SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Brunoro v Brunoro (No 3)

Citation: [2016] ACTSC 189

Hearing Dates: 25-28 May, 17-18 August 2015

Decision Date: 29 July 2016

Before: Mossop AsJ

Decision: See [262]

Catchwords: TORTS – Claim of assault – Altercation involving a banana cutter – Where plaintiff and third defendant provided inconsistent versions of events –Evidence supported third defendant’s version of events – Claim for damages refused – No issue of principle

TORTS – Claim of assault – Where plaintiff suffered fractured humerus – Second defendant claimed to have acted in self-defence – Whether actions were reasonable actions of self-defence – Burden of proof – Balance of evidence insufficient for second defendant to satisfy onus of proof – Plaintiff awarded damages

TORTS – Detinue – No evidence of the demand for return of the chattels – Plaintiff permitted to collect any items that he wanted – No evidence that the defendants had actual possession – Claim dismissed

TORTS – Trespass – Removal of electrical fuses from property – Where plaintiff had no equitable interest in the property – Plaintiff was not a tenant and only had possession of a small part of the property – Second defendant acting as agent of the owner – Claim dismissed

FAMILY PROVISION AND MAINTENANCE – Claim under the Family Provision Act 1969 (ACT) – Whether adequate provision for the proper maintenance, education or advancement in life of the plaintiff made under the will – Age not a barrier to obtaining an order for provision – Claim made against a modest state – Plaintiff obtained substantial benefits under the will and throughout his life from his parents – Other beneficiaries considerably younger than the plaintiff – Claim dismissed

Legislation Cited: Family Provision Act 1969 (ACT), ss 8, 11

Cases Cited: Anning v Anning (1907) 4 CLR 1049Briginshaw v Briginshaw (1938) 60 CLR 336Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555Brunoro v Brunoro [2012] ACTSC 2Brunoro v Brunoro (No 2) [2013] ACTSC 153Cook v Beal (1697) 1 Lord Raym 176; 91 ER 1014 Dale v Wood (1822) 7 Moore CP 33Fontin v Katapodis (1962) 108 CLR 177Glover v Roche [2003] ACTSC 19

Lamb v Cotogno (1987) 164 CLR 1McClelland v Symons [1951] VLR 157Newington v Windeyer (1985) 3 NSWLR 555Pearce v Hallett [1969] SASR 423Singer v Berghouse (1994) 181 CLR 201Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118Whitfeld v de Lauret & Co Ltd (1920) 29 CLR 71

Texts Cited: Patrick Higgins, Elements of Torts in Australia (Butterworths,1970)Thomson Reuters, The Laws of Australia, vol 33

Parties: Emile Brunoro (Plaintiff)

Virgil Brunoro (First Defendant)

Selmar Nebelung (Second Defendant)

Justin Nebelung (Third Defendant)

Adam Nebelung (Fourth Defendant)

Representation: Counsel:T Crispin (Plaintiff)

A Muller (Defendants)

Solicitors:S&T Lawyers (Plaintiff)

Maliganis Edwards Johnson (Defendants)

File Number: SC 548 of 2008

MOSSOP AsJ

Introduction

1. Unhappily, this case involves at least nine causes of action alleged by the parties against each other. The parties are members of a single extended family. The causes of action arise out of unusual circumstances involving two houses in the Canberra suburb of Watson. The case has been on foot for in excess of eight years. The final hearing in the case ran for six days. An earlier final hearing on a separate issue ran for two days. Notwithstanding the family relationships between the parties, the inevitable risks of litigation and the Court’s encouragement to do so, the parties have been unable to reach any settlement.

The people

2. This case relates to the Brunoro family. The plaintiff, Emile Brunoro, is the son of Virgil and Berthe Brunoro. Virgil is the first defendant in these proceedings. Berthe died in 2006. The proceedings arise out of events that occurred following her death.

3. The plaintiff has a brother called Henri Brunoro. Henri Brunoro has been married twice, first to Pamela Brunoro and then to Penelope Gregory.

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4. The plaintiff’s sister Aline died in about 1996. She had five children Selmar Nebelung, Justin Nebelung, Adam Nebelung, Seline Nebelung and Samantha Nebelung.

5. The plaintiff has not been married.

6. I will refer to the members of the Brunoro and Nebelung families by their first names. I do so for convenience and without intending any disrespect to them.

The properties

7. Two properties feature prominently in this case. They are residential properties located on Phillip Avenue in Watson. They are located at 3 and 5 Phillip Avenue. These houses are near the intersection between Phillip Avenue and Northbourne Avenue. Number 3 is the closest to Northbourne Avenue. At the relevant times it had a single story dwelling on it. Number 5 is the house next door. At the relevant times it had a two-storey residential dwelling on it.

8. A third property was referred to in the evidence, namely, a farm at Murrumbateman where Virgil and Berthe Brunoro lived from 1979.

The pleaded claims

Plaintiff’s claims

9. The plaintiff has pleaded five different causes of action. They are:

(a) A claim of trespass against Selmar alleging a trespass on 5 Phillip Avenue Watson on 10 September 2007. Selmar is said to have trespassed by removing chattels, namely, electrical fuses from 5 Phillip Avenue Watson and, on a separate occasion, turning off the mains water tap and filling the access hole with rocks.

(b) A claim of assault (the first assault) against Justin on 2 August 2007, when Justin is alleged to have held a plaintiff in a bear hug, forced him to the ground and “stomped” “around 12 times” on his right leg, torso, right arm, neck and head. The plaintiff is alleged to have suffered a broken rib, bruising, abrasions and psychiatric injury.

(c) A claim of assault (the second assault) against Selmar and Adam alleged to have occurred on 20 May 2008. Selmar and Adam are alleged to have seized the plaintiff and manhandled him to the ground, kicked him repeatedly whilst he was on the ground and dragged him around 20 m in the direction of 3 Phillip Avenue. Selmar is then alleged to have pinned the plaintiff’s left arm behind his back and spat at him. The plaintiff is alleged to have suffered a fractured rib and a fracture of the right humerus below the shoulder, abrasions and bruising including extensive bruising to his genitals and psychiatric injury. The fracture of the humerus is alleged to have resulted in a permanent loss of mobility and strength in the right shoulder and upper arm.

(d) A claim in detinue against each of the defendants alleged to have arisen from the plaintiff’s removal from 5 Phillip Avenue as a result of a domestic violence order on 28 January 2008. It is alleged that the plaintiff returned to the premises on a number of occasions in order to retrieve his belongings, but they had been “appropriated or removed without his knowledge or consent”. Particulars of the property are set out in the pleading.

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(e) A claim under the Family Provision Act 1969 (ACT) seeking provision in the form of “50% of the equitable interest in the property at 3 Phillip Avenue, Watson.”

10. Aggravated and exemplary damages are claimed in relation to the first assault and the second assault.

First defendant’s defence and counterclaim

11. Virgil’s amended defence and counterclaim plead, in answer to the whole of the claim, judgments entered in his favour by Harper M on 31 January 2012 and 24 February 2012. It also includes a counterclaim for assault, particularising five incidents alleged to have occurred from May 2007.

Second defendant’s defence and counterclaim

12. The amended defence and counterclaim filed by Selmar alleges a breach of the plaintiff’s duty as executor of the will of his mother Berthe. It is alleged that he breached his fiduciary obligations to Selmar, Justin and Adam by:

(a) failing to make an application for probate;

(b) failing to account to Justin, Selmar and Adam for rent and other moneys payable in respect of 3 Phillip Avenue, Watson; and

(c) withdrawing approximately $28,193.24 on 20 January 2006, but failing to account to Selmar, Justin and Adam or other beneficiaries in respect of this withdrawal.

13. Finally, it is alleged that the plaintiff assaulted Selmar by throwing a rock at him on an unspecified date “causing him fear and apprehension”.

Third defendant’s defence and counterclaim

14. The amended defence and counterclaim filed by Justin includes a counterclaim making the same allegations about the plaintiff’s conduct as executor of his mother’s will. It also includes an allegation that the plaintiff assaulted him on 2 August 2007. The content of that allegation is made clear by the assertion at [16] of the defence that Justin “was attacked by the plaintiff with a machete and any contact with the Plaintiff was in self-defence”.

Fourth defendant’s defence and counterclaim

15. The amended defence and counterclaim filed by Adam repeats the allegations concerning the plaintiff’s conduct as executor and also includes a claim of assault against the plaintiff alleging that he hit the him with an open hand “in about June 2007”.

Defects in, and abandonment of, the counterclaims

16. Each of the counterclaims filed by the defendants was technically defective in that it failed to articulate the relief which was sought. However, no point was taken by the plaintiff about that. In any event in final submissions counsel for the defendant said that he made no submissions and the solicitor for the defendants subsequently confirmed to the Court that the counterclaims were not pressed.

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17. In those circumstances I treated the counter claims made by each defendant as no longer being pressed and I will enter judgment in favour of the plaintiff on each of the counter claims.

Procedural history

18. The proceedings were commenced by originating application filed 11 July 2008. At that stage the originating application sought an extension of a caveat filed by the plaintiff over Virgil’s property at 5 Phillip Avenue.

19. As a result of orders made on 26 September 2008 an amended originating application was filed on that date which added four additional defendants: Selmar, Justin, Adam and Nebelung Nominees Pty Ltd. At that stage the amended originating application sought a declaration that the plaintiff held a life interest in 5 Phillip Avenue and an injunction restraining the defendants from inhibiting the plaintiff from entering or residing at the property. It also sought damages, aggravated damages and exemplary damages.

20. On 28 November 2008 Harper M ordered that the caveat lodged by the plaintiff over the property be removed.

21. On 30 November 2009 (one year later), default judgment was entered against each of the defendants. On 22 February 2010 that default judgment was set aside by consent.

22. On 15 September 2010 an amended statement of claim was filed which sought a declaration “that the plaintiff holds an equitable right to inhabit the property at 5 Phillip Avenue, Watson”, an order requiring the return of certain chattels of the plaintiff and provision under the Family Provision Act 1969 “in the form of a 50% share of the equitable interest in the property at 3 Phillip Avenue Watson.”

23. The amended statement of claim did not identify Nebelung Nominees Pty Ltd as a party. No order was made removing it as a party or giving judgment in its favour. Rather, it seems to have been simply forgotten about. The parties have proceeded as if notwithstanding its inclusion in the amended originating claim, dated 26 September 2008, the filing of the amended statement of claim removed it as a party.

24. On 17 December 2010, Harper M ordered that the plaintiff’s claim in respect of 5 Phillip Avenue, Watson “be dealt with as a separate issue”. As the subsequent history of the case illustrates, any perceived efficiency in dealing with only part of the issues in dispute between the parties was illusory.

25. The hearing of the separate issue took place on 28 April 2011 and 9 May 2011. His Honour delivered his decision on 31 January 2012: Brunoro v Brunoro [2012] ACTSC 2. His Honour made a declaration that “[t]he plaintiff holds no equitable interest in or charge over the premises at 5 Phillip Avenue, Downer”. Notwithstanding the reference to Downer, the reasons make it clear that his Honour was dealing with the house at 5 Phillip Avenue, Watson. The allegation at that stage was that there had been an agreement entered into in about 1979 by which the plaintiff would:

(a) maintain the property at 5 Phillip Avenue;

(b) arrange for parts of the house to be leased to tenants; and

(c) collect rent and account after paying for maintenance, repairs and other expenses to his parents.

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In return for the above, he would be permitted to reside at 5 Phillip Avenue.

26. Harper M was not satisfied that there was anything in the nature of a contract which came into existence, not being satisfied that a promise was made to the plaintiff that the arrangement for him to live in the house and let out rooms was to continue indefinitely or for any particular period of time: [2012] ACTSC 2 at [33]. His Honour found that what had happened was in the nature of an informal arrangement between family members and that none had any intention to create enforceable legal rights or obligations: [2012] ACTSC 2 at [33]. Further, his Honour found that, in relation to any representation that had been made to the plaintiff, he had not suffered any detriment because he had been able to live rent free in the family home for a further 25 years or so after his parents moved out.

27. In relation to an alleged agreement between the plaintiff and his parents about their wills, his Honour was not satisfied that there was any contract made to which the plaintiff was a party or that his father bound himself in any way to make a new will in any particular terms. Finally, if there was some arrangement then it had not been demonstrated that there was any departure from it, as the plaintiff’s father was still alive and there was no evidence as to the terms of his will: [2012] ACTSC 2 at [36].

28. Consistently with what I have said above, in his reasons Harper M noted that while the fifth defendant, Nebelung Nominees Pty Ltd, had been joined as a defendant and default judgment entered against it, no relief had been sought against it and the parties had at some stage simply treated the fifth defendant as no longer being a party. His Honour indicated that it would be necessary for an order to be made disposing of the plaintiff’s action against the fifth defendant: [2012] ACTSC 2 at [6]. However, the parties do not seem to have raised this issue again and there is no record of any order having been made disposing of the case against the fifth defendant.

29. On 24 February 2012, his Honour made the following orders:

1. There be judgment in favour of the first defendant; and

2. The plaintiff pay the costs of the first defendant.

30. The matter was then inactive for 17 months until an application for an injunction was filed to restrain the sale of the property at 3 Phillip Avenue, Watson. The application was filed on 24 July 2013 and dealt with by Burns J on 26 July 2013: Brunoro v Brunoro (No 2) [2013] ACTSC 153. At that stage an auction of the premises at 3 Phillip Avenue was due to take place the next day. His Honour refused the application for an injunction and made a limited order in relation to the proceeds of the sale. On 30 August 2013 Burns J discharged those orders.

31. The giving of discovery was the only activity that occurred during the whole of 2014. The proceedings were first before me on 5 December 2014. On 6 February 2015 the plaintiff was, without opposition, given leave to file a further amended statement of claim and did so on 11 February 2015. An amended defence was filed on 25 February 2015. The proceedings were heard on 25-28 May 2015 and 17-18 August 2015.

The position of the first defendant

32. By reason of the judgment entered in the first defendant’s favour, the plaintiff’s claim against the first defendant was finally determined. However, the second, third and fourth defendants did not contend that the judgment in favour of the first defendant,

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who had been appointed administrator of Berthe’s estate, precluded the family provision claim being made against the beneficiaries of the estate, relevantly Justin, Selmar and Adam. That position was adopted either by virtue of the terms of s 11 of the Family Provision Act or in combination with the manner in which the separate issue was dealt with by the parties before Harper M. Having regard to the fact that this appeared to be an uncontroversial position adopted by the parties, I do not need to consider its correctness in any detail. It had the effect that there was no claim that could be made against the first defendant, but that the family provision claim could proceed to the extent to which the beneficiaries of the estate were defendants in the proceedings.

Basic facts

33. In 1961 Virgil Brunoro purchased the property at 5 Phillip Avenue, Watson. The family moved in during 1962. The plaintiff left school in 1970 and shortly thereafter joined the CSIRO as a photographer.

