LSR3 v New South Wales - [2024] NSWSC 1570

Supreme Court

New South Wales

Medium Neutral Citation: LSR3 v New South Wales [2024] NSWSC 1570
Hearing dates: 23 September 2024
Date of orders: 06 December 2024
Decision date: 06 December 2024
Jurisdiction: Common Law
Before: Faulkner J
Decision:
The Notice of Motion filed on 6 August 2024 is dismissed with costs.

Catchwords:
PROCEDURE – application for separate questions under UCPR 28.2 – where plaintiff seeks orders under Part 1C of the Civil Liability Act 2002 to set aside settlement agreements which may otherwise preclude the plaintiff from maintaining the balance of the proceedings – claimed benefit to defendants of plaintiff’s promise to “take no action”– statutory right to commence proceedings subsequently enacted – construction of s 7D(1) of the Civil Liability Act 2002 – overlap in issues and credit for hearing of separate questions and the balance of the proceedings – application for separate questions rejected.

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 7A, 7B, 7C, 7D, 7E, 7F
Civil Procedure Act 2005 (NSW), s 56(2)
Limitation Act 1969 (NSW), ss 6A, 62A
Limitation Act 2005 (WA), s 92
Uniform Civil Procedure Rules 2005, r 28.2

Cases Cited:
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
BuurabalayjiThalanyji Aboriginal Corp v Onslow Salt Pty Ltd (No 4) [2019] FCA 1275
EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490
Fell v Fell [1922] HCA 55; (1922) 31 CLR 268
Glacken v Tooth & Co Ltd [1935] HCA 68; (1935) 54 CLR 97
Owners Corporation SP 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1
Trustees of the Roman Catholic Church for the Archdioceses of Sydney v Ellis [2007] NSWCA 117

Category: Procedural rulings
Parties: LSR3 (Plaintiff)
State of New South Wales (First Defendant)
South East Sydney Local Health District (Tenth Defendant)
Representation:
Counsel:
D Weinberger / D Emmirig (Plaintiff)
D Lloyd SC / D Hume (First and Tenth Defendants)
Solicitors:
Karp O’Neill Lawyers (Plaintiff)
Crown Solicitor for NSW (First and Tenth Defendants)

File Number(s): 2023/00273367

JUDGMENT

Background

By these proceedings the plaintiff seeks compensation for alleged historic child abuse. The plaintiff sues multiple defendants including the State of New South Wales and the South East Sydney Local Health District of Caringbah (SESLHD). The plaintiff alleges assaults by numerous individuals (some of them named, others not) at numerous locations. The assaults are alleged to have taken place over a seven year period which concluded almost half a century ago. In the case of the State, liability is said to arise both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 1570
Decision Date: 06 December 2024

CaseChat Overview and Summary

LSR3 brought proceedings against New South Wales concerning the enforcement of settlement agreements which could potentially bar the plaintiff from continuing with the balance of their claims. The dispute was heard by the Supreme Court of New South Wales. The plaintiff sought orders under Part 1C of the Civil Liability Act 2002 to set aside these settlement agreements. The primary issue before the court was the interpretation of section 7D(1) of the Civil Liability Act 2002 and whether the settlement agreements could be set aside given that the plaintiff had promised not to take action against the defendants, while the defendants had not yet received any benefit from that promise.

The court examined the overlap in issues between the application for separate questions and the balance of the proceedings. It considered the construction of section 7D(1) and whether there was a claimed benefit to the defendants from the plaintiff’s promise to “take no action.” Additionally, the court deliberated on whether a statutory right to commence proceedings, enacted after the settlement agreements were made, could influence the enforceability of those agreements. The court concluded that there was sufficient overlap in the issues, and therefore, the application for separate questions was rejected. The court reasoned that it would be more efficient to hear the entire matter together, avoiding duplication and ensuring a coherent resolution of all related issues.

Orders