Miglietta v Biesiada [1999] NSWSC 1206

Reported Decision : (2000) DFC 95-226

New South Wales Supreme Court CITATION : Miglietta v Biesiada [1999] NSWSC 1206 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 5205/93 HEARING DATE(S) : 15, 16, 17 and 18 February, 10 and 11 May 1999 JUDGMENT DATE : 13 December 1999

PARTIES : Bruno Miglietta (P) Jenny Biesiada (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr L. R. De Vere Tyndall (P) Mr M. Evans with Miss B. Vukadinovic (D) SOLICITORS : Browne Jeppesen & Sligar (P) Nowacki & Company (D) CATCHWORDS : De facto relationship; Existence asserted by plaintiff and denied by defendant; Credibility of respective testimony of parties; Factors relevant to conclusion as to whether a de facto relationship existed; Respective contributions of each party. De Facto Relationships Act 1984 ACTS CITED : Property (Relationships) Act 1984 Fair Trading Act 1987 CASES CITED : Evans v Marmont (1997) 42 NSWLR 70 Roy v Sturgeon (1986) 11 NSWLR 454 DECISION : 1. I order that the defendant pay to the plaintiff the sum of $20,000; 2. I make no order as to costs, to the intent that each party will bear his or her own costs of the proceedings.

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 13 December 1999

5205/93 BRUNO MIGLIETTA -v- JENNY BIESIADA JUDGMENT

1 MASTER: These are proceedings under the De Facto Relationships Act 1984 (now known as the Property (Relationships) Act 1984). 2 The proceedings were instituted by statement of claim filed by the plaintiff Bruno Miglietta on 24 November 1993. 3 Essentially, it was the case for the plaintiff that for a period of more than twenty years, from about 1971 until 1991 he and the defendant Jenny Biesiada lived in a de facto relationship. The plaintiff asserted that from about 1971 until 1978 they lived together in such a relationship at Andamooka in South Australia and that from 1978 until 1991 that de facto relationship continued at Lightning Ridge in New South Wales. He asserted that throughout the period from about 1971 until 1991 (except for relatively short absences when he made trips back to his homeland, Italy, and visits to other parts of Australia) he and the defendant occupied the same residence, slept in the same bedroom, in the same bed, and engaged in sexual activity once or twice a week. Further, the plaintiff contended that, by reason of his asserted contributions towards the business enterprises of the defendant, he was entitled to an order in respect to the property of the defendant. 4 The defendant totally denied the existence of such a de facto relationship. She denied that she and the plaintiff had ever lived together, that she and the plaintiff had ever slept in the same bedroom, let alone in the same bed, and denied that they had ever engaged in sexual activity. The defendant denied any involvement on the part of the plaintiff in her business enterprises. 5 The defendant did, however, concede that she was acquainted with the plaintiff. She said that at one stage she had allowed the plaintiff to rent her shop for the conduct by him of his opal activities, and that at various times, both in Andamooka and in Lightning Ridge, she had employed the defendant on a part-time basis as a projectionist in the drive-in cinema which she had conducted at each of those locations. In her words, however, he was just a casual employee. 6 It is difficult, if not impossible, to reconcile the totally conflicting versions of their acquaintanceship which have been presented respectively by the plaintiff and by the defendant. Despite a natural reluctance to conclude that one or other of the parties to litigation is deliberately lying, it is in the instant case impossible for me to explain the total divergence between the assertions of the plaintiff and the responses of the defendant concerning the nature of their contact and acquaintance upon the basis of faulty memory or genuine mistake. One or other of them must be deliberately attempting to mislead the Court. 7 It will be necessary for me, therefore, in due course to express my views concerning the credibility of the testimony of each of the plaintiff and the defendant. 8 The plaintiff was born in Italy on 7 September 1933 (and is presently 66 years of age). He served in the French Army (apparently in the Foreign Legion) for five years, and subsequently worked in France as a mechanic for four years, before coming to Australia in 1967. He later became naturalised as an Australian citizen. 9 When he first arrived in Australia it would appear that the plaintiff worked in the mining industry in Kalgoorlie in Western Australia for a period of several years, until about 1969 or 1970, when he removed to Andamooka. He said that when he arrived at Andamooka he lived in his motor car and in a tent, which he located near the creek at Andamooka. Those residentiary arrangements obtained for a period, apparently of some months, until a time when, having become acquainted with the defendant, who was residing in a house in the vicinity of the creek, the plaintiff rented from her a shed, which he described as being on top of the hill. The plaintiff said that he paid rent to the defendant for that shed for a period of only about two weeks, before moving into residence in the defendant's house. 10 During the period from his arrival at Andamooka the plaintiff was digging for opal upon a claim which he had registered in his name with the Department of Lands of South Australia. Apparently that claim was for a period of twelve months, but, not having succeeded in finding any opals in the land which was the subject of the claim, the plaintiff did not renew that claim upon its expiry. 