Haskakis v State of New South Wales

[2023] NSWSC 384

Supreme Court

New South Wales

Medium Neutral Citation:

Haskakis v State of New South Wales [2023] NSWSC 384

Hearing dates:

31 March 2023

Date of orders:

31 March 2023

Decision date:

31 March 2023

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Defendant’s Notice of Motion dated 31 March 2023 is dismissed.

(2)   Defendant to pay the plaintiff’s costs.

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — want of due despatch or strike out of statement of claim — where defendant brought a Notice of Motion that the proceedings be dismissed for want of due despatch, or alternatively, that the statement of claim be struck out — where defendant did not have any basis for the relief sought in the Motion — Notice of Motion dismissed

Legislation Cited:

Civil Liability Act 2002

Civil Procedure Act 2005

Limitation Act 1969

Uniform Civil Procedure Rules 2005

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

George Haskakis (P)
State of New South Wales (D)

Representation:

Counsel:
K Balendra (P)
S De Costa (D)

Solicitors:
Melinda Griffiths Solicitors (P)
Norton Rose Fulbright (D)

File Number(s):

2021/320814

Publication restriction:

Not Applicable

EX TEMPORE JUDGMENT

1. The defendant in these proceedings, the State of New South Wales, by its solicitors, brings a Notice of Motion filed 31 March 2023, in which it seeks the following orders:

1. The proceedings be dismissed pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005.

2. In the alternative, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005, the Statement of Claim filed 11 November 2021 be struck out.

3. The plaintiff pay the defendant’s costs.

2. The Motion was heard today. This judgment deals with the Motion.

The Proceedings

3. Some description of the proceedings is necessary.

4. The Statement of Claim was filed on 11 November 2021. It alleges that between the ages of 12 and 18 years, the plaintiff was admitted to the Yasmar Juvenile Justice Centre and the Metropolitan Boys’ Shelter which were, at the time, juvenile justice institutions.

5. The Statement of Claim alleges that the plaintiff, during periods that he was in those institutions, was sexually assaulted, and severely physically assaulted, by officers of those institutions. He claims against the defendant that, by way of its officers, employees and agents, it owed to him a duty of care to ensure that all reasonable steps were taken for his supervision and welfare whilst he was in its custody.

6. He pleads that the defendant was in breach of that duty and that as a consequence, he has suffered damages. He further pleads that as a consequence of the conduct and the relationship between the defendant and its employees, the defendant is vicariously liable for the conduct of those employees. In the alternative, a claim under the Civil Liability Act 2002 is pleaded.

7. The defendant has not filed a defence. In the ordinary course, in accordance with the Uniform Civil Procedure Rules 2005 (“UCPR”), the defence would be due within 28 days after service. Fifteen months after the plaintiff commenced proceedings, there has been no formal joinder of issues in the proceedings.

8. It is not clear on the Court record what the defendant’s defence, if any, is. For example, does it deny that it owed a duty of care or, alternatively, does it deny that the nominated places existed at the time or, if they did, that it had control of them? Does it deny that the plaintiff was ever, at any time, a resident of those institutions? Does it plead that, if the assaults occurred as the plaintiff contends, it should not be liable for the criminal conduct of its employees? These are all matters that are not formally contained within any pleaded defence.

Case Management

9. The Court has held a number of directions hearings in this matter. At each of the directions hearings, the plaintiff and the defendant have been represented by solicitors. Orders have been made from time to time during the course of those directions hearings. The solicitors for the defendant have not submitted that the plaintiff has been in breach of any Court order.

Correspondence between the Parties

10. In an exchange of correspondence commencing on 15 August 2022, that is, about 10 months after the Statement of Claim was filed, the solicitors for the defendant informed the solicitors for the plaintiff that they had issued a subpoena to the New South Wales Police Force to produce documents. They informed the solicitors for the plaintiff that the defendant had been unable to find any documents dealing with the plaintiff’s admission to or discharge from any juvenile justice centre, and they asked the plaintiff to provide the records that he had which supported the allegations pleaded.

11. In the course of the exchange of correspondence, the details of which do not need to be rehearsed, a position was reached where, subject to the production of some Children's Court’s documents, to which I will come, and some police documents, the defendant says that it has no documents relating to the plaintiff and maintains its request that the plaintiff provide some.