34. In 1976 Berthe Brunoro and Pamela Brunoro (Henri’s then wife) purchased 3 Phillip Avenue, Watson as tenants in common in equal shares. The plaintiff lived at number 5 Phillip Avenue with his parents until they moved out to a farm at Murrumbateman in 1979 or 1980. The evidence was not clear as to precisely which properties constituted the farm. It appears to have been properties referred to as “Cockatoo Hill” or “Gounyan”. Members of the family also owned another property called “Dunollie” between 1990 and 1993. Some of the history of dealings with these rural properties is described in a letter written by Henri to Justin in 2006 (at Exhibit 7), but the lack of reliable and detailed records in evidence makes it impossible to make particular findings about who owned which part of these rural properties at which time.

35. After his parents left, the plaintiff continued residing at 5 Phillip Avenue, arranging for tenants, collecting rent and remitting it to his parents. He also undertook some general maintenance. The property was divided into two flats downstairs and one larger flat upstairs. The plaintiff resided in one of the downstairs flats.

36. In 1988 the plaintiff left CSIRO and in 1989 he commenced working at the Canberra College of Advanced Education. He was made redundant in 1991. In 1993 he worked for a number of months at a nursery in Sutton. Between 1994 and 1996 he was employed as a photographer before being made redundant.

37. In 2002 he worked as an assistant labourer during the refurbishment of the Diplomat Hotel. At some stage in 2004 he commenced working as a painting contractor at Glendening Painting Services, but was made redundant in early 2005.

38. Berthe Brunoro was diagnosed with stomach cancer in 2005 and in October of that year moved back from Murrumbateman to 3 Phillip Avenue. The plaintiff and his then partner Terry-Anne Harney moved in with her.

39. Berthe made her will on 1 December 2005. By that will Berthe did the following:

(a) appointed the plaintiff as the executor (cl 2);

(b) gave to the plaintiff her shares in the “Woodside Company” (cl 3);

(c) gave the rest of her estate upon trust for such of her grandchildren Selmar, Justin, Seline, Adam and Samantha as survive her and at her death have attained 25 years (cl 4);

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(d) permitted the trustee to apply the income from her estate to the maintenance, education, welfare or otherwise for the benefit of any child or children for the time being under the age of 25 years (cl 5);

(e) permitted the trustee to “raise the whole or any portion of the presumptive share of any child or children for the time being under the age of 25 years in the capital of my estate” and apply it for the benefit of the child or pay the same to the guardian of such child (cl 6).

40. Clause 8 of the will provided as follows:

I DIRECT that it is my wish that the property known as 3 Phillip Avenue, Watson in the Australian Capital Territory registered in the name of my son, HENRI YVON BRUNORO and in respect of which the equitable interest in the same as mine to hold the same as trustee to the benefit of my said grandchildren SELMAR NEBELUNG, JUSTIN NEBELUNG, SELINE NEBELUNG, ADAM NEBELUNG and SAMANTHA NEBELUNG to be transferred to or to the benefit of those said children as tenants in common in equal shares.

41. The drafting of cls 5 and 6 appears to be defective in that they refer to children under the age of 25 years, rather than grandchildren under the age of 25 years. However, nothing turns on that issue in this case.

42. The reference to the “Woodside Company” in cl 3 is presumably a reference to Woodside Petroleum Ltd, an Australian petroleum exploration and production company. During cross-examination, Emile was asked whether he was “aware that [Berthe] had left some Woodside Petroleum shares to you...” to which he responded “yes”. There was no other evidence about these shares.

43. On 20 December 2005 Berthe executed a power of attorney in favour of Emile.

44. Berthe was able to walk up until about a month before she died. After that she was disabled and needed to take morphine to control her pain. The plaintiff and Ms Harney were the principal carers for Berthe up to her death. While other members of the family visited, it was the plaintiff and Ms Harney who provided ongoing and overnight care. They had some assistance from palliative care nurses from Clare Holland House who visited daily and from one of the residents at 5 Phillip Avenue, Toni Lindsley, who was also a nurse. Berthe died in the early hours of 18 January 2006. Justin had stayed overnight on the night that Berthe died.

45. About six months after Berthe died the plaintiff and Ms Harney returned to live at 5 Phillip Avenue, Watson.

46. At some stage between July 2006 and April 2007, Virgil moved back to live at the Watson properties. At different times he lived at number 3 and number 5.

47. In May 2007 Selmar distributed a written notice to the tenants of 5 Phillip Avenue asserting that there had been a change in the management of the property. Virgil communicated that he intended to sell the house and asked Emile to get everybody to leave. Emile ignored this request, as did the other residents. At that point Virgil was living at number 3. Justin was living in the garage of number 3 and then moved into the garage at number 5. Adam also lived at number 3 and Selmar lived at the coast, but would come up on weekends.

48. It was after the decision to evict the residents at number 5 that tension increased between Emile and the defendants.

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49. Between June 2006 and July 2007 there were discussions between Henri and the Nebelung children, principally Justin, in relation to the transfer of 3 Phillip Avenue to them. This arose from the assertion in Berthe’s will of an equitable interest in that property and the directions given under cl 8 of her will (set out at [40] above). On 19 July 2007, Henri entered into an agreement with the Nebelung children to transfer 3 Phillip Avenue to them upon their payment of $95,000. Payment of that amount would permit him to discharge the mortgage over the property. A copy of the agreement may be found at Exhibit 5 Tab 2.7.

50. The first assault is alleged to have occurred on 2 August 2007.

51. The trespass involving the removal of fuses and filling up of the access to the mains water tap is alleged to have occurred on 10 September 2007.

52. On 28 January 2008 the plaintiff was required to cease residing at 5 Phillip Avenue because an interim domestic violence order was served on him which prevented him from being on those premises.

53. The second assault is alleged to have taken place on 20 May 2008. After the incident the plaintiff was transferred to hospital and then discharged on 23 May 2008.

54. The present proceedings were commenced on 11 July 2008. The procedural history of the proceedings after that point is described above.

General observations about the witnesses

55. Eleven lay witnesses gave evidence. One expert gave evidence.

56. The plaintiff was not an impressive witness. The manner of his giving evidence was that which might be expected from someone struggling with the effects of alcoholism. His answers to questions often trailed away into mumbling. His memory appeared to be poor. Some of his answers involved commentary given as though he was talking to himself rather than addressing the Court. These deficiencies were emphasised by the manner in which his examination-in-chief was conducted, which tended to reinforce the patchy and disjointed description of the events. The unreliable nature of his evidence was illustrated by the very unsatisfactory evidence that he gave about his assertion in an affidavit dated 11 July 2008 that he had suffered a “broken neck” due to assault by the Virgil and others.

57. Henri was called by the plaintiff to give oral evidence. His evidence was forthright, not partisan and I considered it to be reliable.

58. The plaintiff also called the following persons to give lay evidence: Sarah Ann Ryan, Terry-Anne Harney, Marilyn Devere, Toni Lindsley, Bayne Geikie, Belinda Thomas. The evidence of these lay witnesses was less controversial. It is not necessary to make particular comments on their evidence.

59. Justin was not a particularly impressive witness. He had a tendency to volunteer evidence unfavourable to Emile. He demonstrated a tendency to be overly sure of the correctness of his position and critical of his uncle, notwithstanding having a limited grasp of the facts. This was most clearly illustrated in his evidence of the adverse conclusions drawn as to Emile’s management of the drug regime to his terminally ill mother.

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60. Selmar appeared to be a more reliable witness, but I also got the impression that on critical issues he was conscious of the forensic position that needed to be adopted in order to protect his position. This was most evident in relation to his evidence relating to the events on 20 May 2008 and his assertion that he was acting in self-defence.

61. I considered Adam’s evidence to be generally reliable.

First Assault

Claim

62. The plaintiff pleaded that on 2 August 2007 he was living at 5 Phillip Avenue. In the afternoon he was removing chicken manure from a concrete path with the aid of a flat-ended machete. He alleged that Justin approached him and said something that the plaintiff could not clearly make out to which he responded “piss off” and then called him “a precursor of a worm”. Justin is then alleged to have grabbed the plaintiff in a bear hug around the shoulders and the body, forced him to the ground and wedged him against a two foot retaining wall and the concrete path. Justin is alleged to have repeatedly stomped on the plaintiff’s right leg, torso, right arm, neck and head around 12 times. The plaintiff called out for help and then told Justin that he was being videoed at which point Justin ceased the assault and fled back to 3 Phillip Avenue.

Plaintiff’s evidence

63. The evidence of the plaintiff was that on 2 August 2007 he was using a machete to clean chicken droppings off an area of concrete outside his door. Justin was staying in the garage and he was walking past and said something that the plaintiff did not hear because the plaintiff had the radio on. Then:

I kept flicking – you know, flicking the poos away, and then the next thing I know, he grabbed me by the back – I didn’t see him coming. He grabbed me by my back in a bear hug, turned me around, put me on the ground on the footpath, jammed me against a wall and just started stomping on me. I was on my side. He just kept stomping with his feet just trying to – I yelled out. I thought Terry was there upstairs. She was staying upstairs. She didn’t come out. He was stomping on me, and I said, “Do you realise this is being videoed?” Because he knew-well, I had a video camera, but it wasn’t actually on. As soon as I said that, he ran away.

64. The plaintiff ran upstairs. Ms Harney was not there, but when she returned he told her what had happened. He went to the front of the house and saw Selmar on the phone talking to the police. The police attended and charged the plaintiff with assault. He did not seek medical advice after the incident. He felt sore the next day and he observed that he had a bruise on the neck and on the right-hand side of his body and his right arm. He described that his ribs hurt for the next week or so.

65. In cross-examination the plaintiff agreed that on 28 July 2007 Justin had taken a 1951 Ford Anglia (referred to in the evidence as “the Noddy car”) owned by Emile out of the garage at number 3, cleaned the garage and put the car back. The plaintiff could not remember getting angry about that. He denied that he had a cane cutter on that occasion and denied telling Justin that he was going to cut him into little pieces. He agreed that moving the car out was something that he was annoyed about, but denied that it upset him. He agreed, however, that during this period there were arguments and that there may have been an argument about whether or not Justin could touch his car.

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66. The plaintiff repeated his version of events of what occurred on 2 August 2007 during the course of cross-examination. He agreed that Justin had said something to him which he didn’t hear and responded by saying “you’re just a precursor of a worm”. He described that he wasn’t on speaking terms with Justin at that stage. He appeared to deny striking Justin on the leg with the flat blade of the banana cutter. His description of the event appeared to be inconsistent with him having struck Justin on the leg saying “no, he attacked me from the back. Stopped me-I couldn’t do anything. He had me in a bear hug, turned me over, machete fell off, stomped me, took the machete out, ran away.”

Terry-Anne Harney

67. Ms Harney gave evidence that she had gone out to the shops with her daughter. When she returned she pulled up in the front driveway and Selmar was at the front on his phone. She walked up the front stairs to the house and found Emile “in a bit of a mess”. She said his hair was all messed up, his shirt was untucked, there were buttons torn off his shirt, his singlet was torn, he had big red marks around his throat and was in a state of shock. He said that “Justin just attacked me”. She asked him what happened and he said that he had called Justin a “precursor to a worm” and then “he jumped on him, knocked into the ground and stomped on him”. Selmar subsequently came up the back stairs when she was in the kitchen and said “Emile just attacked Justin with a machete”. She described that Emile had trouble breathing over the next few days which led her to believe that he had some broken ribs.

Toni Lindsley

68. Ms Lindsley described an incident in September 2007. She had been working a night shift and was attempting to sleep during the day. She recalled being woken up some time in the middle of the day when Emile came to her front door. She opened it and Emile had a ripped flannel shirt, was distressed and asking where Ms Harney was. She heard Selmar, Justin and Virgil walking past her window saying “Oh, he’s mad. We’re calling the cops”. Emile said to her “they bashed me” and that one of them had put their foot on his throat.

69. In cross-examination she accepted that she could not be sure about whether the event took place in September 2007 because she could not remember the exact date. She said “I’m very clear in my mind the two grand- Justin and Selmar and his dad walking past my flat window saying, “he’s mad. We are calling the cops.”” Apart from the questioning of the date, the version of events was not challenged.

Justin

70. Justin’s evidence was that Virgil had moved into 5 Phillip Avenue because he was ill and that about a week after he did so, Emile asked when Virgil was moving out. Justin said that it was his house and he was staying there. He said he was not going back to the farm. He described that at that stage things “dramatically got worse”. He described Emile acting in a hostile way towards Virgil and himself. Justin described an incident prior to 2 August 2007, when he was moving Emile’s car out of the garage at number 3. He described being driven at by Emile and abused for interfering with the Noddy Car. He described Emile as appearing intoxicated. He said that he had cleaned up the car and wrapped it in a tarpaulin with ropes so that it was waterproof and moved it out of the garage at number 3 so that the garage could be cleaned. He saw Emile with Ms Harney and her daughter, Rebecca, and told him what he had done.

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He then said: “At that stage he just lost the plot, in the sense of he just started screaming and yelling. He picked up the banana cutter and threatened to kill me and chop me up into little pieces. He was intoxicated at the time.” Justin described sheltering behind Terry and Rebecca and waiting for Emile to calm down.

71. Justin described having spent the day retrieving a metal garage and shed purchased from a farmer inland from Braidwood. The shed had been unloaded at 3 Phillip Avenue, although it was ultimately destined for a property at the coast. Justin wished to get coffee and a percolator from his residence in the garage at 5 Phillip Avenue so that he could make coffee for the truck driver and his wife. He went through the gate to number 5 and saw Emile with a banana cutter. It looked like he was flicking chicken manure off the path. When about 15 m away from Emile he said to him “Have you had a good day?” Emile did not respond. Justin got to the entrance of his flat and when about one step past his unit he saw Emile’s arm raised and the next thing “he’s hit me with the banana cutter on the top of my right thigh and hit me hard”. Justin was shocked and turned around. He recounted that Emile went to hit him again, but Justin grabbed his hand and his shirt and pushed him against the wall and they wrestled and fell over. The banana cutter fell to the ground. Justin got it, broke it and threw the blade and the handle into a fire which was just outside the front door. He turned around and saw Gary McMahon, who was a tenant of one of the properties and said “Did you see what happened” to which Mr McMahon replied “Yes”. He went straight back over to 3 Phillip Avenue and told everyone who was there. Mr McMahon came back and confirmed what he had said. Justin recalled that the truck driver and his wife, Selmar, Adam, Virgil and Gary were there. Although Justin said that Emile had assaulted him on previous occasions, this time there was a weapon and he decided to report it to police.

