Morris v Karunaratne [2009] NSWDC 346 (27 November 2009)

TORT - claims by former wife against former husband and his parents alleging deceit inducing the marriage, and various episodes of assault and battery during the marriage

DECEIT - whether the tort is available to ground liability between parties to a marriage - reliance

ASSAULT and BATTERY - whether and on what occasions the plaintiff was the victim of direct and intentional harmful conduct or made subject to the apprehension of imminent harmful conduct

STATUTE OF LIMITATIONS - whether the limitation period was suspended by reason of the plaintiff’s disability due to mental impairment

3. The first defendant is to pay the costs of the plaintiff, on the ordinary basis

4. The plaintiff is to pay the costs of the second and third defendants, on the ordinary basis

1. The plaintiff sues her former husband and his parents alleging deceit, assault and battery. She claims that she suffered serious consequences as a result of these intentional torts, including a severe psychological condition resulting in a reduction of her earning capacity. She seeks substantial damages, including aggravated and exemplary damages.

2. Her claim in deceit alleges a false representation made by her former husband, the first defendant, in reliance upon which she entered into the marriage, to her detriment. She contends that the first defendant falsely denied allegations that he had hit and been physically violent towards his first wife, and that his false denial was then repeated in the presence of his parents, the second and third defendants, who also made false denials to the same effect.

3. Her claim in assault and battery alleges a series of episodes before and during the marriage in which the first defendant shouted at her, humiliated her, denigrated her and her family, threatened or verbally intimidated her, physically held or restrained her, pushed, pinched, prodded or poked her, beat her, struck her, punched her, kicked her, urinated on her in the shower, and forced her to prostrate herself before him and his parents and to apologise to them. As against the parents she alleged they approved and condoned the first defendant’s conduct, participated in or were present during some of the alleged episodes, and failed to intervene to prevent the violence and abuse inflicted upon her. She contended that the parents were also guilty of assault and battery by their direct conduct, or alternatively as accessories in that they conspired with the first defendant, counselled him and procured him to perpetrate the assaults and batteries to which she was subjected.

4. Central to the plaintiff’s claim was the notion that her former husband so dominated, subjugated and abused her that she was forced to dissociate, and that he so psychologically intimidated her and controlled her that he effectively exercised a svengalian influence over her independent will. Senior counsel for the defendants put it this way:

"According to her evidence, and the way in which she gave her evidence, nothing in this marriage was good, everything was bad, the first defendant, the second defendant and the third defendant were demonic people who would set about to destroy her and her life." (T 730.18 - 21)

5. The defendants’ case was that the vast majority of the plaintiff’s allegations was concocted or exaggerated, out of motives of bitterness and regret. Senior counsel for the defendants submitted on their behalf that the plaintiff was a high achiever with an obsessive personality, who placed the blame for an unhappy and unsuccessful marriage at the feet of her former husband and his family. He further submitted:

"But to try to present that this case as all one-way, that everything on the plaintiff's side was lily- white, and everything on the defendants’ side was dark and foreboding, and they were demonic people... is just nonsense..."

6. The first defendant conceded that there had been episodes of physical contact in the marriage, and that such episodes were unacceptable and wrong. But he denies the full nature and extent of the plaintiff’s portrayal of events, to which it will be necessary for me to come to in detail in the course of these reasons.

7. The plaintiff was born on 4 July 1973. She went to school, firstly at Birchgrove Primary School and subsequently at Ascham where she undertook the Higher School Certificate. She then undertook tertiary studies at the University of Sydney, graduating with degrees in Arts, Medicine and Surgery. She first met the first defendant in early 1998 whilst working as an intern at Concord Hospital.

8. The first defendant was born on 24 October 1968 in Sri Lanka. His family moved to England when he was 2, and subsequently came to Australia when he was still in primary school. After completing school he undertook tertiary studies at the University of Sydney, also in Medicine. After graduating he commenced training in radiology in 1997. He was a second-year Radiology Registrar at Concord Hospital when he met the plaintiff and asked her out. He was 29. She was 24.

9. The parties then went out together on a regular basis and a relationship developed. He described himself as having been on "Cloud 9". During this period she learned that he had previously been married, but was divorced. But after some 3 or 4 weeks the relationship broke up. According to her version they had an argument in a restaurant in Leichhardt during which he paced up and down. She was confused and upset. She told him she didn’t want to see him again and went back to her car crying. He was unable to recall an argument, and according to his version they were sitting at a table when she told him she was unhappy and wanted to break the relationship off, and walked out of the restaurant. He followed her and they sat in her car discussing things. He could not recall the exact conversation, but the crux of it was that she wanted to stop seeing him.

10. According to his evidence, they had no further contact for some months. According to her version he tried to contact her the next morning, and thereafter by trying to ring her and paging her, incessantly, and she even had to tell people not to take calls for her from him. On one occasion she answered a page, which she thought was about a patient, but it was actually him. He kept talking until she agreed to meet with him and to receive a letter he insisted she required. She met him and he gave her a letter and a box of chocolates. However, she had no social contact with him for several months after that meeting. The nature of the letter remained unexplained.

11. Such was the divergence of the respective versions of events between the two, that they even had differing versions as to how their relationship resumed. According to his version, she rang him out of the blue one day towards the end of October 1998 while he was in his car and asked to meet him. They met the next day and resumed going out together. According to her version, he turned up on several occasions at her weekly tennis engagement and "managed to convince" her to give him a further chance. Either way, they both resumed the relationship, which then continued uneventfully for some 2 years.

12. The plaintiff pleaded that in or about September 2000, at a time when the first defendant had made a proposal of marriage that she had not yet accepted, she confronted him and put to him allegations about him having committed domestic violence on his former wife. She alleged that she informed him and his parents that her response to his proposal of marriage was dependent upon receiving a satisfactory and truthful explanation and answer to the allegations. He, however, falsely and deceitfully denied the truth of the allegations, stating that it was in fact his former wife who had been violent towards him, in a provocative manner which he resisted and avoided. His denials were made in the knowledge and expectation that she would rely on them in deciding whether or not to accept his proposal of marriage. She did then agree to marry him, as a result of which she suffered personal injury, psychological trauma and damage through exposure to prolonged domestic violence.

13. As against the parents of the first defendant, it was pleaded that the denials were made by him in their presence, and that they approved of the prolonged domestic violence committed by the first defendant upon her.

14. In her evidence in support of these allegations the plaintiff said that in or about July or September 2000 a friend, Dr Joanne Young, told her she had heard from another friend that there had been violence by the first defendant to his first wife and that was the reason for the break up of their marriage. Some time later, the plaintiff was with the first defendant at his house and told him about the allegation, to the effect that he had hit and been physically violent to his first wife, and said she needed to know if this was true. She said he denied the allegations (T 28):

"He said, ‘I never hit her.’ He said, ‘At the most, I might've pushed her away when she was poking and prodding me.’ He said, ‘It didn't happen and this is just vicious and I'm so angry and I'm going to go and tell my parents. Come and talk to my parents about it.’"

15. As to whether a proposal of marriage had been put to her at that time, she said:

"A. I can't recall exactly when the first proposal happened. I suspect it had because there were at least three proposals and they were over an extended period of time. The one I finally accepted was about a year later. I know myself that I tend only to - I was only in the relationship thinking that it would be going to marriage."

16. The plaintiff then said that following upon the first defendant denying the allegations, they went downstairs together and spoke to his parents who likewise denied the allegations, saying it was rubbish. She then said, "So are you saying it didn't happen?" and, "Because I need to know", and they said, "No, it didn't happen."

"And after that, numerous times the first defendant continued to bring it up occasionally and kept just giving reasons why he - basically giving reasons why this first - his first wife may have put out these rumours and they were basically along the lines of she needed to do it to protect her own reputation, and he continued to deny it when I brought it up." (T 29)

18. She then said that as a result of the reassurances that the violence had apparently not occurred, she continued in the relationship and eventually married the first defendant some 2 years later, in September 2002.

19. The first defendant, on the other hand, had a clear recollection of his proposal of marriage. (T 462) He said that in 2001, around November, they had a romantic dinner at the Galileo Restaurant in the Observatory Hotel during which he raised the subject of marriage and they agreed to get married.

20. As to the allegations of him abusing his first wife, he acknowledged that the plaintiff had raised the subject with him prior to his proposal, and that he told her there had been no physical altercations between him and his first wife. (T 462)

21. The parents, for their part, denied any discussion with the plaintiff concerning allegations of domestic violence in the first defendant’s former marriage.

22. It is the plaintiff’s case that the allegations of domestic violence by the first defendant against his former wife were substantially true. It seems that there were a number of rumours to that effect circulating in the community, the origins of which are uncertain, but there was no direct evidence led in these proceedings of the first defendant striking his former wife, Chetana. In her attempt to establish the truth of the allegations of violence in the first marriage, the plaintiff relied principally upon the evidence of her former sister-in-law, Dr Chintha Karuneratne as to various episodes and conversations relating to the first defendant and Chetana, from which I am asked to infer that the first defendant had been violent towards his first wife. The former wife of the first defendant, Chetana, was not called to corroborate any allegations of violence against her by the first defendant.

23. Chintha is the former wife of the first defendant’s brother, Tusitha Karuneratne. Chintha and Tusitha were married in 1990 and had two children during their marriage, but they are now separated. Chintha and her husband lived with the parents at their Eastwood home for some 8 years from about 1991. In 1994 the first defendant married his former wife, Chetana, in Sri Lanka. He brought her back to Australia and they also lived at the parent’s house at Eastwood till they separated in May 1996. The episodes and conversations recounted by Chintha concerning the first defendant and Chetana are alleged to have occurred during that period.

24. The first episode recounted by Chintha was said to have occurred several months after Chetana moved in at the Eastwood home, towards the end of 1995. Chintha arrived home and heard shouting. She went into the family room where she observed Chetana on her knees in a worshipping position in front of the first defendant and his mother. She then heard the mother speak to Chetana in Singhalese, saying "Get down on your knees. Worship your husband." She repeated that several times. And then said. "Lick his bottom." (Slang for obeisance.) (T 401)

25. Chintha said that shortly after that incident she had a conversation with the mother who told her:

"We're having a lot of trouble with Chetana; we can't control her and she keeps running away. And we've taken her passport and hidden it." (T 404)

26. The second episode recounted by Chintha was said to have occurred in 1996, when one evening she heard shouting in the bedroom occupied by the first defendant and Chetana. The next morning she observed Chetana to have swelling and patches of blue on her forehead that looked like bruising. (T 410) Later that day the parents said to Chintha that the first defendant and Chetana were having problems, and she offered to help. That evening she and her husband took the first defendant and Chetana to the park where a conversation took place in which Chintha suggested they get some counselling to sort out their problems. The first defendant is alleged to have replied, "Counselling, that's for white bitches." (T 413)

27. Later, in April or May 1996, Chetana’s mother turned up at the Eastwood home from Sri Lanka, following which Chetana moved out, leaving the marriage. She subsequently returned to Sri Lanka, after which she and the first defendant were divorced.

28. The next episode recounted by Chintha concerned conversations she said took place at a dinner at the Bennelong Restaurant at the Opera House some time after Chetana had left the Eastwood home. The dinner was attended by the first defendant and his parents, Chintha and Tusitha, and a couple from Sri Lanka named Thilak and Sunil Soyza, who were good friends, distantly related, of the Karunaratne family, but who also knew Chetana and her family in Sri Lanka. Chintha gave evidence that as they were walking outside the Opera House she overheard Mr Soyza say to the first defendant, "Did you ever hit her?" and he nodded. Mr Soyza then said to him, "No matter what problems you have you must not hit, you must not be violent." The first defendant made no response. (T 416)

29. The next episode recounted by Chintha concerned a conversation in the family room at the Eastwood home some time later. Present were the mother, the first defendant and Chintha. It was alleged that the mother said something to the effect that Chetana was a very bad girl, that she was difficult to control, to which the first defendant replied, "It's not just me, her previous boyfriend hit her too. He hung her upside down from the ceiling and whacked her, and I gave her good and proper too."

30. The plaintiff submitted that these episodes were probative of a culture of violence in the Karunaratne family and sufficient for me to draw the conclusion that the first defendant had indeed been violent towards his former wife, Chetana. It was submitted for the defendants that the credit of Chintha must be seriously doubted having regard to her divorce proceedings in relation to Tusitha, in which similar allegations of violence were involved, and for which Tusitha was in fact charged and sentenced to a term of imprisonment. But even at its highest, the evidence of Chintha does not establish any episode in which the first defendant struck Chetana (T 678), and in the absence of evidence from Chetana the Court could not be comfortably satisfied as to the truth of the allegations of violence in the first marriage, and certainly not of the nature and to the extent for which the plaintiff contends. (T 682.5)

31. Finally, it was submitted that there was, in any event, no reliance by the plaintiff on the alleged representations such that she was falsely induced to enter the marriage. Even if they could be said to have subsisted by the time of the wedding, there was an incident three or four weeks before that would have negated any reliance that she might have otherwise had upon what was earlier said. (T 675-6)

32. The plaintiff relies upon 28 separate episodes in which she alleges the first defendant assaulted her (either by way of assault or battery). These are set out at paragraphs 2.2 - 2.29 of her counsel’s written submissions.

"...your Honour needs to find the facts as to what happened, then, having found the facts as to what happened on the whole of the evidence, to determine whether or not on those found facts, the... psychiatrists - were proceeding upon a correct basis when they expressed the opinions that they expressed...but if the exercise is done of actually looking at what the evidence is and what the medical opinions were...it’s impossible to match them all up...before a court could then act upon an expert’s evidence to say, "I accept this expert," the court needs to be satisfied that the facts upon which the opinions are based have been proven. In this case, they haven't." (T 731)

34. The evidence of the plaintiff and that of the defendants as to these episodes is diametrically opposed. In his written submissions, counsel for the plaintiff submitted that overall the Court would prefer the evidence of the plaintiff wherever it conflicts with the evidence of the defendants [3.2]. For his part, counsel for the defendants submitted that the credibility of the plaintiff and the reliability of her evidence needs to be assessed against a number of factors, including the absence of any witnesses to the alleged assaults [2], the inherent improbability of the events described, which are not corroborated [3], and an analysis of contemporaneous records that exist in relation to particular events [5].

35. I will return to issues of credit in due course, but it is appropriate to first consider the acts alleged to constitute each individual assault or battery relied upon.

36. The first incident relied upon by the plaintiff as part of her claim for assault and battery was alleged to have occurred in August 2002, prior to the wedding. It was asserted in the pleading that in the course of an argument in the kitchen of the townhouse at Water Street, Birchgrove, their intended matrimonial home, the first defendant physically blocked her exit and restrained her as she attempted to leave, then he pushed her backwards to the floor. On attempting to regain her feet and leave, he grabbed at her leg. He then shouted at her and threatened to inform the police that she had assaulted him: SOC @ 13.

