Supreme Court New South Wales Medium Neutral Citation: Balven v Thurston [2013] NSWSC 210 Hearing dates: 3 December 2012 Decision date: 20 March 2013 Jurisdiction: Common Law Before: Latham J Decision: (1) The judgment of the magistrate of 26 October 2011 on the liability of the plaintiff for assault is set aside. (2) The judgment and order of the magistrate of 13 April 2012 is set aside. (3) The matter is remitted to the magistrate for determination of an award of damages for trespass in accordance with these reasons Catchwords: APPEAL - error of law - tort of assault in relation to a threat must be framed by reference to objective terms not subjective apprehension of threat - Civil Liability Act not applicable to circumstances of assault allegations - appeal partially successful Legislation Cited: Civil Liability Act 2002 Local Court Act 1982 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Carr v Neill [1999] NSWSC 1263; Entick v Carrington (1765) 19.St.Tr.1029 Gangemi Holdings Pty Ltd v Salter [1999] NSWSC 1004; Haines v Leves & Anor.(1987) 8 NSWLR 442; Knight v The Queen (1988) 35 A Crim R 314; Mahony v Industrial Registrar of New South Wales & Anor. (1986) 8 NSWLR 1; Plenty v Dillon (1990-1991) 171CLR 635 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; Slaveski v State of Victoria & Ors. [2010] VSC 441 State of NSW v Ibbett [2005] NSWCA 445 State Rail Authority v Smith [2000] NSWSC 334; Category: Principal judgment Parties: Lothar Christian Balven - (Plaintiff) Susan Marie Thurston - (Defendant) Representation: Counsel R de Meyrick - (Plaintiff) R Bell - (Defendant) Solicitors CBD Law - (Plaintiff) Kelso's The Law Firm - (Defendant) File Number(s): 2012/155030 Judgment 1The plaintiff, Lothar Balven, appeals against the decision of the Local Court at Wyong on 26 October 2011 whereby he was found liable for two assaults and four acts of trespass to the defendant's property. All of the allegations arose out of the breakdown of a relationship between the plaintiff and the defendant that lasted approximately nine months and terminated in February 2010. 2The hearing occupied three full days in one of the busiest Local Courts in this State. A considerable volume of affidavit evidence was filed and the judgment occupies 21 pages. A total of $25,000.00 damages ($15,000.00 in general damages and $10,000.00 in aggravated damages) was awarded plus interest. The plaintiff was ordered to pay the defendant's costs. 3The whole of the pleadings, the affidavits together with many pages of annexures, the transcript below, the exhibits and voluminous written submissions have been reproduced for the purposes of this appeal. The material amounts to approximately 1,000 A4 pages. 4The conduct of the proceedings, including the hearing of this appeal, represents an order of expenditure and use of judicial resources that far outweigh the utility of the proceedings and the award of damages below. The Evidence Below. 5There is no purpose to be served by recounting the evidence in detail. It is sufficient to observe that the plaintiff, a former member of the Armed Forces on disability benefits, met the defendant, a divorced woman who worked in a Nursing Home, through the defendant's adult son. The defendant lived in her own home, as did the plaintiff. Soon after entering into an intimate relationship, the defendant gave the plaintiff a key to her home, and he stayed the night there occasionally. 6As the relationship developed, the plaintiff gave the defendant moderately large sums of money from his gambling winnings, telling her to treat herself to "something nice". These sums allegedly totalled approximately $8000.00. The defendant always understood that these monies were a gift from the plaintiff. However, following the breakdown of the relationship, the plaintiff sued the defendant for the return of the funds. Those proceedings were decided in the defendant's favour in August 2010, with a ruling that the monies were indeed a gift. 7The only relevance of the dispute over the funds lies in an appreciation of the course that the relationship took as it deteriorated. Within a few months of beginning the relationship, the plaintiff established a pattern of communicating with the defendant by text message or email several times a day, querying the defendant's whereabouts and her movements. The defendant experienced this behaviour as controlling and intrusive. Ultimately, the defendant became concerned that the plaintiff was in fact stalking and harassing her and she terminated the relationship in mid February 2010. 8From mid February 2010 to June 2010, the plaintiff sent over 200 text and email messages to the defendant at all hours of the night and day, often only minutes apart. These messages alternated between expressions of love for the defendant and threats of harm and damage to her property by way of retribution. The defendant responded by text on some occasions, for the most part telling the plaintiff to leave her alone. In late February and early March 2010, the plaintiff began demanding the return of all the money he had given to her. 9On 11 March 2010, the defendant received a text message from the plaintiff as follows: "I guna get u big tim I want me money u will die ill waiting u wer not faithful." The defendant's evidence was that she was fearful of the plaintiff as a result of this message, given her knowledge of his military training. The transmission of this message constituted an assault according to the findings of the magistrate. 