72. He was not cut by the banana cutter. It was a glancing blow sufficient to give him severe bruising. Although the police took photographs, he did not know where those photographs were now. He did not receive any medical treatment in relation to the injury. He has no ongoing difficulties. He saw a counsellor on a couple of occasions at the time.

73. He and Mr McMahon made statements to the police. Emile was charged by police and a jury in his trial in 2009 was unable to reach a verdict. There was no retrial.

74. Justin denied that there was any stomping or kicking or grabbing of Emile’s neck. He described falling down slowly. He also denied that the incident described by Ms Lindsley was one in which he was involved. He thought it must have been a different incident.

75. Justin’s evidence was consistent with the evidence that he gave at the Supreme Court trial. Extracts of the transcript of his evidence were tendered and became Exhibit 13. That transcript shows that photographs of Justin’s legs were tendered in the Supreme Court trial. Justin did not have possession of those photographs. The evidence was consistent with having suffered blows to both the right thigh and the right shin.

Selmar

76. In giving evidence Selmar was asked about 28 July 2007. In response he gave evidence that appeared to relate to events on 2 August 2007. He had been working in Canberra for a few days at the Arboretum. He was at 3 Phillip Avenue. He remembered that there had been “quite a bit of argument and noise” and that one of

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the tenants, Mr McMahon, came over and said that Justin had been assaulted. Emile was in his flat and Justin was in his flat at the back of 5 Phillip Avenue. Selmar had a discussion with Justin in which Justin said that Emile had attacked him with a machete. He showed the bruises on his legs and they decided to call the police. He did not talk to Emile on that day. He said at that stage there had been friction between Emile and the Nebelungs, although matters had never become physical before.

Findings

77. I accept Justin’s version of events on 2 August 2007 and reject Emile’s version to the extent to which it is inconsistent with it. I therefore find that Justin was walking through the property at number 5 attempting to get coffee and a percolator. While passing Emile outside his flat, Emile struck him with the flat side of the banana cutter blade. Emile attempted to strike him again. Justin then grappled with Emile, fell slowly to the ground while doing so and managed to get the banana cutter from him. He then broke the banana cutter and left the blade and handle in the nearby fireplace.

78. The reasons for why I accept Justin’s evidence and reject Emile’s are as follows. There is evidence of existing hostility between Justin and Emile. Both of Justin’s and Emile’s versions of events involved an unprovoked attack by one on the other. Both versions involve bizarre behaviour by either Justin or Emile.

79. There is evidence that both protagonists made contemporaneous complaints of having been attacked. However, the complaints made by Emile are also consistent with him having come off second best in the altercation with Justin. I place more weight on the contemporaneous complaint made by Justin, followed up as it was by a complaint to the police. I do not consider that it was likely that at that stage the complaint was a false one made for the tactical purpose of getting in before a complaint was made by Emile.

80. The explanation for Justin’s presence on the property was not challenged and was corroborated by Selmar. The reasons for his presence are more consistent with Justin going about his business attempting to get coffee and a percolator, rather than engaging in an unprovoked attack on Emile.

81. Emile’s version of events appears to be inconsistent with any significant blow having been struck by the flat side of the banana cutter blade on Justin’s leg. Nevertheless the evidence of Justin and Selmar was of an injury to Justin’s thigh and shin. The existence of photographs of injuries to Justin’s leg, taken by police, is consistent with that having occurred even though they were not in evidence. There was also evidence that police had recovered the remains of the banana cutter from the fireplace into which Justin said he put them. That is consistent with Justin’s version of events. Emile’s version of events does not explain how or why the banana cutter was broken or ended up where it did.

82. As a consequence the plaintiff’s claim for damages against Justin arising out of this incident must fail.

Trespass

Claim

83. The plaintiff pleads that early in the morning of 10 September 2007 Selmar trespassed on 5 Phillip Avenue by removing electrical fuses from that property. This led to the

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power failing and, when the plaintiff investigated the fuse box, he found that the box had been locked. Further, he investigated the mains water tap and found that the access hole for it had been filled with rocks. He then cut the padlock off the fuse box and discovered that all the fuses had been removed. He attempted to effect a hardwire repair to restore the power. As he completed that process, he was approached by Selmar who began shouting abuse at him and told him not to touch the power box. Selmar pursued him until the plaintiff locked himself inside the premises. Selmar then left the property. The plaintiff then called the Australian Federal Police who attended and recovered the missing fuses from Selmar. Power was restored by ActewAGL in the afternoon. There were three trespasses alleged in the further amended statement of claim: two unparticularised trespasses and one relating to the removal of the fuses. Only the fuses trespass was pursued at the hearing.

84. No special damage was claimed by the plaintiff.

Plaintiff’s evidence

85. The evidence of the plaintiff was that on a day in September 2007 he and Ms Harney awoke to make breakfast and found that there was no power. Assuming that the fuses had blown, the plaintiff went to check the fuses and found that they were all gone. They were designed to fit into slots in the fuse box and the items that were designed to fit into those slots were not there.

86. He gave evidence that Selmar approached him and there was a shouting argument between them.

87. He went back upstairs and called the police. The police attended and the plaintiff explained his assertion that the people next door had taken the fuses. The police went next door and the plaintiff, standing on a boundary between the two properties, observed a policeman ask Selmar to give the fuses back. Selmar went into the garage and gave the fuses to the plaintiff while the police were watching.

88. The plaintiff signed a statement in a police notebook, dated 10 September 2007, indicating that he had received the fuses and would install them in the fuse box at 5 Phillip Avenue at his own risk.

89. At some point a lock was placed upon the fuse box and he recalled cutting the lock off. He could not recall whether that was the same or different occasion to the occasion when the fuses were removed.

90. The incident with the fuse box occurred within a day or two of someone turning off the mains water tap to the house. Someone had turned off the tap and filled up the hole within which it was contained with rocks and rubble.

Police report

91. A police report (Exhibit 1 p 69) provided:

Police attended location as the owner of the residence attended and removed electrical fuses from the residence as an outstanding electricity bill had not been paid.

Advised that this matter is a civil matter and that occurrences like this are to cease as it is wasting Police resources. This is an on-going matter where the owner is attempting to evict the long time resident of 5 Phillip Avenue.

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Eviction proceedings have commenced and will take about 5 weeks. Both residents advised not to make contact with each other.

NIL offences disclosed.

Job complete.

Selmar’s evidence

92. Selmar’s evidence was that he and Virgil were having problems with tenants in the house and facing unpaid electricity bills. Selmar was acting on his grandfather’s behalf and on his instructions, because he felt it was too much stress on, and too much concern for, Virgil to be involved in those sort of things. The tenants had been asked to leave by giving them notice, but they had refused to leave. There were “issues” with the Residential Tenancy Tribunal and agreements had been made with some of the tenants for them to leave the house. That included an agreement with Ms Harney by which she was given $5000 and agreed to leave the house. But there were still issues with other people and unpaid bills. He made the decision to remove the fuses so that further electricity costs would not be incurred. He accepted that he now knew that it was the wrong thing to do. He admitted that he removed the fuses from the fuse box. When the police came he said they asked for the fuses to be returned and the fuses were put back.

93. In cross-examination he said that he could not recall whether he pulled the fuses out or whether someone else under his direction pulled them out, but accepted that he was responsible for the house at the time and took responsibility as landlord on behalf of his grandfather. As a result, he took responsibility for the fuses being removed whether he physically did it or not. He was “not sure” why he do not simply have the power disconnected.

Consideration and conclusion

94. The claim was pleaded as a trespass. The pleadings do not assert that Emile had any status as a tenant or otherwise in relation to the property. The earlier judgment of Harper M determined that the plaintiff had no equitable interest in, or charge over, the premises.

95. The submissions made by counsel for the plaintiff:

(a) did not explain what status the plaintiff was alleged to have;

(b) assumed (contrary to the pleading) that Emile was a tenant at the property.

96. The plaintiff sought an award of damages of $500 for the interference with quiet enjoyment and $500 as exemplary damages.

97. The position of the plaintiff was that he was the son of the owner of the property. He had no lease. He had been living in the house pursuant to a family arrangement for many years. He had no equitable interest in the property. He was not a tenant.

98. The title required to bring an action in trespass is possession rather than ownership: Newington v Windeyer (1985) 3 NSWLR 555 (Newington). That title prevails against everyone except a person who has a superior title: Newington at 563-564. The evidence establishes that Selmar had been given responsibility by Virgil to manage the property at number 5, including the eviction of tenants. His acts were the acts of an agent of the owner. In those circumstances the plaintiff, having possession of a small

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part of the site, was not entitled to bring proceedings in trespass against Selmar. The situation might have been different if the plaintiff was a tenant. In those circumstances he might have been able to sue if the entry on behalf of the true owner was against his will and not provided for in the lease. However, that was not the basis on which the claim was pleaded and would be inconsistent with the facts.

99. Therefore Emile’s claim in trespass will be dismissed.

Second Assault

Pleadings

100. The second assault is alleged to have occurred on 20 May 2008 when the plaintiff was staying at 10C Haddon Court, Hackett. It is alleged that at around 9.30 pm the plaintiff received a telephone call from Belinda Thomas who was a resident of 9 Phillip Avenue, Watson. She is alleged to have informed the plaintiff that a number of tenants had just been evicted from 5 Phillip Avenue and that an assault had taken place. At around 9.45 pm Ms Thomas, along with three former tenants, arrived at Haddon Court and spoke with the plaintiff.

101. At around 10 pm the plaintiff drove to Phillip Avenue. It is alleged that upon arrival the plaintiff drove into the driveway at 5 Phillip Avenue and saw two people begin to rapidly approach the vehicle. He became apprehensive and immediately left the premises and drove to Woolworths Supermarket in Dickson. He then drove to the Kamberra Winery and walked back towards the western property line of 3 Phillip Avenue and remained for a short time near the property without entering it. Upon turning to return to his vehicle the plaintiff was confronted by Selmar and Adam who seized him and manhandled him to the ground. They are then alleged to have kicked the plaintiff repeatedly while he was on the ground and then dragged him a distance of around 20 m in the direction of 3 Phillip Avenue. After they stopped dragging him, Selmar is alleged to have pinned the plaintiff’s left arm behind his back with his right knee and spat on him while he was restrained. Police were then called and the plaintiff was transported to the Canberra Hospital.

Plaintiff’s evidence

102. The plaintiff’s evidence was that he was, at that point, staying with Ms Harney in her flat. Ms Thomas telephoned Ms Harney’s flat and reported that there was a lot of noise at 5 Phillip Avenue. “Jenny and Gary” then turned up. Jenny was the tenant in the flat next to the plaintiff’s at 5 Phillip Avenue. Jenny reported that “They’re trying to break down my door” in order to remove her as a tenant of the property. The plaintiff jumped in his car and pulled into 5 Phillip Avenue. The transcript records his description of what then occurred as follows:

Is over there - - -?---Over at number 5 Phillip Avenue, and as soon as I pulled up there was all these guys, about half a dozen guys with sticks and whatever running towards the car. So I just chucked it in reverse, went straight out, and drove off, and thinking, "Yeah, right. There is something going on," and I thought, "Well, I can't go back there. There's half a dozen guys with sticks," so I pretended to go off down the road, and then like I thought, "God I need a cigarette." I'd ran out of cigarettes. Watson shops were closed, so I went to Dickson shops, Woolies was open, and I thought, "Oh yes, 15 minutes. I'll come back," and I came back through Northbourne Avenue, parked at that [Kamberra] Vineyard thing next door and I thought, "Well, they won't see me there, and I'll walk across and have a look what they're doing." So I walked across, and there's three sets of pine trees on

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Northbourne Avenue just next door to 3 Phillip Avenue, and I had a cigarette. I was hiding behind a pine tree just watching, you know, and I couldn't see anything going on in the front. I saw dad was watching - was looking outside and it was a cold night, as about this time the winter, and I thought, "That's strange," but nothing happened, so I thought, "Oh well, it's getting cold." I turned around and there was Selmar and Adam just come lunging at me. They were - - -

Hang on. I'll just stop you there. You said you saw Selmar and Adam?---Yes. When I turned around to go back, there's a lot of light there, you know, so I saw them just from here to you. They just come running at me from like two different trees, came straight at me, grabbed me, threw me on the ground, and started kicking me from both sides.

So was it one of them or both of them who were kicking you?---Both. One harder than the other.

How many times did they kick you?---I can't remember but many, many, many times. It seemed to go on forever. Probably dozens, yes.

What happened after the kicking stopped?---Eventually they stopped, and then they grabbed me from like shoulders or arms or something, and they dragged me all the way to in front of the house, number 3 Phillip Avenue. There's another tree there.

What part of your body did they drag you by?---Just shoulders, arms or something, you know, and I had still - I recall having my feet on the - you know, dragging on the ground, and they were just sort of dragging one each side of my body. They dragged me about 30 feet, maybe more. No, would be more than 30 feet. You know, about 30, 40 feet. So they dumped me under another tree which - - -

This was out the front of number 3?---Yes. What happened when you reached that point?---Then they put my hands around the back, sat on me, and I remember Selmar - Selmar did most of the assault. He just kept spitting on me. Just spitting, spitting and shouting, swearing, and carrying on, and I was sort of on the - and had all his, you know, spit everywhere. No, there was nothing I could do, and I was in real agony because my arm was just fucked - I mean it was stuffed, and then I sort of - that's right, I heard someone, "Call the police," and here we go, and then the police came around not long afterwards. I sort of lost track of time, you know. Yes. Anyway I remember the police turning up. I said, "Oh great. I'm saved now," and Selmar was still sitting on my back over my hands, and the cop I remember saying, "Get off him," and then he said, "Oh shit. Call an ambulance." He must have seen my arm was (indistinct)

Did an ambulance arrive?---Yes. I sort of passed out. I don't remember anything after that.

What's the next thing you remember?---Waking up in hospital.

103. The plaintiff suffered a severe fracture of the right humerus. He had bruising on his right side and bruising on his genitals.

Photographs of the plaintiff

104. A photograph of the plaintiff’s right arm on 25 May 2008 shows some reddening on the underside of the upper arm. A photograph of 25 May 2008 appears to show a bruise on the left-hand side of the plaintiff’s buttock. Photographs of that date of the plaintiff’s genitals purport to show some bruising there. The photographs alone are not sufficient to establish that. Mr Geike, a former resident of 5 Phillip Avenue, gave evidence that the plaintiff’s genitals were “black and blue”. He described that he had bruising around the ribs and lower flank.

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105. Photographs of the plaintiff, dated 26 May 2008, show him with a significant stitched wound as a result of the operation on his shoulder. Other photographs purport to show some bruising on either the right-hand side of his body or the inner-side of his upper right arm. They are, however, of very poor quality and it is hard to determine whether the darkness purporting to be bruising is actually shading enhanced by being photocopied multiple times.