37. The plaintiff’s evidence was that in the one to two weeks before the wedding, she went to visit the first defendant at their townhouse in Birchgrove where he was residing. She started having a discussion of some sort in the kitchen during which she became distressed and tried to leave. She tried to walk around him but he blocked her way. She asked him to move, and he wouldn't. She tried to push her way through and he moved over to block her and grabbed her arms, and she fell backwards. She said, "I presume he pushed me." Then they both fell to the ground. (T 30)

"I just - and we both fell on the ground, at which point I managed to jump up quickly and run out, and as I was running past him, I remember him grabbing at my foot, because I almost fell over again as I was leaving the kitchen. And I ran to the door of the house which was only a few metres away and unlocked the door, and as I was running out, he shouted out to me, "If you go, I'm going to call the police." I said - well, I didn't say anything; I just stopped. I was, like, in shock, and confused, and - yeah, and he was standing by the phone by this point about to dial the police, he was saying... He said he was going to call the police to say that I had assaulted him." (T 30)

39. Her recollection of what the argument was about was unclear, but she said that it was somehow resolved or forgotten, and:

"All I remember is it was right in the lead-up to the marriage, and thinking, ‘I'm so confused by all of this, and I'm about to marry this guy,’ and - you know, what's - I think I was in shock, now, but I don't really know." (T 31)

40. The first defendant’s version of the incident was of the plaintiff turning up at the door of the townhouse, crying. She told him that she'd had an argument with her mother and they went into the lounge room where he comforted her on the couch. He asked what the argument was about but she wouldn't tell him. He said that eventually they stood up and as she tried to walk around him he grabbed her shoulder with his right hand, whereupon she kneed me in the groin. He fell to the ground. Then, as he was kneeling on the ground clutching his groin he asked her, "Why did you do that?" and she never replied. And he said, "I could call the police for doing that." (T 463-4)

41. Nevertheless, a few weeks later they were married, in September 2002, following which they went on a honeymoon that she described as "pleasant and nice". (T 37)

42. The next allegation pleaded is that subsequent to the wedding the first defendant shouted at the plaintiff on multiple occasions "in an aggressive and violent manner" and that in early 2003 he roughly handled and poked her on repeated occasions, grabbing and pinching her upper arms, and forcibly restraining and pushing her: SOC @ 14(a), (b) and (c).

43. The evidence given by the plaintiff in support of this allegation was that in the period leading up to May 2003 there were a "graded series of events" that consisted, for example, of the first defendant stopping her going places within the house. She remembered him grabbing her arm tightly enough to leave bruises, poking me and prodding her, and pushing her with force to wherever he wanted her to go. This occurred on a handful of times, on maybe half a dozen occasions. (T 45-46)

44. The first defendant conceded that during this period there were arguments that became increasingly heated, and in which physical contact become a feature.

45. He said they generally argued about small things, such as her leaving cups of coffee on the table, on the staircase, by the side of the bed, about clothes being left out, washed and unwashed, about papers that were left all over the place, and about the security of the car park, because it had a grille that she'd often just leave up. There was also an argument about the wedding photographs. (T 39) He said:

"Well, I'm not sure who started what, but during some of the arguments, as they became more heated, there would be a push or a shove, and there would be a push or a shove back, and then there would be pinching of each other, and then there would be prodding and there would poking as well, and there would be - and then it would sort of go further to slapping each other. I think that was pretty much the level of it...It was a two-way street. She didn't just watch me, you know, slap her; she would slap me back... she was not submissive and docile... She was quite aggressive and forthright, and would stand up for her rights and make sure she got what she wanted" (T 466-7)

46. The next incident relied upon by the plaintiff was alleged to have occurred in May 2003. It was pleaded that on or about 9 or 16 May 2003 whilst seated on the couch in the living room, the first defendant held the plaintiff down forcefully with both hands holding on tightly to her upper arms and with his weight. He then forcibly struck her in the face above her right eye: SOC @ 14(d).

47. The plaintiff gave evidence that on a Friday evening in early to mid-May 2003 she and the first defendant were sitting on the couch at the Birchgrove townhouse arguing when she tried to get up to leave the argument and the first defendant restrained her by holding her arms on the futon couch so that she couldn't get up. Then he struck her in the face, with the back of his hand, above the right eye. She was shocked, and collapsed. (T 41)

48. As a result of the blow, the plaintiff said she was left with a bruise over the right eye approximately the width of a 50-cent piece, but the bruise may not have been visible to others because the glasses she was wearing at the time had a thick and dark coloured rim. (T 42)

49. The first defendant denies any incident where he struck the plaintiff above the right eye, saying that he never hit her in the face. (T 467)

50. The plaintiff said this incident stuck in her memory because she was shocked by the fact that he struck her in the face. She relies on evidence from her friend Dr Minh Tran for corroboration of having been struck by the first defendant on this occasion. (T 57.2) Dr Tran gave evidence of having observed bruising around the plaintiff’s eyes, once she had taken off her sunglasses, and over the clavicle region of both shoulders, as to which they had a conversation from which he was led to understand the bruises were caused by the first defendant. (T 325-7) Asked why she told no one else, she said she was anxious and scared, was in a state of shock, and because he said it wouldn’t happen again. (T 143)

51. The next incident relied upon by the plaintiff was alleged to have occurred the next day when the first defendant insisted that she attend a ceremony known as a "pooja" at the Hindu temple in Westmead, where the family sought blessings for the first defendant’s brother, Tusitha, who had recently been charged with criminal offences concerning alleged sexual assaults on patients: SOC @ 14(h). She gave evidence that she was reluctant to go to the ceremony, as she was still distressed over the incident from the previous evening, but did so because she was told to attend and "appear happy for the first defendant's family" and be supportive. (T 44)

52. It was the first defendant’s case that the plaintiff was not forced to attend the pooja against her wishes, or that she suffered any emotional distress by reason of her attendance at the ceremony.

53. The next incident relied upon by the plaintiff is alleged to have occurred more than a year later, in July 2004. She pleaded that when driving in Henley Marine Drive, the first defendant denigrated the plaintiff and her family, then punched her, poked her and pinched her. Whilst so engaged he lost control of the car and clipped a stationary vehicle, and then blamed her for the collision: SOC @ 14(e).

54. The plaintiff’s evidence as to this incident was that they were driving along Henley Marine Drive and the first defendant was verbally abusing her and denigrating her family, and he was poking and prodding her while he was driving. He did not see a car that was waiting up ahead to turn right into an off street, and he clipped the back corner of that car. After this incident, as they continued on the way to the hospital, the first defendant resumed his verbal abuse, and said the accident was her fault, which distressed and upset her. (T 46-7)

55. The first defendant’s evidence was that he remembered the incident, but denied any verbal or physical abuse occurred, and that in fact the plaintiff had been asleep prior to the collision. Nor did he blame her for the collision. (T 468)

56. The next series of incidents relied upon by the plaintiff is alleged to have occurred in the period from July to October 2004. She pleaded that "In 2003 through to October 2004 the plaintiff suffered multiple beatings and assaults, the precise details of which she cannot presently recall": SOC @ 15(a).

57. The allegation of multiple beatings was not the subject of any evidence. What the plaintiff actually said was that after the incident in Henley Marine Drive, through to October 2004, there had been an increasing frequency of verbal arguments and of the first defendant poking, pushing and punching her. There were a number of episodes, at least five. (T 50)

58. She said he that on these occasions he would, without provocation, poke her with an extended finger or prod her with several fingers extended, jabbing her in the chest and the arms. And:

"He would ...verbally abuse me. He would tell me how bad I was. He would call me a slut for going to Woolworths at 10 o'clock in the evening because only sluts go to Woolworths in the evening and his mother never does that." (T 51)

60. The next incident relied upon by the plaintiff is alleged to have occurred on 3 October 2004. She pleaded that whilst at the Birchgrove home the first defendant beat her, causing bruising to her chest and arms: SOC @ 15(b).

61. Her evidence in support of this episode was that on 3 October 2004, a Sunday, the first defendant struck her in the chest at the Birchgrove townhouse. (T 48) She could not recall any more specific detail, other than she had some bruising on her chest as a result.

"Look, we argued - at multiple times during the year - so I can't remember any specific event." (T 469)

63. The next series of incidents relied upon by the plaintiff is alleged to have occurred from 10 to 16 October 2004: SOC @ 15. She pleaded that whilst at the Birchgrove home the first defendant shouted at her, physically restrained her, pushed her backwards away from a door as she attempted to leave, and shoved her back towards the staircase causing her to fall on the stairs. He then punched and kicked her repeatedly in an uncontrolled manner causing multiple bruises that were still visible 6 days later when she went to the police: SOC @ 15(c).

64. Her evidence was that on Sunday 10 October 2004 a disagreement started in the living room at Birchgrove that escalated into the first defendant abusing her and her family. She was distressed and went to the downstairs gym and ran on the treadmill for about an hour after which she returned to the unit hoping that he would have calmed down. But he was even more angry. He was walking around - or stomping around, and he started to make aggressive motions like moving his arms quickly, in an angry sort of fashion. Feeling threatened, she went to the other side of the dining room table. He kept walking in an aggressive manner, and came around the side of the table. She tried to get around him but every time she went one way he'd move that way, blocking her. (T 52-3)

65. She said that at this point she tipped up the table, and that popcorn went everywhere. She remembered escaping and getting towards the door of the house

before he got in front of her again and pushed her back to the staircase. She fell down onto her bottom, onto one of the lower steps. As she was sitting on the steps and trying to climb up the steps he started beating her. He punched and kicked her, telling her how useless she was. (T 53)

66. She gave evidence that during the following week she became more and more distressed and the first defendant acted as though nothing had happened. She was not sleeping and was still very distraught, so organised to meet with her friend, Dr Tran, after work on the Thursday. She spoke to him about what had been happening and discussed her options. He told her she could stay with one of his relatives. (T 56-7)

67. On the morning of Friday 15 October 2004 she decided to try and get away for a few days. That afternoon she spoke to Dr Tran but found out that his offer of accommodation was no longer available. She said that she was still distraught and confused, but having set her mind on going away decided to go to Albury to visit a friend. She rang the first defendant and told him. After her shift finished she started driving towards Albury at about 11.00pm. At some stage she pulled over and slept for a while near Mittagong. Meanwhile her husband was trying to ring her, and was sending SMS messages to her phone. Finally, she answered one of his calls and she let him convince her to return home. Early on the Saturday morning she turned the car around and started heading towards the city. On the return journey she spoke to her husband several times on the phone, but as she got closer he started getting more aggressive and she became increasingly apprehensive. By the time she reached Birchgrove she was quite anxious, and so parked the car a couple of blocks away then walked to the townhouse and met her husband at the door. (T 58)

"I was a little bit tentative and I remember taking off my shoes, which is something I often did before going in the house, I remember him offering to get them and then I remember him moving in some way which had a bit of aggression in it and I got scared again. I ran back out of that courtyard area onto the street again. He started to say to me - actually I can't remember the exact contents of the words - but along the lines of I had better come back in, I had better come back in. I was feeling quite scared again and I ran away. I ran to the car and I got in the car and I just drove. I didn't have a plan of where I was going. So I drove and I was too tired to go anywhere far, and I didn't feel like I could go anywhere close, so I ended up at the police station. I parked up in Balmain and ran into the police station really quite - still quite not knowing what I was doing, but just knowing I was scared... I just remember being exhausted, confused and scared." (T 59)

69. After running away she went to a Police station, arriving upset and distraught, where she was interviewed. She made a statement recounting a history of physical abuse, including the recent incidents of 3 October and 10 October 2004. The police arranged for photographs of bruising to various parts of her body (Exhibit D), and an Interim Apprehended Violence Order (AVO) was taken out against the first defendant.

70. The first defendant in his evidence recalled an occasion when she tipped the table over during an argument:

"The reason I recall it was a weekend was because we engaged a cleaner to come and clean the - clean the house ... and then within a couple of hours of her departure the place was starting to look like a big mess again and it just seemed - you know - there was no point the cleaner coming in in the first place. So I - I began telling her in that sort of fashion that, you know, she'd managed to create a mess within a couple of hours of the cleaner's departure."

71. He said that after tipping the table over she walked out and he didn’t see her again till that afternoon. He denied any further argument. He denied assaulting her, on the stairs or otherwise:

"We might have argued on the stairs on one occasion, but there was no incident on the stairs on that occasion that I remember when the table was turned over." (T 471-2)

72. In cross-examination the first defendant maintained his denial of any physical violence between them on that occasion. He acknowledged that there was an argument about her being untidy, an ongoing issue that caused friction between them. But he did not block her path. He did not ‘bail her up’. He did not chase after her or beat her on the stairs. He did not punch her. Indeed he never hit her with a closed fist. Then there was this interchange:

Q. How did you hit her generally then? A. I told you, we slapped each other, we poked each other, we pushed each other.

Q. But when you did do the slapping, doctor, it was with an open hand, was it? A. Open hand, correct." (T 540)

73. Dr Tran confirmed that the plaintiff met with him at about this time, in the Westmead car park. They sat in his car and he observed bruising around her eyes similar to the earlier occasion in May 2003. She also lifted her blouse and showed him some bruising on her lower abdomen, 10 centimetres by 20 centimetres, below the rib cage, above the hipbone. (T 327) It was his understanding that these bruises had arisen as a result of altercations with the first defendant. (T 333)

74. The first defendant’s evidence about the subsequent events was that one evening a few days after the incident involving the plaintiff overturning the table, she did not come home from work as expected, and he called her. He recollected some conversation along the lines of, "I'm going away for a few days." She did not come home and he was worried and confused. Later that night he received a message that she would come back the next morning. (T 472) In the morning when she came to the front door of the townhouse he met her, bent down and took off her shoes, and then got up to hug her, but she just ran away. He ran after her but couldn't keep up and she disappeared over the top of the crest of a hill. He went home to get some sandals then wandered around the area trying to find her. (T 473)

75. The next series of episodes relied upon by the plaintiff occurred on Saturday 16 October 2004 when it is alleged the first defendant frightened her on the doorstep and later, after she had been to the police station, he confronted her in the street, climbed onto her car preventing her retreat and "eventually overbearing her will." He then frightened her into attempting to withdraw her complaint to the police.

76. In her evidence she said that whilst at the Police station and talking to the police officer, her phone was ringing constantly because the first defendant was still trying to contact her and was sending SMS messages to her. After leaving the Police station she received an SMS from him indicating he had locked himself out of the house, and that he was tired and hot, and getting dehydrated. Eventually she started to feel a little bit sorry for him, and went to buy some drinks. She drove back to Birchgrove where she took the drinks to a church about 200 metres away from the townhouse. As it turned out, he saw her and he started running towards her. She got scared again and ran and jumped into her car. (T 62) She locked the doors and tried to turn the car on to drive away, but the first defendant jumped on the bonnet of the car where he kept pleading and apologising and telling her he was sorry and telling her it wouldn't happen again. Eventually she let him into the car, where she told him she had applied for an interim AVO. She said he then turned around and said:

"You've got to go and tell them you made it up. You go there now. You go and tell them that you lied. You can't have this. You can't have this. I'm a doctor. This is a problem. You can't have an AVO on me. That just can't be. You have to go back and tell them that you lied." (T 63)

77. She said that by this stage he had her feeling sorry for him, he was so apologetic. So she went back to the police and said something along the lines of, "What would you do if I were to tell you I made it all up?" She then said:

"I couldn't tell the policeman that I'd lied, but I knew when I got back to the first defendant, he would ask me, ‘What did the police say when you told them you lied,’ and I'd be expected to have an answer."

78. She said the police told her the AVO was already in place and could not be withdrawn. That evening they went back to the police together to tell them the AVO was not wanted, but they refused to do anything and told them he would have to go to court in a few weeks.

79. His version of these events was that the plaintiff sent him a message saying she had bought some drinks, and telling him to meet her at the church up the road from the townhouse. When he got there she dropped some bottles on the ground and started to walk away. He followed her to her car. He denied getting onto the bonnet of the car, but stood in front of it saying, "What's going on?" He then asked, "Can I come in? Can I sit by and just talk to you?" And eventually she unlocked the doors and he got into the car and sat next to her. He said they then had a calm discussion during which she told him that during the week she had taken various belongings, clothes and documents from the townhouse to her mother’s house and that she had blocked the bank accounts. (T 474)

"I asked her why she did all these things and she would not tell me... and I eventually gave up and she - we were both calm at that stage and I didn't know where to go with all of this so it just ended up that we were just calm about - at the end and couldn't get anything further out of her. So we seemed to come to a - it was just like a stalemate position and we were just happy to - I was just happy that it had - it seemed like there was no more confusion and running around in terms of trying to find her and things like that. So at that stage, we - I asked her what - "So what are we going to do now?" I think we decided that we'd stay together and that - I felt that the episode was over."

