further that the relationship of de facto partners is not one where equity presumes influence: see Cope “Duress, Undue Influence and Unconscientious Bargains” 1985 Law Book Co at paras 182 and 185. The onus is upon the plaintiff to show actual influence. The plaintiff disclaimed any actual duress. See transcript p. 45, line 10 and p. 133, line 42 to page 134, line 14. Various matters are referred to in this written submission of the defendant at para. 34. For convenience, both the submissions of counsel for the plaintiff and counsel for the defendant will be placed with the file. Many of those matters have already been dealt with previously. The fact that the plaintiff had had some misgivings about part of the agreement (see Exhibit 48), does not assist her. It shows acquiescence on her part. There was no complaint made for almost two years after the execution of the said deed. Mr. Sabdia gave evidence that he explained the import and effect of clauses 11 and 12 of the deed. In effect, the plaintiff acknowledged to her solicitor that she was acting of her own free will and had been afforded the opportunity to obtain legal advice. In all the circumstances, and considering the medical evidence discussed elsewhere, I am not satisfied that a case of duress or undue influence is made out.

Nature of the Deed

It is probably convenient to look at the nature of the deed at this stage and what is, in fact, the net position of the parties as a result of that agreement. A summary of the relative contribution is set out in the submissions of the defendant as follows:

It is submitted that this disparity is not a basis to cause a Court of Equity to intervene, especially after the plaintiff's delay of two years. I accept that submission. For reasons which will be dealt with shortly, the valuation of $385,000 for Enterprise Court is acceptable as a basis for these calculations. The plaintiff's counsel, in his submissions at p. 22 and 23, has an amount of $57,439.42. However, that took into account some costs of sale and earlier penalty payout figures which I am not prepared to accept as valid discounting of the amount the plaintiff received as the defendant, if he had followed a similar procedure, would have incurred other costs on his property if he elected to sell. The plaintiff had the option to live at Carina.

The valuation of 24 Enterprise Court

Ms Julia Deitz, formerly Ms. Crook, who was a real estate agent who had worked in the Newport/Scarborough area for some three years, gave to the parties a letter dated 12 January 1994, being Exhibit 9. In that she stated that in her opinion, “the current worth on today's market is in the vicinity of $380,000”. Mr. Schulz from Raine and Horne Valuations, although an inexperienced valuer, arrived at a valuation of $385,000 as at 18 February 1994. The plaintiff called Mr. Stanaway. He gave evidence that in his opinion the valuation at that time was $417,500. (Exhibit 3). Mr. Stanaway considered the sales at 11 Eagle Court and 34 Constellation Court to be the most relevant. As pointed out by Mr. Schulz, Eagle Court had a larger area of land than the Enterprise Court. The Constellation Court property was a larger dwelling and had a swimming pool and was not burdened with an easement. I am not satisfied that Enterprise Court was worth at least $420,000. The opinion of Ms. Deitz, (formerly Cook) was one given as a genuine valuation of what that property was worth in that market at the time. The fact that subsequently that opinion was justified is further support for the validity of that opinion. Mr. Schultz approached the matter in a most professional like manner and was able to justify his opinion. The weight of the evidence is in favour of finding that the property had a value as at 18 February 1994 of $385,000. The fact of the matter is that the plaintiff gave evidence that she was aware that the range was between $380,000 and $420,000.

Fraud or Deceit Action

The plaintiff has maintained her allegation of fraud against the defendant. This was somewhat mystifying in view of the plaintiff's evidence referred to. The defence case is that the valuation of $380,000 was true, or that the defendant had no reason to doubt the accuracy of same. When this deed was signed, the parties were in possession of the opinion of Mrs. Deitz. As with other figures, it was open to the plaintiff to challenge same. She did not do so. The defendant did give a valuation of $420,000 to his bank in November 1993. It may be that he was aware of the range of the value of the property and used the higher valuation with a view to impressing his bank. It does not follow from that that therefore he is guilty of fraud as against the plaintiff. As he pointed out, the bank would value the property in any event. There was no reason for the defendant to doubt the validity of the opinion given by Ms. Deitz and it could not therefore be said that he had acted in a reckless or an indifferent manner. It is quite clear that the plaintiff's case alleging fraud and/or deceit has no justification whatsoever.