Plaintiff’s statement to police

106. In a statement prepared by police and signed by the plaintiff on 24 May 2008 (at Exhibit 1 p 23), he said:

I drove into the driveway of 5 Phillip Av at about 10:05 pm where I saw two people who approached my vehicle. I immediately left the premises and drove off down Northbourne Av and headed for Woolworths Dickson. Once arrived at Woolworths I bought cigarettes and then returned to the vicinity of 5 Phillip Av.

Once in the vicinity I parked my vehicle at the Kamberra wines car park and walked over to the western property line of 3 Phillip Av. Whilst standing in this area I had a cigarette watching No 3, then after five mins I decided to leave the area. As I turned away and was beginning to leave, I saw Selmar and one other approach me… Selmar and the other person then both grabbed me and manhandled me to the ground. Once on the ground, I was kicked by someone I cannot identify at this time. I was then dragged approximately 20 m towards the house on No 3 Phillip Av, by both persons. When they stopped dragging me, Selmar then restrained me by placing my left arm behind my back with his right knee resting on my back. While he was doing this he was spitting at me approximately 20 times, in all”.

107. It is notable that in this statement he makes no reference to there being “half a dozen guys with sticks”. The statement indicates also that he saw “Selmar Nebelung and one other approach me” before he was grabbed. The statement says that he was kicked by somebody that he could not identify. He identifies that it was Selmar who restrained him by placing his left arm behind his back with his right knee resting on the plaintiff’s back.

Police report

108. The police report provides a contemporaneous and coherent report of the events as described to, or ascertained by, the police.

109. Police had attended the address two times on 20 May 2008 before the occasion when they found Emile being restrained by Selmar. It appears that one of the attendances was in order to serve Jennifer Cavanagh with either a domestic violence or protection order preventing her from being at either 3 or 5 Phillip Avenue or both.

110. Adam is recorded as complaining to the police that she was at 7 Phillip Avenue, but kept coming back to his location. He described her as “high on drugs and irrational”. The police report records that following the attendance of police on the second occasion at about 8.25 pm the electricity supply to number 5 Phillip Avenue was disconnected at the mains box by an unknown person. At this time, Selmar went to the rear of number 5 and discovered that a fire had been lit at the rear door to the house being the door to the lower left flat premises. He extinguished the fire.

111. The police report then recorded:

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About 9:30 pm, Selmar and Virgil were standing in the driveway of No 5 Phillip Ave, directly in front of the building, with Adam outside No 3 Phillip Ave, when Emile arrived in his motor-vehicle. Emile drove his motor-vehicle up the right-hand side of the driveway of No 5 Phillip Avenue, and accelerated towards Selmar and Virgil, they were able to avoid being hit by the vehicle. Emile then reversed his vehicle out of the driveway, and drove away in the direction of Northbourne Ave.

Approximately 15 min’s later, Emile returned in his vehicle, to the vicinity of No 3 Phillip Ave. Adam, Virgil and Selmar were standing outside No 3 Phillip Ave awaiting Police attendance when Adam observed Emile drive his vehicle into the Kamberra Wine Complex, which was directly opposite No 3 Phillip Ave. A short time later, Selmar saw Emile coming through bushes which border No 3 Phillip Ave, moving towards the house, at this time Selmar moved towards Emile to prevent him from leaving the area as he believed that Emile was heavily intoxicated, having observed his actions earlier in the night. He was concerned that if Emile left the area, he would drive his vehicle whilst under the influence of alcohol and present a danger to others. He was concerned through previous events where Emile had made threats against Virgil that there was a perceived likelihood that these threats could become a reality given Emile’s state of mind. Once Selmar had grabbed Emile, and Emile had attempted to strike at Selmar, who then tackled Emile to the ground and restrained him by placing both of Emile’s arms behind his back, he then contacted police by his mobile phone.

112. The situation that police observed upon their arrival was as follows:

Upon arrival Police saw one male being held down on the ground, by another male. The male being held was identified as Emile BRUNORO, he had been positioned face down, with his hands held behind his back by a person later identified as Selmar NEBELUNG. There were two other males standing close by who were later identified as Adam NEBELUNG and Virgil BRUNORO. Once Police had approached two males on the ground, Selmar released his hold on Emile and stood up. Emile continued to lay down and complained of a broken arm to Police. Police then requested an Ambulance to attend to the scene to treat any injuries that Emile may have sustained. Police then spoke to all persons present to ascertain what had occurred up to that time.

113. The police report at this stage makes express the degree of uncertainty in the mind of its author:

Due to the convoluted nature of the ongoing family dispute and uncertainty surrounding events at this time, Police must conduct further enquiries into this matter before further action may be Charges being laid. In particular, the fact as to who was the actual offender in this matter.

114. An entry dated 24 May 2008 provides:

Police are of the opinion that the actions taken by Selmar in restraining Emile were done as a result of a belief by Selmar, that Emile was a danger to himself and others at the property at the time. The actions of Emile prior to being restrained as described by witnesses at the scene led to the restraint by Selmar.

Ambulance report

115. The ambulance report (Exhibit p 34) records:

[patient] states he was punched & kicked then dragged approximate 100 m. Nil LOC, [patient] recalls entire event. [Patient] admits to drinking ex 5 glasses of wine this PM.

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Adam’s evidence

116. On 20 May 2008 Adam had just got back from holidays. He was on his way to talk to his employer about his shifts and getting back to work when he received a call from one of the tenants of one of the houses about somebody having taken the fuses out of the electricity box at number 5. He went back to Phillip Avenue and was informed that Jenny (Cavanagh) had come into the house, yelled at his grandfather and, he thought, hit him. A fire had been lit at the back of the house next to the door using a copy of the Yellow Pages and some sticks. He also recalled some writing on the door. He, his grandfather and Selmar were waiting in the driveway at 5 Phillip Avenue for the police to attend. They saw Emile’s car, a Subaru, cross the median strip on Phillip Avenue and drive “flat out towards my grandfather, my brother, and my grandfather’s dog”. He said they jumped out of the way and the car skidded and then reversed out of the driveway. The car was very close to having hit them and only avoided because they jumped out of the way.

117. He denied having any involvement with people running at Emile’s car with sticks or pieces of wood and didn’t observe anything like that happening. Emile then drove away and Adam and his grandfather went around the back into the laundry of the house. Selmar was still checking around the house. They then continued waiting for police out the front and observed Emile drive into the Kamberra Winery. Adam and his grandfather went back into the garage area at 3 Phillip Avenue. Selmar left to make sure “that no one was going to attack us”. Adam said “it was like we were under siege”. He then heard yelling coming from 3 Phillip Avenue and he and his grandfather saw Selmar holding Emile down by the wrist while Emile was yelling at Virgil in French. There were about 15 seconds between hearing the yelling and observing the interaction between Selmar and Emile. Police showed up around five or 10 minutes later.

118. He denied going with Selmar and grabbing Emile or kicking him or, indeed, having any physical contact with Emile at all that evening. He did not observe Selmar kicking Emile or striking him in any other way. He did not observe anyone making physical contact with Emile’s genital region. He denied dragging Emile 30 or 40 feet or observing Selmar spit on him.

Constable Cogle’s notes

119. Constable H Cogle recorded in the constable’s notebook information which appears to have been provided by Adam, which included the following description of the critical events:

About 20 mins later, Emile turned up in his car. He drove up the right driveway & attempted to run Selmar & Virgil over in his car. They were standing in the middle of the driveway in front of the house.

Emile reversed out drove on philip towards northbourne & took off. Selmar called Police again:

About 15 mins later Emile returned. Adam, Selmar & Virgil were outside waiting for Police. They saw Emile drive into winery. A little while later Selmar saw Emile come through bush towards the house. Selmar went to grab him, Emile tried to get away. Selmar dragged him back onto the property, feeling it was safer to do so [because] of the drink driving & to hold him down to get him charged.

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Selmar’s oral evidence

120. Selmar came up to Canberra from the coast to go to a business meeting and dropped in to see Virgil and Adam. When he arrived at Phillip Avenue he was told by Virgil and Adam that “it is a war”. He asked them what they meant. They explained that people had been coming to the house and pulling fuses and that there was a party being held about four houses down where a number of previous tenants were. When he arrived he called the police in relation to the fuses being pulled. Not long after that there was a fire that had been lit at the back door of 5 Phillip Avenue against the wooden door. Adam, Selmar and Virgil were “just doing patrols, because we’d been told the house was under siege or at war”. While they couldn’t find any people, they did find the fire at the back door of the house. Selmar kicked it out and put water on it. He thought that he had called the police a second time at that stage. Either at about that time or shortly after, Ms Cavanagh, a former tenant who had been given a notice to vacate but had stayed at that premises, was in one of the flats. It was blacked out and dark and Selmar realised that the door had been opened and someone was there. He asked her to leave and she swore at him and walked out and down the street. He then went with Virgil and Virgil’s dog to wait out the front for police to arrive. It was then that Emile drove across the median strip and into the driveway and skidded right where they were standing. He felt threatened. He called the police straight after that happened. Emile reversed straight back out and drive away. Then, while waiting for the police to arrive they did “small patrols around the property” to see if “people had jumped the fence or what have you”. He was worried and concerned at that time, as was his grandfather. He perceived things as escalating. He observed Emile’s car come back and go into the Kamberra Winery. They then went inside. Selmar came out to check on the cars and to check that no one was around. He was on the property at 3 Phillip Avenue and he noticed something in the bushes. He went over to inspect it. He went to the north-west corner and noticed someone in the bushes. He described the events as follows:

Okay?---Yes. And I noticed him in the bushes, and I had gone over to inspect because I wasn't sure who it was, and then he came at me and I've tackled him, had a ruffle on the ground, and we've kept scuffling on the ground, and then basically he put his hands behind his back and there was arguments and disputes going on, and then Adam and my grandfather came out and I've called the police.

MR MULLER: Well, let's just break that down step-by-step. You said he came at you. What do you mean by that?---Well, I was walking over towards the bushes, and then I noticed that Emile was coming towards me, so I've actually grabbed him and tackled him to the ground. I fell on my left shoulder. We struggled, and there was definitely no scratching and what have you. I felt like I got scratched, you know, things - we were tied together on the ground. So I actually rolled him over, and I pulled his arms back behind his back and I held onto him there. Then I called the police.

When you say he came at you, how did he come at you? What was he doing?

---He basically was behind the bushes. So I've come over and he's just come running straight towards me. I felt quite threatened. It was quite dark, it was actually under the pine trees. It wasn't lit at all. I wasn't sure whether he had a weapon or what have you. So my first instinct was to grab him. You know, to grab him and hold onto him. So I grabbed him quite firmly, and we went to the ground. You know, we struggled.

You both went to the ground. Did you hit the ground hard?---We hit the ground very hard, yes.

You said you struggled, and then you said you had his hands behind his back?

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---Yes.

121. Once Emile stopped struggling, Selmar got off him and was only holding him with one hand. However, there was yelling back and forth between Emile and Selmar. He denied that Adam was present during the wrestling altercation or had any physical contact with Emile. He denied that he and Adam dragged the plaintiff about 30 or 40 feet. He denied kicking him in the genitals. Selmar held Emile on the ground until police arrived. When police arrived he said Emile’s behaviour changed from angry and aggressive to complaining of being injured. He gave evidence that he suffered bruising on his left elbow, was quite sore and had scratches on his leg from where he had hit the ground. He saw his general practitioner the next day and subsequently had an x-ray which showed no break.

122. In cross-examination, the version of events recorded in the police report and Constable Cogle’s notes were put to him. That led him to assert on several occasions that he was protecting himself at the time and that he was engaged in self-defence when the plaintiff came running at him. He said he definitely told the police that the plaintiff had attacked him. He denied that he moved to prevent Emile from leaving the area and said “he attacked me and I defended myself, and I did restrain him so he wouldn’t leave the area to do it again”. He contended that there were “quite a few things that are missing” from the police statement.

Selmar’s record of interview with police

123. On 24 May 2008, Selmar attended the civic police station and participated in a taped interview with two police officers. The police at that stage were investigating the allegation that he had assaulted Emile.

124. Selmar said he had come home at about 8 pm. He received a phone call from tenants at number 5 Phillip Avenue. That involved a complaint that the power had gone off. There was a fire at the back door of number 5. The fire had involved a burning phonebook. About 10 minutes later he found Ms Cavanagh in one of the flats. She had been served with a restraining order that evening before Emile turned up following an allegation that she had slapped Virgil. Selmar told her to leave, to which she responded “fuck off”. She told him “we’re going to screw you over”.

125. Police were first called at 9:20 pm.

126. About 5 minutes later Emile arrived in his car and drove into the driveway, fast, nearly running over Virgil and Selmar and nearly running over Virgil’s dog when reversing back out. Police were called again at 9:29 pm.

127. While waiting out the front they saw Emile driving towards the winery. Selmar had gone to charge his phone by plugging it in at his car. His car was located in the yard at number 3. He suspected that Emile might come over towards the house that night because “they had basically waged a war on us that night”. He saw Emile hiding in the bushes and said to him “You wait there the police are on their way”. At that point Emile ran towards him, tried to punch him and scratched him on the neck. He avoided the blow and tackled him to the ground. Both men “went to the ground pretty hard”. Selmar hit his left-hand side and Emile hit his right-hand side. Selmar was on top of him. He then grappled with Emile on the ground while Emile tried to strike him and managed to subdue him. That was not difficult because Selmar was fit and Emile was drunk and uncoordinated. Neither Adam nor Virgil were involved in this process. After

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Emile was subdued Adam and Virgil arrived. Adam got the phone from the car and Selmar called the police a third time at 9.47 pm. He said that at no time did he move off the property at 3 or 5 Phillip Avenue and that when Emile came forward it was from bushes on the property at number 3 in the front yard, rather than the public land closer to Northbourne Avenue.

128. He said that Emile ran at him with “some fury”. He said that when Emile came for him he did not know whether he had a weapon. He said “it was a matter of life and death” and that he was “fighting for his life”.

129. He denied sitting on Emile or punching or kicking Emile. He said that neither Virgil nor Adam kicked Emile.

130. As a result of the hard fall to the ground Selmar suffered an injury to his elbow. The next day he went to his doctor at Bawley Point. There was swelling on his left hip and left arm. He was sent for an x-ray.

131. He replayed for police a phone message received from Ms Harney in which she said that he had bashed up his old uncle and was a “cowardly bastard”.

132. He also told the interviewing police that he had made a complaint about the officer who attended on the night because the officer had perceived him as the aggressor as a result of the circumstances in which he found him and the allegations made by Emile. He said that he felt his welfare was not considered by that officer, although subsequent officers treated him with respect.

133. A medical certificate from the doctor who saw Selmar on 21 May 2008 was tendered. That medical report provided:

I saw Mr Nebelung on 21/05/08 following an alleged assault the previous night.

