Wilden v Jennings (no 1) [2021] NSWDC 705

District Court New South Wales

Medium Neutral Citation: Wilden v Jennings (no 1) [2021] NSWDC 705 Hearing dates: 25 – 28 May 2021; 31 May – 4 June 2021; 14 July 2021; 30 August 2021 Date of orders: 21 December 2021 Decision date: 21 December 2021 Jurisdiction: Civil Before: Wilson SC DCJ Decision: [369] Catchwords: CIVIL - Claim brought by (former) wife against husband for damages in respect of alleged sexual abuse during their relationship – Sexual intercourse without consent – Whether rape in marriage actionable. CREDIBILITY –whether wife's allegations should be accepted over husband's denials – wife's pattern of disclosure. INTENTIONAL TORT – whether governed by Civil Liability Act 2002. DAMAGES – entitlement to aggravated and exemplary damages – assessment of damages. DELAY – whether claim brought out of time. Legislation Cited: Civil Liability Act 2002 (NSW) s 3B Crimes Act 1900 (NSW) s 61I Criminal Procedure Act 1986 (NSW) s 293A Evidence Act 1995 (NSW) s 140. Married Persons (Equality of Status) Act 1996 (NSW) ss 4, 5 Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 Best v Rosamond [2020] NSWCA 90 Briginshaw v Briginshaw [1938] HCA 34 Commonwealth of Australia v Smith [2005] NSWCA 478 Fox v Percy (2003) HCA 22 Luxton v Vines [1952] HCA 19 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 Palmer Bruyn v Parker Pty Ltd [2001] HCA 69 R v R [1991] UKHL 12 State of New South Wales v Gillett [2012] NSWCA 83 Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130 Texts Cited: None Category: Principal judgment Parties: Kirra Michelle Wilden (Plaintiff) Michael Joseph Jennings (Defendant) Representation: Counsel: Mr J Morris SC with Ms L Beange (Plaintiff) Mr M Thangaraj SC (25 - 27 May 2021) with Ms M Campbell (Defendant) Solicitors: Ms M de Luca-Leonard (Plaintiff) Mr L Hagipantelis (Defendant) File Number(s): 2020/59460 Publication restriction: None