Nicholas v State of New South Wales

[2024] NSWSC 633

Supreme Court

New South Wales

Medium Neutral Citation:

Nicholas v State of New South Wales [2024] NSWSC 633

Hearing dates:

22 May 2024

Date of orders:

22 May 2024

Decision date:

24 May 2024

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) John Nicholas, the plaintiff’s widower, is appointed as representative for the estate of Kyllie-Ann Nicholas pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW).

(2) The plaintiff has leave to file an Amended Statement of Claim reflecting order 1 on or before Friday 24 May 2024.

(3) Costs of this motion are costs in the cause.

Catchwords:

CIVIL PROCEDURE – parties – marriage certificate and death certificate – deceased’s husband appointed as representative.

Legislation Cited:

Law Reform (Miscellaneous Provisions) Act 1944 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

Kyllie-Ann Nicholas (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:

Solicitors:
Karp O’Neill Lawyers (Plaintiff)
Norton Rose Fulbright (Defendant)

File Number(s):

2023/00263293

Publication restriction:

Nil

JUDGMENT

1. Before me today as duty judge is an application by way of notice of motion filed on 13 March 2024 for the appointment of John Nicholas as a representative of the estate of Kyllie-Ann Nicholas for the purpose only of these proceedings under rr 6.30 and 7.10 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. I made the orders sought in the notice of motion and these are my reasons for making those orders.

3. The proceedings filed by statement of claim in August 2023 are for damages for personal injury. Rule 6.30 provides that proceedings do not abate upon the death of a party. If the cause of action survives, as it does in this case under s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), the Court is empowered to make such orders as it thinks fit for the joinder or removal of parties.

4. Under r 7.10, the powers of the Court include the power to appoint a representative of the deceased person’s estate for the purpose of the proceedings, but only with the consent of the person to be appointed.

5. The notice of motion is supported by an affidavit of John Nicholas affirmed 30 April 2024, and two affidavits of Jeremy Mondel, solicitor, sworn 21 May and 22 May 2024. Also tendered at the hearing was a legible copy of the Certificate of Marriage of the deceased Kyllie-Ann Nicholas to John Nicholas in July 2012.

6. I am satisfied that Mr Nicholas consents to being appointed a representative under that rule. I am satisfied that the deceased died on 28 August 2023 in North Carolina, United States of America.

7. In his affidavit of 22 May 2024, Mr Mondel deposes to instructions provided by the deceased as to her previous names and the sequelae of the abuse she suffered as a child.

8. The statement of claim alleges physical and sexual abuse whilst in foster care and on occasions whilst in the care of her mother and her mother’s partner in circumstances where she was a ward of the state, and the state was made aware that she was at risk when with her mother.

9. I understand from the affidavit material that the deceased and Mr Nicholas together have a daughter [REDACTED] who lives with Mr Nicholas in Virginia Beach, Virginia, United States of America. [REDACTED] is now 10 years old. The deceased has no other children. On my assessment, Mr Nicholas is the appropriate representative.

10. Accordingly, the orders I made were as follows:

1. John Nicholas, the plaintiff’s widower, is appointed as representative for the estate of Kyllie-Ann Nicholas pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW).

2. The plaintiff has leave to file an Amended Statement of Claim reflecting order 1 on or before Friday 24 May 2024.

3. Costs of this motion are costs in the cause.

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Decision last updated: 24 May 2024