Unconscionable Conduct

In paragraph 13 of the amended Statement of Claim, the plaintiff alleges that the conduct of the defendant referred to in paragraph 7 to 11 thereof was unconscionable. In Paragraphs 7 to 11 referred to previously as being the amended pleading (Exhibit 59), the valuation of Enterprise Court at $380,000 is alleged when in fact it was worth $420,000 and thus the allegation of fraud.

The elements of unconscionable conduct are:

It is submitted by the plaintiff that it is not essential that there be proof of undervalue in the transaction sought to be impugned; that is, that there was a loss suffered by the weaker party. The proposition is that evidence of undervalue may be, not must be, a hallmark of unfairness. The plaintiff's counsel relies heavily on the evidence of the assault of 16 January 1994 and the events which occurred thereafter when the plaintiff discussed matters with him. I have specifically found that I am not satisfied on the balance of probabilities that the assaults which the plaintiff described as having occurred on 16 January 1994 and 6 February 1994 occurred. I have further specifically found that the valuation of $385,000 was fair and reasonable and that the plaintiff was well aware on her own evidence that the range of the value of the property was between $380,000 and $420,000.

Justice Deane in Commercial Bank of Australia v. Amadio (1982-3) 151 CLR 447 at 475 emphasised:

Although that is not essential, it is submitted by the defence that the modest disparity between the valuations tells against it being “not consistent with equity in good conscience” to relieve the parties in the position agreed by them after, at the very least, the opportunity to obtain legal advice or, at most, actual advice to the settlement deed. It is further submitted that the plaintiff relies on the evidence of the state of relationship to show that she was at a special disadvantage, or that her will was overcome. I accept the submission of the defence in this regard that the case in those respects was not made out by the plaintiff. The findings that I make are as follows:

By itself, it would not be a basis, in my view, for a court of equity to intervene.

In reaching this conclusion, I have had regard to various principles and the negotiations between the parties. The question of unconscionable dealing and undue influence were discussed in Commercial Bank of Australia v. Amadio (1982-83) 151 CLR 447. Justice Deane, at 474, stated:

Further, at 480, Justice Deane stated:

Negotiations Re Deed Ex 12: 18 February 1994

The plaintiff moved to 23 Swanson Parade, Carina on 12 February. Prior to 18 February 1994, there had been visits to the solicitors and discussions. Mr Rafit Sabdiagave evidence that he was a solicitor employed by Nicol Robinson and Kidd in June 1993. His father was the defendant's accountant. The plaintiff had approached him originally at that time about a draft agreement which was Exhibit 6 in these proceedings. The plaintiff told him that she had agreed on these matters with the defendant and asked Sabdia to take care of the commercial side of it. He suggested that she meet with Mr Sinclair who was a family law partner at Barry and Nilsson. She met with him and the agreement was clarified and re-typed.

Exhibit 5 was a basic heads of agreement which the parties had discussed originally. Exhibit 6 seemed to be a more formal document drawn up by Mr Daley and presented by the plaintiff to Mr Sabdia. Even then there were changes as reflected in the final deed (Ex 12). For example:

Mr Sabdia gave evidence that the plaintiff did not present as a distressed or a battered spouse. He said she was always well presented and calm.

On 21 June 1993 the plaintiff wrote to Mr Sabdia saying that the parties were still discussing the proposed deed and the draft may be dropped off the following week. By letter of 6 July 1993, Mr Sabdia referred to a telephone communication and noted that the plaintiff and the defendant were “presently reconciling their differences”. Exhibit 6A is a copy of the draft prepared by Mr Daley with some changes made by the plaintiff, including reference to the $8,000 contribution in relation to the BMW and the $53,000 which included $45,000 for the house and $8,000 for the car. Exhibit 6A was produced to Mr Sabdia by the plaintiff when she first visited him in June 1993. The draft, Exhibit 6B, was discussed between Mr Sabdia and Mr Sinclair after the latter met the plaintiff. Each of them had made changes upon same.

Mr Sinclair, the solicitor, gave evidence that he saw the plaintiff on 4 February 1994. He spent some 22 minutes with her. He said it was unlikely that the final draft, namely Exhibit 12, would have been produced on that occasion, but that the work had probably been done before hand. The plaintiff's counsel was attempting to show through the witness. Mr Sinclair, that perhaps the plaintiff had not received independent substantive advice in relation to the agreement. Mr Sinclair could not remember giving advice in this regard. What is important is that various changes have been made to the original draft submitted by the defendant to Mr Daley and then Mr Daley to the plaintiff, and moreover her solicitor. Substantive changes were made, and some in the plaintiff's favour. Since seeking the assistance of Messrs Barry and Nilsson in June 1993, the plaintiff had over seven months to consider her position. It could not be said that she rushed into the transaction.