81. He said he then went back to the townhouse while she went looking for the house keys he had lost, which she eventually found. It was not until they met later at the townhouse that she told him about the AVO. She also told him that she had returned to the Police station to try and get rid of the AVO but was told by the police they would not remove it. The then went together to the Glebe Police station where he was given the AVO and was told he would need to appear in court. (T 476-7)

82. The next series of episodes relied upon by the plaintiff is alleged to have occurred over the next few months during which time he overbore her will and intimidated her into agreeing to withdraw her allegations to the police and to cooperate in the withdrawal of the charges against him and the dismissal of the AVO.

83. About a week after the AVO was issued they went to court together, thinking it would be resolved when the plaintiff told the police prosecutor she was not in fear of the first defendant and that she no longer wanted the AVO. (T 67) But the AVO was not withdrawn and the police told them that charges would be laid against him. It was then that they decided to get legal advice. (T 478)

84. Asked why she would tell the police prosecutor she did not fear the first defendant, she said (T 67-8):

"At that stage I did not fear death. If I did not fear death, I did not fear anything he was going to do to me. I had lost my will to live at that point."

85. The first defendant denied any coercion. He said that they were very "united" at this time and that the plaintiff wanted the AVO removed as much as he did. In response to the suggestion in cross-examination that he overbore her will he said:

"Sarah is not someone anyone can control. Sarah does anything and everything she wants to do. She may not tell you what you she is doing but she does it. If she feels like you're helping her, she will do what you want. If you don't - if she doesn't feel like you're helping her and she has something in her mind, she won't tell you that, she'll just go ahead and do it. That's what I found out about Sarah during my marriage." (T 547-8)

86. The plaintiff pleaded that her will was so overborne and she was so intimidated by threats of further physical and psychological abuse such that the first defendant forced her to write a letter to "her" solicitor falsely instructing him that she had fabricated the allegations of assault, and that she was in fact injured playing sport. He also forced her to undergo a medical examination and to instruct the doctor that her symptoms were exacerbated by the court case: SOC @ 16 - 20.

87. The plaintiff amended her Statement of Claim during the hearing to further allege that in November 2004 the first defendant took her to Birchgrove Oval where he kicked a soccer ball at her, and directed her to "get in the way of the ball" so that she received bruises to her arms and legs: SOC @ 19A - 19B.

88. Her evidence in support of these allegations was to the effect that on the day the AVO was taken out and for the next week or two at least, the first defendant kept putting her down and telling her off for involving the police, and how she had ruined his life. He took her to see his solicitor, Ms Gunesekera, and made her sit there while he told the solicitor that she had gone to the police and had made all these things up about him, and none of it was true and it was all lies. (T 65)

89. The plaintiff was referred to another solicitor, Mr Doherty, to act on her behalf. The suggestion seems to be that Mr Doherty was not independent, but was somehow in collusion with the first defendant’s lawyers. The reality was that Mr Doherty was particularly insistent about seeing the plaintiff without her husband, and on the first visit Mr Doherty told him to sit in the waiting area while he interviewed the plaintiff. He told her not to bring him to any future appointments. (T 67)

90. The plaintiff told Mr Doherty that she did not wish to pursue the AVO, and wrote a detailed letter about the events of 16 October 2004, and the lead up to her going to the police (Exhibit B). She said, however, that she was forced to write the letter, and only did so against her will, out of fear (T 69-70):

"The letter came about because the first defendant instructed me and supervised me to write a letter outlining everything that I had told the police minus the facts of the assault. He...advised me that I must indicate in the letter that he had never hurt me physically. He had never assaulted me physically - he basically told me to write down all the facts of the events that I told to the police to deny the assaults, to say my bruises that the police had seen were from sporting injuries and that he'd never hurt me and never would and this was just - the whole court matter was because I was bad or along those lines."

91. She said the first defendant then harassed her into following up the letter:

"I recall the first defendant...harassing me to - as in continually telling me and following me up and asking me, and telling me to ring Doherty again... and see what's happening with the letter, and why hasn't the letter been sent through... On some of the occasions, he would be sitting next to me, and he would poke and prod me whilst we were meant to be working, and tell me I'd better go and make that phone call or get that letter... I felt pain and I felt scared that ... he would keep doing that and other things to me. So I went and made the phone calls." (T 79-81)

92. Then in November 2004, she said, the first defendant made her go to the oval adjacent to her parents’ house, with a soccer ball, so that she would suffer some bruises. She explained the reason for this as follows:

"He took a soccer ball, and he said that I had to go with him there, so that I could get some bruises, so that if the police called me again for something, or got me back to the police station, they would see my bruises, and I would be able to tell them that the bruises were from sport and from playing soccer with him." (T 98)

93. She said that he then proceeded to tell her to stand there while he kicked the soccer ball at her, until she had enormous bruises down her arms and legs:

"He... instructed me to stand and kick the ball with him and let - when he kicked the ball at me to let the ball hit me or if the ball was not going to hit me, to position myself so it would hit me to the point of bruising. He took the soccer ball. He stood towards the north end of the oval in the section that we were on and I stood towards the east side of the oval and he proceeded to kick the ball at me as hard as he could from approximately 20 metres away, sometimes coming closer, up to 10 metres, sometimes closer, and he kicked the ball to hit me to the point that I had bruises up to the size of this book in front of me on my arms and on my legs primarily, on the upper arms and upper legs, from memory." (T 101)

94. The plaintiff also said that at about this time she was also compelled by the first defendant to go with him to visit her friend Dr Tran, and tell Dr Tran that she had fabricated everything. (T 103) Dr Tran confirmed that there was such a meeting, in a park near where he lived in which the first defendant told Dr Tran that the things the plaintiff had told him in their previous meetings were all lies that she had concocted up. He also told Dr Tran that the bruising he had noticed at those previous meetings were a result of heavy-handed football, specifically, when the plaintiff had been hit by a soccer ball. He described her as being clumsy in goal, so she would actually get hit more often than normal. He also told Dr Tran that Sarah's parents and family were treating him unfairly and that he was the victim. (T 334)

95. The first defendant denied this conversation with Dr Tran. (T 519) He said he never knew what the plaintiff had told Dr Tran. (T 518) He also gave evidence that he had nothing to do with the creation of the letter that is Exhibit B. (T 478) He said:

"I could never ask Sarah to write anything. She would write whatever she wanted. There's nothing that I could do to get her to do something that I wanted. That would never occur. If she wanted to do something, she would do it." (T 548)

96. It was then put to the first defendant that he had stood over her and dictated the letter to the plaintiff, not that he dictated the actual words, but that he told her what to write, (T 551) and that he was in fact the author. (T 552) He, however, denied even being there when she wrote the letter.

97. This letter (Exhibit B) assumed considerable importance in the proceedings. The defendants rely on it to discredit the plaintiff.

98. The letter (Exhibit B) is a 15 page handwritten document, the handwriting being that of the plaintiff, headed "Events Prior to and on 16/10/2004". I do not propose to set the contents out here in full, but given its importance to the ultimate resolution of the issues, it is appropriate that I set out some extracts:

I brewed over the ongoing arguments all week. Little sleep all week. I couldn’t face the truth about my family and myself and I blamed N for all the problems. I felt that although we reconciled after our arguments, things were not progressing & something needed to be done. I couldn’t see a way out. I struggled all week c possible solutions and continued, in my mind, to blame N.

Finally on Friday a.m. I decided I should go away for a few days, possibly for good...I felt that things might become clearer to both of us c geographic separation...

(The letter proceeds to describe the events of Friday 15 October and the drive south towards Albury during that night)

N continued to try & ring me. Can’t remember how many times I spoke to him. He was sad and worried...concerned for my safety...I remained determined. I refused to tell him where I was. I did not answer many of the calls...I turned off my phone for periods... Again spoke to N in mid hours of morning. At this point he was getting annoyed, particularly because I had not answered his calls and was being stubborn. He was concerned for my safety and continued to plead with me to come home... I eventually decided to return home (thinking perhaps we should just talk again) but was two minded as partly believed still that time away was required step...

By the time I got back to Balmain I was still confused and started to think again that time away was required... I was becoming annoyed c N for convincing me to come back. I bargained with myself and decided to get N to come out – as though this was not really renigging (sic) on my plan...

I felt confused... I realised I had renigged on my plan, on what I had seen as the "only solution". I reverted to my original plan that I need to go away... I became distraught... I felt confused and overwhelmed and I pulled away and ran to the car... I drove away, towards Balmain, and went to the police station...

Police came in and asked me what happened... I said we had been fighting...that I had planned to go away for a few days or possibly good (sic) ...that N had convinced me to come home but that I freaked out when I got to the front door...that I did not know where to go or what to do...

(The letter proceeds to describe the discussions as to an AVO and the taking of photos of the bruises)

After this I went to see N + take him drinks. N was distraught & tired & sad... We had a talk in the car. I suddenly realised the truth. That I had been completely wrong in blaming N and in letting myself believe he was the one at fault and letting myself believe he had done wrong by me.

I realised the magnitude of events that had occurred and that my actions had resulted in a major injustice to my husband...

I could not bring myself to tell N re the AVO at that stage... I knew I had to try and reverse that outcome if at all possible... I returned to police station.

I returned home... We looked for the keys by trying to retrace N’s steps. I found them on a street near our house.

I told N re the events at the police station that I could recall. Already sad N became more depressed. He was dumfounded and remains so. I apologised and asked his forgiveness which he has given...

At no stage did N coerce me. I do not and never have feared him. He has never threatened or been violent to me. He has never caused me physical harm..."

99. It was alleged that the letter was influential in the subsequent withdrawal of the charges against the first defendant and the operation of the AVO being limited to a period of 6 months: SOC @ 21 - 22.

100. The next episode relied upon by the plaintiff is alleged to have occurred in December 2004 at St Johns in the US Virgin Islands, where the plaintiff and first defendant were attending a medical conference. It was pleaded that the first defendant punched, pushed, kicked and hit the plaintiff on the head, arms, legs and body over a period of some 3 - 4 hours, causing extensive bruises and swelling to her head and face, "which injuries were plainly visible", and bruising to her abdomen and lower chest. It was also alleged that she sustained soft tissue injury to her temporomandibular joints, her shoulders and legs: SOC @ 32 - 34.

101. There were no witnesses to the alleged episode, no witnesses to the "plainly visible" bruising, and the plaintiff did not seek any medical attention.

102. The plaintiff’s evidence about this episode was as follows. She and her then husband were staying in a unit at a resort in the Virgin Islands. One evening, an hour or so before dark, when she was sitting or kneeling on the bed, he started to "beat and bash" her. She was unable to remember how or why it started, but recalls that he was verbally abusive, and then he punched her about the head, chest, abdomen and legs, and "smashed" her by raising his arms and forcefully bringing his clenched fists down onto her shoulders. The attack felt like it went on "for hours" and she lost count of the punches. She said it only stopped when he heard noises outside and was concerned someone might have heard him shouting. He instructed her that if anyone came she was to say she had fallen over in the bath. (T 72-8)

103. She said that as a result of his attack on her she had swelling to the side of her face "so deep that my whole face was just huge". She felt dizzy and unsteady the following day, and had a severe headache for days. She was concerned that she may have suffered damage to her liver and "an internal bleed in the brain". She was unable to walk without discomfort for several days due to the pain in her calves.

(T 77-8) The plaintiff also complained that she felt pain in her jaw from being struck under the chin and also in her temporomandibular joint, in which she has had episodes of recurrent pain and clicking, and locking of the jaw. (T 103-7)

104. Notwithstanding these injuries, she went to the conference the next day. She said she did so because the first defendant instructed her go and to behave as though nothing happened. (T 78)

105 The first defendant denied any argument or altercation between them while they were in the Virgin Islands. He said they were actually very united at that stage. The trip was organised because she wanted to go overseas and he had never been on a trip like that before. They attended two conferences, one in Chicago and one in US Virgin Islands. They went business class and stayed in nice hotels. He said there was no episode such as the one described by the plaintiff. (T 479)

106. Cross examination of the first defendant on this episode was brief (T 534):

107. The next series of complaints made by the plaintiff relate to the period after her return from the trip to Chicago and the Virgin Islands up until August of 2005. In the early months of 2005 there were a number of events associated with the assault charges against the first defendant and the AVO. On 13 January 2005, Doherty Partners wrote a letter on behalf of the plaintiff seeking withdrawal of the charges against her husband. The letter stated that the proceedings against her husband were causing her "considerable distress" and "placing strain on the marriage" and that she then had "no fears in relation to her husband". At about this time she had medical consultations with several doctors, Professor John Morris, Dr Greg De Moore and Dr Ted Cassidy. (T 78) The charges against her husband were eventually withdrawn: SOC @ 20 - 21. It was alleged that this occurred on 30 March 2005. (T 81.20)

108. Dr de Moore, a psychiatrist, provided a report dated 1 March 2005. He commented that it was difficult to assess the nature of the plaintiff’s problems because of her reluctance to divulge the main precipitants to her distress, and from what he could gather there was an incident the previous October involving an assault or the threat of an assault, resulting in an AVO:

"Sarah claims that she was always unhappy about the AVO and that she and her husband have resolved maters between themselves."

109. The pleading relating to this period alleges that from about December 2004 the plaintiff developed a constant and continuing fear and anxiety with respect to her personal safety, resulting in loss of confidence and depression, reinforced by repeated threats, beatings, abuse and denigration such that she became dissociative: SOC @ 35. She nevertheless participated in all of the activities designed to ensure dismissal of the charges against the first defendant and the dissolving of the AVO. She then pleads that following dismissal of the charges, the first defendant continued to beat her on a regular basis by striking her forcibly with his hands and feet on numerous occasions and forcing her to get down on her knees and prostrate herself and beg his forgiveness on a daily basis: SOC @ 23, 42, 43, 47 - 49.

110. The pleading goes on to assert that in or about August 2005 the first defendant directed the plaintiff to write another letter, in terms dictated by him: SOC @ 25. In order to obtain this letter he beat and threatened her and ordered her to re-write it in terms acceptable to him: SOC @ 26. She then wrote a letter (Exhibit C) in terms critical of her family, making various false assertions. It is alleged that the letter was required by the first defendant as a means of coercing the plaintiff by threatening to release its contents to her family and the community, to isolate her from her family and prevent further complaints to the police: SOC @ 27. Once she had written the letter, the first defendant dragged the plaintiff to their car and drove to his parents’ place, where she was taken before them, pushed down onto the floor onto her knees and ordered to hand the letter to them: SOC @ 28 - 29. The letter was accepted by the parents who, by their conduct in failing to intervene, expressed their approval of the mistreatment of her by their son. The letter was held as a means of controlling the plaintiff, preventing her from making further complaints to the police of domestic violence: SOC @ 30 - 31.