11 According to the plaintiff, the de facto relationship commenced when he moved from the shed which he had been renting from the defendant into the house occupied by the defendant. 12 Thereafter, according to the plaintiff, for the next twenty years he assisted the defendant with her opal activities in Andamooka and later in Lightning Ridge, worked for her as a part-time cinema projectionist (having first received instruction in such activity from Mr Gino Scopel, the owner of the drive-in cinema at Andamooka), and lived in the various residences which she occupied, firstly in Andamooka and later in Lightning Ridge. 13 I have already referred to the totally conflicting versions of their acquaintanceship and relationship which have been presented by the two parties. It is appropriate, therefore, that I should now proceed to a consideration of the credibility of each of those persons and of the reliance which should be placed upon their respective testimony. 14 There were a number of inconsistencies in the plaintiff's evidence (which was given in English). For example, his statement under cross-examination that he did not work in the defendant's opal shop, but that he used machinery to cut opals in the shop, was inconsistent with his affidavit evidence. During the first day of his cross-examination the plaintiff said that he maintained no bank account whilst he was residing at Andamooka. However, under cross-examination on the following day he was shown a bank passbook which contained various entries, including one for 26 November 1971 relating to a deposit made by him at Andamooka. The plaintiff then agreed that the evidence which he had given on the previous day, that he had no bank account whilst residing in Andamooka, was false. 15 Further, under cross-examination the plaintiff said that his trip to Italy in June 1973 for a period of two months was paid for by the defendant, although he did not remember how much she paid. He suggested, perhaps, an amount of $2,000 in cash. However, no mention was made of the plaintiff's affidavit evidence of any money having been given to him by the defendant for a trip to Italy in 1973. 16 Despite the denial by the plaintiff that in Lightning Ridge he had worked as an opal miner or as an opal cutter, there were admitted into evidence invoices issued by the plaintiff in 1986 upon the printed letterhead of the plaintiff on which he is described as "Opals Miner & Cutter". 17 The plaintiff under cross-examination constantly sought refuge in the response, "I don't remember". That response did not engender in the Court confidence in the reliability or accuracy of the evidence given by the plaintiff, especially since the response was usually given when the plaintiff under cross-examination was confronted with a question the answer to which almost certainly (if the plaintiff had had some recollection of the incident or event about which he was being questioned) would have been inconsistent with the assertions made in his affidavit evidence. 18 The defendant, who was born on 3 October 1923 (and is presently aged 76) was born in Poland, where she obtained tertiary qualifications as an economist. She migrated to Australia in January 1960, and at the outset resided with her brother, Tadeusz Rogowski, in Port Augusta in South Australia. Subsequently she and her brother moved to Andamooka, and the defendant established herself as an opal buyer for a family business located in Hong Kong (the Matrix Company). The defendant also became naturalised as an Australian citizen. 19 For some time the defendant continued to reside with her brother, until the marriage of the latter in 1964. In Andamooka the defendant engaged in mining opal claims; she also conducted a store, which appears to have been established by her brother and herself in about 1964. Later, in 1971, she acquired the Andamooka drive-in cinema. 20 The defendant at the outset of her testimony gave her evidence through a Polish interpreter. This was done at the request of her Counsel. I would here observe that neither the defence (which was verified by affidavit of the defendant sworn on 16 August 1994) nor either of the two affidavits of the defendant (sworn on, respectively, 27 August 1997 and 31 July 1998) contains any suggestion that the affidavit was, or needed to be, translated to the defendant before it was sworn by her. 21 As the evidence of the defendant proceeded, it became abundantly clear that she fully and completely understood the English language. Indeed, on many occasions she responded in English to a question asked of her in English before the interpreter had an opportunity to translate the question into the Polish language. When I raised with Counsel for the defendant the fact that the defendant appeared to be fully able to understand English, he agreed that she could understand the questions. However, Counsel requested that the services of the interpreter still be retained because, according to Counsel, the defendant had difficulty in expressing herself in English. 22 In those circumstances, I allowed the plaintiff to continue to give her evidence through the interpreter, but I required that the totality of her evidence (both questions and answers) should be given through the interpreter, and that her evidence should not be given in some hybrid form of Polish and English. Concerning the ability of the defendant to communicate in English, it should be noted that under cross-examination she said that she always communicated with the plaintiff in English, and that throughout the period from 1971 to 1991 she spoke in English to everyone and she wrote in English. 