I found a) tenderness left anterior neck with minor abrasions, also but to a lesser degree on the right side.

b) left shoulder pain and tenderness over the deltoid muscle.

c) bruising and swelling about the left elbow, pain on flexion, extension, pronation and supination of that elbow.

d) minor pain and tenderness left thigh over the greater trochanter of the femur (hip)

I await x-ray assessment of the elbow.

Provisional diagnosis is of soft tissue injury of the above areas.

Findings

134. There are substantial elements of the plaintiff’s version of events that I do not accept.

135. I do not accept the plaintiff’s evidence as to what occurred when he first drove into the driveway of number 5 insofar as he said that he was approached by persons wielding sticks or bats. That is because:

(a) He did not record that in his statement to police on 24 May 2008, saying only that “I saw two people who approached my vehicle”.

(b) He did not plead it in the further amended statement of claim, pleading at [72]: “He saw two people begin to rapidly approach the vehicle and became apprehensive”.

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(c) It was denied by both Selmar and Adam.

(d) There is no evidence of anyone else being at or outside the house at this time.

(e) The plaintiff’s evidence was unreliable in relation to the presence of Adam when he was first apprehended by Selmar – an issue dealt with below.

(f) The unusual nature of the allegation.

136. I do not accept the plaintiff’s evidence that he was kicked while on the ground or that Adam was present at the point at which he was apprehended. I make those findings because:

(a) The findings that I have made above in relation to the unreliability of his recollection as to what occurred earlier.

(b) I considered Adam’s denial of involvement to be reliable. He appeared to be giving evidence in a forthright manner and, in contrast to the other witnesses, did not volunteer evidence that he perceived to favour his case.

(c) Selmar denied that anybody else was present when Emile was first apprehended.

(d) The absence of Adam’s involvement was consistent with the uncontroversial aspect of Selmar’s evidence, namely, that he was going alone to plug in his phone when he discovered Emile.

(e) The evidence most reliably recorded in the ambulance records, that Emile had been drinking and had drunk at least five glasses of wine. While for a heavy drinker that might not be an unusual quantity, it is likely to have had some influence on his behaviour as well as his recollection.

(f) Emile’s contemporaneous statement to police failed to identify the second person alleged to have been with Selmar. No explanation was given as to why he was unable to identify the second person at the time but was subsequently able to say that it was Adam. Thus the evidence that it was in fact Adam appeared to be a reconstruction or embellishment following the making of that statement to police.

(g) The injuries that Emile suffered were not inconsistent with the version of events given by Selmar, namely a hard fall to the ground by both men followed by wrestling on the ground.

137. Having found that Emile was not kicked while on the ground after being restrained I find, consistently with Selmar’s evidence, that both men fell hard to the ground while grappling with each other. It is this fall which is likely to have resulted in the fracture of the plaintiff’s humerus. In the absence of any kicking on the ground, that appears to be the most likely cause of a fracture, given Selmar’s evidence to police that Emile fell on his right side and Selmar on his left and the fact that both men suffered injuries to the side upon which they fell. That mechanism was described in some detail by Selmar, is consistent with the injuries and plausible in the circumstances.

138. The critical issue in contest is whether or not Emile ran at Selmar in a threatening manner or whether Selmar sought to restrain Emile in response to which there was an altercation during which the men grappled and fell to the ground. This issue is

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important in determining whether Selmar was acting in self-defence when he and Emile fell to the ground.

139. Having found that the plaintiff’s evidence is unreliable in significant respects, the most significant competing evidence on this point is the evidence recorded in the contemporaneous notes of the police, Selmar’s oral evidence and Selmar’s interview with police on 24 May 2008.

140. The notes of the police officer and the subsequent police report are most consistent with being based upon information as to the events on that night provided to Constable Cogle by Adam. That is because in Constable Cogle’s notes he records Adam’s name at the commencement of the statement of events. However, in cross-examination Selmar gave evidence that he had had a conversation with the police after they arrived and that is consistent with the terms of the police report which indicates police spoke to “all persons present”. Clearly, if the information in the police records was obtained solely from Adam, there is a risk that Adam’s understanding of precisely what occurred between Selmar and Emile before he arrived on the scene was imperfect. However, the contemporaneous statements made have the benefit of being made in an unfiltered manner, that is, unaffected by a desire to deflect a criminal charge or civil liability arising out of the allegations subsequently made by Emile.

141. Selmar’s interview with police has the advantage that it involves a firsthand account of what occurred between Selmar and Emile. However, it occurred in the context of police investigating allegations of assault upon Emile by Selmar. It is clear both from the substance of what was said, but also the manner in which it was said, that the information given to police by Selmar was designed to deflect any criminal charge. He was clearly conscious of the desirability of emphasising any perceived threat posed to him by Emile. It is also clear that Selmar was seeking to advance his own position and damage the credibility of Emile during the course of the interview. Those features tend, in my view, to undermine the reliability of Selmar’s version of events set out in the interview.

142. Having rejected the plaintiff’s version of events as being unreliable in significant respects (namely the presence of Adam and kicking while on the ground) the possibilities, consistent with the evidence, are as follows:

(a) Accept the statement recorded by Constable Cogle in his notebook and hence find that Selmar attempted to restrain the plaintiff so as to prevent him from leaving the property. Unless otherwise lawfully justified, that contact would amount to an assault and the action by the plaintiff in response would amount to self-defence. In those circumstances, if both men were struggling and fell in an uncontrolled manner so as to fracture the plaintiff’s humerus that damage would be a result of Selma’s assault. The second defendant would not be entitled (even if it had been pleaded) to rely upon the fact that he was defending another’s property because he was seeking to detain the plaintiff rather than remove him from the property.

(b) Alternatively, if Selmar’s version of events is accepted then, having called out to the plaintiff, the plaintiff came at him and tried to strike him and Selmar’s actions in deflecting the blow and grappling with him prior to falling on the ground would be self-defence on his part and not render him liable for the damage suffered by the plaintiff.

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Principles to be applied

143. In what follows I will refer to what is alleged as an assault even though it would properly be described as a battery.

144. An assault is a serious matter to allege amounting to a crime, even though in a civil trial it is necessary to prove it to the reasonable satisfaction of the Court having due regard to the magnitude of the matter that is in issue: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, McClelland v Symons [1951] VLR 157 at 168 (McClelland).

145. The onus is on the plaintiff to prove that the defendant’s actions amounted to an assault. That involves no proof of intent, since trespass to the person is actionable on proof of the act and it is for the defendant to justify: McClelland at 166.

146. The onus is on the defendant to prove to the same standard the facts constituting justification: McClelland at 166; Pearce v Hallett [1969] SASR 423.

147. If the plaintiff relies on the use by the defendant of excessive force then the plaintiff must prove that excess by the same standard: McClelland at 166.

148. The authorities recognise that a person assaulted may resort to battery in self-defence. That includes the right to resort to a battery before the person threatened is struck, but limiting his right to strike a blow to the period during which the person is in danger from the assault and denying an entitlement to strike a further blow by way of revenge: McClelland at 162.

149. A person justifying a battery by reason of self-defence must establish that no more than reasonable force in the circumstances was used: Fontin v Katapodis (1962) 108 CLR 177 (Fontin). What is reasonable force is a question of fact varying with the circumstances of the case and an important factor is the means of defence used in relation to the harm threatened: Cook v Beal (1697) 1 Lord Raym 176; 91 ER 1014: Dale v Wood (1822) 7 Moore CP 33.

150. While the law does recognise a right on a person to use reasonable force to defend one’s own property and probably defending the property of a member of one’s household where there is an immediate necessity to act (see Laws of Australia, vol 33 (Service 309) at [33.9.380], Higgins, Elements of Torts in Australia (Butterworths, 1970) at 139), such a defence or justification was not relied upon in the present case. Instead, only self-defence was pleaded: defence and counterclaim of the second defendant [22A].

151. The plaintiff has established the elements of an assault, namely the voluntary application of force to the person of another. As a consequence the onus falls upon the second defendant to justify his conduct. The submissions of the second defendant were directed to the proposition that he was acting in self-defence. That involves the second defendant establishing that the plaintiff ran at him in a threatening manner and attempted to strike him. If those facts are accepted then, in my view, the injury which occurred to the plaintiff after he grappled with the second defendant and fell to the ground was a consequence of the acts of self-defence. Notwithstanding the unexpectedly significant consequences for the plaintiff, those acts of self-defence were not excessive in the circumstances. It could not reasonably be suggested that to grapple with an assailant in a manner that caused both assailant and victim to fall in an uncontrolled fashion to the ground involved the use of excessive force by way of self-defence.

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Conclusion

152. Because the plaintiff has established an assault, the onus is on the second defendant to prove justification. Therefore the onus is on the second defendant to prove that the plaintiff first assaulted him and that his actions were reasonable acts of self-defence. Given the finely balanced evidence the question comes down to one of onus.

153. I do not “feel an actual persuasion of ... the occurrence or existence” of the critical facts asserted by Selmar: that the plaintiff attempted to strike Selmar as he said in his interview and that the plaintiff ran at him in a threatening manner as he suggested in oral evidence: Briginishaw at 361. That is because of my doubts about the reliability of the evidence given by Selmar in his police interview and the inconsistency between that interview and what was explained to the police by Adam and others on the evening in question.

(a) The version of events given by Adam was consistent with the highly charged atmosphere surrounding the threatening events that had occurred on that evening. It was described by Selmar and by Adam in warlike terms: “the house was under siege or at war” and he referred to doing “patrols around the property”. Earlier in the evening Selmar had confronted Ms Cavanagh and had been required to deal with a fire at the back door of the house. In that context it is likely that Selmar was “wound up” and psychologically prepared to take action against a person whom he considered to be responsible for the threats to Virgil’s property.

(b) On any view of the facts, they involve Selmar considering it appropriate to detain and secure Emile so that he could be dealt with by the police. That included detention well after Emile was subdued in order that he be handed over to the police. That is consistent with Selmar considering that he had an entitlement, in the circumstances, to detain Emile until the police arrived. While not inconsistent with Selmar’s version of events, the perception of an entitlement to restrain and detain Emile would be consistent with Selmar having taken the initiative as opposed to only responding to an assault.

(c) A preparedness to restrain Emile so as to have him involved with the police was consistent with the past willingness of both sides of the dispute to involve police in all aspects of their multifarious disputes. It was clear that the disputes during this period were notorious amongst the police who had gone to some lengths to warn the parties against too readily making complaints. It was not a case where police had not been previously involved, in which case a desire to restrain somebody might be seen as an unusual course of conduct.

(d) Selmar was larger, younger fitter and stronger than Emile. This makes it more likely that, in the highly charged atmosphere that existed amongst Selmar, Adam and Virgil, Selmar would feel in a position to take the initiative so as to secure Emile rather than only responding defensively to a threat.

(e) I have taken into account the fact that the description of the threat said to have been posed by Emile was non-specific and was given in a piecemeal way in evidence and in the interview with police. The clearest description is that given in evidence-in–chief: “I noticed that Emile was coming towards me, so I’ve actually grabbed him and tackled him to the ground”. While clearly elsewhere in the evidence he suggested that he was running or threatening or

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that he might have had a weapon, it appears to be more consistent with the evidence that Selmar having seen him decided to take the initiative and secure him so that he could not, as he had done earlier, leave the scene and come back to cause trouble later.

154. The fact that no logical reason was suggested why the plaintiff might run at or attempt to attack Selmar is a matter that I have not given significant weight to in reaching the conclusion that Selmar has failed to discharge the onus to justify his conduct. That is because while, on the one hand, such conduct might be seen as bizarre in the circumstances and without any conceivable rationale, justification or prospect of success, on the other hand, the evidence of the assault on Justin the year before, the plaintiff’s behaviour earlier in the evening and the evidence of his alcohol consumption are all factors which suggest that he may have engaged in such conduct.

155. Had I been of the view that Selmar had discharged his onus in relation to his conduct up until the point of the fall to the ground I would nevertheless have found that the ongoing restraint of the plaintiff was not justified, the apparent purpose being to restrain him until the police arrived.

Damages

Expert medical evidence

156. The only medical expert who gave evidence was Dr Anthony Cairns, orthopaedic surgeon.

157. In his report of 23 February 2012, Dr Cairns recorded that the plaintiff underwent an open reduction and internal fixation of a fracture involving the proximal humerus of his right arm on 23 May 2008. He remained an inpatient for three or four days before discharge with a sling supporting his right upper-limb. Follow-up x-rays were undertaken on 4 June 2008 and 2 July 2008. He was subsequently seen at the outpatient orthopaedic clinic. He had elected to not have the internal fixation devices removed from his shoulder. He recorded the plaintiff’s complaints of pain about the right shoulder and upper-arm provoked by prolonged use or loading and persistent restriction of range of movement as well as intermittent numbness over the ulnar aspect of the forearm. Dr Cairns recorded a restricted range of movement in the right arm as well as reduced power comparable to the left shoulder. He summarised the restriction in the range of movement being 37% and the loss of power as being one fifth. Consistently with the reports of the plaintiff, the doctor identified a minor right sided rib cage deformity. He said that the plaintiff had a “fair prognosis only” and that, in the longer term, post-traumatic osteoarthritis may result in the requirement to undergo a right shoulder arthroplasty. He recorded the cost of the removal of internal fixation devices as approximately $2500 to $3000 and of the shoulder arthroplasty as being in excess of $10,000.

158. Dr Cairns reviewed the plaintiff on 15 May 2015. There was no change in the nature of his ongoing impairment although the plaintiff complained of numbness followed by pins and needles in his upper-right arm when he slept on his back or sat on a chair. He recorded difficulties with hanging and pegging clothes on a clothesline due to the restricted elevation of his right upper-limb. His physical presentation was unchanged. There did not appear to be any significant avascular necrosis of the humeral head. Overall he found his condition to be largely unchanged. He revised his estimate of the cost of a possible future arthroplasty to up to $15,000.

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159. Dr Cairns was required for cross-examination. He clarified that the right-sided rib cage deformity might have indicated some rib fractures at some stage. He explained that his concerns about the vascular necrosis had been allayed by the most recent x-rays which indicated that there was not a great deal of change in the humeral head. He repeated his opinion that there was likely to be some residual loss of use of the shoulder and that that impairment was likely to be permanent. He agreed with the proposition that the plaintiff would have a clear capacity for light work so long as it was “pretty much restricted to below shoulder level activities”. He agreed that a Panadol a day as required in relation to any residual symptoms in his shoulder was “a fairly low level of use of analgesic medication”. He said there was no immediate requirement for treatment. He described the reported level of consumption of one to two litres of wine per day as “grossly excessive”.

160. In re-examination in was asked whether the plaintiff could perform work as a house painter and Dr Cairns responded: “as long as he only had to paint half the wall, because he’s got trouble with his arm above shoulder level.” He recorded that he would have similar difficulties with gardening activities.