111. The plaintiff’s evidence in support of these allegations may be paraphrased as follows. The very afternoon on which the charges were dismissed, the next day, or very close to then, the first defendant started again to tell her how bad she was and how she had ruined his life by going to the police, and that she had disgraced him and his family. "This is so unjust, all these evil women. You're one of these evil women who does this to our family." He forced her to go to the car by pulling and poking her, combined with verbal threats. He then drove her to his parents' place in Eastwood. On the way there he told her she must apologise to his parents and promise them it would not happen again. Upon arrival he grabbed her and pulled her in through the door and called his parents, who came out to the foyer area. The first defendant then half flung, half pushed her down to the floor onto her knees. (T 81-2)

112. She said the first defendant then required her to bow to his parents and tell them that the charges had been withdrawn, that she was sorry for disgracing their family and to promise them it wouldn't happen again. She was crying all of this time, from the moment he pulled her through the door. She said he then told her she had to do that every day or he would bash her. (T 81-2) During the course of this incident, the father just stood there and watched. The mother initially stood there and watched, and then afterwards she took the plaintiff aside and told her how she should never have gone to the police but should have come to them:

"She told me that that other daughter-in-law, which is Chintha, the wife of Tusitha, the mother told me, "Chintha's never been to the police. Despite all of her hoo-haa, all the noise she makes, she's never been to the police. She's never taken Tusitha to the police, and you should see what Tusitha has done to her." She goes, "Oh, you should have seen her. She's black and blue, and she didn't go to the police, and you shouldn't have gone to the police." (T 83)

113. The plaintiff continued, saying that for the next three or four weeks, maybe longer, every time she got up in the morning, if they were staying with the parents, or every time she visited them, she had to get down on her knees, put her hands out in front of her and apologise and tell the parents that she would never do it again. This continued until one day the mother said, "That's probably enough now. You don't need to do that any more." (T 84)

114. I turn at this point to consider the letter (Exhibit C) as it also assumed considerable importance in the proceedings, and the defendants rely on it to discredit the plaintiff. This letter is also a long document, handwritten by the plaintiff, some 10 pages in length. The plaintiff said she was forced by the first defendant to write the letter, in mid-2005. He came home one evening shouting, and he said,

"You have to write a letter. You need to do something to reassure my parents that you won't take me to the police again, that you won't do anything against our family again. You need to write this letter. I'm going to tell you what to write in it, and you have to do it." (T 91)

"I was crying and I didn't want to write anything. I tried not to write the letter, and he kept threatening me. He kept saying he would hurt me, he would hurt my family. He kept saying I had no choice. I had to do it. He told me what I had to write."

115. The plaintiff said that everything in the letter was dictated by the first defendant, and none of it was true. He even made her re-write parts of the letter where she tried to tell the truth, dictating what she should say, with the threat that if she didn’t he would kill her parents. He then made her sign the letter. (T 92)

116. She said that after she had written the letter he forced her into the car and drove her to his parents’ place at Eastwood. Upon arrival, he pushed her inside and called his parents. She was crying and distressed. He then pushed her down onto her knees and ordered her to give them the letter. They took the letter and put it in a drawer. She said she had not seen it since, till she was giving evidence. (T 92)

117. I do not propose to set the contents out here in full, but given its importance to the ultimate resolution of the issues, it is appropriate that I set out some extracts:

I hereby document the truth about my family, the family I grew up with at 53 Louma Road, Birchgrove.

My mother from Thailand married my father so she could live in Australia. My father wanted an asian wife who would provide him with the "proof" of his non-racist attitude but in fact used my mother as the stereotypical "asian wife" who would serve & look after him + service him whilst enabling him to set himself up in society. My father used my mother to provide meals + children + the "pretend family" - the family that all respected men in society are meant to have. My mother took this as her price for being able to move to Australia, to have a position in society & a nice house to live in.

My father spent all his energy looking after himself + setting himself up at work to satisfy his ego...

Having accomplished certain tasks + enjoyed the accolades of these at work, he realised that the accident on the pedestrian crossing at work was an opportunity he could use to his advantage...he gradually (over months) started to complain he had pain related to his neck and back... Having built up a mixture of ailments, none of which could be objectively substantiated or denied by outsiders - including the physicians he involved - my father assessed the situation, decided he had managed to convince enough people of his fictitious ailments & he could now proceed with seeking compensation...

My mother meantime supported him publicly - knowing this was required to keep her own "face" but privately would comment that she had had enough of his political games...He contributed to the family life very little...

My father’s propensity for the "limelight" at the expense of others is well illustrated by the following:

(The letter proceeds to give an example involving a Mr Emeric Schwarz whose letters her father wanted to publish after his death against the express wishes of the deceased).

"My brother has similarly set himself up in life with people around him who he uses but does not assist...

My brother continues to be waited on by his partner + my mother. His partner is not only the one who has been employed but has also been the primary housekeeper + child carer. She does not complain openly but the disparity is clear when you ask each of them about their daily activities or when you speak to the children - particularly my brother’s daughter (now 10) whose typical answer to...what’s your dad up to? is "being a big fat lazy pig as usual"... Despite the clear disparity between the contribution of each of my brother + his partner to their household + family, my parents make no comment - speak only positively about my brother...

This is a true account of various events pertaining to my family over the last few decades.

118. The first defendant denied that the plaintiff was ever made to kneel down in his parents' presence and apologise. (T 479) As to the letter (Exhibit C), he didn’t even know about it. (T 480) He denied taking the plaintiff to his parents and forcing her to hand the letter to them. (T 554) He only found out about the letter later when his mother showed it to him. (T 570)

119. The father, for his part, also denied any episode involving the plaintiff kneeling before him and begging his forgiveness. As to the letter (Exhibit C) he said the first he knew of it was when he saw it in an affidavit after legal proceedings had been commenced.

120. The mother, Mrs Freda Karunaratne, also denied any episodes in which the plaintiff was made to get on her knees and beg forgiveness. (T 612 and 621) As to the letter (Exhibit C), the mother said the plaintiff simply gave her the letter one day, unsolicited, and said something to the effect that she had brought shame on the family and wanted her to have the letter. The mother did not read the letter at that time and put it in a drawer beside her bed. (T 647) Her son did not know about the letter. No-one did, apart from her (T 623) She said:

"The things that are in that letter I read only after this incident happened (the separation) and then I don't think anybody would know what to say to her if all those things that is in the letter are things that are unknown to anybody. Even now I can't remember anything about that letter other than all horrendous things. Those names and details and facts will - are all personal and private to Sarah Morris and family. Those things are not known to anyone at all. Even now I can't remember because it's - it was embarrassing even to read it." (T 624)

121. The next allegation relied upon by the plaintiff was that later in 2005 on an occasion when he was abusing the plaintiff the first defendant lashed out at his mother.

122. The plaintiff’s evidence was that she recalled an episode in the living area at the Eastwood house when the first defendant was angry about something and was shouting at his mother and the plaintiff tried to get him to stop. But he kept shouting. He broke a chair and then lashed out at his mother. The plaintiff said:

"I tried to stop him, and I remember being told off as well, but I can't remember any more than that." (T 86.5)

123. The first defendant denied such an incident, saying he had never assaulted his mother or raised his fists to her in anger. (T 479) The mother also denied the incident. (T 647)

124. The next allegation relied upon by the plaintiff was that during 2005 the first defendant commenced urinating on the plaintiff in the shower: SOC @ 39 - 40 and 45. The allegation was denied.

125. The plaintiff’s evidence on this allegation was that at some point in 2005 while they were living at Birchgrove, the first defendant commenced urinating in the shower. She objected, but he continued to do it and actually started to do it sometimes when she was in the shower also. (T 112)

126. The next set of allegations relied upon by the plaintiff relate to the purchase of a house at Hunter’s Hill, as a result of which the plaintiff and the first defendant moved out of the Birchgrove townhouse into the Hunters Hill house. Around the same time, the parents sold their house at Eastwood and also moved into the house at Hunters Hill. The first defendant’s brother, Tusitha, also moved into the house with them: SOC @ 44. It is alleged that permitting Tusitha to reside in the Hunter’s Hill house, against her wishes, emphasised her helplessness: SOC @49(h). It is further alleged that the first defendant compelled the plaintiff to enter the transaction and move to the new house by making threats against her and her family. She also claims that the first defendant placed her name on the mortgage, but not the

title

: SOC @ 49(k). Counsel submitted that this was evidence of the plaintiff’s "debased and degraded condition" at that time:

"Your Honour, it's a part of our case that the plaintiff got the - as a result of the abuse and the degraded position she was in psychologically that she agreed to become liable for the debt on the property without being mentioned on the

title

to the property." (T 114)

127. The plaintiff’s evidence about these matters was firstly, that she did not want to move from Birchgrove, away from her family, who she was not allowed to tell she was moving; secondly that she objected to the parents and brother moving in, and thirdly that she thought she would be on the

title

but somehow, unbeknown to her, her name was left off the

title

, but kept on the mortgage documents. She said:

"There'd been discussion - well, there'd been direction from the first defendant since early 2005 that we would move home, that we would not go overseas as I had hoped, that we would have to move closer towards Eastwood and his family, that we would move to Hunters Hill. There was direction from the first defendant that I was to find a house...Because of what you've done to me, because of the shame you've brought on me, because you've ruined my life, we can't go overseas now. We have to stay here. We have to stay with my family. We need to move closer to the family there at Eastwood. I want - we should live in Hunters Hill... Don’t tell - don’t you dare tell your parents that we are looking for a house. You're not allowed to bring your parents. I don’t trust your parents. Your parents don’t care about us. Only my parents care about us. Only my parents are good enough and will look after us and keep our interests at heart." (T 112-13)

128. So, the plaintiff said, she searched for a suitable house, against her will, and found one she thought was reasonable, at 8 Lyndhurst Crescent, Hunters Hill. She said the first defendant decided to go and have a look at the house himself and took his parents. He agreed that it was the best of the houses looked at and that they should consider purchasing it. She said they sought financial advice and were told they could manage the loan on the house, but may need to re-organise things. The house was then purchased and they moved in, in early 2006. (T 113)

129. The first defendant’s parents also moved in, as did his brother, Tusitha. She was unhappy about Tusitha being in the house (T 118):

"At the time we moved there, I understood he was going to be there for a few months and I had not a major objection at that stage. I did not know about all the charges against him at that stage. Shortly after being there, I started to feel very uncomfortable when he initiated what I felt were inappropriate conversations with me...as he started to try and engage me in talks about sexual acts between husbands and wives."

130. The plaintiff said she was given no choice as to the parents and Tusitha moving in (T 120-121). She said it was the first defendant’s decision to move:

"He told me that the parents had financial issues because of Tusitha's court proceedings. At that stage, I didn't know exactly what they were. I thought they were family matters, family law matters. He told me that they need to sell the house because they wanted to free up their money to help Tusitha and they would temporarily move into the place that we intended to purchase. He told me that they would sell the house, they'd put what they had in an account which they would then redraw what they had left - which they would have full access to and would redraw what they had left when they would move out a few months later..."

131. The plaintiff also said that the first defendant made her tell his parents that the whole thing was her idea:

"He even made me - he even said to me, "You have to go and tell my parents that this is your idea and you think it is a good idea and that it is your suggestion, you've come up with this." He told me that I had to do that and I did that but I did not - well, I suggested it to them but it was not actually my idea. I felt uncomfortable with all of them being in the house." (T 121)

132. The plaintiff was asked how her name came to be left off the

title

of the Hunters Hill property. She first said that after she signed the contract she believed she would be on the

title

. She presumed that the first defendant, or his parents, "crossed her name off". (T 117) Later, she said, she was told she had to agree not to be on the

title

, in the face of threats by the first defendant to kill her parents and her niece:

"There were several conversations about this. I believe the first one happened in late 2005, around the time of the contract and the establishment of loans, and there were further conversations just prior to the settlement on the house. All of these times, I said to the defendant I wished to be on the

title

but I was told that was not possible and I should just be grateful to be part of his family. I was advised I better not - he said to me I better - "You better not resist this. You better do this. You better agree to this. I'm going to hurt you and I'll kill you and I'll go to your parents and I'll" - I can't remember which parent he said he'd do what to. One of them he said he would get a knife to stick into them and twist it and turn it. And I can't remember what he said he would do. And he said he would kill my niece." (T 122)

"When it was around the time of the settlement, I don't remember why but for some reason I was - I think it was the day of the settlement but I'm not 100% sure, it was just before the settlement, I came home. I'd been to the shops, I think, or I'd just been out somewhere. It was mid-morning and the defendant - first defendant was there and for some reason my name had been put back on the

title

but there was now some - he said to me, there's some issue with the - your name on the

title

again and there's going to be stamp duties and we don't want to pay this 20,000 or something dollars stamp duties..."

134. The plaintiff was cross-examined about the purchase of the Hunter’s Hill property. The defendants’ position on these issues was that the plaintiff did not wish to go on the

title

so that the house would not be exposed to the risk of litigation, and that the parent’s names are on the

title

because they, in effect, were indirectly securing a substantial part of the loan to purchase the property. The plaintiff denied these propositions. (T 231) The plaintiff agreed that the purchase price of $2.7m was a substantial sum of money. It was put to her that the first defendant’s parents sold their house at Eastwood, then deposited a substantial amount of money with the bank to secure the borrowing for the purchase of the property at Hunters Hill and, not having anywhere else to live, moved in to live with the plaintiff and first defendant. The plaintiff disagreed.

"...I already said this earlier in the week but what I understood happened was the third brother in the family was undergoing, I thought at the time, family matters - I did not realise there were other matters involved - and required substantial financial assistance from his parents. The second brother, who had recently had a settlement from his previous divorce also wanted to do something with his finances...The parents wished to sell their house so they could free up money to give to the second brother, Ardith, and to support the third brother, Tusitha, in the legal matters. They had been telling me they intended to downsize. The - I was told that because of their pension or something, they required their names on a

title

within six months and they would temporarily put some money in our account against the house until they had time to move somewhere else and - which they expected to be about four, five, six months later." (T 228-9)

136. The first defendant’s father said that the Eastwood home was sold at the suggestion of the plaintiff and her husband. He did not want to move, nor did his wife, Freda, who cried and resisted the idea. But eventually they were convinced to move. (T 591)

137. The mother, Mrs Freda Karunaratne, was very clear on this issue. The proposition was that they would sell their Eastwood home and put the money in an offset account by way of surety for the purchase of the Hunters Hill home. And it was the plaintiff who insisted that they come and live there:

"...because we are putting in money to be our house and they won't be home, they will be at conferences, work, on call, overseas, also sorts of things, and to be - feel free to come and live there, and because - more or less because our money's going into some account." (T 649)

138. The next incident relied upon by the plaintiff is alleged to have occurred in May 2006. She pleaded that after the move to Hunters Hill the denigration and abuse of her by the first defendant continued. In or about May 2006 he was assaulting and beating her in their bedroom when the parents came in and watched. The mother asked her son to desist and he turned on her. The plaintiff intervened by placing herself between the mother and her son and she then "received a further beating from the first defendant": SOC @ 45 - 46.

139. Her evidence in support of this episode was that on an occasion sometime in May 2006, whilst arguing in their bedroom at Hunters Hill, the first defendant was shouting and tried to strike her. He had cornered her behind the bed when the two parents walked into the room. As he moved toward the plaintiff to strike her, the mother approached him and said, "Oh, don't do that, you shouldn't do that." Instead of launching at his wife he started throwing his arms out at his mother, to hit her. The mother jumped back a bit and "by instinct" the plaintiff tried to stop him and went up to him and said, "Stop it, stop it." The first defendant then attacked the plaintiff.

"... he struck his arms out at me like this, trying to hit me, and I jumped back and he didn't make contact once or twice and then I don't recall how that resolved. The father was standing there initially beside the mother but just kept standing there watching when the mother moved forward." (T 87)

141. The first defendant denied such an episode. He said he had never assaulted his mother, or raised his fists to her in anger. (T 479) That such an incident occurred was also denied by the mother and father. (T 605 and 647)

142. The next allegation relied upon by the plaintiff is that in late 2006 the first defendant compelled her to change her name and receive her college medal in the name of Karunaratne.