By letter of 18 March 1994, Barry and Nilsson wrote to the plaintiff, setting out the details of the settlement. I note that in part of that letter there was a certificate of independent legal advice sent to the State Bank of New South Wales. Neither Mr Sabdia nor Mr Sinclair could remember giving independent legal advice in relation to the details of the transaction. Certainly Mr Sinclair as a family lawyer was not asked to appraise the fairness of the settlement as he took no details relating to same.

8. Nature of Medical Evidence

The plaintiff saw her general practitioner, Dr Cameron, in August 1992. Exhibit 13 is a summary of the relevant consultations had by the plaintiff with Dr Cameron. It continues through until August 1996. Throughout the same period, the plaintiff had occasion to visit many other general practitioners. Exhibit 19, for example, has attached to it the extensive number of consultations had by the plaintiff with not only general practitioners, but specialists. In fact, Dr Mulholland remarked about the unusual number of such consultations. No adequate explanation is given by the plaintiff or any other witness as to why it occurred. One might draw the inference that the plaintiff sought other drugs to assist her. In any event, it probably reflects an unstable period of her life. The day that she left the defendant, namely 12 January 1994, she received a referral from Dr Cameron to a plastic surgeon. It appears that she had such surgery on a couple of occasions. The early history shows a problem with her mental stability. Reference is made on 15 October 1992 to repeat Valium scripts in reference to a family history of nervous breakdowns. By 5 November 1992 she was diagnosed as being chronically depressed because of domestic difficulties. She was seen by Dr John Bowles, a psychiatrist, and prescribed Fluoxetine. Long term psychotherapy was recommended. Before dealing with Dr Bowles' evidence and report, it should be mentioned in passing that the plaintiff attended Dr Cameron on 7 June 1993 but he did not deal with any of the specific injuries dealt with by Dr Dore on 6 June 1993. The plaintiff attended him for some advice about anxiety and recurrence of depression. In fact, the history both before and after the incident on 5 June 1993 was one of drug dependency. The fact of the matter is that this continued well after the separation of the parties.

In all the time that Dr Cameron saw the plaintiff, he had not been told of any alleged abuse nor was he required to provide treatment of any injury. The only incident that he was aware of occurred on 5 June 1993. This was as a result of a report dated 6 June 1992 from Dr Dore to Dr Cameron. In the four months from June to October 1993, the treatment related to stress, anxiety and mild to moderate depressive symptoms. He saw her on 2 December 1993 when she reported a fall at home and bruising of the right thigh. There was no indication from the plaintiff that this related to any abuse.

In his report dated 20 March 1996 (Exhibit 45), Dr Bowles said he saw the plaintiff on eight occasions, from 18 November 1992 through to 12 May 1993. Initial complaints for consideration were depression, fragile self regard and problems in the de facto relationship with the defendant. Her stress was not related to any physical abuse, but from the perception that he was not sufficiently sensitive to her emotional status. Dr Cameron, in cross-examination, could not say one way or the other whether her depression pre-dated the relationship with the defendant. When Dr Cameron saw the plaintiff on 21 July 1993, it was in relation to a refund for her HECS fees, as she did not intend to proceed with her studies that semester. The plaintiff agreed that by 21 June 1993 she had reconciled her differences with the defendant. It was after that that she and the defendant put the resolution of their financial matters on hold. These matters are mentioned, as they touch upon the ongoing effect of the relationship upon the plaintiff For example, in a report dated 7 February 1994, Joy Hallam, a psychologist employed at the Queensland Teachers Union Health Society, wrote to the Director of Human Resources, Education House in relation to the plaintiff. The plaintiff had appealed against a transfer to Holland Park High School. Ms Hallam made reference to the history of vocal nodules suffered by the plaintiff. She suggested that voice damage would occur if the plaintiff were placed in a regular classroom setting, as evidenced by the report of Dr Perry. Ms Hallam referred to the plaintiff's depression symptomology of loss of appetite, insomnia, chronic tearfulness, negative thinking, low energy and poor concentration. The plaintiff launched a stage 3 appeal objection on 20 December 1994. She said that the permanent medical condition from which she suffered, namely her voice problem, was caused by her occupation as a teacher and exacerbated by the appointment to mainstream teaching. In an accident report form dated 2 February 1995, the plaintiff says that the “accident” was “high stress and anxiety with depression which developed after I was informed of the displacement of my normal work position, contrary to previous advice that I remain at BSDE performing my normal duties”. No mention is made of any private trauma caused by the defendant (Exhibit 24). Further, in a Workers' Compensation form dated 30 January 1995 (Exhibit 25), the plaintiff said that the person responsible for her “injury” was the Metropolitan East Educational Regional Office. Medical certificates were issued in early 1995 stating that work related stress was the cause of her difficulties. Her claim was subsequently successful. In supporting her claim, the plaintiff was asked by the department what events contributed to her condition (Exhibit 31). In a detailed statement (Exhibit 32) the plaintiff made no mention of any personal problems concerning the defendant. She set out the work history and the appeal process and the nature of her employment as the causes of her medical condition and consequent anxiety state.