23 I regarded the defendant as a totally unsatisfactory witness. Her evidence was given with vehemence and enthusiasm --- and completely without restraint. On many occasions her answer was not responsive to the question asked. The defendant appeared to be using the cross-examination as a vehicle for expressing her version of the relationship between herself and the plaintiff (in a manner always totally to the detriment to the plaintiff), without the faintest regard to whether or not her outbursts were even relevant --- let alone responsive --- to the question asked of her. 24 On more than one occasion whilst she was in the witness box the defendant complained of physical distress on account of elevated blood pressure. If those complaints were genuine, they were not the result of any questions asked of her under cross-examination. They were the result solely of outbursts which she chose to make, which were in no way responsive to questions properly asked of her by Counsel for the plaintiff. 25 The evidence of the defendant concerning her assets and liabilities was totally unsatisfactory. In the course of her cross-examination there emerged various matters which either had not been mentioned at all in her affidavit evidence or concerning which a completely different impression had been given by her affidavit evidence. 26 Those matters included the disclosure that the house property in which she resided in Andamooka had been bought by the defendant from Gino Scopel in about 1975, and that she still owned that house property to the present time. Further, that the defendant also owned five other houses (which she described as huts) in Andamooka. For those huts, which are held by her on leasehold, the defendant pays rent of $200 a year, although she asserted that none of those properties was of any value. 27 When asked to explain why in her affidavit evidence she had made no reference to any of those items of real property, the defendant attempted to explain that omission firstly by saying, "nobody asked me", and then by saying that the properties were "of no value" and that she had been trying to sell the freehold house for the past fifteen years. Those two explanations are not entirely consistent. 28 I also regarded the evidence of the defendant concerning a trip to Japan with various items (including a fossilised Plesiosaur skeleton, a fossilised opal fish and various small stones and rock specimen) as totally unsatisfactory. 29 Since the hearing of this matter had not concluded in the four days allocated by the Court (upon the basis of the estimate given at call-over by the legal representatives of the parties), the hearing was adjourned for a period of almost three months. At the resumption of the hearing on Monday, 10 May 1999 Counsel for the defendant informed the Court that on the preceding Friday, 7 May, the defendant had terminated the instructions of her solicitor, and that, in consequence, Counsel was being directly retained by the defendant herself. 30 Counsel for the defendant also informed the Court that the defendant (who on 18 February 1999 had given her evidence through a Polish interpreter) would no longer be availing herself of the services of an interpreter and would be giving the entirety of her evidence in English. 31 The views which I had already formed concerning the ability of the defendant to understand the English language were confirmed when she continued to give her evidence in English. It was quite apparent that the defendant had an excellent understanding of the English language, and that there had been no need whatever for her to have availed herself (as she did) of the advantages of giving her evidence through an interpreter. 32 The defendant continued to present her evidence in a most vehement and totally unrestrained manner. Very frequently her answers were not responsive to the question asked, and were employed by her a vehicle for making self-serving statements and for volunteering matters which she obviously thought would assist and be of advantage to her case. Much of her evidence I considered was deliberately fabricated and was intentionally false. 33 During the early part of her evidence upon the resumption of the hearing it became obvious that a source of the defendant's intense animus and complaint against the plaintiff was that he had not paid the defendant for opals which, according to her, he had, at her request, taken with him to sell in Italy on one of his visits to that country. (The date of that alleged incident did not emerge from the evidence.) 34 I have already observed that it was the case for the defendant that she hardly knew the plaintiff, that the only relationship between them was that he had worked as a part-time casual employee (or even that he had worked only in a voluntary capacity) in the drive-in cinemas which the defendant had conducted sequentially at Andamooka and at Lightning Ridge. 