143. Her evidence in support of this allegation was to the effect that he told her the prize needed to be in his family name:

"You have to change your name to get the prize. The prize needs to be in my family name. You don't deserve anything. My family deserves this recognition, and you need to change your name and put it in their name. You need to also tell the head of department at Westmead." (T 94)

144. The first defendant, however, said that the plaintiff’s decision to change her name was mutual. He reiterated that he was not able to make the plaintiff do things she didn’t want to. (T 553-4) It was put to him that he forced her to change her name because he wanted the award to be recorded in his family name. He denied this proposition:

"Q. I suggest to you, doctor, it was forced upon her because she had got the college medal, and you wanted the award to be recorded in your family name.

145. The next allegation relied upon by the plaintiff is that in May 2007 when they were attending a conference in Turkey, the first defendant assaulted, battered and abused her by pinching and poking her whilst shouting verbal abuse denigrating her and her family: SOC @ 37.

146. In May 2007 the plaintiff and the first defendant travelled to Europe for two conferences. The first was in Germany and the second was a two-day conference in Turkey.

147. The plaintiff gave evidence that on the first or second evening they were in Turkey, whilst walking to the pool of the hotel at which they were staying, the first defendant began verbally abusing her, saying things like, "You - you're so - you're bad. You enjoyed yourself too much with those people in Berlin. You - you shouldn’t be like that. You should be like my mother." He then proceeded to pull at her hair and to poke her in the arm and chest with extended fingers, causing her pain.

148. The first defendant’s version of the episode is that they were out walking and he began asking her questions about another man named Jason Wenderoth, another doctor at the conference they had attended in Germany. During the course of the conference the plaintiff went with Dr Wenderoth to see a newly born polar bear cub at the Berlin zoo. The first defendant asked her whether there was something going on between her and Dr Wenderoth. She didn't answer. He asked the same question several times and she just wouldn't answer. He said:

"... she just wouldn't answer. At one stage she - while we were sitting on the bench she turned away from me and at that point - I pinched her to get her to turn around and once that happened she turned around and she just prodded me in return...I was just - maybe it was a bit childish but I just thought I'd walk back to the hotel. So I started walking back but after I walked about - maybe I don't know - it must have been 20 or 50 metres something like that - like, see she didn't move. She just stayed on the bench looking out... So I eventually bit my lip and walked back and said, "Look, let's walk back to the hotel," and she didn't reply. So I just stood there again and eventually after about a minute she got up and started walking. So I walked as well and we didn't say anything. We went back to the hotel. She would have showered. I showered, went to bed and we didn't really talk."

149. Counsel for the plaintiff then put to the first defendant that the plaintiff alleged he later assaulted her in the hotel. He denied any assault in the hotel:

"Q. When you were in Turkey, doctor, I suggest to you that you got so angry that you beat her up.

150. The next set of allegations relied upon by the plaintiff are to the effect that after their return from Turkey the first defendant made repeated allegations of infidelity, and on 15 June 2007 he proceeded to punch her, whilst in bed, on her arms, head and left leg, resulting in painful and tender bruises. He also made threats to kill her and members of her family: SOC @ 37.

151. Two weeks later the plaintiff left the marriage. On 30 June she went to the Camden Police Station with her brother to inform them so as not to be recorded as missing. A few days later she made a statement describing episodes of abuse and threats to her and her family. A second AVO was taken out. The first defendant was subsequently arrested and charged and later appeared before the Local Court where he pleaded not guilty. The evidence from that hearing is not before me.

152. The plaintiff’s evidence was that in mid-June 2007 she had been saying to the first defendant that she was not happy with the living arrangements in the house, with his parents and brother living there with them. She arrived home on a Friday evening expecting to go out to discuss the issue, but he told her there was no need to go out, and they didn’t need to have the talk she wanted. So she went to their bedroom to have a shower and go to bed. He followed her and whilst she was in the bathroom he started verbally abusing her and her family. She had a shower and went to bed, but he followed her onto the bed where he proceeded to punch her on the body, arms, head and left leg, causing bruises. He was threatening her saying he was going to kill her, kill her parents and her niece. (T 129-30) She said:

"And I just stopped responding at some stage, and he stopped bashing me at some stage, and I went to sleep."

153. The first defendant does not dispute that after their return from Turkey he asked the plaintiff a number of times whether "something was going on" with Dr Wenderoth. She never gave him a response. (T 571) He denied punching her on 15 June 2007 or threatening her or her family. He said he has never punched her.

154. The first defendant’s version of the evening of 15 June was that she came home from work about 8.00pm and they went upstairs together to their bedroom. They began discussing the business venture she was planning. Eventually the question of Dr Wenderoth came up because he was one of the partners in the business venture. But she would not reply. When he persisted, she kneed him in the groin:

"...if she doesn't want to say something she won't say it. And - eventually I kept asking and I probably spoke loudly. I don't think I was shouting at her but I would have spoke loudly and eventually she - she just said, "You're paranoid." And kneed me in the groin." (T 483)

155. Having regard to the opposing versions of the events in this litigation, a determination of the factual issues must inevitably involve a consideration of the credit of the protagonists. In assessing the credit of the witnesses, I have sought to rely predominantly on contemporary materials, objectively established facts and the apparent logic of events, and place limited reliance on an assessment of their demeanour and appearance: Fox v Percy [2003] HCA 22.

156. Counsel for both sides made detailed submissions on credit. I do not propose to set out the respective submissions in full but it is necessary to make some reference to them.

157. The plaintiff’s primary submission is that the most serious issue for the first defendant is his admission of poking, prodding and slapping the plaintiff. There were also admissions as to pinching, pushing, holding and grabbing. These admissions, however, fall far short of the allegations of bashings, unrestrained and uncontrolled punching and kicking, or of "beating her to a pulp".

158. The plaintiff also relies on a denial of instructions said to have been given by the first defendant to Dr Lee of an assertion of the plaintiff’s infidelity. (T 560 - 574) For my part, I did not regard this material as being adverse to the first defendant’s credit. He never disputed that he had suspicions as to the plaintiff’s fidelity, as to which he pressed her strongly, particularly in the latter stages of the marriage.

159. The plaintiff submitted that the evidence of Dr Tran was reliable. He was not cross-examined on his observations of bruising on the plaintiff, nor as to his conversations with her. In my view, Dr Tran was a reliable, independent witness, whose evidence I have no difficulty accepting.

160. Submissions were made in relation to the evidence of Chintha Karunaratne, the plaintiff’s sister-in-law. Criticism was levelled at the defendants for their failure to call any of the first defendant’s brothers, or Mr and Mrs Soyza. But nor did the plaintiff call Chetana, the first wife, or Dr Joanne Young. It is clear, however, that Chetana has a deep resentment towards the Karunaratne family as a result of her own unfortunate experiences in respect of her marriage to Tusitha and ongoing family law disputes revolving around her intention to move to England with the two children of the marriage. I consider the evidence of Chintha is to be approached with caution.

161. It was submitted that the defence of the first defendant is inherently improbable. Matters relied upon to impugn his credit included his fixation with cleanliness, his requirement that the plaintiff change her name, leaving her off the

title

to the house at Hunters Hill, requiring the plaintiff to live with his parents and brother, insisting on her attendance at the pooja in 2003, making her drive the old car, bringing him drinks when he was dehydrating, finding his lost keys, working under him at Westmead, limiting her freedom of movement, loudly demanding answers as to his suspicions of infidelity, his perception that his brother’s conviction was unjust, that the plaintiff was capable of kneeing him in the groin. In my view, as a list of matters about which the first defendant was untruthful, it is somewhat feeble. For reasons that will be developed in these reasons, I believe the plaintiff knowingly agreed to be left off the

title

of the Hunters Hill home, for commercial reasons. I believe she willingly changed her name. I believe she willingly attended the pooja. I believe he did lose his keys. That she brought him drinks is undoubted, because she felt sorry for him. He did not deny badgering her about his suspicions as to her infidelity. That he was tidier than her, and her untidiness irritated him, was freely conceded. It was one of the tensions in an unhappy marriage. The question of his limiting her freedom was pursued in these proceedings, but the evidence to support the proposition was very thin. She did, after all, live within walking distance of her parents, her brother and her best friend in Birchgrove. There was no evidence of him preventing her from visits to his family. She seemed to have no difficulty meeting up with friends from work, such as Dr Tran. She seemed to have had no difficulty going to the zoo with Dr Wenderoth in Berlin. If she was capable of overturning tables when in a rage, she was probably capable of kneeing the first defendant in the groin, or of. I don’t believe she was forced to live at Hunters Hill with his parents and brother. It was clearly a consequence of the financial arrangements in connection with the purchase of Hunters Hill to which she was a knowing and willing party. What I do believe is that she later regretted moving away from Birchgrove and resented the ongoing presence of his family in the house, particularly as their own relationship deteriorated in the first half of 2007. (T 129.25)

162. The plaintiff criticised the first defendant for failing to provide any worthwhile explanation as to why Chetana would leave the marriage after only one year and tell the community he had been violent towards her. In my view, the evidence established that Chetana left because she found the marriage unhappy and stifling. This was clear from the ultimatum delivered when Chetana’s mother turned up unannounced, that they either move out on their own, or she would leave. The first defendant told the plaintiff there had been episodes of pushing and prodding, and no doubt there was pinching and poking between him and his first wife. That Chetana and her mother might use this in the community to explain her departure is entirely plausible. Assuming that the priest had said, "No hitting" at the wedding, a matter which in my view was not proved anyway, I would not regard that as probative of anything either. I saw none of these matters as reflecting adversely on the first defendant’s credit.

163. It was submitted that the first defendant was generally evasive in his evidence. I disagree, but I do consider that he sought to minimise many of the episodes between him and the plaintiff. There was also the episode when they went to see Dr Tran and he tried to explain away the plaintiff’s bruises as soccer injuries. It is also likely that he was mistaken about the hands free telephone incident. But I saw nothing odd in the answers he gave about his religious beliefs. My overall impression of the first defendant was not of someone who fabricated his evidence, but of someone who sought to downplay the severity of the matrimonial arguments and understate the nature of the episodes involving physical contact between them. For these reasons I consider his evidence is also to be approached with caution, but not with complete scepticism. It also emerges from the evidence that the first defendant carried considerable resentment towards the plaintiff’s family, but I doubt that a full explanation of the problems between the first defendant and the plaintiff’s family ever emerged, or for that matter the true nature of the plaintiff’s resentment of her father and brother, as evidenced in the letter she wrote about them (Exhibit C). But I am unable to accept that the first defendant controlled and manipulated the plaintiff to the extent she alleges. There is a consistent theme running through his evidence, which in my view is inherently plausible when taken together with all the other evidence about her character, that the plaintiff could not be forced to do things she did not want to. She was stubborn and determined, but never submissive or pliant. In my assessment, it was in fact one of the frustrations for the first defendant in the marriage that he could not control her, could not restrict her, and could not get her to do things the way he wanted them done. It is for these reasons that I am not satisfied about the event that the plaintiff alleges in which the first defendant took her to an oval next to her parents’ house and required her to get in the way of soccer balls kicked at her by him for the purpose of getting bruises. That alleged episode, to my mind, was entirely fanciful.

164. The plaintiff also submits that the court should be troubled with the credibility of the father of the first defendant. Despite the evidence of his age and of recent medical problems, it was nevertheless put to him, in my view quite unfairly, that he was feigning poor memory in the witness box. It was even put to him that his wife suspected him of having an affair with his daughter-in-law, Chetana. There was no evidentiary basis for the proposition and in my view was indicative of the bitterness that the failure of the marriage between the plaintiff and the first defendant has evoked, and to which the desire to hurt has descended.

165. The plaintiff next attacks the credit of the mother. It was submitted that she was fractious from the moment she entered the witness box, and she was, but in my view understandably so having regard to the evidence she had heard over the previous week. It was suggested she was evasive about Chintha’s qualities as a daughter-in-law. But even if she was, I did not see that as an issue of credit. Rather it was an issue of ambivalence about a daughter-in-law whom she no doubt once loved but who was now seeking to remove the grandchildren to another country. She was said to have been coy in her evidence about the Zoysas, and insincere about her knowledge of Chetana’s difficulties in Australia. I am unable to see the evidentiary basis for those propositions. Finally, I was asked to disbelieve her evidence about the letter given to her by the plaintiff (Exhibit C). I will come to Exhibit C, and for reasons I will explain, I am not satisfied that the plaintiff wrote that letter under compulsion by the first defendant. Viewed in that light, the mother’s version of how she came to receive the letter is entirely plausible.

166. There was further criticism of the mother. It was submitted that her evidence about being a Buddhist was confusing. I did not find it confusing. It was submitted that her evidence about not prying into her family’s affairs was not credible. I did not find what she said in this regard lacked credibility. Nor do I see anything sinister in her commenting on the text of the letter written by the first defendant, which is Exhibit J, or her organisation of a pooja for Tusitha. She was even criticised because she "dropped everything and left immediately for Sri Lanka when Nisha got married, organised a photographer for the wedding and a Monk". That was said to be indicative of a mother who pried into the affairs of her children. And there were other criticism that seemed to me hypercritical of her role as a mother.

167. But for that very reason, the fact that she is the mother, and fiercely loyal to and protective of her family and its reputation, her evidence must also be approached with caution. But I did not consider her to be a witness who was dissembling or otherwise intent upon prevarication.

168. As to the plaintiff herself, her counsel submitted that she gave plain, logical and consistent evidence. (T 665) That she never told her parents or her best friend about the alleged beatings, and only told Dr Tran, was because she was completely ashamed, and in constant fear, for the duration of her marriage. (T 703) He also submitted that there was no dissembling, as was suggested, in the course of the plaintiff’s cross-examination, merely an attempt to clearly understand questions before answering them, rather than saying the first thing that came into her head. To suggest otherwise was an "exercise in forensic heroism". (T 704) It was also submitted that the plaintiff has huge blanks in her memory and her recall by reason of her ongoing psychiatric condition. (T 721) This was not apparent from the detail of her evidence. It was said that she is irritable with outbursts of anger, dissociates and cannot concentrate. (T 721) And that she has had to leave work because someone spoke harshly to her. And that there has been alcohol abuse. (T 723) None of these assertions were corroborated by anyone from her family, from the workplace or from her circle of friends. Nor was there any evidence from the partners in the business venture and the purchase of a major commercial property at Camperdown. Nor were any of these alleged problems disclosed by the plaintiff in her proposals for the renewal of her professional indemnity insurance at each annual renewal.

169. The absence of witnesses was one of the matters of complaint by the defendants. It was submitted that the credibility of the plaintiff and the reliability of her evidence needs to be assessed against a number of factors [2]:

(i) There are no witnesses to the alleged assaults or the alleged representations.

(ii) There are no treating medical records in support of the claims for either physical or psychiatric injury.

(iii) The medico-legal reports are inconsistent with the contemporaneous records of medical practitioners who the plaintiff was seeing for treatment at the time of the alleged incidents.

(iv) The plaintiff’s versions of what occurred at different times are inconsistent with the medical histories provided to medico-legal specialists.

(v) The histories within the medico-legal specialists’ reports are inconsistent with each other

(vi) The histories in the reports are inconsistent with the plaintiff’s evidence.

(viii) Her continuing to remain living with the first defendant in the circumstances described in her evidence is inconsistent with a person of her background and qualifications.

(ix) The events that she described in her evidence are inconsistent with someone who has achieved the successes that she has achieved.

(x) The proceedings were commenced and have continued in the context of acrimonious proceedings in relation to property settlement in the Family Court of Australia in which the plaintiff and all three Defendants are parties.