It is probably necessary to analyse the evidence of the two psychiatrists, Dr Hamilton and Dr Mulholland, in order to determine the on-going causes of the plaintiff's anxiety and stress. Dr Hamilton says that the enduring consequences of the assaults has caused her condition to become chronic and associated with stress related exacerbations and fluctuations. She could not identify any pre-trauma nor underlying factors which would have pre-disposed her to the development of the adjustment disorder with anxiety which she diagnosed. She expressed the view in her report (Exhibit 1) that “ongoing financial deprivation with the inequitable dissolution of their financial arrangements, the pending injuries claim, and her dependencies have served to perpetuate her disorder. Dr Hamilton made the following points:

Dr Mulholland gave evidence and his report is Exhibit 2. In his report he said:

In effect, the psychiatric evidence is of limited assistance given the findings on credibility. The opinion of Dr Hamilton is of limited relevance. I prefer the evidence of Dr Mulholland that the plaintiff may have suffered psychiatric symptoms independently of the relationship with the defendant.

In all the circumstances I am not satisfied that there was any duress or undue influence or unconscionable conduct on the part of the defendant which would warrant setting aside the deed.

9. Effects of the relationship, if any, with the defendant on employment prospects

The plaintiff's case was that because of the stresses caused by her relationship with the defendant, and moreover the assaults and verbal abuse, the plaintiff was transferred from her position with the Brisbane School of Distance Education. Accepting for the moment that the relationship was a cause of her health problems, one has to then determine whether that in fact resulted in economic loss as a result of lost employment opportunities. It is convenient to look at Exhibit 11 which is a history of the History of Earnings Prior to Trial. It will be recalled that the plaintiff met the defendant in 1991. The following appears as a summary in Exhibit 11:

Evidence was given by Ms Anne Sutton who was at all material times the Principal at the Human Resource Management at the Brisbane School of Distance Education. She gave evidence that the plaintiff worked part time in 1997, two days a week. The plaintiff was on leave for long service and special leave in 1997, and for part of 1996 was there for two days a week. In 1995 she was working full time. In 1994, whilst at the school, the plaintiff was subject to a transfer at the end of the year which she appealed. It took sometime for the three stages of appeal to be heard. The plaintiff ended up back at the school in 1995. She had been a resource teacher and special needs teacher during the period at the Brisbane School of Distance Education. Ms Sutton referred to the difficulties the plaintiff had with her voice in the 1980's. Ms Sutton was somewhat glowing in her reports of the plaintiff's initial contribution, particularly in relation to organisation skills relating to the special needs group. She gave her evidence in a most balanced manner. By 1993 Ms Sutton recommended to the school executive “that we allocate one of the heads of department to deal with special needs”. The plaintiff was invited to join the special needs group because of her capacity to work. During that time Ms Sutton saw the plaintiff. A review was done in 1997 in relation to the performance of staff throughout the period 1993 to 1997. In her dealings with the plaintiff. Ms Sutton said that she had complained of headaches and she had more than normal absences during that time. She was aware of the plaintiff's voice problem, but the plaintiff was able to cope with telephone attendances in the course of her work. Ms Sutton was required to speak with the plaintiff about her absences. The plaintiff was on the brink of tears on the occasions that Ms Sutton spoke to her. She was not told of any problem in relation to her domestic situation. It should be observed that many people have problems at home which cause them to be upset. The cause of the problem is not always actionable. The breakdown of a relationship often causes trauma for both parties. A decision had to be made in relation to a transfer from that section. Ms Sutton gave evidence of the procedure involved in relation to her transfer and the appeal process. In November 1994, Ms Sutton recommended that the plaintiff be transferred. The competition for the particular position that was available was from a Ms Janet White. The plaintiff said that because the plaintiff's performance had not been satisfactory and in comparing her with Ms White, Ms White was chosen to stay. Ms Sutton did not say that the plaintiff's performance was such that it had diminished to an unsatisfactory stage. In cross-examination, Ms Sutton conceded that Ms White was better qualified than the plaintiff. This was apart from issues of work performance and the plaintiff's emotional state. Ms White gave the department more options in terms of services.

