Citation: Schilling v Smith [2022] NSWDC 298
Court: District Court of New South Wales
Date: 27 July 2022
Judge: Judge Levy SC
Background
The plaintiff, a man aged 29 at the time of the events, brought civil proceedings in trespass alleging he was physically and sexually assaulted on Australia Day 2014 outside licensed premises in Deepwater, New South Wales. The first defendant, a man working in the building industry, was alleged to be the principal assailant. Two other defendants were named in the statement of claim but the proceedings had only been served on, and proceeded against, the first defendant.
The first defendant had retained a solicitor who filed an appearance, but that solicitor ceased to act in February 2022. From that point, the first defendant took no further part in the proceedings, though the court was satisfied the hearing date had been drawn to his attention.
The proceedings carried a lengthy procedural history, including multiple interlocutory listings, orders for substituted service, and freezing orders made by other judges.
Legal Issues
- Whether the first defendant committed intentional torts (assault, battery, and sexual assault) against the plaintiff, constituting unlawful trespasses to the person without the plaintiff's consent.
- Whether it was appropriate, pursuant to UCPR r 28.2, to separate the determination of liability from the assessment of damages, given the procedural history and the ongoing effect of the litigation on the plaintiff.
Decision
Judge Levy SC accepted the plaintiff's evidence in its entirety. The court found it compelling, internally consistent, and not inherently improbable. In the absence of any challenge from the first defendant, the plaintiff's account was treated as reliable.
The court found that the first defendant head-butted, punched, and repeatedly kicked the plaintiff while he lay on the ground, then dragged him along the ground and perpetrated a forcible sexual assault using a beer bottle, causing anal tears and numerous other physical injuries. All of this was done without the plaintiff's consent and constituted unlawful intentional assaults in aggravated circumstances. Following the assault, the first defendant organised a search party using vehicles fitted with hunting lights to pursue the plaintiff through the town, making audible threats of further violence while the plaintiff hid in fear for his life.
The court noted that the first defendant had been convicted in criminal proceedings arising from the same events and sentenced to imprisonment, with an appeal to the District Court resulting only in a modest reduction of the sentence. The sentencing judge on appeal had recorded the first defendant's continuing lack of remorse and described the conduct as a drunken, violent pursuit of a vulnerable man. These findings were consistent with the civil court's own assessment of the evidence.
On the procedural question, the court determined that separating liability from damages under UCPR r 28.2 was appropriate. The prolonged litigation was having a deleterious effect on the plaintiff, who had already established compensable harm. At the same time, procedural fairness required that the first defendant receive service of the damages material before that component of the hearing proceeded. The court ordered an abridgment of service requirements, with service by email considered an acceptable course.
Orders Made
- Pursuant to UCPR r 28.2, the question of the first defendant's liability is to be determined as a separate question from the assessment of damages.
- Verdict and judgment entered for the plaintiff against the first defendant on the question of liability.
- The part-heard hearing on damages fixed to resume on 8 August 2022.
- Liberty granted to the plaintiff to apply for facilitative case management orders, including orders for substituted and abridged service of damages documentation on the first defendant.
Key Takeaways
- The District Court entered judgment on liability for intentional torts comprising physical assault and sexual assault, accepting the plaintiff's uncontested evidence as compelling and credible.
- A defendant's failure to participate in civil proceedings does not preclude a court from proceeding to determination, provided the court is satisfied the hearing date was brought to the defendant's attention.
- Prior criminal findings, including sentencing remarks on appeal, formed part of the factual background considered by the court, though the civil determination rested on the plaintiff's own evidence.
- Under UCPR r 28.2, a court may separate liability from damages where the ongoing litigation is causing harm to the plaintiff and expedition is warranted, provided the defendant's right to receive and respond to damages material is preserved.
- Balancing the competing interests of the parties under ss 56 and 58(2) of the Civil Procedure Act 2005 (NSW), the court found that abridged and substituted service of damages material was sufficient to protect the first defendant's procedural rights while avoiding further delay to the plaintiff.
Legislation and Cases Referenced
Legislation
- Civil Procedure Act 2005 (NSW), ss 14, 56, 58(2)
- Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases
- Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36
- Trobridge v Hardy (1955) 95 CLR 147; [1955] HCA 68