General damages

161. The plaintiff was 56 at the date of the injury and is currently 64. The plaintiff suffered a fracture of his humerus and was required to undergo an open reduction and internal fixation. He suffered bruising to his body, including his genitals. He was required to spend approximately four days in hospital. The internal fixation in his right arm remains in place. The plaintiff has, to date, chosen not to have it removed. There is an appreciable but unquantified chance of a requirement for further surgery.

162. The plaintiff has some ongoing impairments of his capacity to elevate his right arm. He suffers minor complaints of numbness and pins and needles.

163. There is no evidence of any particular interference with his life or recreational activities. There is some impairment of his capacity to work which could be relevant to his enjoyment of life but, as described below, his past history indicates that he has been either unmotivated or unable to engage in work activity in any significant manner in any event.

164. In those circumstances I will award general damages in the sum of $40,000 with $30,000 attributed to the past. This is a lower award than might have been the case had there been evidence of a more significant effect on his daily life or interference with activities that would add to his enjoyment of life. It is influenced by his history of long-term excessive consumption of alcohol which is likely to have a greater effect on his quality of life than any impairment arising from his injury.

165. In relation to interest on past general damages it is necessary to take into account the history of delay in the proper prosecution of his claim. It took seven years from commencement of proceedings to the conclusion of the hearing. That delay was substantially because of the manner in which the case was prosecuted by the plaintiff. In my view it is reasonable only to award interest for a reasonable period following the injury in which the claim might have been prosecuted. I will award interest in the sum of $1500. That is calculated on the basis of a past loss of $25,000 over a period of three years (3 x $25,000 x 0.02).

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Economic loss

166. The evidence relevant to assessing economic loss was very limited. The evidence about the plaintiff’s work history is set out at [33]-[37] above.

167. The only economic activity in which the plaintiff had engaged in the years prior to the injury was painting. The plaintiff’s evidence was that about a year or 18 months before he suffered the shoulder injury, he had suffered a wrist injury when he fell off a ladder. His wrist had been placed in a plaster. Prior to receiving that injury he had been doing odd jobs here and there. It was sporadic work. He gave an example of having worked for somebody called “Peter” and having done half a dozen jobs over a two-year period. Some of those jobs were as long as three days. He made reference in his evidence to painting work with Glendening, which appears only to have been for a few months. That appeared to be work as a subcontractor and he was required to take out his own insurance and have his own ABN.

168. The plaintiff had not filed any tax returns for many years. He thought that he did not need to do so because he had not earned more than $20,000 a year. (As the increase in the tax free threshold from $6000 to $18,000 only occurred in the 2012/2013 financial year, insofar as the plaintiff’s evidence related to the period prior to that, it was not clear what this understanding was based upon.) The highest annual income that he could recall would have been “a lot less than $20,000”.

169. He estimated that when doing his sporadic painting work he would earn two or three hundred dollars in the weeks that he worked and he would work maybe a quarter of the year, although he volunteered that his evidence was “a total guess now”. The work that he did for his father did not involve payment because he was staying at 5 Phillip Avenue for free.

170. In October 2010 the plaintiff entered into a training agreement with Vista Vocational Services involving casual employment with NorthSouth Contractors. The plaintiff disclosed that he had broken his arm and had a plate and 11 screws put in it. He was subsequently refused a fitness clearance for this job and hence was unable to undertake it.

171. The evidence of the plaintiff’s earning capacity is incomplete and unsatisfactory. It is not possible to determine what amounts he earned in any year in relation to the accident. There is evidence that he might have had the capacity to get a training position which paid $15 per hour for a period of up to one year doing gardening work. That job involved casual work requiring two rostered four-hour shifts per week and the possibility of some additional shifts. It appears that on the guaranteed shifts the income available would have been $6240.

172. The evidence is not sufficient to disclose how the plaintiff has been supporting himself. He may have been surviving on the very modest income that he earned from sporadic painting work or he may have been relying on government benefits. The evidence is not clear. He has over many years been unmotivated to fully exploit his theoretical earning capacity or incapable of doing so. The reasons for that may have been to do with his abuse of alcohol, but given the limitations on the evidence it is not possible to say that with confidence. Even in the absence of the injury, the evidence does not disclose that he was likely to be exploiting his earning capacity in any significant way. Having regard to the minimal evidence of the plaintiff’s past earning history, his long term excessive alcohol use and the fact that he was 57 at the date of the injury, I do not

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accept that he has suffered significant economic loss. However, as a result of the restrictions imposed upon him he is likely to have suffered some loss. That is because the only relevant skills that he might have developed were painting and gardening skills, both of which were affected by the restrictions on the use of his arms. I can only assess the plaintiff’s loss by way of a buffer and I will award $15,000. That recognises that that he might have been able to complete the training employment which he was offered with NorthSouth Contractors and earn some modest additional amounts as part of that employment. It also reflects the possibility that, but for the accident, he might have been able to earn very modest amounts doing sporadic painting work.

Medical expenses

173. The plaintiff did not press any claim for past medical expenses. The plaintiff submitted that an award of $13,000 should be made for future medical expenses. This appears to have been based on the evidence in the first report of Dr Cairns. The two aspects of future medical treatment involved the optional removal of internal fixation devices, a course which the plaintiff had so far declined to adopt, and the possible requirement for a right shoulder arthroplasty. There was not sufficient evidence to disclose the likelihood of an arthroplasty. There is no evidence that the plaintiff would alter his decision and choose to have the internal fixation removed. In those circumstances, while I accept that there is a chance that he will require some further medical treatment, the extent of that chance is uncertain and I will award of $3000 as a buffer in relation to future medical expenses.

Aggravated damages

174. Aggravated damages are awarded as compensation for injury to the plaintiff’s feelings caused by the second defendant’s insulting or humiliating conduct: Lamb v Cotogno (1987) 164 CLR 1 at 8. They are given to compensate the plaintiff when the harm done to the plaintiff by a wrongful act was aggravated by the manner in which it was done: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 (Uren) at 149.

175. Exemplary damages, on the other hand, are intended to punish the defendant for “conscious wrongdoing in contumelious disregard for another’s rights”: Whitfeld v de Lauret & Co Ltd (1920) 29 CLR 71 at 77. In addition to the punishment of the defendant, an award of exemplary damages may be intended to demonstrate the Court’s disapproval of the conduct and to deter the defendant and others from similar behaviour: Uren at 158. Prior to making an award of exemplary damages, it is necessary to review all the evidence relating to the defendant’s conduct. The defendant’s motivation for the tortious act and any evidence of the plaintiff’s provocation of the defendant’s act must be considered: Fontin (1962) 108 CLR 177.

176. While I have found the second defendant liable for the injury to the plaintiff, I do not consider that the circumstances warrant any award of aggravated damages or of exemplary damages.

177. The injuries to the plaintiff took place as a result of an attempt by the second defendant to restrain him. The magnitude of the injuries suffered by the plaintiff were greater than might ordinarily have been expected having regard to the nature of the interaction. They occurred by accident as a result of the two men falling following the second defendant grabbing the plaintiff and then as they wrestled on the ground. I have rejected the plaintiff’s claims that he was kicked or spat upon while on the ground. I accept Selmar’s evidence that after the plaintiff was subdued he was restrained with

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minimal force until police arrived. The events occurred in the context of the plaintiff’s erratic and dangerous behaviour shortly beforehand when he drove towards Adam, Selmar and Virgil. His conduct in returning to the site and seeking to observe what was going on from the boundary of the block was provocative in the circumstances. Selmar had been faced with a situation where there were unlawful acts being carried out in relation to property for which he felt some responsibility and in relation to which the police had been called, but had not yet arrived. He made what appears to have been an on the spot decision to grab and detain the plaintiff until police arrived. That collection of circumstances, in my view, involves sufficient explanation for the conduct to take it outside the category of cases in which an award of aggravated or exemplary damages should be made.

Summary

178. In summary the award of damages for the assault on the plaintiff by Selmar is general damages of $40,000, interest of $1500, past and future economic loss of $15,000 and future medical expenses of $3,000, a total of $59,500.

Detinue

The pleaded claim

179. The claim in detinue in the further amended statement of claim was pleaded as follows:

Detinue

95. On 28 January 2008 the plaintiff was served by police with an interim domestic violence order taken by the first defendant and was ejected from 5 Phillip Avenue.

96. As a result of his removal, the plaintiff was unable to retrieve his property from the premises.

97. The plaintiff returned to 5 Phillip Avenue on a number of occasions in an attempt to retrieve his belongings.

98. Each time the plaintiff returned to 5 Phillip Avenue it became apparent that chattels belonging to him had been appropriated or removed without his knowledge or consent.

99. On 9 June 2010 the plaintiff made a formal demand to the defendants for return of the detained property. Some of this property was subsequently returned. A significant amount of property has not been returned.

180. The position of the defendants was as follows:

(a) The first defendant admitted paragraph 95 and, to the extent that paragraphs 96-99 included allegations against him they were denied.

(b) The second defendant admitted paragraph 97 and “noted” that this was a breach of the interim domestic violence order referred to in the statement of claim, but otherwise did not plead to the allegations in paragraphs 95-99, as they did not relate to any cause of action against him “except to say that he was present on 15 August 2010 and 17 October 2010 when agents for the Plaintiff were given the opportunity and did remove items from the premises.”

(c) Each of the third and fourth defendants did not plead to the allegations in paragraphs 95-99 as there “are no allegations against him” and then pleaded

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that “at no time was he under any obligation to care for any belongings of the plaintiff.”

Elements of the cause of action

181. The essence of a claim in detinue is the wrongful detention of a chattel to which the plaintiff has the right of immediate possession. Wrongful detention is established by a demand for the chattel by the plaintiff and a refusal of that demand by the defendant. The cause of action may arise either because the defendant has actual possession of the chattel and unreasonably refuses to restore it to the plaintiff on the latter’s demand, or the defendant was in possession of the plaintiff’s chattel under a bailment with the plaintiff and has wrongfully parted with possession: Laws of Australia, vol 33 (Service 251) at [33.8.910]. As will be apparent, the plaintiff must establish:

(a) that the plaintiff has made a demand for the chattel whose possession the plaintiff is entitled to at the time of making the demand;

(b) the defendant must have refused that demand;

(c) where the chattel is in the defendant’s possession, the refusal to return the chattel must be unreasonable and where it is not in the defendant’s possession, the defendant must have wrongfully parted with possession: Laws of Australia, vol 33 (Service 251) at [33.8.920].

The plaintiff’s evidence

182. The plaintiff’s evidence was that on 28 January 2008 he was served with an interim domestic violence order. He said of this time “yes, I remember a few of them, and a few that I took out as well. There was a few like backwards and forwards.” The order served on 28 January 2008 prevented him from living at 5 Phillip Avenue and so he went to live with Ms Harney in her government flat in Hackett. He said he had returned for a brief period of approximately 20 minutes a few days later in order to collect his belongings. He said that he had left most of his books and furniture because he expected to be going back. He was shown a list of documents in the further amended statement of claim and agreed that each item on the list was never recovered. He said that most of “the stuff” went missing when he was in hospital in May 2008. When he came back there was nothing left and his flat “had been stripped”.

183. The items subject to the claim for detinue were all items which were kept at 5 Phillip Avenue, except for the Renault car which may have been at number 3. The items at 5 Phillip Avenue were either in the plaintiff’s flat, in other parts of the house that were available to tenants or stored near the garage.

184. The items in question, and the plaintiff’s evidence about them and their value, is summarised in the following table:

Particulars of detained property Summary of plaintiff’s evidence

Canon SLR camera with 55 mm lens and accessories

A 35mm camera bought 20 years ago described by the plaintiff as “obsolete”. The plaintiff agreed that it would have no value now, but then said that it might have antique value

16 mm movie camera The plaintiff could not remember the make

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said “it wasn’t a fancy one”. He thought it was a Bolex.

A Hasselblad wide-angle camera A second-hand camera bought approximately 30 years ago, a super wide-angle camera, a collector’s item probably worth around $20,000. He bought it for $4000 second-hand from a friend.

Four antique cameras The plaintiff had never used these cameras. They were “a little more like antiques”.

A Mila photographic tripod This was a standard tripod for cameramen “you still see them everywhere”. He acquired it “years and years ago” maybe at an auction.

A hand built refractive astronomical telescope with Canon and Leitz lenses

An antique Leica binocular microscope This was a Leica microscope approximately 80 years old; probably acquired at another auction in the 1980s.

About 12 super 8 films Approximately 12 personal films.

A super 8 movie projector This projector was acquired in the 1970s and was of an unknown brand. He used it quite often.

Three Kodak carousel slide projectors These were acquired in about 1979 from a friend who was getting rid of them. He could not recall whether he paid anything for them. They were in “perfect condition”.

6 framed 16 x 20” photographs These were photographs taken by the plaintiff – “some of my better shots”.

A suit This was a suit that the plaintiff purchased for his sister’s wedding in about 1970 or 1971. It had only been worn twice, the other occasion being Berthe’s funeral.

A queen sized waterbed This was made by a friend and purchased by the plaintiff for a few hundred dollars. The plaintiff still used it.

An ergonomic chair This was a desk chair. The plaintiff thought he had not purchased it, but “found it somewhere, by the side of the road or something”.

A bookcase This was purchased in the 1970s.

Two single door refrigerators One was upstairs and one in his flat. These were likely to be bought from free classified ads in the newspaper selling items for under $100.

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One refrigerator with an inbuilt small freezer

The plaintiff could not recall when this was purchased or what it was.

One chest freezer The plaintiff could not recall what make this was or when he purchased it.

Kitchenware including a crock pot, sandwich press, toaster, kettle and cutlery

The plaintiff was unable to be more specific about the items, their brand, their purchase or the total purchase price. He did recall that the sandwich press was a present from his daughter’s mother and was worth “60 bucks” and was received in about 2004.

A Simpson washing machine with 7.5 kg capacity

This was a top loader and the plaintiff’s evidence was: “I bought that one from a guy who sells washing machines in the backyard.” It was purchased about 15 years ago.

Hand tools This was a collection of hammers, chisels, screwdrivers, socket sets and other basic tools in kept in a wooden box in his room.

One Stihl chainsaw This was a small Stihl chainsaw. A 12 or 18 inch saw purchased approximately 15 years ago. It still worked. He used it sporadically.

Gardening implements These were spades, rakes, a banana cutter and basic unidentified gardening implements.

A gas barbecue This was a standard gas barbecue which the plaintiff had had for so long that he could not remember when he acquired it. He thought he got it from a friend second-hand.

Two wheelbarrows One was old and one was new and cost about $70.

Several tins of house paint These were tins left over from jobs and there were “quite a lot”. “If you had to buy it, it would be worth a few hundred dollars, you know.”