10Following a conversation with the plaintiff's mother about the plaintiff's behaviour, there was a brief reconciliation in late March 2010. The defendant gave evidence that the relationship had not resumed but she and the plaintiff were talking. However, things took a turn for the worse in early April. 11On the evening of 5 April, the defendant received a text message from the plaintiff indicating that he was going to her home to "repossess" everything he had given her. The defendant arrived home from work at 11pm and found some items of property missing and others damaged or destroyed. This event constituted the first act of trespass found by the magistrate. 12On 6 April the defendant had the locks on her home changed. While she was at work, she received a text message from the plaintiff, which suggested that the plaintiff had been inside her home. She went home and discovered that a number of items were missing and there was a note from the plaintiff on the kitchen bench. This event constituted the second act of trespass found by the magistrate. 13Later that day, the plaintiff sent a further text message to the defendant which read "U house will b ashes whil u asleep for what u did u no good." The transmission of this message constituted an assault according to the findings of the magistrate. 14In the early hours of 7 April, the plaintiff attended the defendant's premises, bashed on the side gate and the side door, and yelled abuse at the defendant. This event constituted the third act of trespass according to the findings of the magistrate. 15Immediately after these events, the defendant applied for a provisional apprehended violence order which was granted on 8 April 2010. The order prohibited the plaintiff from going within 100 m of the defendant's premises and prohibited the plaintiff from approaching or contacting the defendant by any means whatsoever. 16Between 8 and 9 am on 8 April 2010, the plaintiff drove his car into the street where the defendant lived. He drove his vehicle into the driveway of the defendant's unit block and collided with the defendant's garage door, causing it to buckle. The plaintiff then ran from the scene. This event was also accepted by the magistrate as an act of trespass by the plaintiff onto property (the garage) in the possession of the defendant. 17The apprehended violence order was finally granted on 15 April 2010. The plaintiff did not contest the order. The plaintiff served the defendant on 27 April with the statement of claim alleging that the defendant owed the plaintiff $7900.00. 18None of this evidence from the defendant was disputed. The attack upon her in cross examination centred on an alleged gambling addiction which was said to explain the plaintiff's concern for her whereabouts and the advancement of funds to assist her to pay her bills. The content and number of text messages and emails were admitted. It was put to the defendant that this was a feature of the plaintiff's behaviour that she accepted and that caused her no concern for her personal safety. The defendant rejected that proposition. The plaintiff also maintained that, while he accepted that certain messages were threatening in their terms, he did not intend to threaten the defendant. This contention was properly rejected by the magistrate. The objective meaning of many of the most abusive messages was eloquent of the plaintiff's intention in transmitting them. The Plaintiff's Submissions on the Appeal. 19The first limb of the plaintiff's submissions with respect to the two torts of assault found by the magistrate to have occurred on 11 March 2010 and 6 April 2010 is that his Honour's findings in relation to the defendant's apprehension of immediate physical violence from the plaintiff were not correct, in that his Honour failed to appropriately take account of the credibility of the defendant (Ground 1). 20The second limb of the plaintiff's argument is that his Honour applied the wrong test in finding that the defendant "apprehended reasonably immediate physical contact" from the plaintiff rather than an apprehension of immediate physical harm (Ground 2). 21The third limb of the plaintiff's argument is that the alleged assaults in any event lacked the necessary immediacy of a threat of physical harm in order to constitute the tort (Ground 3). 22The fourth limb of the plaintiff's argument is that the magistrate erred in determining that the Civil Liability Act 2002 did not apply to the proceedings (Ground 4). 23The plaintiff further contends that, in the event that the Civil Liability Act did apply to the proceedings, the assessment of damages under s 16 of the Act precluded the award made by the magistrate below, in particular an award of aggravated damages and interest. It is submitted that there was no basis upon which an award of damages for non-economic loss could be made, because the defendant had not established that her psychological injury was at least 15% of a most extreme case (Ground 4.1). 24The plaintiff also submitted that the magistrate was in error in admitting a report of Dr Nicholas, an expert who was appropriately qualified to provide an opinion as to the psychological harm suffered by the defendant as a result of the plaintiff's conduct, on the basis that the report was based upon an unreliable history provided by the defendant (Ground 4.2). 