I am not satisfied that any emotional problems from which the plaintiff was suffering at that stage which were related to the June 1993 assault and verbal abuse, contributed in a material way to her not holding the position with the department at the Brisbane School of Distance Education. In any event, the evidence from the psychiatrist would seem to indicate that with a lapse of time the domestic problems with the defendant would have been playing a lesser role. I find this to be more so in this present case. All differences of opinion between the plaintiff and the defendant are not actionable. The plaintiff's own statement (Exhibit 32) supports the view that the plaintiff was able to compartmentalise her personal life at home from that at work. She at no stage in the relevant material referred to her relationship with the defendant as being a cause of distress in her employment, certainly as at 12 April 1995. I am not satisfied that the plaintiff has suffered any economic loss as a result of the assault on 5 June 1993 or the related verbal abuse.

10. Defences

Even if the plaintiff had otherwise been entitled to set aside the deed on the grounds of undue influence, duress or unconscientious bargain, there are factors which would concern a court before making such an order.

Laches and Delay - Paragraph 10 Defence

Any other allegation of duress or undue influence ceased no later than 12 February 1994 when the plaintiff left Enterprise Court, Scarborough. The plaintiff does not allege any assault after 6 February 1994. The latest incident of verbal abuse occurred on 10 February 1994 and 21 February 1994 (particulars para. (xii) and (iii)) The execution of the deed was in the presence of the plaintiff's solicitor. Thereafter, the plaintiff took no steps to impeach the transaction for almost two years. She also took the benefit of those parts of the transaction which were in her favour, namely the retention of the sum of $26,500, being monies paid and the BMW car, and in the interim she sold the Carina property.

Lindley J, in Allcard v. Skinner (1987) 36 CHD 145 at 189 said:

It is all a question of fact in each case. There may be mere delay which invokes the Statute of Limitations or in another circumstances delay coupled with prejudice to the defendant can amount to the equitable defence of laches. See Meagher Gummow and Lehane “Equity - Doctrines and Remedies” 2nd ed., para. 3612 and 3613. In Allcard v. Skinner at 186, Lindley J decided a principle which the learned author Cope (supra) at para 432 applies:

It was submitted by the defence that two years is not an unreasonable time. It was further submitted that the plaintiff had litigation pending with the Department of Education in relation to her transfer. This is a matter that should be kept in mind in relation to the discretion to grant damages instead of specific relief. See Spry “The Principles of Equitable Remedies”, 4th ed., p. 622(f). There was further evidence that the defendant had entered into a contract to sell Enterprise Court. It is quite clear that the plaintiff is not in a position to restore the defendant to the position prior to the deed being executed. At 626, the learned author stated:

At 629 the learned author continues:

and further at 630,

These principles should be kept in mind in determining whether discretion ought to be exercised. In discussing the measure of damages, for example, at 632 the learned author stated:

The other defences relied upon were a refusal to do equity and estoppel. In relation to the former, this has been referred to in the principles which Spry espoused, and which are adopted in this judgment. In relation to estoppel, para. 13 states:

This pleading was dealt with in the general submission in paras. 59 to 63 of the written submissions. The substance of those submissions have been referred to in dealing with the laches and delay aspect. The plaintiff's counsel in his written submissions said that reconveyance was not sought but rather restitution in equity. He suggested that estoppel as pleaded was not appropriate. To decide otherwise would be “to deny the very existence of equity's jurisdiction to set aside completed transactions at all”.