Paint brushes and rollers suitable for house painting work

This was all standard used painting equipment.

Paint brushes and paints suitable for artistic work

This was a collection of brushes probably tied up with a rubber band that the plaintiff had had for “ages”.

An unregistered wooden trailer This “wasn’t worth much”. It was old. The plaintiff thought that it was a second-hand one from a garage sale.

Four small original paintings At least one of these was a painting by the plaintiff, at least one other was a painting by a friend, Tibor Binder purchased around 1985 for $250.

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A 17 gear mountain bicycle This was a second-hand mountain bike. The bicycle was stored outside.

Three pairs of skis and one ski suit One pair of skis was purchased in 1973, one was purchased about 10 years later and the third was given to him by somebody who wanted to update. The ski suit was purchased in the 1970s.

One portable stereo This had a cassette and a radio and was 20 or 25 years old.

One large television This was approximately 25 or 30 years old and it was previously his mother’s.

One medium-sized television This was the plaintiff’s television. His evidence was not clear as to whether it was at number 3 or number 5. It was 20 years old.

Two electric blower heaters These were “old”.

One wall oven The plaintiff denied that he had a wall oven. He said he just had a hot plate.

An unregistered 1983 model Renault Fuego sedan motor vehicle with registration plates YXV 109 vehicle identification number of the F1 13600D0004949 and engine number 000016112

The plaintiff said he had paid five or six hundred dollars for this, but he was not really sure. It was driveable, but not registered and the plaintiff intended to do some work on it.

185. The plaintiff’s evidence was that there was only one occasion when he came back under police supervision for 20 minutes with a trailer and was able to put some of his clothes and personal items into the trailer. At that stage he was thinking that his absence was only temporary and that he would be back and hence left many of these items including “the heavy stuff”. It was suggested that he had returned more than once and he answered:

Once, or maybe twice, but not on any other time because it was hostile territory. Every time I went in there the locks had been broken. They changed the locks. I had to get in another way, and I just went in there, got a few things and then left.

186. He accepted that he had recovered the Ford Anglia vehicle. His evidence was that after he came out of hospital his flat had been “totally stripped”. He gave hearsay evidence that Virgil had sold the Renault Fuego to someone else.

Evidence of the second, third and fourth defendants

187. Selmar gave evidence that at least two letters were sent by “our lawyers” to Emile’s lawyers stating that “we had his possessions and that we’d like to return them” and no reply was received from Emile. He had no knowledge of what happened to any property belonging to Emile that was at 5 Phillip Avenue. He did not remove it himself and did not now have in his possession any of Emile’s property.

188. He was asked in cross-examination whether he was the “property manager” when the negotiations about the return of property took place. He said that his grandfather was living at the address and Virgil took day-to-day responsibility, but he would help him out

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whenever there were problems. He repeated his evidence that his lawyers had sent many letters to Emile’s lawyers asking him to organise for his client to come and pick up the items. At some stage he ceased to perform any property manager role because he was busy with his own life on the south coast.

189. Justin gave evidence that none of the items listed in the statement of claim were in his possession. He did not know the location of any of those items. He said that he was not present on the occasion when the police supervised Emile removing property. In relation to efforts to return Emile’s property to him, Justin gave evidence that:

We were constantly asking for his items to be removed. We were willing at any time to allow him to come and get his items, because we were in the process of cleaning and we didn’t want to have these items there any more. I definitely remember the last time that Emile came to get his items, which obviously was organised through-through the lawyers.

190. The only evidence about when this occurred was that it was “a fair time after he’d left. Maybe-maybe a year or more after he had left.” That evidence would be consistent with it having occurred in early 2009.

191. Justin’s evidence was that Emile had sorted through the items for about an hour and left a lot of items saying that they were rubbish. He took away “probably a car load” of items. In cross-examination he explained that Emile’s items had been moved out of the house to a room added at the end of the garage at 5 Phillip Avenue. Justin was managing the property on behalf of Virgil and had been told by Virgil and Selmar that all Emile’s items had to be put in that room and the room was then locked.

192. Adam’s evidence was that although he could remember looking through the plaintiff’s telescope when he was about eight or nine years old he was not familiar with the other items the subject of the plaintiff’s claim and they were not in his possession. In cross-examination he denied ever acting as property manager for Virgil in relation to 3 or 5 Phillip Avenue.

Evidence of correspondence

193. The plaintiff pleaded that he made a formal demand to the defendants for the return of “the detained property” on 9 June 2010. Notwithstanding that it was pleaded and an essential element of the plaintiff’s claim, the letter of 9 June 2010 was not tendered by the plaintiff and was not otherwise in evidence.

194. By letter dated 17 June 2008 a solicitor acting for Virgil attempted to write to the lawyers acting for the plaintiff in the following terms:

As you know we act for Mr V Brunoro.

We are instructed that your client has left behind at 5 Phillip Avenue Watson some of his belongings. We are instructed to request, via your office, that he arranges to have the same removed from our client’s property no later than 4 pm on 28 June 2008.

Please note that if his belongings are not removed as indicated above our client will dispose of the same as best he can.

195. The difficulty with the evidence provided by the letter it is that the address identified, is an address in Adelaide and does not appear to be any known address for the plaintiff’s solicitors. The address on the letter is:

Mssers S & T Lawyers

45 Pirie Street Adelaide St 5001

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PO Box 8020

196. There is no evidence that the solicitors for the plaintiff received that letter. As at the commencement of the proceedings in September 2008 the address of the plaintiff’s lawyers was “Level 2, Reserve Bank Building, 20-22 London Circuit Canberra ACT 2601”.

197. Although there were references in evidence to communications by the solicitors acting for either side in relation to items left at the properties, documentary evidence of these was not tendered and no solicitor gave evidence of them. Why, if there was correspondence between the solicitors in relation to this property, the correspondence was not tendered was not explained.

Plaintiff submissions

198. In oral submissions counsel for the plaintiff submitted that each of the second, third and fourth defendants became “involuntary bailees” when the plaintiff was required to leave the property by reason of the domestic violence order. He suggested that at one time or another each of the second, third and fourth defendants exercised “operational control over the property”, became bailees because they were acting as Virgil’s agents and that in those circumstances they were liable where the property had left their possession. Counsel for the plaintiff did not provide any authority for any of these submissions. Bailment was not pleaded.

Conclusion

199. The plaintiff’s claim must fail because:

(a) There is no evidence of the demand for the return of the goods which was pleaded in the further amended statement of claim.

(b) There is no evidence of a refusal to permit the plaintiff to collect the items and the evidence is more consistent with the plaintiff having been given an opportunity to collect any items that he wanted to.

(c) Judgment has been entered in favour of the first defendant and hence, in so far as the plaintiff might have established that the items were in fact in his actual possession, the first defendant has judgment in his favour.

(d) The plaintiff has not pleaded and there is no evidence that the second, third or fourth defendants had actual possession of the chattels and the second and third defendants did not become liable because they were assisting Virgil with the management of the property from time to time.

(e) There is no claim made in conversion.

200. In those circumstances it not necessary to assess further the plaintiff’s submissions (such as they were) in relation to involuntary bailment.

Family Provision Claim

201. The plaintiff alleges that by Berthe’s will she left the following gifts:

(a) shares in the Woodside Company to the plaintiff valued at around $25,000;

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(b) an equitable interest in the property at 3 Phillip Avenue Watson held in trust by

Henri Brunoro to Selmar, Justin, Seline, Adam and Samantha as tenants in

common in equal shares; and

(c) all the residue of the estate to Selmar, Justin, Seline, Adam and Samantha to

be distributed at the discretion of the trustee.

202. It is alleged that the will failed to make adequate provision for the plaintiff.

203. The pleadings of this claim were manifestly inadequate in that they made no attempt to identify the material facts giving rise to the pleaded equitable interest. While the pleadings asserted that Berthe’s will involved certain gifts, there were no relevant pleadings which identified the material facts said to give rise to the trust in favour of Berthe referred to at [201](b) above. Rather there is the pleading of what is described as “the Estate Agreement” which involved Berthe stating to the plaintiff that she was leaving the entirety of 3 Phillip Avenue to be divided amongst the Nebelung children and that “the first defendant would leave the entirety of 5 Phillip Avenue to the plaintiff”. There are then pleadings which allege the “repudiation” of that agreement. These appear to be only relevant to the claim which was rejected by Harper M in Brunoro v Brunoro [2012] ACTSC 2.

204. However, notwithstanding the deficiencies in the pleadings, there are two essential questions that arise out of the pleading:

(a) Did any equitable interest in 3 Phillip Avenue, Watson exist?

(b) Should a family provision order be made?

What, if any, interest did Berthe have in 3 Phillip Avenue?

205. The submissions of the parties on this issue passed like ships in the night.

206. The plaintiff’s submissions were almost exclusively confined to the effect of the deed between Henri and the Nebelung children dated 19 July 2007. The plaintiff asserted that the existence of the deed dated 19 July 2007 gave rise to an estoppel which prevented the admitting of evidence attempting to contradict it. This proposition was derived from the decision of Crispin J in Glover v Roche [2003] ACTSC 19 that “a solemn and unambiguous statement or engagement in a deed must be taken as binding between the parties and their privies and therefore as not admitting any contradictory proof”. The plaintiff asserted that in those circumstances it was unnecessary to investigate the circumstances in which the equitable interest arose and the fact that the interest was acknowledged in the deed was sufficient to establish it.

207. As I will point out below, there are two problems with this contention:

(a) First, the deed was not a deed to which the plaintiff, Berthe or her estate was a party and, in those circumstances, it has no binding effect on the defendants in the present case.

(b) Second, the deed does not, in any event, include any unambiguous statement as to the nature of the equitable interest in 3 Phillip Avenue, Watson.

208. The submissions of the defendants were that Berthe had acquired no equitable interest in 3 Phillip Avenue because the transfer of a half interest in the farm from Virgil to Henri

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was a condition precedent to any equitable interest in 3 Phillip Avenue arising. They submitted that the agreement between the family members simply changed after Berthe’s death and that instead of Henri transferring the property at 3 Phillip Avenue to his mother in exchange for acquisition of his father’s interest in the farm, he agreed to transfer 3 Phillip Avenue to the Nebelung children in exchange for his father’s interest in the farm.

209. They contended that equity would not assist Emile because no consideration for the assignment of the interest in 3 Phillip Avenue was paid until after Berthe’s death. Reference is made to the decisions of the High Court in Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555 and Anning v Anning (1907) 4 CLR 1049.

210. In order to assess these submissions it is necessary to make findings in relation to various other matters of fact.

The will

211. Berthe’s will is dated 1 December 2005. It was witnessed by her solicitor and Ms

Harney. Paragraphs [39]-[41] above set out the relevant clauses of the will.

History of dealings with 3 Phillip Avenue Watson

212. Exhibit 5 discloses the following history of dealings in relation to 3 Phillip Avenue, Watson.

213. On 6 November 1960 a transfer of the property from Austria Constructions Pty Ltd to Earl and Elaine Chapman, dated 9 October 1962, was registered. The consideration was identified as £7500.

214. On 15 August 1977, a transfer of the Crown lease of the property from the Chapmans to Berthe Brunoro and Pamela Brunoro as tenants in common in equal shares, dated 1 October 1976, was registered. The consideration was identified as $43,000.

215. On 27 November 1990, a transfer dated 12 September 1990 from Berthe Brunoro to the plaintiff was registered. The whole of Berthe’s interest was transferred to the plaintiff. The consideration was identified as $70,000.

216. On 3 June 1993, a transfer dated 21 May 1993 from Pamela Brunoro to Henri Brunoro was registered. The consideration is identified as orders made in the Family Court in identified proceedings.

217. On 3 June 1993, a transfer dated 21 May 1993 from the plaintiff to Penelope Ann Gregory was registered. The consideration was identified as $85,000.

218. By transfer registered on 15 July 1998 Penelope Ann Gregory transferred her interest in the property to Henri Brunoro. The consideration was identified as an order of the Family Court.

219. As a consequence of the transfers registered on 3 June 1993 and 15 July 1998, as at the latter date transfer, Henri was the sole registered proprietor of the property.

220. In summary, during the period when the Brunoro family was involved with the property, the effect of the above transactions was that ownership of the property was as set out in the following table:

Period Owners

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1977-1990 Berthe Brunoro and Pamela Brunoro1990 - 1993 Emile Brunoro and Pamela Brunoro1993 - 1998 Penelope Gregory and Henri Brunoro1998 onwards Henri Brunoro

The deed of 19 July 2007

221. On 19 July 2007 a deed was entered into between Henri Brunoro and Selmar, Justin, Seline and Adam relating to the property. That deed had arisen out of acrimonious discussions between Henri and Justin on behalf of the Nebelung children. Henri explained in his evidence that he wished to give effect to his mother’s wishes, but in transferring the property to them he did not wish to bear the burden of paying out the existing mortgage.

222. The deed obliged Henri to execute a transfer in registrable form of the property for consideration of $95,000 and the grandchildren to accept that in full settlement of any claim they have or may have against Henri arising out of the terms of Berthe’s will.

223. The recitals in the deed include the following:

WHEREAS BERTHE HUGUETTE BRUNORO who died the 18 th day of January 2006 made her last Will of the 1st day of December 2005 hereinafter called “Berthe”

AND WHEREAS by Clause 8 of that Will Berthe directed “I direct that it is my wish that the property known as 3 Phillip Avenue, Watson in the Australian Capital Territory registered in the name of my son, Henri Yvonne Brunoro and in respect of which the equitable interest in the same is mine to hold the same as trustee to the benefit of my said grandchildren SELMAR NEBELUNG, JUSTIN NEBELUNG, SELINE NEBELUNG, ADAM NEBELUNG and SAMANTHA NEBELUNG to be transferred to or to the benefit of those said children as tenant in common in equal shares.”

AND WHEREAS the description of the son as Henri Yvon Brunoro was incorrect, he is correct names being Henri Louis Brunoro the said Henri

AND WHEREAS it is not intended to obtain a Grant of Probate of the said Will of Berthe

…

AND WHEREAS there has been a dispute between the said Henri as to the extent of the equitable interest of his said mother so far as regards those said grandchildren of birth are being children of Aline Marie Nebelung the deceased daughter of the said Berthe

…

AND WHEREAS the parties have agreed to pay the sum of $95,000 to Henri on Transfer of the said 3 Phillip Avenue property to the Grandchildren

AND WHEREAS the parties wish to enter this Deed to record the said arrangements and to release each other from any claim.

224. It is these recitals and the overall operation of the deed that the plaintiff claims determined that, prior to Berthe’s death, Henri in fact held his interest in trust for his mother.