25The plaintiff's submissions with respect to three of the incidents found by the magistrate to constitute trespass to land essentially take issue with the magistrate's findings of fact. As to the trespass on 5 and 6 April 2010, the plaintiff maintains that there was no reliable evidence from which the magistrate could conclude that the defendant had withdrawn permission from the plaintiff to enter her premises (Ground 5). As to the trespass to land on 8 April 2010, the plaintiff maintains that there was no evidence from which the magistrate could conclude that the plaintiff entered the enclosed lands of the defendant, on the basis that the garage door damaged by the plaintiff's actions constituted common property of the strata scheme in which the defendant resided (Ground 5.1). 26Finally, the plaintiff submits that the magistrate erred in awarding aggravated damages (assuming that the Civil Liability Act does not apply), in that his Honour did not articulate which aspects of the plaintiff's conduct either by way of the assaults or trespass aggravated the relevant tort. The reference by the magistrate to the plaintiff "consciously and contumeliously" disregarding the rights of the defendant is said to reveal confusion between aggravated and exemplary damages (Ground 6). Disposition. 27Grounds 1 and 5 do no more than traverse findings of fact by the magistrate. They raise no error of law or mixed fact and law. 28There is no appeal to this Court from the Local Court on questions of fact. A wrong finding of fact, even a perverse finding of fact that is against the weight of the evidence, does not elevate such an error into an error of law. In Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126, Jordan CJ summarised the relevant principles thus (at 138) : - (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or, (c) if it has misdirected itself in law. 29See also Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Mahony v Industrial Registrar of New South Wales & Anor. (1986) 8 NSWLR 1; Haines v Leves & Anor. (1987) 8 NSWLR 442; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Gangemi Holdings Pty Ltd v Salter [1999] NSWSC 1004; Carr v Neill [1999] NSWSC 1263; State Rail Authority v Smith [2000] NSWSC 334. 30Grounds 1 and 5 complain of the questionable reliability of the defendant's evidence underpinning the magistrate's findings. Questions of reliability and weight are central to fact finding. 31Ground 5.1 is misconceived. The magistrate found that the plaintiff deliberately drove his motor vehicle into the garage door. It is clear from the evidence that the plaintiff's motor vehicle intruded into the defendant's garage, albeit slightly. It has never been doubted that "every invasion of private property, be it ever so minute, is a trespass." : Entick v Carrington (1765) 19 St. Tr. 1029 at 1066 : Plenty v Dillon (1990 -1991) 171 CLR 635 at 639. 32Grounds 2 and 3 raise errors of law in the application of the tort of assault to the facts of the case. The Tort of Assault. 33At common law, an assault consists of an intentional act which creates in another person an apprehension of imminent harmful or offensive contact : see "The Law of Torts", John G Fleming, 7th ed. at p 24. 34Despite some controversy as to whether or not mere words could ever constitute an assault, it has been accepted that a threat of physical harm which is not accompanied by any physical contact, such as a threat made by electronic means, is capable of constituting an assault provided that the threat is to inflict immediate physical harm : Knight v The Queen (1988) 35 A Crim R 314 ; Slaveski v State of Victoria & Ors. [2010] VSC 441. 35In Knight, Lee J (Carruthers and Loveday JJ agreeing) overturned convictions for assault on the basis that the threats by telephone were not threats of immediate violence. It is the threat itself that must demonstrate the imminence of the physical harm. It is not sufficient that the recipient of the threat immediately apprehends some harm on hearing the threat. 36Returning to the instant case, the magistrate's reasons in relation to the assault of 11 March 2010 were :- On 11 March 2010 when she received the threat I accept that she was in fear as a result of the words. ... Clearly there was no battering. In view of the [plaintiff's] past, his mental difficulties, her knowledge of his training, experience and erratic behaviour I find that she apprehended reasonably immediate physical contact from the [plaintiff]. He did not live far away. He would arrive at her house from time to time unexpectedly. He had followed her around. 