Giunta v Giunta (Pseudonyms) [2023] NSWDC 202

Giunta v Giunta (Pseudonyms) [2023] NSWDC 202

The plaintiff's pleaded claims in assault, battery and intentional or intimidatory conduct causing emotional distress were arguable; the limitation defence required trial evidence and was not suitable for interlocutory determination; the Family Court proceedings did not determine common law damages and the Kennon property adjustment was separate and severable from the present tort claims; and no res judicata, issue estoppel, Anshun estoppel, oppression or abuse of process justified striking out or staying the proceedings.

Jurisdiction
Australia
Judgment Date
16 June 2023
Procedural Posture
Civil Personal Injury Proceedings Claiming Common Law Compensatory Damages for Family Violence Intentional Torts / Contested Interlocutory Application by the Defendant Seeking to Strike Out or Stay the Plaintiff's Statement of Claim
Outcome
The defendant applicant's application to strike out or stay the plaintiff's proceedings was dismissed.
Legal Topics
['strike Out Application' 'stay of Proceedings' 'assault and Battery' 'unlawful Conduct Intended to Cause Emotional Distress' 'family Violence' 'kennon Adjustment' 'res Judicata' 'issue Estoppel' 'anshun Estoppel' 'abuse of Process' 'limitation Defence']
['civil Procedure' 'torts' 'family Law' 'evidence'] ['strike Out Application' 'stay of Proceedings' 'assault and Battery' 'unlawful Conduct Intended to Cause Emotional Distress' 'family Violence' 'kennon Adjustment' 'res Judicata' 'issue Estoppel' 'anshun Estoppel' 'abuse of Process' 'limitation Defence']

Case Brief

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Procedural Posture

Civil Personal Injury Proceedings Claiming Common Law Compensatory Damages for Family Violence Intentional Torts / Contested Interlocutory Application by the Defendant Seeking to Strike Out or Stay the Plaintiff's Statement of Claim

Legal Issues

  1. 1 ['Does the former wife have arguably justiciable claims?' 'Is the limitation defence pleaded by the former husband properly amenable to determination at the interlocutory stage?' 'Was the former husband relevantly vexed by the former wife in the Family Court proceedings on the same issues raised in the present proceedings so as to give rise to unfair oppression?' 'Does res judicata, issue estoppel or Anshun estoppel arise?' 'Is a stay of proceedings or a strike-out order justified in the circumstances?']

Ratio Decidendi

The plaintiff's pleaded claims in assault, battery and intentional or intimidatory conduct causing emotional distress were arguable; the limitation defence required trial evidence and was not suitable for interlocutory determination; the Family Court proceedings did not determine common law damages and the Kennon property adjustment was separate and severable from the present tort claims; and no res judicata, issue estoppel, Anshun estoppel, oppression or abuse of process justified striking out or staying the proceedings.

Court Disposition

The defendant applicant's application to strike out or stay the plaintiff's proceedings was dismissed.

Orders

  • ["The defendant applicant's notice of motion filed on 17 March 2023 seeking to strike-out or stay the plaintiff's claim is dismissed." "The defendant applicant is to pay the plaintiff respondent's costs of the dismissed motion." 'On hearing the parties the Court will proceed to make appropriate case management...