(xiii) The medical practitioners with whom the Plaintiff worked, and with whom she was in partnership were not called to give evidence.

(xiv) The plaintiff has an interest in fabricating adverse events because of her embarrassment about the letter that she wrote about her parents.

(xv) The plaintiff has an interest in fabricating events for the purposes of financial gain.

(xvi) The plaintiff is motivated by hatred and vindictiveness, as evidenced by her joining the elderly parents of the first defendant as parties to these proceedings.

170. Each of these submissions has individual validity to a varying degree, some having more weight than others. For example, having regard to the contents of the letter (Exhibit C), I expected that one or more of the parents and the brother would be called to dispel any notion of family disharmony. I have already expressed views about her failure to call work colleagues, business associates and friends other than Dr Tran. But together these considerations militate to form a powerful barrier to adverse findings on the uncorroborated allegations of criminal conduct: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2]:

171. The submissions for the defendant on issues of credit sought to emphasise the available contemporaneous material:

"Where there are no witnesses (to allegations of criminal conduct) the most reliable means by which a court can determine where the truth lies is by an analysis of such contemporaneous records as exist in relation to the events about which complaint is made." [5]

172. The defendants submitted that Exhibit B and Exhibit C are very important documents in the case because they both contradict the plaintiff’s case, and secondly because they are consistent with the evidence of the first defendant. Hence his evidence should be preferred: [6] and [15]. The submissions continue:

"According to the Plaintiff Exhibit B was prepared by her with the First Defendant acting as a kind of amanuensis. This cannot be so. The document records in considerable detail matters about which the Plaintiff is the only person who could have the relevant knowledge. [7]

173. The submissions then refer to the highly introspective nature of the letter (Exhibit B), with considerable reference to beliefs and values: [8]. The contents are consistent with other contemporaneous material, such as the medical material (Exhibit G, Exhibit 2 and Exhibit 5): [9] - [11], [18].

174. The letter that was kept by the first defendant’s mother has similar features, and contains information that can only have been known to the plaintiff: [15] - [16].

175. The defendants also point to other contemporaneous records that are inconsistent with the plaintiff’s case, such as the report of Dr Greg de Moore dated 1 March 2005 (Exhibit M) which records a history of her being unhappy about the AVO and "that she and her husband have resolved matters between themselves".

"There is no reason why (Dr de Moore) would not have been given a truthful account of what was occurring in the Plaintiff’s life at that time. The account does not record symptoms of PTSD but does record symptoms of depression, a not surprising medical conclusion given the unhappy marriage of the Plaintiff and the First Defendant. Of the greatest significance is that ...the Plaintiff had not told (either set of) parents of the AVO yet according to evidence she was on her knees frequently begging forgiveness for having caused embarrassment to the family by being instrumental in having it obtained. The contradiction is glaring." [17]

176. The next submission arises from a comparison of the letters that are Exhibit B and Exhibit C with the letter the first defendant did write (Exhibit J). It was suggested that the content of his letter belies the plaintiff’s evidence that he acted as an amanuensis in respect of her letters.

"The content of that letter and the turn of phrase used when compared with Exhibits B and C demonstrate that they cannot have been written by the same person. One is the product of the pen and of the mind of the Plaintiff (Exhibits B and C), the other is the product of the pen and the mind of the First Defendant. Of equal importance as a contemporaneous record is the fact that in Exhibit J the First Defendant is pleading for his wife to return and expressing, by way of mea culpa, what he perceived as being his deficiencies and his wrong-doing during the course of the marriage." [20]

"There is no reference to any of the incidents or circumstances which the Plaintiff claims to have occurred. If he was apologising for being violent towards her on one or more occasions one would have expected that apology to have been a significant part of this letter, particularly if this was supposed to be, as it appears to be, a letter to persuade her that he would cease and desist from any such conduct if she returned." [21]

177. The defendants contend that these contemporaneous records establish that it is more likely that having unwittingly caused the police to apply for an AVO, having observed her distraught state and perhaps bruises on her, she later reconciled with the first defendant and genuinely set about rectifying the situation. The question was posed:

"...or is it more probable that a woman of her education, training, experience, background and personality permitted herself to be overborne and subjugated to the will of the First Defendant and his elderly parents, including begging on her knees?" [19]

178. The defendants’ submissions on credit turned to the plaintiff’s demeanour in giving evidence:

"The first point that needs to be made in relation to the Plaintiff in this regard is that her demeanour in giving evidence when examined in chief and under cross-examination was so different that the Court could be forgiven for thinking that it had before it two completely different witnesses." [22]

"More significantly, the content of her answers in cross-examination were not those of a witness displaying veracity. She was at pains, at all times, to attempt to identify what she thought was the "sting" of the questions in cross-examination and provide an argumentative answer to what she perceived that "sting" to have been rather than answer the question. There is but one explanation for that kind of behaviour by a witness, and that is a desire to advance their own case and not to give an honest answer to the questions they are being asked." [23]

179. It was submitted that having regard to the credibility of the defendants and the unreliability of the plaintiff’s evidence that her claim should only be accepted to the extent that it was independently corroborated by other evidence. [26] (See also T 677.21, T 728.32, T 729-30 and T 736.13).

180. For my part, there are a number of unsatisfactory features of the plaintiff’s evidence.

181. First and foremost there are the contemporaneous letters that are Exhibit B and Exhibit C. I am unable to accept that these letters were written by the plaintiff against her will. There are many examples in the contents of aspects of her life and about her family that can only have come from her. Nor was I persuaded that she was a person whose will could be overborne such that she would write those letters unwillingly. Rather, I was satisfied that she was a person who did not do anything she did not want to. That was the thrust of the first defendant’s evidence, and the notion was not dispelled by any other witnesses. My assessment of her personality from the totality of the evidence was that she was a strong-willed, determined person who made rational choices based on her own analysis of circumstances. Sometimes those choices were unfortunate in retrospect, subsequently regretted, or productive of unforeseen consequences. The only time it might be argued that she made an irrational decision was the occasion she went to the police station on Saturday 16 October 2004, from which the AVO resulted. But it is equally probable that was a deliberate decision in that she was clearly debating in her own mind at the time whether to permanently leave the marriage. She had already taken steps towards such an outcome, by removing articles from the matrimonial home and freezing their bank accounts. Those actions were consistent with a rational plan to terminate the marriage. It is clear to me, however, that once she calmed down from her highly distraught emotional state and had a calm discussion with her husband, the enormity of the consequences of what she had done dawned on her. I am equally convinced that she then made a rational decision not to end the marriage but to continue to attempt to make it a success. I prefer the evidence of the first defendant to the effect that they were at this stage of the marriage, very "united". It is improbable that they would have gone off together on an overseas trip at that time if they weren’t. Her version in the witness box is also inconsistent with what she told her doctors at the time. Nor is it likely that her solicitor, Mr Doherty, was fooled into believing she genuinely wanted the AVO dissolved, but was in fact acting under compulsion. The suggestion of collaboration with the first defendant’s lawyers was but another fanciful feature of the evidence. Thus, the plaintiff in fact set about, willingly and determinedly, to undo what she had brought about. I do not accept that the first defendant played no part in the creation of the first letter. Having regard to the contents one can discern elements of a collaborative effort that are consistent with the subsequent visit to Dr Tran to explain away the bruising. But that she wrote the letter against her will I cannot accept. Similarly, I do not believe that the first defendant effectively dictated the second letter (Exhibit C). Indeed, in my view, he never knew about that letter. It was written by the plaintiff entirely of her own accord, then given to her mother-in-law for reasons which are not capable of findings in these proceedings having regard to the absence of what I regard is her true motivation. All I am able to conclude is that it was not written at the behest of the defendants for the purpose of controlling her.

182. I have already expressed my concerns about the witnesses who were not called. The explanation that she was too ashamed to tell anyone about her matrimonial problems was unconvincing, especially after the AVO and the criminal charges against her husband became public. In the absence of evidence from those concerned, such as her parents, her brother and her best friend that they were unaware of those events, I am not prepared to accept that they were not told. It is equally improbable that she told Dr Tran about the problems in the marriage but not her best friend. It is also of significance that none of her business partners were called, especially Dr Wenderoth, nor anyone from her workplace. Nor was the court informed about the financial advice received in connection with the purchase of the Hunters Hill residence, or who gave that advice. Similarly the court was not informed about the nature of the advice obtained by the plaintiff that justified her answers to questions in her proposals for the annual renewal of her professional indemnity insurance.

183. Other features of her evidence that I found particularly unsatisfactory were the soccer ball kicking episode at the oval beside her parents’ house, an allegation notably missing from an otherwise comprehensive log of complaints in the Statement of Claim; the improbability of her continuing efforts in early 2005 to have the AVO dissolved and the criminal charges against her husband withdrawn if, as her counsel asserted, she was beaten to a pulp by him in a hotel in the Virgin Islands only a month earlier; the allegation that he had urinated on her in the shower, a matter about which she resiled in her evidence; the plaintiff’s incomplete explanation as to the way she completed her annual professional indemnity proposals having regard to her assertions as to her incapacities for work on a full-time basis; and her assertion that she was deliberately left off the

title

of the Hunters Hill property, a matter as to which she gave three different versions.

184. For these reasons I have concluded that much of the plaintiff’s evidence was unreliable as so much of it has been demonstrated to be grossly exaggerated and embellished. It is not possible to readily discern which allegations are accurate and which are not. The result is that I am not prepared to accept her evidence where it has not been otherwise independently supported or corroborated.

185. I turn now to consider the psychiatric evidence. The first observation to be made is that the totality of the medical opinion available was not in evidence, for various reasons. In my view, the psychiatric picture was incomplete. The second observation to be made is that the reliability of the totality of the psychiatric evidence is open to question having regard to the propensity for this plaintiff to exaggerate and embellish. More important than the flawed histories upon which the doctors base their opinions, in my view, was the material they were never given, including the absent witnesses to whom I have already referred. In this regard, the letters that loom large in this case, Exhibit B and Exhibit C, were never properly considered by any of the plaintiff’s experts. For reasons that were never adequately explained, Exhibit C only emerged at the trial. The actual content of the letters is not discussed anywhere, and wherever it is adverted to, it is accepted by the doctors that she wrote them against her will and the matters discussed are untrue.

186. The plaintiff’s motivation for writing the letter Exhibit C remains, therefore, a matter for speculation: Strinic v Singh [2009] NSWCA 15 at [58] - [60]. Counsel for the defendants put it this way:

"The extent to which other factors may have affected her psychiatric condition these have never been explored, as Dr Cassidy was at pains to point out in his report and, as previously observed, no members of her family were called. Had this taken place it may have been possible to shed some more light upon the reason why she wrote Exhibit C. It would be conjecture to attempt to identify those reasons on the paucity of the evidence that exists but plainly cultural, religious and family relationships provided for a fairly complicated mix of emotions capable of producing some bizarre results, including both Exhibit C and this litigation." [44]

187. The plaintiff’s emotional instability predates the events complained of in these proceedings. As early as the mid 1990’s when she was a medical student, she received counselling from Professor Stewart Dunn, a Professor of Psychology, after her father had suffered a serious injury and protracted recovery: Exhibit L. Presumably this is the injury she refers to in detail in her letter Exhibit C where she suggests that her father feigned his symptoms for the purpose of obtaining compensation to which he was not entitled.

188. The result is that the assumptions relied upon by the plaintiff’s doctors are

fundamentally distorted and cannot, in my view, be relied upon to ground the medical opinion relied upon as to any causal connection between the allegations made in these proceedings, as distinct from other stressors including the marital breakdown. This is not a case for inferences and a shifting onus, requiring the defendants to disentangle the conduct complained about. This is a case that calls for an unequivocal opinion premised on a full and accurate history. The plaintiff has failed in that regard.

189. I turn now to my findings and conclusions in relation to the case brought by the plaintiff in deceit.

190. The plaintiff’s case is that she was falsely deceived into agreeing to marry the first defendant because he denied allegations she put to him that he had hit his first wife and had been physically violent towards her, causing her to leave the marriage. His false denial of these matters was then repeated in the presence of his parents who also made false denials to the same effect.

191. In my view, the fundamental hurdle to the plaintiff succeeding in deceit is the unavailability of the tort as a matter of law in the context of the case she seeks to bring. The tort of deceit as it may be relied upon to ground liability as between parties to a marriage is problematic. Representations in the context of a marital or proposed marital relationship are not generally to be treated by the law as giving rise to consequences enforceable by an action in deceit. There may be circumstances, such as those identified by Justices Gummow, Kirby and Crennan in Magill v Magill [2006] HCA 51 at [129], but these are exceptional.

192. Having regard to the discussion of the tort in that decision it is clear that marriage is a context in which deceit may be a difficult cause of action to attempt to apply. Although marriage is not "a zone of special immunity", it is a category of case better left to the moral code (religious or otherwise) of the parties. Hence an attempt to construct legal rights and obligations "in an unsuitable environment" should fail: at [49]. False representations occurring within a sexual relationship, which is personal, private, and intimate, cannot be justly or appropriately assessed by reference to bargaining transactions, with which the tort of deceit is typically associated: at [88]. Save in exceptional circumstances, representations by a party to marriage to the other about the relationship between them are not intended to give rise to consequences enforceable by the law: at [140].

193. In the present case, the pre-marital discussions upon which the plaintiff relies, even if they could be said to amount to relevant representations, fall within what Chief Justice Gleeson described as an unsuitable environment in which to attempt to construct legal rights and obligations. For these reasons the plaintiff’s case brought in deceit fails.

194. But even if the tort were to run in the circumstances of this plaintiff’s allegations, in my view she failed to prove the necessary factual basis for her claim to succeed, even if the evidence of Chintha were to be accepted, she gave no evidence of having witnessed any act of physical violence on the part of the first defendant towards his first wife. The high point of her evidence is that she observed bruises on Chetana, but in the absence of evidence from Chetana as to how they were caused, no inference should be drawn that they were a result of violence inflicted by the first defendant. The only evidence, then, of physical contact between them was what the first defendant told the plaintiff, to the effect that he pushed his first wife at times when she was poking and prodding him, but he never hit her.

195. So far as the allegations of deceit against the parents are concerned, I am not satisfied that there was any conversation, as alleged by the plaintiff, in which they were asked to deny allegations that the first defendant had used physical violence against Chetana. Apart from the absence of corroboration for such an episode, it is highly improbable.

196. Even if the plaintiff had established some factual basis to support her allegations of false representations, I would not have been satisfied that her version of what the first defendant said to her was made with the intention that the plaintiff would rely on it to make her decision to marry him. Nor did I accept that she did marry him based upon any reliance on such a conversation. At its highest, his assurances may have persuaded her to keep going out with him at that time.

197. The defendants raised other defences to the claim in deceit. The first was the Limitation Act defence: s 14. It was contended that the plaintiff was out of time in any event, in that more than 6 years had expired from the date the cause of action arose. Second, assuming there had been any reliance by the plaintiff, it ceased prior to the actual wedding, as a result of the incident alleged to have occurred in August 2002. Third, the defendants rely on s 3B(1) of the Civil Liability Act 2002 and say that any representation made by the first defendant could not have been made with an intent to cause injury. Each of these defences would serve to defeat or limit her claim.