Notwithstanding the limited submissions in this regard, I find it unnecessary to deal further with this aspect. This is particularly so in light of the discussion by the learned authors Meagher et al at 3606 p. 70 where they refer to cases which “traditionally call for special promptitude.” They refer to claims to set aside contracts induced by undue influence.

In the circumstances of this case, if the plaintiff had otherwise been entitled to set aside this deed, I would have refused to do so in the exercise of a discretion based upon her acquiescence or laches in this case. Even if the defendant were not prejudiced by the delay, that is not the test. In any event, the defendant had, since separation, expended the sum of $30,000 in improvements. The contract which is entered into is for the sum of $417,000. This point is not decisive as to whether relief ought to be refused. That is mentioned for completeness. This is particularly so in light of the plaintiff's allegation that the property was worth $420,000 as at the date the deed was entered into. It was submitted by the plaintiff that the expenditure by the defendant plays no part in deciding whether to grant relief or not. The parties rights can be adjusted by way of equitable damages. It is submitted that equity takes the view that the defendant in a case like this is left with the consequences of his own inequity: Berridge v. Public Trustee (1914) 33 NZLR 865 at 872. In retrospect this submission has some merit depending on the extent to which the inequity arises as a result of the defendant's conduct. In Berridge's case, the transfer had been obtained by fraud. The transfer in that case was void and not merely voidable. In any event, it seems to be authority for the proposition that the person who induced the fraud or his agent was not entitled to any allowance in respect of lasting improvements made by the representator upon that land. The force of this argument may be a reason why counsel for the defendant did not rely upon the improvements as a reason not to set aside the transaction, nor do I. However, the defendant did agree to indemnify the plaintiff in relation to the substantial mortgage on Enterprise Court. No specific evidence was called in relation to an account in this respect.

11. Date for Assessment

The power to grant compensation pursuant to the Lord Cairns Act and its derivatives in Queensland directs inquiry to what needs to be susbstituted because the equitable remedy of injunction was not granted at the time. It is submitted further by the plaintiff that in so doing the court must be concerned to grant “practical justice”. See Vadasz v. Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 182 at 115-116. It is submitted that the date of assessing damages is the date of judgment. Reference was made to Wroth v. Tyler (1974) CH 30. I accept that submission, but on the view I take in action, it becomes an academic exercise.

12. Equitable Damages

Equity had no power to award damages as they were known at law; it had power to award profits and probably had a strictly limited power to award damages. Lord Cairns' Act gave an equity court power to award damages in lieu of, for example, specific performance. It did not confer unlimited power to award damages. See the discussion in Meagher et al at 145.

In the present case, and having regard to the findings on valuation as referred to above, I would be disposed to limit damages to $17,000. This is based on $10,000 difference in what each party received under the deed and a further net increase on the property of $7,000.00 to date. I refer to the previous discussion in the submissions of the plaintiff whereby the value that the plaintiff actually received from the settlement was in the vicinity of $57,000, whereas the defendant concedes that the value she actually received was $67,500. If the plaintiff had been successful, an amount of interest would also have to be allowed on that sum for say three years at 12%. However, in light of the findings that there is no basis upon which the deed ought to be set aside, or that in the exercise of my discretion I would refuse to have done so, the assessment is made for completeness only. I accept the defence submissions as to the consideration received by each party on settlement. The proposed sale price is $417,000 but improvements were worth $30,000. The notional valuation under the deed was $380,000.

13. Counterclaim

It was submitted by the plaintiff's counsel that the defendant had failed to make out a breach of s. 130 of the Land Title Act. The defendant is required, it was submitted, to allege and prove an absence of honest belief on the part of the caveator that reasonable grounds for asserting caveat of an interest existed and that the lodging and maintaining of the caveat was for an improper purpose: see Farvet Pty Ltd v. Frost [1997] 2 Qd.R. 39. It is quite clear in my view that there is an absence of proof in that regard on the defendant's part. It seems that s. 130(3) which puts the onus upon the person who lodged the caveat applied only if in a particular case because of the exigencies of the pleadings an onus of proof fell upon the caveator. Looking at all the facts of the present case, and given the finding that there was an assault on the plaintiff, at least on one occasion, it means that any onus which may have fallen to the plaintiff has been discharged. I find that she did have reasonable grounds at the time for asserting a caveatable interest. In those circumstances, the counterclaim is dismissed.

