Anderson v State of New South Wales
[2024] NSWSC 1254
•23 August 2024
Supreme Court
New South Wales
Medium Neutral Citation: Anderson v State of New South Wales [2024] NSWSC 1254 Hearing dates: 23 August 2024 Date of orders: 23 August 2024 Decision date: 23 August 2024 Jurisdiction: Common Law Before: Garling J Decision: Defendant’s Notice of Motion dated 19 July 2024 dismissed
Catchwords: CIVIL PROCEDURE – Alternative dispute resolution – Referral to mediation – Defendant’s Motion to stay orders requiring the parties to mediate on the basis that the plaintiff has an outstanding criminal warrant–Court did not accept that an outstanding warrant is a reason for a party in civil litigation to be excused from participating in the civil proceedings in accordance with the Court’s order – Motion dismissed.
Legislation Cited: Not Applicable
Cases Cited: Not Applicable
Texts Cited: Australian Solicitor Conduct Rules
Category: Principal judgment Parties: Drew Anderson (P)
State of New South Wales (D)Representation: Counsel:
Solicitors:
J Isackson (P)
E Graham (D)
Shine Lawyers (P)
McCabes Lawyers (D)
File Number(s): 2023/265903 Publication restriction: Not Applicable
EX TEMPORE JUDGMENT
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Before me for hearing today is a Notice of Motion filed on 19 July 2024 by the defendant in the proceedings, the State of New South Wales (“the State”). It seeks the following orders:
“The order made, pursuant to section 26 of the Civil Procedure Act 2005, requiring the parties to participate in a court ordered mediation be stayed and the defendant excused from participating in a mediation in these proceedings.
In the alternative to prayer 1, the proceedings are stayed until 27 September 2024.”
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Other consequential orders were sought.
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An affidavit of the solicitor for the State establishes that the plaintiff is the subject of two outstanding warrants issued by the ACT Magistrates Court respectively on 26 March 2021 and 28 May 2021 (“the Bench Warrants”).
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The plaintiff was required to attend the ACT Magistrates Court for a number of offences to be dealt with. He did not attend and as a consequence, the Bench Warrants were issued. The offences in respect of which he was required to attend were an offence of minor theft involving a value of less than $2,000 and an offence of riding or driving in a motor vehicle without consent.
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These proceedings are proceedings brought by the plaintiff against the State claiming damages for historic sexual abuse which he alleges occurred in two circumstances whilst he was a child. The first alleged circumstance is that he was abused whilst at home and was not removed from his mother’s care by the Department of Community Services (by its historic name), and that he was also sexually abused whilst he was detained at the Riverina Juvenile Detention Centre.
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The abuse is alleged to have occurred in circumstances where he was assaulted by his mother and another person in the years between 1997 and 2002, which were the first five years of the plaintiff's life, and secondly, whilst he was incarcerated at about the age of 16 at the Riverina Juvenile Justice Centre.
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The State does not contend that the claim being made by the plaintiff is not one which has been made improperly. The State accepts that it is a claim which it is required to meet and deal with in the ordinary course of civil litigation in New South Wales. Put differently, the State does not claim that the plaintiff's case is vexatious or oppressive, or that it constitutes an abuse of process, or is otherwise subject to criticism.
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On 10 October 2023, the Court made orders by way of directions for the preparation of this matter. Those directions were consented to by both parties. One of the directions was that the parties were to attend either an informal settlement conference or a mediation by 20 June 2024. I accept that at that stage, the State was not aware that there were in existence, in the ACT, the outstanding Bench Warrants to which I have earlier referred.
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The State, when it came to learn of the outstanding Bench Warrants, declined to attend a mediation in compliance with the order of Registrar Hedge which had been made in October 2023.
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In support of this position, the State in a letter drew attention to r 3 of the Australian Solicitor Conduct Rules which it said provided that:
"a solicitor's duty to the Court and the administration of justice is paramount and prevails to the extent of any inconsistency with any other duty".
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The State said:
"The State is unable to properly engage in the mediation in circumstances where it is aware of [the plaintiff] potential fugitive behaviour. Our client's paramount obligation is to the administration of justice."
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The correspondence between the parties went on to say that the State asserted that the mediation could not proceed if there was an outstanding warrant and once there ceased to be an outstanding warrant, the mediation could proceed as arranged.
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The letter to which I have just made reference which was dated 4 June 2024 was responded to in this way later that day by the plaintiff's solicitor:
"We're instructed that the plaintiff had been incarcerated since that time and he believed a warrant may have been issued and therefore believes that it may have been dealt with already but cannot say with certainty."
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The mediation did not take place in accordance with the Court's order because of the unilateral position adopted by the State.
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The State now seeks the orders set out in the Motion. It submits that it should not be obliged to engage in any mediation for the following reason which is set out in its written submissions:
“The defendant is concerned with the parties’ and legal representatives’ ability to engage in a mediation session and to comply with the respective duties to participate in a mediation session in good faith and (on the part of the legal representatives at least), the duty to the Court and to the administration of justice, is put into conflict with the knowledge that the plaintiff has absconded from the ACT and is the subjective (sic) of an “active” bench warrant for his arrest (which is by virtue of his failure to appear at Court).”
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The submissions made it plain that the State reiterated that until there was a final resolution of the issue regarding the outstanding Bench Warrants, it would only then engage in alternative dispute resolution.
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I do not accept that the fact that any plaintiff in this Court is the subject of an outstanding Bench Warrant or other obligation in the criminal justice system is a reason for any party to civil litigation which is not directly concerned with, or addressed to, the circumstances of the outstanding criminal obligation is thereby excused from participating in the civil proceedings in accordance with the Court's order.
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Whilst it will be a question of fact in each case as to the extent of any suggested failure of compliance with an obligation of the criminal law, it is simply not within the power or remit of a litigant in civil proceedings by use of the procedures available in the civil proceedings to compel another party to the litigation to address an outstanding obligation under the criminal law in either this State or another State. The matters are separate and independent, and one cannot compel compliance with an outstanding legal obligation by unilaterally refusing to engage in civil litigation.
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In those circumstances, I am wholly unpersuaded that there is any basis for making any of the orders set out in the State’s Notice of Motion, and I order that the State’s Notice of Motion dated 19 July 2024 be dismissed.
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Decision last updated: 09 October 2024
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