Findings and conclusions in relation to the case brought in assault and battery

198. I turn now to my findings and conclusions in relation to the case brought by the plaintiff in assault and battery.

199. There is no doubt that there were episodes in which harmful contact was intentionally made by the first defendant to the person of the plaintiff that constituted the tort of battery. There were also episodes in which he intentionally created in her an apprehension of imminent harmful contact that constituted the tort of assault. The difficulty in this case is to ascertain when that occurred, having regard to the exaggeration and embellishment on the plaintiff’s part, and the attempts on the part of the first defendant to minimise his conduct, all of which I have discussed above. The exercise is further complicated by what can only be described as the introduction of issues more appropriately the province of the Family Law Court. For example, how it can be suggested that forcing someone to change their name, accusing her of infidelity, or leaving her name off a

title

deed, could be an assault or a battery, even had those assertions been proved, is simply a nonsense. Then there is the disconnect between many of the allegations made in the pleadings and the actual evidence, which I have sought to illustrate above in my discussion of each of the allegations relied upon.

200. The first finding I make is that I am not satisfied the plaintiff was made to do anything by the first defendant that she did not want to do. I am not satisfied that he controlled her will, or so dominated her that he was able to compel her to take steps that were contrary to her own independent choice. Thus I find that she was not forced to write the letters that are Exhibit B and Exhibit C. She was not compelled to change her name. She was not excluded from the

title

of the Hunters Hill property against her will. She was not prevented from seeing her family, friends or colleagues. She was not made to attend the pooja in May 2003. She was not forced against her will to assist in the withdrawal of the assault charges and the dissolution of the AVO in 2005. She was not forced to prostrate herself in obeisance, or to kneel before the parents and beg their forgiveness. Nor did the parents and Tusitha move into the Hunters Hill house against her wishes. It is probable, however, that by 2007 she had reached a position where she no longer wished them to reside with her and her husband. Indeed it was his failure to respond to this issue or to discuss it with her that was a significant factor in her decision to leave the marriage in June 2007.

201. The next finding I make is that I am not satisfied the first defendant made any threats to kill the plaintiff, or any member of her family. Her assertions in this regard are not corroborated. There is nothing in the pleading about any threats made against her family. In my view, the claims made by the plaintiff of such threats are part of the embellishment that attended much of her evidence.

202. The third finding I make is that I am not satisfied the first defendant ever used violence or threatened force against his mother. That he would do so, having regard to her strength of character and his respect for her, is improbable. The assertions in this regard are uncorroborated. Even Chintha did not go so far as to suggest that any of the sons had been threatening or violent towards their mother.

204. The first allegation (2.2) is that in August 2002, at their Birchgrove townhouse, the first defendant pushed the plaintiff to the floor and grabbed her leg. There is no corroboration for the allegation, but it is the subject of concessions made by the first defendant. I am comfortably satisfied that in the course of her trying to walk around him, he grabbed her by the shoulder to restrain her. This was a direct and intentional act involving harmful contact. I find the first defendant was guilty of battery in this episode.

205. The second allegation (2.3) is that the between the wedding in September 2002 and May 2003, at their Birchgrove townhouse, there were a "handful of graded incidents of a less violent nature" in which the first defendant grabbed her arm, pinched her, prodded and poked her, and pushed her. There is no corroboration for the allegation, but it is the subject of concessions made by the first defendant. I am comfortably satisfied that on no less than 6 occasions during this period, the first defendant pushed or shoved the plaintiff, and poked or prodded her, in the course of heated arguments between them. These were direct and intentional acts involving harmful contact. I find the first defendant was guilty of battery in these episodes.

206. The third allegation (2.4) is that in May 2003, at their Birchgrove townhouse, the first defendant held the plaintiff down forcefully on a couch by holding her arms tightly, then struck her in the face above her right eye. The written submissions assert that he punched her above the right eye. In fact she expressly said that his hand was open, and that he used the back of the hand. This type of embellishment by counsel was not helpful in attempting to differentiate between what was true and what was not. The episode is corroborated by the evidence of her complaint to Dr Tran shortly afterwards, and he observed bruises around her eyes and over her shoulders. I am, therefore, comfortably satisfied that in the course of an argument the first defendant forcibly restrained the plaintiff on the couch then struck her above the right eye with the back of his open hand. This was a direct and intentional act involving harmful contact. I find the first defendant was guilty of battery in this episode.

207. The fourth allegation (2.5) is that the following day the first defendant forced the plaintiff to attend a pooja at the Hindu temple in Westmead. I fail to see how this episode, even if true, could constitute an assault or battery, unless it is to be suggested that there was some specific threat on the part of the first defendant that put the plaintiff in apprehension of the application of harmful physical contact. But her evidence did not go that far. In any event, I am not satisfied that the plaintiff attended the pooja against her will, for the reasons previously expressed.

208. The fifth allegation (2.6) is that in July 2004, while driving in Henley Marine Drive, the first defendant punched, poked and pinched the plaintiff, causing an accident. In evidence, she restricted the allegation to poking and prodding. The allegation is not corroborated. I prefer the version of the first defendant that the plaintiff was in fact asleep at the time of the accident.

209. The next set of allegations (2.7) is that from July to October 2004 the plaintiff suffered multiple beatings and assaults. In evidence the plaintiff said there were at least 5 incidents in this period of poking, pushing and punching, the detail of which she could not recall. Then there is an allegation (2.8) that on 3 October 2004, at their Birchgrove townhouse, the first defendant struck the plaintiff on her chest.

210. There is a large degree of imprecision about these allegations and the absence of any corroboration. Nevertheless, having regard to the defendants concession that there were multiple arguments between them at that time, and his admission that during some of these arguments he would push and shove her, pinch her, poke her and prod her, and on occasions slap her, I am comfortably satisfied that more probably than not such conduct occurred on the occasions in question. These were direct and intentional acts involving harmful contact. I find the first defendant was guilty of battery in these episodes.

211. The next allegation (2.9) is that on 10 October 2004, at their Birchgrove townhouse, the first defendant physically restrained the plaintiff and blocked her path, then pushed her onto a staircase where he repeatedly punched and kicked her in an uncontrolled manner. I am comfortably satisfied that there was an incident on 10 October 2004 in which the first defendant visited physical violence upon the plaintiff. So much is evident from the evidence of her subsequent complaint to Dr Tran and his observation of the bruises to various parts of her body, as evidence in the police photographs (Exhibit D). The difficulty is in determining the precise nature of the violence, having regard to the embellishment and exaggeration to which the plaintiff has been prone in these proceedings. The further difficulty is that the first defendant denies any physical violence between them on that occasion. In my view it is improbable that the plaintiff would have become so distraught and gone to the police to complain of violence unless there had been an episode of some significance. It is difficult to draw inferences of any precision from Dr Tran’s evidence or the police photographs as to the nature of the violence and I am not, therefore, satisfied that there was "uncontrolled" punching and kicking. I am, however, satisfied that there was grabbing and holding, pushing and shoving, prodding and poking, and slapping with the back of the hand, consistent with earlier episodes, but of a more sustained and prolonged nature, whilst the plaintiff was prone on the stairs. These were direct and intentional acts involving harmful contact. I find the first defendant was guilty of battery in this episode.

212. The next set of allegations (2.10) is that on the following Saturday, 16 October 2004, the first defendant frightened the plaintiff on the doorstep of the Birchgrove townhouse when she returned from her drive south, then later in the street when he confronted her in the street and climbed onto the bonnet of her car. I take these to be allegations of assault, not battery, there having been no evidence of any physical contact. Nor was there any evidence of a specific threat on the part of the first defendant that put the plaintiff in apprehension of the application of harmful physical contact. To the extent that she was frightened during either of these episodes, I am not satisfied that the first defendant did anything with the intention of harming her.

213. The next allegation (2.11) is that on 10 October 2004 the first defendant frightened the plaintiff into attempting to withdraw her complaint to the police. I have already given my findings on this matter. I am not satisfied that the plaintiff’s attempts to have the AVO dissolved were against her wishes. I find that by the time the plaintiff went back to the police station in an attempt to have the AVO withdrawn, she had abandoned any thoughts of leaving the marriage, and in fact set about, willingly and determinedly, to undo what she had brought about, with a view to trying to make a success of the marriage.

214. The next series of allegations is that the first defendant overbore the will of the plaintiff and intimidated her into agreeing to withdraw her allegations to the police and to cooperate in the withdrawal of the criminal charges against him and the dismissal of the AVO. This included the allegation that the first defendant compelled her to write the letter that is Exhibit B (2.12), that he prodded and poked her at work to ensure that her solicitors had sent a letter to the Prosecutor seeking withdrawal of the charges and dismissal of the AVO (2.13), that he took her to the oval next to her parents’ place and kicked a soccer ball at her, causing extensive bruising (2.14), and that he took her to see Dr Tran to tell him the bruises he had seen on the earlier occasions were the result of soccer injuries (2.22).

215. For the reasons already given, I find that the plaintiff willingly wrote the letter that is Exhibit B, albeit I accept that the first defendant more probably than not collaborated in the drafting of it. Her attendances at her solicitor’s offices were voluntary, as were her consultations with the several medical practitioners in early 2005. To the extent that she gave "false" instructions to her solicitor or misleading histories to the doctors, she did so intentionally, with a view to the withdrawal of the criminal charges and dismissal of the AVO. I am not satisfied that there was any episode involving the first defendant deliberately kicking a soccer ball to inflict bruises on her. I accept that they both went to see Dr Tran to try and convince him that her bruises were from soccer injuries, but not that she went against her will. I am not satisfied that the first defendant harassed the plaintiff into following up her solicitors, either by poking or prodding her at work, or otherwise. I find that the plaintiff and the first defendant were in fact "united" during this period, and that more probably than not went on their trip overseas to Chicago and the Virgin Islands in a harmonious state, or at least in an attempt on her part to revive the marriage. For his part, I accept that he believed they had put the episodes in October behind them.

216. The next allegation (2.15) is that in December 2004, in the Virgin Islands, the first defendant punched, pushed, kicked and hit the plaintiff on the head, arms, legs and body over a period of some 3 to 4 hours causing plainly visible injuries. The episode is not corroborated and in my view it is improbable that if such an incident had occurred the plaintiff would, within the months following, persist in her attempts to have the criminal charges against him withdrawn and the AVO dismissed. Nor, in my view, is it likely that if she was injured to the extent she alleged, she would not seek some medical attention, particularly for her temporomandibular joint, upon her return to Australia. The allegations surrounding this episode were not assisted by her counsel’s assertions that she was "beaten to a pulp". Had that been the case, it is improbable that she would, or even could, have gone to sleep afterwards, then gone to the conference sessions the following day. I am not, therefore, able to comfortably satisfy myself that there was any episode in the Virgin Islands, apart from perhaps another heated argument, involving any intentional harmful contact with the plaintiff.

217. The next series of allegations is that from April 2006, after withdrawal of the criminal charges, the first defendant continued to beat her on a regular basis, and forced her to prostrate herself before him on a daily basis and beg his forgiveness. He also dragged the plaintiff before his parents and forced her to get on her knees and beg their forgiveness (2.16). Then in August 2005 he compelled her to write the letter that is Exhibit C (2.17). Thereafter he became more violent and intimidating (2.18).

218. I have dealt with the allegations of prostration, obeisance and begging forgiveness, and the circumstances surrounding the plaintiff having written the letter Exhibit C and delivering it to the first defendant’s mother. I find that no such episodes occurred, and that the letter was willingly written by the plaintiff, of her own volition, and not at the instigation of the defendants, or for their purposes. I make no findings of conduct constituting battery or assault in respect of these allegations or the other unspecific allegations, that were the subject of evidence that was unconvincing and lacking in sufficient detail to warrant adverse findings of criminal conduct.

219. The next allegation is that later in 2005, at the parents’ Eastwood home, the first defendant lashed out at his mother (2.19). I have already found that the first defendant did not use violence against his mother. In any event, there is nothing in the evidence of the plaintiff about this incident that could constitute a battery or even an assault, against her.

220. The next allegation is that during 2005 and thereafter the first defendant urinated on the plaintiff in the shower (2.23). This was an allegation as to which the plaintiff was not prepared to affirm in her evidence. It is also another example of her counsel, in his written submissions, unhelpfully embellishing the allegations, without the supporting evidence.

221. The next series of allegations relate to the following year, including the purchase of the Hunters Hill house in early 2006, an episode in May 2006, and the awarding of the college medal to the plaintiff in late 2006. As I have already said, it is difficult to sift any evidence of assault or battery from some of these allegations, as distinct from complaints more properly the province of the Family Law Court. Another notable feature is that there is only one specific allegation of an episode involving any intentional physical violence against the plaintiff for the 21/2 years from the alleged episode in the Virgin Islands in December 2004 up until the alleged incident in Turkey in May 2007. And even that episode, said to have occurred in May 2006, is implausible.

222. The first of the allegations in this series is that in late 2005 and early 2006 the first defendant compelled the plaintiff to enter a transaction to purchase the Hunters Hill property (2.26) and then to reside there with the parents and the brother-in-law, Tusitha (2.25). She was forced to enter the transaction on the basis that her name was omitted from the

title

, but not the mortgage (2.24). I have already made my findings in respect of these allegations, and I am not satisfied that the plaintiff was forced to live with her parents-in-law or her brother-in-law, nor was she left off the

title

contrary to her will. Another allegation in this series is that the first defendant compelled the plaintiff to changer her name (2.21). For the reasons already given I find that she changed her name of her own volition.

223. The other allegation in this series is that in May 2006, at the Hunters Hill property, the plaintiff was assaulting and beating the plaintiff in their bedroom when his parents came in and watched. When his mother attempted to intervene, the first defendant threw his arms out at his mother, then continued to attack the plaintiff (2.20). I have already found that the first defendant did not use violence against his mother. In my view the allegation is entirely implausible and having regard to the absence of any corroboration, I find that this episode never occurred as alleged.

224. The next allegation (2.28) is that in May 2007, during a walk during the holiday in Turkey, the first defendant pinched and poked the plaintiff, and pulled her hair. It was also put to him in cross-examination that after they returned to their hotel room he became so angry that he beat her up. But she gave no evidence to this effect. The incident alleged is not corroborated, but in my view it is probable that something occurred during the conference in Turkey. It is clear that by this time the plaintiff was in the throes of a major commercial transaction involving other medical colleagues, which were a source of irritation to the first defendant, particularly as one of her business colleagues was Dr Wenderoth, about whom the first defendant was expressing his suspicions as to whether "something was going on" between him and the plaintiff. No doubt the plaintiff’s display of independence in respect of the commercial transaction, and her refusal to discuss the details, was a source of further marital disharmony. That there were problems in the marriage at this time is evident from the letter drafted by the first defendant that is Exhibit J. On his own admission, the first defendant was badgering the plaintiff about these matters, and I find that it is probable that his irritation at her in Turkey spilled over into inappropriate physical force, consisting of pinching and poking. This was direct and intentional conduct involving harmful contact. I find the first defendant was guilty of battery in this episode.

225. The final set of allegations surrounds the ultimate breakdown of the marriage. It is alleged that the first defendant made repeated allegations of infidelity against the plaintiff (2.27). In my view, in the absence of any evidence of a specific threat on the part of the first defendant that put the plaintiff in apprehension of the application of harmful physical contact, his conduct in this regard was not tortious. The last allegation was that on 15 June 2007 he proceeded to punch her, whilst she was in bed, on the arms, legs and head (2.29). Again, there is no direct corroboratory evidence of this episode, but given her abandonment of the marriage soon thereafter, and her complaint to the police, it is probable that the episode was more than verbal. I do not find that she was punched with a closed fist, but I am satisfied that there was significant physical contact, sufficient to cause bruising. It is implausible that she would have kneed him in the groin if the episode involved nothing more than verbal confrontation. I am satisfied, therefore, that there was direct and intentional conduct involving harmful contact. I find the first defendant was guilty of battery in this episode. No doubt this was the ultimate precipitating factor in her decision to leave the first defendant.