14. Application To Re-Open Or Recall Rebuttal Evidence

A summons was filed on the 3rd day of April 1998 by the plaintiff seeking leave to recall rebuttal evidence or to re-open her case to call fresh evidence. The draft judgment had been prepared by that time. It was intended that judgment be delivered on 7 April 1998. The hearing of the trial commenced on 16 March 1998 and continued into the second week, evidence having been completed on 23 March 1998. A date was set aside for written submissions to be prepared and submissions were heard on the 25th and 26th March. The application to re-open was heard on 6 April 1998.

The nature of the evidence sought to be lead related to the fact that, on 1st April 1998, at approximately 3.50 p.m., the plaintiff served a Writ of Non Party Discovery upon the officer in charge of the Ministerial Information Section of the Brisbane office of the Department of Immigration and Multicultural Affairs. The officer to whom the plaintiff spoke, Lorraine Cuttler, informed her that she had assessed the department records in relation to the date of entry into Australia in 1993 of the person referred to in the Writ, namely David Monarch. It appears that he entered Australia on 1 July 1993. At 4.10 p.m. on 1st April 1998, that is the same day, Mr Pennisi, the plaintiff's husband and former solicitor for the plaintiff, spoke to said Lorraine Cuttler. He confirmed that the records disclosed that Mr Monarch entered Australia on 1st July 1993. The date the said David Monarch departed Australia prior to 1st July 1993 was 29 May 1990.

It should be pointed out that up until 12 March 1998, Mr Pennisi was the solicitor on the record for the plaintiff. A notice of change of solicitor was filed, in effect, the week before trial. Evidence during the trial established that Mr Pennisi had spoken to Mr Monarch on 12 March 1997. In addresses, Mr Amerena said that was probably the wrong date and it should be 1998. I have found that to be correct in view of other evidence. Mr Pennisi, until that time, had been the solicitor responsible for carriage of the action. He was aware when he spoke to Mr Monarch that Mr Monarch was alleging that he (Monarch) was present during an incident involving a pot plant. In fact, Mr Monarch said that that was the only incident involving physical contact that he observed during his stay with the parties. The only incident in the trial which involved a pot plant, even on the plaintiff's version, was the incident on 5 June 1993. The plaintiff at trial, and presumably in her instructions to Mr Pennisi, rejected the view that Mr Monarch was in the house on the evening of 5 June 1993. She was unable to remember the date when the parties went to Noosa. Mr Monarch had given evidence firstly that on 4 June 1993, he went to Noosa with the parties; two, that on 5 June 1993 he had gone to Moreton Island with the defendant; three, that on his return, he observed the plaintiff had been drinking and had been smoking marijuana; four, that he was not present when Mrs King arrived as he had gone upstairs; five, that he observed an incident that evening involving the plaintiff and the defendant and a pot plant. His version, to some extent, supported the defendant's version of events referred to previously. Given that the dates on the photographs [Exhibit 36] showed a date, 4 June 1993, I was not inclined to accept the plaintiff's evidence in relation to that aspect. However, I had, in my reasons, accepted her version of events as to what occurred on 5 June 1993. In other words, she was not sure of the date that the parties went to Noosa. She believed Mr. Monarch was not at the house on 5 June. Findings of facts in her favour relating to 5 June 1993, meant that I basically rejected the version of events given by the defendant and Mr Monarch. Mr Monarch gave evidence that during the period that he was with the parties, that is, June 1993 to October 1993. He described their relationship as a reasonable one. There were no events pleaded in the action which alleged any different relationship. To that extent, I accepted his evidence. For reasons independent of the photographic evidence, I rejected the plaintiff's evidence in relation to other events, save, on 5 June 1993 when her evidence was corroborated. By inference, I rejected the defendant's version of events. It is clear in the reasons that the evidence of Mrs King, the plaintiff's mother, was accepted in preference to that of the defendant or Mr. Monarch.

It is argued by the plaintiff that the case ought to be re-opened as the evidence which could be called from the relevant Commonwealth department would establish that Mr Monarch could not have been present to witness the events on 5 June 1993 at Enterprise Court. It was submitted that this type of evidence could not have been anticipated.