12. On 26 October 2022, the plaintiff’s solicitor was able to inform the defendant’s solicitors that she had identified documents in storage in State Archives or else in the Government Records Repository regarding Children’s Court appearances. Apparently, the defendant had not identified those records previously. Those records were then obtained by the defendant, and they were provided to the plaintiff on 15 December 2022.

13. Attempts have been made between the parties to find a date suitable to each party for attendance at a conference to discuss the settlement of the matter. Those attempts have not come to fruition.

Application to Dismiss Proceedings for want of Due Dispatch

14. The defendant, in seeking to rely on r 12.7 of the UCPR, submits that the proceedings should be dismissed because the plaintiff has not prosecuted the proceedings with due dispatch. I reject that submission.

15. The plaintiff, through his solicitors, has been present on every occasion the matter has been before the Court. Orders have been made on each occasion. No default of those orders is relied upon. What seems to be relied upon is the inability of the parties between them to settle upon a date for a meeting at which the parties between themselves would discuss settlement.

16. Let it be assumed that there is such a difficulty, and the cause of that difficulty is entirely the plaintiffs. That, in my view, does not constitute any failure to prosecute the proceedings with due dispatch. If the plaintiff is unwilling or unable to attend informally a settlement discussion, then that is simply a feature of the particular litigation. The plaintiff is under no obligation in the conduct of that litigation to attend such an informal settlement conference.

17. If the defendant is concerned to ensure that there is a proper opportunity provided for settlement negotiations to take place, it is open to the defendant to seek an order pursuant to s 26 of the Civil Procedure Act 2005 for the referral of the whole of the matter to mediation in accordance with the procedure in the Civil Procedure Act. No such application has been made.

18. There is simply no basis at all for the application of r 12.7 of the UCPR. On that basis, I decline to make the first order in the Notice of Motion.

Application to Strike Out Pleading

19. As an alternative, the defendant seeks an order pursuant to r 14.28(1)(b) of the UCPR, that the whole of the plaintiff’s Statement of Claim be struck out because it has a tendency to cause prejudice, embarrassment or delay in the proceedings.

20. In support of that order, the defendant’s solicitors submitted that the existence of the proceedings, given that they referred to something which happened approximately 40 years ago and in circumstances where there are no corroborative records, or any records at all of any sufficient detail, has the consequence that it is prejudiced in its defence of the proceedings.

21. There are a number of answers to that submission. Rule 14.28 of the UCPR is not a rule which deals with prejudice in the proceedings as a whole caused by delay. I note that because of amendments to the Limitation Act 1969, which have been in place for some years, that there is no limitation period with respect to the bringing of claims for damages for child abuse: s 6A.

22. If one case or another has a tendency to cause prejudice, and if proceedings on that claim constituted an abuse of process or would otherwise be manifestly unfair to the defendant, then the proper course to follow is for the defendant to apply for a permanent stay of proceedings pursuant to provisions of the Civil Procedure Act or the Court’s inherent jurisdiction. No such application has been made.

23. The question is, for the purposes of the consideration and application of r 14.28, whether the contents of the pleading disclose no reasonable cause of action or have a tendency to cause prejudice, embarrassment or delay. No submission was made that the contents of the Statement of Claim of itself and without more fall within the description in r 14.28 of the UCPR, in that it was not submitted that the Statement of Claim was defective.

24. It is not said that there is any clause or part of the pleading which, in any way had a tendency to cause prejudice, embarrassment or delay. Rather it seems to have been put by the defendant’s solicitors that it is the whole of the proceedings which cause embarrassment or delay.

25. As I have said, if that is established, then the proper course of action is to seek a permanent stay or else to seek summary dismissal pursuant to r 13.4 of the UCPR if it can be properly argued that the proceedings are an abuse of the process of the Court, or else for any other of the reasons set out in that Rule.

26. In my view there is simply nothing in these proceedings which would merit the making of an order under r 14.28 of the UCPR.

Order

27. I make the following orders:

1. Dismiss the defendant’s Notice of Motion filed 31 March 2023.

2. Order the defendant to pay the plaintiff’s costs of the Motion.

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Decision last updated: 17 April 2023