226. The plaintiff’s allegations against the parents, the second and third defendants, as alleged accessories to the conduct of the first defendant were abandoned. I have found that there was no factual basis for any of the allegations against the parents of direct assault or battery. The claim against the parents therefore fails, and there will be a verdict in their favour against the plaintiff.

227. The plaintiff’s claim against the first defendant in assault and battery has been proved in part. It is, therefore, necessary to consider the defence based on the Limitation Act 1969, and whether any of the tortious conduct established by way of assault or battery on the part of the first defendant is defeated by reason that the claim is out of time.

228. The first defendant pleaded that in relation to any cause of action for personal injury occurring before 16 September 2005, the plaintiff’s claim is not maintainable by reason of the Limitation act 1969. As a result of discussion during the course of oral submissions, counsel for the defendants conceded that any tortious conduct by way of assault or battery after 6 December 2002 would fall to be considered under s 50C of the Act and is not statute barred: Baker-Morrison v State of New South Wales [2009] NSWCA 35.

229. The Statement of Claim in these proceedings was filed on 17 September 2008. Any cause of action first accruing to the plaintiff before 17 September 2002 would be subject to s 14 of the Act, which provides for a limitation period of 6 years running from the date on which the cause of action first accrues to the plaintiff. There is only one finding of assault or battery that precedes that date, namely the episode in August 2002 that is the subject of allegation 2.2.

230. The plaintiff contended that the running of the limitation period was suspended by s 52 of the Act because the plaintiff was under a disability because, for a continuous period in excess of 28 days she was incapable of, or substantially impeded in, the management of her affairs in relation to the cause of action by reason of an impairment of her mental condition: s 11 of the Act. In my view, the contention has no merit. To the extent that the contention depends for its success on the psychiatric evidence, I have rejected that evidence for the reasons already articulated. But the psychiatric evidence, even at its highest, is not probative of the contention that the plaintiff was under a mental impairment that prevented her from attending to her cause of action. A belated application to extend the limitation was rejected.

231. I find, therefore, that the plaintiff’s cause of action based on the episode in August 2002, prior to her marriage, cannot be maintained in that it was brought after the expiration of the limitation period, the running of which was not suspended by reason her being under a disability.

232. There are some preliminary matters to be considered and determined before embarking on an assessment of the damages to be awarded to the plaintiff.

233. The defendant contends that damages are to be assessed having regard to the limitations imposed under the Civil Liability Act 2002. The plaintiff contends that the provisions of that Act do not apply here: SOC @ 12. The applicable provision is s 3B(1), which provides, relevantly:

"The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act ..."

234. The defendant submitted that some of the alleged assaults were not done with an intent to cause injury to the plaintiff:

"So if your Honour finds - and it would be necessary to distinguish between some of the alleged assaults and others in this regard - that in the course of arguments as between them - for example, that the plaintiff was not paying attention, was deliberately ignoring what the first defendant was saying to her, what some people call passive-aggressive behaviour, and that there was prodding, pinching, things going on for the purposes of attracting attention or, in the circumstances of an argument, the kind of thing which, I respectfully suggest, the evidence would tend to support of this case, then any physical contact in those circumstances is not done with the intent to cause injury; it is done with the intent to attract attention with the intent to make a point... and that indeed is the very purpose of the Civil Liability Act, to limit and exclude certain kinds of actions that would otherwise have been recoverable at common law." (T 727)

235. Even if the submission has any validity, which I doubt, I am satisfied that each of the batteries I have found proved was committed by the first defendant with intent to cause injury.

236. The second preliminary matter requiring consideration is what Judge Walmsley has described as the "particular difficulty" arising from the fact that there is a large number of separate torts which collectively have contributed to a psychiatric condition: Varmedja v Varmedja (Unreported, NSWDC, 30 April 2007) at [111]. It was submitted for the defendants that I should assess the damages separately in respect of each individual assault or battery. For my part, I am content to make a global assessment of the plaintiff’s psychiatric condition having regard to the totality of the tortious conduct, as Judge Walmsley did in that case: In the Marriage of Kennon and Kennon (1997) 22 FLR 1.

237. Central to the assessment of damages in this case is the nature, extent, effect and likely duration of the plaintiff’s psychiatric condition. I have already discussed the validity of the expert evidence tendered by the plaintiff having regard to the unreliability of the assumptions upon which the opinions are based: Ramsay v Watson [1961) HCA 65. The problem is aggravated by the reliance of the experts upon material not in evidence (see for example the report of Dr Jungfer dated 11 December 2008 at [6.1] and [6.2]). There is also the absence of evidence from her treating psychiatrists. In the result, little weight can be placed upon the medico-legal opinion.

238. It is the plaintiff’s case that she suffers from a post traumatic stress disorder and a co-morbid major depressive condition. The defendants do not dispute that the plaintiff suffers from depression but they do dispute the diagnosis of PTSD. Reliance is placed upon the report tendered in the defendants’ case from Dr Leonard Lee dated 13 January 2009. Criticism was levelled at the instructions given to the doctor by the defendants’ solicitors, such as the positive assertion of an extramarital affair, but I did not regard those matters as invalidating his opinion. What did impact on any acceptance of his opinion, like the other experts, was the unreliability of the history obtained, and the consideration of material not in evidence before me.

239. Dr Lee’s report is somewhat laconic and lacking in detail so far as the formulation of the basis for his opinion is concerned. But there are parts of his report that resonate, for example:

"In my opinion, while Dr Morris reported that she has major problems with memory and functioning, her manner in the interview did not reflect this and her role as a staff specialist in radiology was also inconsistent with gross impairment in attention or appraisal despite her reporting that she has to go in to work after hours and have colleagues cover for her. She was not disengaged from the assessment as judged by her comment about the process." (Page 8).

"Her reporting of symptoms was inconsistent, indicative of feigning. I found no evidence of abnormality in her speech. Dr Morris was told she topped her specialist examinations, and she holds a position as a staff specialist at a noted teaching hospital, but ultimately claims she is moderately unable to function. This data does not support the contention that Dr Morris suffers with post traumatic stress disorder." (Page 10)

"The law does not recognise an award of damages for marital disharmony, friction or arguments. It only recognises an award of damages for psychiatric injury flowing from tortious conduct. None of the medical evidence relied upon by the Plaintiff is consistent with other medical evidence relied on by her from medico-legal examiners. As Dr Lee has pointed out, her evidence has been inconsistent. It is easy for medico-legal examiners in a litigation context to opine that the Plaintiff has PTSD. It is impossible in this case to attribute, as must be done, any such condition to any particular tortious conduct. To the extent that the Plaintiff has a psychiatric disability and, her conduct would indicate that there is some degree of instability in her psychological makeup, this is no doubt attributable to other factors, including her being in a very disharmonious and unhappy marriage." [43]

241. Having regard to all these matters I am not satisfied that the plaintiff is suffering from a post traumatic stress disorder. I am, however, satisfied that she is suffering from depression, which is a result of her marital breakdown and the ongoing litigation. The breakdown in her marriage is no doubt due to a range of factors, but I am satisfied that the batteries that I have found proved played a materially causative role in the development of her psychiatric condition: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158.

242. Whilst the plaintiff’s depressive condition is described as severe, the prognosis is optimistic:

"...she is a highly motivated woman with no evidence of pre-morbid personality disorder and therefore I would expect that with appropriate intervention and therapy that she will be able to achieve good symptomatic recovery." (Dr Jungfer at 10.4)

243. The plaintiff complains of a number of negative impacts on aspects of her daily capacity to function. She complains, for example, of increased anger and irritability, sleep disturbance and fatigue, diminished self esteem, diminished libido and diminished motivation and initiative. She reported the following to Dr Jungfer

"She reports persistent depressed mood, feelings of sadness and difficulties with motivation to the point where it is difficult to get out of bed." (4.2)

"Her socialisation has been restricted due to exhaustion, difficulties in terms of coping emotionally and finding socialisation as being too draining." (4.3)

"She is not generally fearful, she does not have a generalised anxiety, she does have substantial phobic avoidance behaviour." (4.4)

"Her appetite is stable, her weight has increased and she attributes this to a reduction of physical activity. She has a severe reduction of libido and substantial anxiety regarding engaging in any form of intimate relationship." (4.6)

"There are problems with respect to concentration in two situations. The first is when she is severely fatigued due to sleep disruption and the second is when she is having a lot of flashbacks...There are some problems with regards to memory..." (4.7)

"There are no impairments with regards to her judgement, reasoning and problem solving, nor are there any impairments of language or communication skills. (4.8)

"Over time she has consumed excessive quantities of alcohol to deal with her emotional state... Currently her alcohol consumption is more moderate." (4.9)

244. Some of these complaints need to be approached with caution having regard to the plaintiff’s capacity to embellish. Others are understandable consequences of the breakdown of her marriage. Her complaints, however, need to be balanced against the demonstrated activity in which she has engaged since separation, including her work, her business activities and a number of overseas trips. My overall conclusion is that the plaintiff has had severe depression that has impacted negatively on her life in a number of ways, but given her strength of character and determination, it is probable that with treatment and the disposition of the family law litigation she will make a substantial and speedy recovery.

245 I turn now to assess the damages. The plaintiff was born on 4 July 1973 and is now 36 years old. She is an intelligent and determined woman, who until these events was highly motivated. I have no doubt that motivation will return. She was subjected to a number of batteries over the period of her marriage resulting in a depressive illness since her separation, from which she is still recuperating.

246. Claims are made for damages under a number of heads. It is appropriate that I deal with these in turn. The first claim is for general damages. Counsel has not differentiated between compensatory damages and those damages that are not dependent upon proof of any injury or loss, but awarded to reflect the intentional nature of the tortious conduct, what Fleming has described as damages for violation of the dignitary interest: Fleming, The Law of Torts, 9th ed (1998) at page 216. In my view it is appropriate to do so.

247. I assess the damages for the violation of the dignitary interest as follows. I have weighted the award in respect of episodes following the initial AVO:

248. In assessing the plaintiff’s claim for compensatory general damages I take into account her age, the pain and suffering from each of the assaults and batteries, and the bruising suffered. I also take into account the depressive condition and its effects. I award a sum of $75,000.00 for general damages, and apportion $50,000.00 for the past and $25,000.00 for the future. Interest is to be paid on the past general damages, to which I will come shortly.

249. The plaintiff claims $15,760.00 for past treatment expenses. The mathematics was agreed, but the defendants disputed some of the claim, in particular the expenses relating to Ms Krieger, a clinical psychologist: see Exhibit K. It is rightly pointed out that there is no evidence from her or for what she was treating the plaintiff. In those circumstances the plaintiff has not proved that part of her claim. I therefore allow past out-of-pocket expenses at $10,000.00 (rounded up). There is no claim for interest.

250. A claim is made for future treatment expenses of $15,000.00. No submissions we made in opposition to the claim and I allow it.

251. A claim for domestic assistance articulated in the Statement of Particulars was not pressed.

252. The plaintiff makes a substantial claim for economic loss, past and future, in excess of $570,000.00. The basis alleged for the claim is that as a consequence of her psychiatric condition, the plaintiff has lost the opportunity of working for 2 days a week in private practice as a radiologist, and that her incapacity for work will continue for a further 5 years into the future. Prior to the break up of her marriage she was working full time. She alleges that since then she has only been able to work 3 days a week, because she had to stop doing private radiological work, and simply can’t cope with the extra 2 days.

253. To the extent that the plaintiff obtains support for her claim from the psychiatric evidence tendered, I reject that evidence for the reasons already discussed. There is no other supporting evidence, such as from a treating therapist that she has an impairment that prevents her from working., I am left, therefore, to assess her claim on other evidence and my own assessment of her. She gave no evidence of any occasion on which she has not been able to work. Her evidence as to what aspects of her duties prevent her from working full time was imprecise and unconvincing. No one from her work place was called to say there were problems with the quality of her work. As counsel for the defendants submitted:

"In fact, no work colleague or supervisor was called to confirm any diminution in any capacity. It defies credulity to suggest that the Plaintiff could be employed in a capacity requiring the examination of radiological investigations in circumstances where a mistake could have life threatening consequences to a patient if her superiors, partners or work colleagues had any doubt about her capacity to perform her work." [30]

254. The involvement of the plaintiff in the major commercial enterprise involving the purchase of a building and the financial commitment involved is inconsistent with any diminution in earning capacity of the type claimed. None of these business colleagues was called to support her claim of incapacity.

255. I am not satisfied that the plaintiff has suffered from any inability to work, or that she has any incapacity to do so for the future. I make no allowance for any damages in respect of this claim.

257. Exemplary damages may be awarded to register a court’s disapproval of a defendant’s misconduct, to punish, or to act as a deterrent: Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 9. However, this is a case where there have been criminal proceedings and the expectations of the community in terms of punishment and deterrence have already been met, such that an award of exemplary damages is not appropriate.

258. Aggravated damages may be awarded where a defendant has acted in "contumelious disregard of the plaintiff’s rights" or in an insulting or high-handed way, or with malice. They are designed to compensate for injury to a plaintiff’s feelings, to redress indignity or hurt pride. However, the Court must be careful not to award such damages for matters already encompassed by any other award of compensatory damages. It has also been held that provocative conduct by a plaintiff may reduce such damages, or disentitle a plaintiff completely.

259. Whatever may have been the circumstances of the marital relationship, and the conduct of the plaintiff in the context of that relationship, as counsel for the first defendant rightly conceded, there is no justification in the civil law for the first defendant’s conduct. [28]

260. The plaintiff has pointed to a number of circumstances she says aggravated the assaults and the battery she was required to endure. Many of her allegations were, as I have found, not proved. Others, in my view were more properly the province of the Family Law Court. It is also to be observed that I have already made a substantial award of damages for violation of the dignitary interest. The High Court has said, in New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 at [31]:

"Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing."

261. In my view, there are limited circumstances in this case that point to suffering over and above the awards of compensatory general damages and those for violation of the dignitary interest. His continued use of physical contact, notwithstanding the initial AVO and criminal charges is one. That should have been a salutary episode. Secondly, the batteries I have found proved were usually accompanied by personal abuse. In these circumstances I consider it is appropriate to make a small award of aggravated damages, which I assess at $10,000.00.

262. I assess the interest on the past general damages at $5,000.00. I assess interest on the damages for violation of the dignitary interest at $7,500.00, a total of $12,500.00.

263. The calculations as to the damages are set out in the Table below. The table sets out the total amounts for each individual head of damages as I have found them, in summary form.

Heads of Damage	Amount
Violation of the dignitary interest	$ 75,000.00
General damages	$ 75,000.00
Interest on past general damages	$ 12,500.00
Past out-of-pocket expenses	$ 10,000.00
Future treatment expenses	$ 15,000.00
Past economic loss	Nil
Future economic loss	Nil
Exemplary damages	Nil
Aggravated damages	$ 10,000.00
Total damages	$197,500.00

264. The prima facie position is provided for in r 42.1 and r 42.2, to the effect that the costs should follow the event and be assessed on the ordinary basis. I will give leave for either party to make an application for some other order.

(1) I enter a verdict for the plaintiff against the first defendant in the sum of $197,500.00 and I direct the entry of judgment accordingly.

(2) I enter a verdict for the second and third defendants against the plaintiff and I direct the entry of judgment accordingly.

(3) I order the first defendant to pay the plaintiff’s costs, on the ordinary basis.

(4) I order the plaintiff to pay the costs of the second and third defendants, on the ordinary basis.

(5) I give leave to the parties to apply for other costs orders if considered appropriate, provided any such application is notified to the other party and the court within 7 days, in writing, specifying the order sought.

(6) The Exhibits are to remain in court for 28 days, after which period they may be returned to the parties.

District Court of New South Wales

Morris v Karunaratne [2009] NSWDC 346 (27 November 2009)