35 However, in the course of her evidence on 10 May the defendant was caught out in a number of lies. These included a denial that she knew what happened to the plaintiff at the time when she departed Andamooka for Lightning Ridge in July 1979. The defendant was eventually forced to admit that the plaintiff had, in fact, travelled to Lightning Ridge with her in her motor car. The defendant then denied that it was in her motor car that they travelled, and asserted that the motor vehicle belonged to the plaintiff. That was despite the defendant's answer given only a few minutes previously in which she had denied that the plaintiff at that time owned a motor car. Shortly after her denial, her subsequent admission, and her later denial in respect to the identity of the motor car in which they were travelling during the conjoint removal of herself and the plaintiff from Andamooka and Lightning Ridge, the defendant then said that she now "cannot remember". The defendant also in the course of her evidence on this point volunteered that the plaintiff had requested her to "give him under the table $8,000, for not pay tax". That gratuitous assertion can only have been intended to injure the plaintiff by suggesting that he desired to participate in deceitful and illegal conduct. 36 Further, for someone who, as she asserted, hardly knew the plaintiff except as a casual part-time employee in a drive-in cinema, it is more than passing strange, and is totally inconsistent with her assertions, that the defendant, as she admitted, gave money to the plaintiff, about $1,500, to finance a prospecting trip by him and two companions to Queensland in the early 1980s and that the defendant had in fact accompanied the plaintiff on that trip, which extended over a period of about one month. 37 In January 1982 the plaintiff was injured in a motor vehicle accident whilst he was visiting Newcastle. As soon as she received word of that accident the defendant travelled to Newcastle from Lightning Ridge to look after the plaintiff whilst he was in hospital, and then when he was recuperating. 38 Further, when the plaintiff suffered another motor vehicle accident some seven years later, in 1989, near Moree, the defendant, who had been travelling with the plaintiff at the time of that accident, again provided care for the plaintiff during the period whilst he was recuperating. 39 Although the defendant, both in her affidavit evidence and in her oral evidence, asserted a fear of the plaintiff (who, she said, owned a pistol), under cross-examination the defendant, somewhat inconsistently, denied that the plaintiff was a strong man. 40 The vehemence of the defendant in asserting, in emphasising, in repeating, and in then further asserting, emphasising and repeating, time and again during her evidence, that she did not trust the plaintiff, was totally inconsistent with her conduct in purchasing with the plaintiff, as joint tenants, land at 45 Morilla Street, Lightning Ridge in 1981, and then having a residence constructed upon that land. The defendant conceded that upon completion of the construction, she and the plaintiff moved into residence at that address in July 1982. It was asserted by the defendant, however, that she lived in the front part of the structure on that land, whilst the plaintiff resided in what she described as a "portable home" at the rear of that structure. 41 The defendant conceded that the plaintiff had contributed $5,000 to the purchase of the Morilla Street property, but she said that he made no other contribution to the purchase price or to the construction of the residence on the land. 42 The defendant at the relevant time maintained a post office box, being P.O. Box 273, Lightning Ridge, and she agreed that that post office box was used by the plaintiff as well as by herself. 43 The unreliability of the defendant's evidence was also manifest in the fact that to the date of hearing she still retained ownership of five properties at Andamooka, which assets were not referred to in her affidavit evidence or in her oral evidence in chief, and the existence of which only emerged during the course of her cross-examination. The defendant attempted to explain that omission by saying that she wanted to sell those properties, and that they constituted nothing more than a nuisance for her, and that they were of little if any value. 44 I have already referred to the unsatisfactory nature of parts of the evidence of the plaintiff. However, those unsatisfactory aspects of the plaintiff's evidence are as nothing compared to the deliberate lies which I am satisfied were constantly perpetrated by the defendant throughout the course of her evidence. Despite the unsatisfactory aspects of the evidence of the plaintiff, I preferred his evidence to that of the defendant. 45 Where the only evidence concerning any matter in issue in these proceedings consists of an assertion by one party and a denial by the other party, and concerning which there is no other evidence, either documentary or oral, I prefer the evidence of the plaintiff to that of the defendant. 46 The first question which must be decided is whether or not there existed a de facto relationship between the plaintiff and the defendant. In Roy v Sturgeon (1986) 11 NSWLR 454 Powell J (as he then was) spoke (at 458 - 459) of each case involving the Court making a value judgment, having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following: · The duration of the relationship. · The nature and extent of the common residence. · Whether or not a sexual relationship existed. · The degree of financial interdependence, and any arrangements for support, between or by the parties. · The ownership, use and acquisition of property. · The procreation of children. · The care and support of children. · The performance of household duties. · The degree of mutual commitment and mutual support. · Reputation and "public" aspects of the relationship.