Sayed v McArthur & Anor [2020] NSWDC 12

District Court New South Wales

Medium Neutral Citation: Sayed v McArthur & Anor [2020] NSWDC 12 Hearing dates: 11-13 February and 12 March 2020 Date of orders: 07 April 2020 Decision date: 07 April 2020 Jurisdiction: Civil Before: Smith SC, DCJ Decision: The proceedings be dismissed. The plaintiff to pay the defendants' costs. Catchwords: TORT – Trespass to person – Battery – Elements – Issue of credit TORT – Breach of contract – Essential element – Disposal of possession without consent – non-payment of monies Cases Cited: Barton v Amrstrong [1969] 2 NSWR 451 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Croucher v Cachia (2016) 95 NSWLR 117 Holloway v McFeeters (1956) 94 CLR 470 Jones v Dunkel (1959) 101 CLR 298 Payne v Parker [1976] 1 NSWLR 191 West v Government Insurance Office (NSW) (1981) 148 CLR 62 Texts Cited: J D Heydon AC, Cross on Evidence (10th ed, 2014, LexisNexis Sydney) Category: Principal judgment Parties: Bill Sayed – Plaintiff Nicole Susan McArthur – First Defendant Nigel John Reddin – Second Defendant Representation: Solicitors: Plaintiff self-represented Robertson Saxton Osborne - Defendants File Number(s): 2018/18818 Publication restriction: Nil

Judgment 1. The plaintiff and the first defendant were married in 1993 and had a number of children together. They lived in a property at Woonona, south of Sydney (Woonona property). The marriage ended in divorce in October 2014. The plaintiff alleges that the first defendant violently assaulted him and threatened him on a number of occasions in 2015. 2. In November 2015, the first defendant formed a relationship with the second defendant. The plaintiff contends that in January 2016 the second defendant threatened to shoot him at Maroubra (Maroubra incident). 3. The plaintiff seeks damages from the defendants for assault and battery. He also claims that the first defendant disposed of, or damaged, his personal property that was left in the Woonona property and that she breached an agreement to pay him money on the sale of a motor vehicle registered in her name. 4. During the course of cross-examining the second defendant the plaintiff alleged that it was the second defendant who took his personal property from Woonona. That claim was not pleaded and may be left to one side. The defendants deny all these incidents. 5. There were two notable aspects of the evidence in the proceedings. First, for the most part, the plaintiff's evidence was entirely uncorroborated. Secondly, with the exception of the Maroubra incident, the defendants offered no evidence in chief at all, choosing in effect to put the plaintiff to proof. 6. The first defendant was in a position to give evidence in respect of all of the claims made by the plaintiff. She had in fact sworn an affidavit in the proceedings for the purpose of doing so. However, her affidavit was not read and, ultimately, with leave, she only gave oral evidence in chief about the Maroubra incident. Although the plaintiff was told that his cross-examination of the first defendant was not restricted to "the evidence given by the first defendant orally", he initially only cross-examined her about it. After I had reserved judgment, the plaintiff sought leave to further cross-examine the first defendant. I granted that leave and the plaintiff cross-examined the first defendant for two more hours, in fact enabling her to give her version of events about each of the other allegations. 7. The plaintiff asked me to draw an inference from the first defendant's failure to give evidence in chief about anything except the Maroubra incident. 8. The unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have asserted that party's case: Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320-1; J D Heydon AC, Cross on Evidence (10th ed, 2014, LexisNexis Sydney) at [1215]. 9. The rule allows inferences favourable to the plaintiff to be drawn more confidently: Holloway v McFeeters (1956) 94 CLR 470, 480-1. However, it cannot be employed to fill gaps in the evidence. 10. These principles may be applied where a party fails to ask questions of a witness in chief, at least where the most natural inference is that the party feared to do so: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-9 (Handley JA). 11. The first defendant was clearly in a position to elucidate the facts alleged by the plaintiff and there was no evidence given to explain why she did not give evidence in chief about anything other than the Maroubra incident (see West v Government Insurance Office (NSW) (1981) 148 CLR 62 at 70). Instead, the decision was said, from the bar table, to have been a forensic one. In those circumstances, the rule may be applied: Payne v Parker [1976] 1 NSWLR 191 at 201-2 (Glass JA). 12. The difficulty facing the plaintiff's submission here is that the first defendant did give evidence about the allegations made against her. That evidence, as it turned out, did assist her. It would be unnatural in those circumstances to draw an inference that her evidence would not have assisted the defendants' case. Further, having regard to history between the plaintiff and the first defendant and the way in which the plaintiff cross-examined her, and her demeanour during that cross-examination, there was a more obvious inference available as to why she chose not to give much evidence in chief. Regrettably, the plaintiff's cross-examination was very unsettling for the first defendant. She was visibly upset and barely able to look at him. At one point, the first defendant lost her composure and expressed her view that the plaintiff was doing no more than continuing to attack her for having left him. The inference that most naturally arises from all of this is that the first defendant simply did not want to engage in an ongoing emotional battle with her ex-husband. 13. For those reasons, I conclude that the principle in Jones v Dunkel does not arise in this case and, even if it did, I would not draw the inference the plaintiff seeks. 14. In these circumstances, the credibility of the plaintiff's evidence is critical to the factual issues between the parties. While that issue must be determined by reference to other evidence as a whole, including the evidence of the first defendant under cross-examination, it is useful to start with a consideration of the evidence about the Maroubra incident.