I reject that argument as Mr Pennisi was well aware of the defence case that Mr Monarch had witnessed the events on 5 June 1993. It is my view that with reasonable diligence, as solicitor on the record up until 12 March 1998, Mr Pennisi was in as good a position as anyone to find out the facts which were eventually found on 4 April 1998. Information was obtained on the same day that a Writ of Non Party Discovery was issued.

1. It was submitted by the plaintiff's counsel that the principal consideration is whether the interests of justice are better served by granting the application than refusing it: Urban Transport Authority of NSW v. Nweiser (1992) 28 NSW LR 471 at 478. In Nweiser there was an issue as to whether or not the plaintiff had been involved in an accident at work or in fact no accident at all. Two employees of the defendant said that the accident which was alleged by the plaintiff to have occurred when he slipped did not occur at all as the job was completed without incident. The learned trial Judge relied upon evidence that because of a prolapse of a disc which had been demonstrated some five years after the accident that must have been the cause. The plaintiff's credibility was crucial as to whether he succeeded or not at trial. At 478, Clark JA who gave the leading judgment stated:

It was further discussed in that case that, even if the evidence be regarded as relating only to the plaintiff's credit, it was of such importance that, in the interests of justices in some instances, to receive the evidence. Clark J A stated:

I accept those statements of principle and intend to apply same. I have also found the judgment of McGill DCJ in Scott v. Standard Group Pty Ltd Plaint 214/95 (unreported judgment 30.1.98) to be most helpful. In the present case, the evidence is lead as to whether a particular incident occurred or not. I was satisfied on the plaintiff's evidence that an incident did occur on 5 June 1993. Therefore, the evidence in relation to this aspect would prima facie have been properly admitted at trial. There is a subsidiary argument by the plaintiff's counsel that it would assist in determining the credit issues in the case also. As those credit issues have generally been resolved in the plaintiff's favour relating to the incident of 5 June 1993, it does not follow that it would assist in relation to all of the other incidents. As discussed, there were other bases for not accepting the plaintiff's evidence other than where it was corroborated. The rejection of the evidence of Mr Monarch and the defendant is not assisted by calling further evidence to attack their credit. Acceptance of the evidence, if proved, would not vary or change a general perception held by me on credibility. Failure by the plaintiff to remember the date of the photograph did not lead me to reject her evidence on the assault on 5 June 1993.

The decision to allow a party to re-open a case or call rebuttal evidence is a discretionary one. The principles were discussed in House v. R. (1936) 55 CLR 499 at 504-505. In the present case, it would in my view be unjust if this evidence is sought to be lead after the case for the defence was closed. This was of some significance to the reasoning of Clark JA in Nweiser at 475C. It would also involve another hearing day, where evidence may be called by the defence to either explain or attack the evidence which the plaintiff suggested could be called. Finality in litigation is also another matter which must be considered. For this reason, evidence contradicting a witnesses' testimony in cross-examination on matters going to credit is, generally, excluded: Nweiser 476.

I am satisfied that the evidence which is sought to be lead could not possibly affect the outcome of the findings that I have made in the present case. I am not satisfied that the evidence, if believed, would lead to a different result. The circumstances can be distinguished from the factual situation in Nweiser. It is accepted that the evidence would relate to an issue which was not collateral as going only to credit. It would have been relevant to a main issue in the case, namely whether the incident occurred on 5 June 1993. That issue has been resolved in the plaintiff's favour. For the purpose of this application, I have assumed that it was not a deliberate decision by counsel not to call the witness but the evidence may well have been obtained during the hearing if Mr Pennisi had been more diligent. I do not decide the application solely on that ground. The other matters relates to the public interest in maintaining the finality of litigation, prejudice which was posed to the defendant in this case, and the fact that I am not satisfied that the evidence, if believed, would lead to a different result. I am cognisant of the fact that a costs order may alleviate some of the prejudice.

The application to re-open is thereby refused.

15. Costs

It would be difficult for the taxing officer to determine how much time was pent in this case in relation to Plaint 1796/96 and action 945/96. In effect, the plaintiff succeeded in the more serious assault alleged but not on all issues. The plaintiff failed in relation to the original Supreme Court action to set aside the deed. It would be fair in my view to limit the costs in that event. The trial went into eight days and it would seem to me to be fair and equitable to limit the costs to three (3) days.

16. Orders

Orders proposed under 5 and 6 are not made at this point. Liberty to both sides to lodge further written submissions within twenty eight (28) days.