M v Nesbitt [2012] NSWDC 152

District Court New South Wales

Medium Neutral Citation: M v Nesbitt [2012] NSWDC 152 Hearing dates: 7 June 2012 Decision date: 07 June 2012 Before: MURRELL SC DCJ Decision: Damages assessed Catchwords: Damages for sexual assault- aggravated damages- exemplary damages Legislation Cited: Civil Liability Act 2002, s 3B(1) Uniform Civil Procedure Rules 2005 Cases Cited: State of New South Wales v Doherty [2011] NSW CA 225 Gregory v State of New South Wales [2009] NSWSC 559 Lamb v Cotogno [1987] HCA 47 State of NSW v Zreika [2012] NSWCA 37 Category: Principal judgment Parties: M Mr Nisbett Representation: Foott Law & Co (plaintiff) No appearance (defendant) File Number(s): 2011/411862 Publication restriction: No publication of the name of the plaintiff or of any material that may tend to identify him.

Judgment

The Proceedings 1As a Year 8 - 9 boarding student at the Knox Grammar School (the school), the plaintiff was sexually assaulted by the defendant, who was a teacher and boarding master at the school. The assaults were intentional torts committed in breach of fiduciary duty. 2Pursuant to rule 10.14 of the Uniform Civil Procedure Rules 2005, the Court granted the plaintiff's application for an order for substituted service of the statement of claim by way of service at an e-mail address used by the defendant. The Court entered default judgement and listed the matter for the assessment of damages. 3The plaintiff asks the Court to assess compensatory, aggravated and exemplary damages. 4Under the UCPR, there appears to be no requirement to notify the defendant of the assessment hearing. In any event, on 14 May 2012, via the defendant's e-mail address, the plaintiff's solicitors notified him of the assessment hearing and provided him with the principal documents upon which the plaintiff intended to rely at the assessment hearing (affidavit of Joseph Fahey sworn 5 June 2012).