37The terms of the message (see [9] above) did not convey any temporal immediacy to the threat. No doubt it was partly for that reason that the magistrate focussed on the defendant's knowledge of the plaintiff's military background, his mental health issues and proximity to her home in order to reach the conclusion that he did. It is unfortunate however that his Honour framed the commission of the tort by reference to the defendant's apprehension. I unreservedly accept that such was her fear, but the threat itself was expressed in an indeterminate manner. The plaintiff did not say that the defendant would die if he did not receive the money by a specified time. 38The assault of 6 April was similarly characterised. The magistrate said :- In relation to the assault the background matters known by the [defendant] about the [plaintiff] must be borne in mind. His behaviour was by his own admission increasingly erratic. He was threatening harm. He had already entered her property without consent and damaged and destroyed her property on 5 April. He then trespassed again on 6 April and again, having taken her property sent an SMS saying in effect that he would burn down her house while she slept in it. I find that she apprehended reasonably immediate physical contact from the [plaintiff]. 39The terms of this message suggested some future indeterminate time when the defendant was asleep. The acts of trespass committed by the plaintiff on that day and the previous day demonstrated that the plaintiff could enter the premises at will, but that fact bore no necessary relationship to the infliction of harm upon the defendant. Once again, the tort was framed by reference to the defendant's apprehension, not the objective terms of the threat. 40For these reasons, I would uphold ground 3 of the appeal. While it is not strictly necessary to decide ground 2, I am not persuaded that, in the circumstances of this case, there is any error in describing the tort in terms of immediate physical contact as opposed to immediate harm. It may have been preferable had the magistrate referred to "immediate harmful contact", but it was abundantly clear from the evidence that the messages conveyed the threat of harm and that the magistrate understood that aspect of the tort. The Application of the Civil Liability Act. 41Given the plaintiff's success on ground 3, the application of the Act does not fall to be determined. However, it is appropriate that I provide some brief reasons for coming to the conclusion that the Act did not apply in the circumstances of the assault allegations. 42Section 3B of the Act relevantly provides :- (1) 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. 43"Injury" is defined in relation to damages under the Act to include personal injury and includes impairment of a person's physical or mental condition (s 11). Part 3 of the Act limits the recovery of damages for "pure mental harm", although that is of no relevance to the question posed by s 3B(1). 44There can be no doubt that the plaintiff sent the messages on 11 March and 6 April intentionally. Whether in so doing he was intending to cause an impairment of the defendant's mental condition was a question of fact for the magistrate. The plaintiff's intention in that regard was to be inferred from the circumstances surrounding the sending of the messages and the content of the messages themselves. There is no error disclosed by the magistrate's reasons in determining that the plaintiff had that intention. 45In every relevant respect, the allegation of an intentional act calculated to cause an apprehension of physical violence in this case is on all fours with the reasoning in State of NSW v Ibbett [2005] NSWCA 445, where it was held that the Act was excluded. 46Having regard to the plaintiff's failure on this ground, there is no need to deal with ground 4.1. 47A related aspect to this ground is the question of the admissibility of the expert report. It went to the assessment of the defendant's mental harm for the purposes of damages with respect to the alleged assaults. While it is not strictly necessary to determine this issue, there was no error in admitting the report. Whatever the discrepancies between the defendant's history and that provided by her to the doctor, it was a matter for the magistrate to ascribe such weight to the report as he thought appropriate in all the circumstances. Damages. 48The above findings require the award of damages for the assaults to be set aside. The award of damages for the acts of trespass remain, but given the global award made by the magistrate, it is not possible to determine what proportion of the general and/or aggravated damages are referable to those torts. Having regard to the relatively short duration of the plaintiff's interference with the defendant's possession of her land, I would expect damages to be of a modest nature, even allowing for some component of aggravated damages arising out of the plaintiff's behaviour. 49The plaintiff has been partially successful in the appeal. In those circumstances, it is appropriate that each party bear their own costs on the appeal. Orders 50It would have been desirable, given the long and unsatisfactory history of these proceedings, not to mention the maintenance of continuing hostilities between the parties by the prosecution of this appeal, to have finally determined the matter by the disposition of the appeal. However, the Court's powers under s 75(1) of the Local Court Act 1982 are to some extent limited. 51Accordingly, I make the following orders :- (1)The judgment of the magistrate of 26 October 2011 on the liability of the plaintiff for assault is set aside. (2)The judgment and order of the magistrate of 13 April 2012 is set aside. (3)The matter is remitted to the magistrate for determination of an award of damages for trespass in accordance with these reasons. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2013