McInally v State of New South Wales

[2024] NSWSC 767

Supreme Court

New South Wales

Medium Neutral Citation:

McInally v State of New South Wales [2024] NSWSC 767

Hearing dates:

20 June 2024

Date of orders:

20 June 2024

Decision date:

20 June 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Remove the plaintiff as a party to the proceedings pursuant to r 6.29 of the UCPR.

(2) Pursuant to r 7.10 of the UCPR I appoint Amanda Aslett as the representative of the plaintiff's estate for the purpose of these proceedings.

(3) Leave is given to amend the statement of claim. Such amended statement of claim is to be filed and served by 28 June 2024.

(4) I direct that the parties are to attend a mediation of the proceedings, such mediation to take place on or before 29 November 2024.

(5) The parties have liberty to apply on two days' notice.

(6) The costs of the present motion should be costs in the cause.

Catchwords:

CIVIL PROCEDURE – parties – representative order – where plaintiff died prior to conclusion of the proceedings – whether plaintiff should be removed as a party pursuant to r 6.29 of the UCPR – whether representative of the plaintiff’s estate should be appointed and named as party – representative appointed pursuant to r 7.10 of the UCPR

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 6.29, 7.10

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Richard McInally (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J Isackson (Plaintiff)
A Bramston (Defendant)

Solicitors:
Shine Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

23/168886

Publication restriction:

Nil

EX TEMPORE JUDGMENT

1. These proceedings commenced on 26 May 2023. The plaintiff was seeking damages against the State of New South Wales as a result of sexual abuse that he alleged occurred when he was at Cobham Youth Centre in or around 1985. In the statement of claim he alleges that a named officer at that institution sexually abused him on at least three occasions.

2. Before the proceedings could advance very far the plaintiff died, on 12 December 2023, although it does not appear that there is any relationship between the claim he was making and the cause of his death.

3. Application is now made by notice of motion filed 3 May 2024 for his de facto partner, Amanda Aslett, to be appointed as the representative of his estate for the purpose of these proceedings. As far as can be ascertained, the deceased did not leave a will. The evidence suggests that Ms Aslett has been the deceased's de facto partner for a period of approximately eight years.

4. Rule 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) relevantly provides:

(1) This rule applies to any proceedings in which it appears to the court--

(a) that a deceased person's estate has an interest in the proceedings, but is not represented in the proceedings, or

(b) …

(2) The court--

(a) …

(b) may appoint a representative of the deceased person's estate for the purposes of the proceedings, but only with the consent of the person to be appointed.

(3) Any order under this rule, and any judgment or order subsequently entered or made in the proceedings, binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings.

(4) Before making an order under this rule, the court may order that notice of the application be given to such of the persons having an interest in the estate as it thinks fit.

5. Ms Aslett consents to being named as the representative to pursue the plaintiff's claim against the defendant.

6. Given that the plaintiff has died, an order should also be made under r 6.29, on the basis that the plaintiff has ceased to be a proper party to the proceedings. An order should be made pursuant to r 7.10 appointing Amanda Aslett as the plaintiff’s estate representative for the purpose of the proceedings. She will, therefore, become the plaintiff in lieu of the deceased.

7. The notice of motion seeks also leave that an amended statement of claim be filed to take account of the change of the parties to the proceedings. A form of the statement of claim is annexed to the affidavit of Isobel Hall sworn 2 May 2024. That proposed statement of claim will need a small amount of further amendment to remove references to “the plaintiff” where it is intended that the deceased be referred to.

8. Accordingly, I make the following orders:

1. Remove the plaintiff as a party to the proceedings pursuant to r 6.29 of the UCPR.

2. Pursuant to r 7.10 UCPR I appoint Amanda Aslett as the representative of the plaintiff's estate for the purpose of these proceedings.

3. Leave is given to amend the statement of claim. Such amended statement of claim is to be filed and served by 28 June 2024.

4. I direct that the parties are to attend a mediation of the proceedings, such mediation to take place on or before 29 November 2024.

5. The parties have liberty to apply on two days' notice.

6. The costs of the present motion should be costs in the cause.

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Decision last updated: 21 June 2024