Henri’s evidence as to ownership of 3 Phillip Avenue

225. Henri gave evidence that, a few years after the property settlement arising from his divorce in 1992, his mother started saying that she had nothing in her name and that she wanted part of the family wealth in her name. There were discussions between Henri, Virgil and Berthe: “In the end we agreed that… if my father signed over his half

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of the farm to me, I would hand over the house at 3 Phillip Avenue to my mother”. “Nothing much” happened following those conversations. Initially Henri said that “sometime after that” Virgil transferred half the farm to him, but that there were difficulties transferring “half the property at 3 Phillip Avenue” into Berthe’s name. He explained that the bank was reluctant to transfer the mortgage from the property at 3 Phillip Avenue to the farm. He said that in the late 1990s he told Berthe: “For all intents and purposes, the house at 3 Phillip Avenue is yours. You can collect the rent, you can pay the rates.” He then said that he would pay the rates and would still service the mortgage which had originally been taken out to buy the farm. He said:

Basically from my point of view, you know, I was just the nominal owner. I was responsible for the mortgage, my mother would give me most of the money for the rates. I just paid the rates yearly, but my brother and my mother had an arrangement for the rent on 3 Phillip Avenue.

226. When the discrepancy in his evidence as to whether or not half for the whole of his interest in 3 Phillip Avenue was pointed out he clarified that and said “The whole of Phillip Avenue which was all in my name. So I’d hand over the whole of Phillip Avenue in exchange for half of my father’s share of the farm.”

227. In cross-examination it was pointed out to him that the transfer of Virgil’s interest in the farm took place on 16 May 2006, five months after Berthe’s death. It was suggested to him that the agreement was in fact an agreement with his father that he would transfer 3 Phillip Avenue to the grandchildren if his father would agree to execute a transfer in his favour. Although he agreed with that proposition he then said:

it wasn’t-I mean, the agreement was reached them. The agreement had been in place, as I said, I think the late 90s. The fact that we hadn’t executed it to me didn’t matter.

228. The issue is whether this was sufficient to establish in Berthe had an equitable interest in 3 Phillip Avenue such that the equitable interest became part of her estate.

Conclusions as to Berthe’s interest in 3 Phillip Avenue

229. The principle relied upon by the plaintiff is that articulated in the decision of Crispin J in

Glover where at [37] his Honour said:

37. First, the defendants were estopped by the terms of the Deed from advancing them. In an action on a deed, a party to it is estopped from disputing any distinct allegation of fact which he or she made in it. ... This rule of evidence is founded on the principle that a solemn and unambiguous statement or engagement in a deed must be taken as binding between the parties and their privies and therefore, as not admitting any contradictory proof: see Greer v Kettle [1938] AC 156 at 171; and Caboche & Bond v Ramsay (1993) 119 ALR 215 at 237. Whilst a statement of facts must be precise and unambiguous it need not be true for the principle to apply: see Offshore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337 at 341; Re Patrick Corp Ltd and the Companies Act [1981] 2 NSWLR 328 at 331-2.

230. The plaintiff’s contention must fail because none of the plaintiff, Berthe or her estate were a party to the deed relied upon. It does not matter that the defendants were parties to the deed. Estoppel by deed is an estoppel that binds the parties and their privies as between themselves. The terms of a deed does not create an estoppel at large which may be relied upon by non-parties such as the plaintiff. Had Berthe or her estate been parties to the deed then that might have had effect in these proceedings because it might establish that Berthe’s estate had an entitlement as against Henri to

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the 3 Phillip Avenue property. However it is clear that neither Berthe nor her estate were parties to the deed. Therefore the plaintiff’s submission must be rejected.

231. The defendants’ submissions characterised the arrangement, in so far as it was between Henri and Berthe, as an uncompleted gift. If that is the proper characterisation then the defendant is correct to assert that Berthe had not done everything needed to complete the gift and that the uncompleted gift could not be treated as a declaration of trust: Corin v Patton (1990) 169 CLR 540 at 549-550.

232. Ultimately, it is for the plaintiff to establish that the equitable interest which he asserts Berthe held in the property at 3 Phillip Avenue arose and arose immediately upon the reaching of the understanding or agreement between Berthe, Virgil and Henri. Notwithstanding that Henri did take some steps consistent with the agreement, namely allowing his mother to receive rental income from the property, the plaintiff has not established:

(a) that the agreement was intended to be a legally binding agreement between the members of the family to establish a trust in favour of Berthe or an agreement to transfer the farm and 3 Phillip Avenue to Henri and Berthe respectively;

(b) that, if legally enforceable, any obligation upon Henri to transfer the property or hold it on trust for Berthe arose:

(i) prior to the transfer of Virgil’s interest in the farm to Henri; and

(ii) even if it was not possible to reorganise the family finances so as to substitute the farm as security for Henri’s loan that was secured over 3 Phillip Avenue.

233. In reaching the conclusion that the plaintiff has failed to establish that the agreement was intended to be a legally binding agreement I take account of the lack of evidence of any agreed timeline for the transfers, the lack of any documentary records of the agreement and the apparent lack of concern of any of the parties about the delay of many years in implementing the agreement. While I recognise that the agreement was sufficient to cause Henri to permit Berthe to obtain the rent from the property and for Berthe to record, in non-specific terms, the existence of an interest in the property in her will, those features are not sufficient to indicate the existence of an intention to create an enforceable agreement. Nor is there sufficient evidence to indicate that Henri’s conscience was in some way bound to complete the transfers to Berthe even in circumstances where he had not received any transfer from Virgil and the farm had not been substituted as security for Henri’s loan.

234. For these reasons I conclude that Berthe’s estate did not include an interest in the property at 3 Phillip Avenue.

Assessment of family provision claim

235. The evidence led from the plaintiff relevant to family provision claim was cursory. It included the following:

(a) general statements by the plaintiff and other lay witnesses about his relationship with his mother;

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(b) limited evidence of the plaintiffs current financial circumstances and even less about his financial circumstances during his life; and

(c) evidence that in the last four months of Berthe’s life, Emile and Ms Harney were the principal carers for Berthe.

236. The submissions on this point reflected the undeveloped nature of the evidence. After repeating s 8(2) of the Family Provision Act and quoting from Singer v Berghouse (1994) 181 CLR 201 at 209-210, the entirety of the plaintiff’s submissions were:

The lack of reserves to meet demands, particularly of ill health, which should become more likely with advancing years can be a factor in determining whether or not adequate provision has been made: McGregor v MacGregor [2003] WASC 169; Crossman v Riedel [2004] ACTSC 127 at [49]; Kulczycki v Public Trustee [2013] ACTSC 230 ...

The plaintiff is a physically frail 63-year-old man. In 2008 he suffered a shoulder injury which left him with a significant degree of permanent loss of movement. The injury is discussed in two reports by Dr Anthony Cairns found at pages 49-56 and 57-61 of Exhibit 1. The injury has prevented him from returning to gainful employment and is expected to continue to do so for the remainder of his life.

The plaintiff is impecunious. The plaintiff gave evidence that following his removal from 5 Phillip Avenue Watson, he resided for a considerable period of time in his car. Other than any entitlement he may receive from the estate, he has no assets. His need for provision is dire.

237. The relevant statutory factors are set out in s 8(3) of the Family Provision Act. The relevant matters that arise out of the statutorily mandated considerations are summarised as follows.

238. Financial circumstances of the applicant: The evidence about the plaintiff’s financial circumstances was limited and unsatisfactory. It appears he is now unemployed and unlikely to be employed in the future. He appears to live in some form of public housing. There is no evidence that he has any assets of significance.

239. The plaintiff appears to have had assets in the past which he either spent or lost. He had superannuation from his time at the CSIRO of approximately $70,000 which he used to acquire a half share in 3 Phillip Avenue from his mother. He recouped $85,000 when his half share was acquired by Henri’s then partner Penelope. It is not clear what happened to the money after that.

240. There was some evidence of operating a business after leaving CSIRO but that business not being successful.

241. There was some evidence of him having made an investment in property at Gunning, but no details of the quantum or nature of that investment or the result of it.

242. There was some evidence that he was involved in Territory politics and expended some of his resources on that exercise. Henri gave evidence that Emile was associated with the Sun Ripened Warm Tomato Party, a political party which, having regard to its name and the other parties which participated in the 1989 Territory election, remains of some notoriety.

243. Regard needs to be had to the considerable long-term benefit that he obtained from living rent-free since 1979 in his father’s property at 5 Phillip Avenue. Although there was some evidence of him being involved in managing the tenants there and undertaking or organising some maintenance, those activities appear to have been very modest in comparison with the benefit obtained as a result.

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244. Health: The two features of his health for which there is evidence are the disability arising from the injury to his arm on 20 May 2008, the chance of a requirement for further surgery and his long-term abuse of alcohol.

245. The nature of the estate: The estate is a modest one. Obviously if, contrary to my finding above, an interest in 3 Phillip Avenue had formed part of the estate it would have been substantially larger.

246. Family obligations: He has a daughter who is now an adult. He was not married to or in a defacto relationship with his daughter’s mother. It is not clear what financial or other obligations he met in relation to his daughter.

247. Relationship with Berthe: There was some evidence in general terms about the nature of the relationship between the plaintiff and his mother. The plaintiff and his mother appear to have related reasonably well to each other. The plaintiff and his partner Ms Harney were the principal carers for her after she was diagnosed with her terminal illness. It is clear that Berthe was at times volatile and would speak sharply to and of others. There were ups and downs within the relationships between members of the family.

248. The other beneficiaries whom an order would affect: The only beneficiaries under the will were Emile and the Nebelung children. Virgil and Henri obtained nothing. The Nebelung children had suffered the loss of their mother at a relatively young age. There was little evidence as to their financial or other circumstances. Justin and Selmar live on rural properties inland from Batemans Bay. Selmar appears to have worked as an aborist or in horticulture and travelled to and from Canberra for work. Justin has worked in forestry, as a barman, as a deckhand and as a cook. Adam lives in Sydney and works as a chef. There is no evidence of their assets or financial position, although my impression is that their financial circumstances would be appropriately described as modest.

249. There was no evidence about the circumstances of Seline or Samantha.

250. Benefits to plaintiff under the will: The benefit obtained by the plaintiff under the will was a significant one in the “shares in the Woodside Company”. No evidence was given about the quantity or value of these shares or what happened to them after Bethe’s death. The plaintiff’s pleadings asserted that they were worth “around $25,000” which may be taken as an admission that they were worth not less than that amount.

251. Because of the abandonment by the defendants of their counterclaim relating to the plaintiff’s failure to account to them for money in Berthe’s bank account which formed part of her estate, it has not been necessary to make particular findings as to how that money was expended. That exercise would have been one not without complexity having regard to the fact that some of the money was paid to, or for the benefit of, the defendants themselves and proper records were not kept. Even on the plaintiff’s own reckoning, a portion of the amount in Berthe’s bank account was not shown to have been spent on arguable liabilities of the estate or for the benefit of the defendants. To the extent that the plaintiff wrongly benefited from the assets of the estate, his claim for a family provision order would be weakened. Because of the conclusion that I have reached below, it is not necessary to make specific findings on that issue for the purposes of resolving the family provision claim.

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Should an order be made?

252. I accept that the fact that the plaintiff is older does not provide a barrier to him obtaining an order for provision. The lack of reserves to meet demands, particularly of ill-health, which become more likely with the advancing years can be a factor in determining whether or not adequate provision has been made: Kulczycki v Public Trustee [2013] ACTSC 230; MacGregor v MacGregor [2003] WASC 169; Crossman v Riedel [2004] ACTSC 127 at [49].

253. Recognising that the evidence is somewhat patchy, it is not in my view possible to say that proper provision has not been made for the plaintiff under the will. That is the case whether or not the property at 3 Phillip Avenue formed part of the estate. That is because he obtained substantial benefits under the will and had obtained substantial benefits in order to assist him in life from his parents in the form of accommodation in Virgil’s house at 5 Phillip Avenue since 1979. He had not been without opportunities or financial resources, even though those have been used or dissipated. While he has health problems, at least insofar as those involve alcohol abuse, they have been self-inflicted. The disability arising from the incident on 20 May 2008 has not been shown to be significant because there is little evidence of his deployment of his earning capacity prior to that date and he will be compensated in these proceedings for his losses arising from that injury.

254. In contrast, the Nebelung children were much younger, Seline being under the age of 18 at the time of the deed in 2007. Any additional provision for the plaintiff would have resulted in a corresponding reduction in the provision for them under the will.

255. There was no reliable or precise evidence of the value of 3 Phillip Avenue at the time of Berthe’s death. It appears to have been auctioned in July 2013. Prior to the agreement reflected in the deed of 19 July 2007 Henri offered to pay the Nebelungs the equivalent of $400,000 in lieu of transfer of the property to them. If that was the value of the property at the time then the amounts available to each of the Nebelung children was $80,000 plus any other residue of the estate. In contrast, the plaintiff obtained the benefit of the Woodside shares the value of which is not disclosed by the evidence but admitted by the plaintiff to be no less than “around $25,000”.

256. In the light of the above I am not satisfied that adequate provision for the proper maintenance, education or advancement in life of the plaintiff is not available under Berthe’s will. As a consequence, the plaintiff’s family provision claim must fail.

Summary and conclusion

257. The outcome of the various claims and counterclaims is as follows.

258. In relation to the first defendant,

(a) On the plaintiff’s claim: judgment was given in favour of the first defendant on

24 February 2012:

(a) On the first defendant’s counterclaim: judgment for the plaintiff against the first defendant.

259. In relation to the second defendant:

(a) On the plaintiff’s claim: judgment for the plaintiff against the second defendant in the sum of $59,500.

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(b) On the counterclaim: judgment for the plaintiff against the second defendant.

260. In relation to the third defendant:

(a) On the plaintiff’s claim: judgment for the third defendant against the plaintiff.

(b) On the counterclaim: judgment for the plaintiff against the third defendant.

261. In relation to the fourth defendant:

(a) On the plaintiff’s claim: judgment for the fourth defendant against the plaintiff.

(b) On the counterclaim: judgment for the plaintiff against the fourth defendant.

Orders

262. The orders of the Court are:

1. Judgment be entered in favour of the plaintiff against the first defendant on the first defendant’s counterclaim;

2. Judgment be entered in favour of the plaintiff on his claim against the second defendant in the sum of $59,500;

3. Judgment be entered in favour of the plaintiff against the second defendant on the second defendant’s counterclaim;

4. Judgment be entered in favour of the third defendant on plaintiff’s claim and in favour of the plaintiff on the third defendant’s counter claim;

5. Judgment be entered in favour of the fourth defendant on the plaintiff’s claim and in favour of the plaintiff on the fourth defendant’s counter claim; and

6. The proceedings are listed for any argument in relation to costs on 15 September 2016 and 10.30am. Each party must provide to my associate by email an outline of submissions on costs not longer than two pages by 4 pm on 14 September 2016.

I certify that the preceding two hundred and sixty-two [262] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.

Associate:

Date:

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