Hunt bhnf Sexton v State of New South Wales

[2022] NSWSC 366

Supreme Court

New South Wales

Medium Neutral Citation:

Hunt bhnf Sexton v State of New South Wales [2022] NSWSC 366

Hearing dates:

30 March 2022

Date of orders:

30 March 2022

Decision date:

30 March 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

Pursuant to s 77(4) of the Civil Procedure Act 2005 (NSW) the sum of damages paid by the State of New South Wales pursuant to the orders of 7 May 2021 of Justice Wilson (case number 2020/00129190), be paid to the bank account nominated by the Plaintiff’s Financial Administrator, Mr William Sexton, forthwith.

Catchwords:

PRACTICE AND PROCEDURE – application for payment of settlement funds to plaintiff’s financial administrator – s 77(4) Civil Procedure Act 2005 (NSW) – funds previously paid into the Court

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 77

Guardianship and Administration Act 2019 (Vic), ss 46(1), 51

Category:

Principal judgment

Parties:

Robert Markus Edwin Hunt bhnf William Justin Sexton (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J Masur (Plaintiff)

Solicitors:
Porters Lawyers (Plaintiff)

File Number(s):

2022/59512

Judgment

1. By summons dated 28 February 2022, Mr Hunt (“the plaintiff”) seeks an order that the State of New South Wales (“the defendant”) pay a sum of damages into the nominated account of Mr Sexton, who is named in the summons as “the Plaintiff’s Financial Administrator”, pursuant to s 77(4) of the Civil Procedure Act 2005 (NSW) (“the CPA”). The sum of damages is to be paid by the defendant pursuant to orders made by her Honour Wilson J on 7 May 2021.

2. The summons is supported by an affidavit of the plaintiff’s tutor and administrator, William Justin Sexton, and an affidavit of Allison Anne Clark, who is a solicitor employed by Porters Lawyers, who act on behalf of Mr Sexton in these proceedings. The plaintiff also filed written submissions in support of his application on 24 March 2022.

Background

3. On 30 April 2020, the plaintiff filed a statement of claim in this Court claiming damages for psychiatric and psychological injuries which he alleged resulted from acts of physical and sexual abuse whilst he was admitted to Yasmar Shelter and Daruk Training School in or about 1981, when he was approximately 14 years old. The plaintiff alleged that the perpetrators were officers who were ultimately in the employment of the defendant.

4. When the plaintiff commenced those proceedings, in his own name, he was not subject to any legal restriction on his capacity to conduct the proceedings or manage his affairs. Subsequently, Professor Lorraine Dennerstein, the plaintiff’s medico-legal expert, in a report dated 19 January 2021 annexed to Ms Clark’s affidavit, opined that the plaintiff lacked capacity to instruct solicitors and manage any settlement funds.

5. Mr Sexton was appointed as the plaintiff’s tutor on 27 July 2021. A document indicating his consent to act as such was filed with this Court on 25 January 2021.

6. At a mediation on 21 January 2021, the parties reached an in-principle settlement regarding those proceedings, which was listed before Wilson J on 7 May 2021 for approval. Her Honour made orders by consent of the parties on that date. Those orders included an order providing that the relevant sum of damages be paid into the Court pursuant to s 77(2) of the CPA until further order of the Court. Those funds were paid into the Court on 30 June 2021.

7. The plaintiff submitted that this sum was paid into the Court “until the appointment of a financial manager/administrator”. In her affidavit, Ms Clark stated that Porters Lawyers made an initial application to the New South Wales Civil and Administrative Tribunal (“NCAT”) seeking a “Financial Management order” for the benefit of the plaintiff, but that the firm was advised that NCAT did not have jurisdiction to make those orders as the plaintiff is resident in Victoria.

8. Accordingly, the plaintiff submitted that the Court should have regard to orders made by Member Topp of the Victorian Civil and Administrative Tribunal (“VCAT”). Those orders appoint Mr Sexton as the plaintiff’s “administrator” and grant him the power to “make decisions about all financial matters”, as well as powers under the Guardianship and Administration Act 2019 (Vic), ss 46(1) and 51.

The relevant legislation

9. Section 77(4) of the CPA is contained in Pt 4 of that Act, which governs matters involving persons under legal incapacity. Section 77 relevantly provides:

“77   Payment of money recovered on behalf of person under legal incapacity

(1)   This section applies to money recovered in any proceedings on behalf of any of the following persons—

(a)   a person under legal incapacity,

(b)   a person who, during the course of the proceedings, becomes a person under legal incapacity,

(c)   a person whom the court has found, under section 76 (1) (c), to be incapable of managing his or her own affairs,

pursuant to a compromise, settlement, judgment or order in any proceedings.

(2)   All money recovered on behalf of a person referred to in subsection (1) is to be paid into court.

…

(4)   Money paid into court under subsection (2) is to be paid to such person as the court may direct, including—

(a)   if the person is a minor, to the NSW Trustee and Guardian, or

(b)   if the person is a protected person, to the manager of the protected person’s estate.”

Consideration

10. The defendant has not filed pleadings in this aspect of the matter. During the hearing of the application, I was informed by Ms Clark that on 10 March 2022, on the occasion of a directions hearing before Registrar Jones, she spoke by phone to the solicitor in the Crown Solicitor’s Office with the carriage of the matter, Mr Anthony McCarthy, who indicated that the defendant did not intend to appear in relation to the matter. A notation on the Court file made on 10 March 2022 at the directions hearing before Registrar Jones is to the effect that the defendant neither consented to nor opposed the orders sought.

11. I accept that the suitability of Mr Sexton to administer the financial affairs of the plaintiff was a matter considered and determined by VCAT. A copy of VCAT’s orders is annexed to Ms Clark’s affidavit. Those orders obliged Mr Sexton to furnish a “Financial Statement and Plan” to VCAT by 21 December 2021 and to furnish accounts annually thereafter.

12. I am not aware of any reason as to why the order sought should not be made.

Orders

13. I make the following order:

Pursuant to s 77(4) of the Civil Procedure Act 2005 (NSW) the sum of damages paid by the State of New South Wales pursuant to the orders of 7 May 2021 of Justice Wilson (case number 2020/00129190), be paid to the bank account nominated by the Plaintiff’s Financial Administrator, Mr William Sexton, forthwith.

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Decision last updated: 30 March 2022