ST1 v State of New South Wales t/as Department of Communities and Justice

[2022] NSWSC 729

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

ST1 v State of New South Wales t/as Department of Communities and Justice [2022] NSWSC 729

Hearing dates:

2 June 2022

Date of orders:

2 and 6 June 2022

Decision date:

06 June 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Refuse to stay the proceedings.

(2) Order the defendant to file and serve a defence by 30 September 2022.

(3) No order as to costs, to the intent that each party bears her and its own costs.

(4) List the proceedings before the Common Law Registrar at 9.00am on 5 October 2022.

(5) Grant liberty to apply on 2 days’ notice.

Catchwords:

CIVIL PROCEDURE – stay of proceedings – concurrent civil and criminal proceedings – same subject matter – where accused was employee of the defendant – where accused not cooperating with defendant – where accused’s trial imminent – where civil proceedings recently commenced – stay refused but case management orders made to take account of trial

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 56

Felons (Civil Proceedings) Act 1981 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26

McMahon v Gould (1982) 7 ACLR 202; 1 ACLC 98

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

ST1 (Plaintiff)
State of New South Wales t/as Department of Communities and Justice (Defendant)

Representation:

Counsel:
T Buterin (Plaintiff)
A Williams (Defendant)

Solicitors:
Mills Oakley (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2021/231701

Publication restriction:

Nil

Judgment

1. These proceedings involve a claim for damages as a result of a number of sexual assaults said to have been perpetrated on the plaintiff by a former correctional officer, when the plaintiff was an inmate at a correctional centre. The officer (to whom I shall refer as “the accused”) has been charged with some 51 offences arising out of sexual offences committed by him against not only the plaintiff but a number of other inmates.

2. The accused’s trial in relation to these matters is fixed to commence in the District Court on 25 July 2022 with an estimate of six weeks.

3. By a notice of motion filed 28 February 2022 the State of New South Wales seeks a temporary stay of the proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) and an order, seemingly in the alternative to a stay, that it be excused from filing a defence until further order. The stay is opposed by the plaintiff.

4. At the conclusion of the hearing on 2 June 2022 I made orders, and said that I would provide reasons later. These are my reasons for the orders.

5. The basis for the application arises from the charging of the accused and his impending trial. The State submitted that by reason of those matters the accused is not available to give instructions about the plaintiff’s claims, and it is impeded in its investigation of the claims and the preparation of an appropriate defence.

6. The plaintiff was sentenced to a term of imprisonment for manslaughter, and served part of her sentence at the Dillwynia Correctional Centre within the John Morony Correctional Complex, for two periods between November 2015 and September 2018. She alleges she was sexually assaulted by the accused on a number of occasions between November 2016 and September 2017. The plaintiff made her first statement to police in October 2018. The plaintiff did not report the assaults on her immediately because, she said, she had a number of years of her sentence to serve, she feared retribution from the accused or other correctional officers, and she feared that the police would not believe her, because the accused had said he was a former police officer and he had contacts still within the NSW police force.

7. The accused was charged in February 2019. The present proceedings were commenced by the filing of a statement of claim on 6 August 2021, although the plaintiff did not obtain leave to do so under the Felons (Civil Proceedings) Act 1981 (NSW) until 10 December 2021.

8. The accused was due to face trial on 19 October 2020, but that trial was aborted because of the Covid-19 pandemic. It was refixed for hearing commencing on 2 August 2021, but was again aborted for the same reason.

9. As early as 5 October 2021 the solicitors for the defendant raised with the plaintiff’s solicitors the issue of staying the proceedings until the criminal proceedings against the accused had been finalised. The State said that it made the request because it was not in a position to file a meaningful defence or conduct liability investigations while that trial was pending. The request to stay the proceedings was rejected by the plaintiff.

10. Thereafter, the defendant’s solicitors wrote to the solicitors acting for the accused on 26 October 2021 to ask whether the accused would be prepared to speak with the solicitors to assist in the defence of the civil claim. No reply was received to that letter. The defendant’s solicitors wrote again on 11 November 2021 asking for a response to the earlier letter but, again, no response was received.

11. In February 2022, the solicitors acting for the plaintiff said that they were willing to agree to excuse the defendant from filing a defence and from answering a notice to produce until after the criminal trial on the condition that the defendant agreed to attend a mediation within six weeks following the cessation of the criminal trial. That mediation would deal not only with the plaintiff but with eight other persons from whom the plaintiff’s solicitors said they had instructions to act. The solicitors for the defendant replied, saying that there were significant liability issues, and they were not in a position to agree to an order for mediation until they had had the opportunity to confer with the accused.

12. Subsequently the notice of motion was filed.

13. Mr Buterin of counsel for the plaintiff drew attention the principles set out in McMahon v Gould (1982) 7 ACLR 202; 1 ACLC 98 and approved in Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26. He submitted that, having regard to those principles, the accused was not a party to the proceedings and there was no requirement for his participation in them. Mr Buterin submitted that the accused may never speak with the defendant’s legal representatives.

14. He submitted that the transcript of the criminal proceedings may provide no assistance to the defendant, particularly because there is nothing to suggest that the accused will give evidence at the trial. He submitted that because both of the earlier dates for the trial were vacated due to the Covid pandemic the plaintiff had endured enough delay, and should not have her right to pursue a civil claim deferred until the outcome of the trial after July 2022.

15. Mr Buterin submitted that, whilst the interests of justice may justify the Court staying civil proceedings on the application of an accused, the same cannot be said where the accused is merely a potential witness for the State in the civil proceedings, absent substantial prejudice. He submitted that the State had not demonstrated substantial or material prejudice.

16. Mr Buterin pointed to what he said were inadequate efforts on the part of the defendant’s solicitors to obtain access to the accused. He submitted that there were other avenues available to the solicitors, including Corrective Services records and the evidence of other persons at the Correctional Centre.

17. Mr Adrian Williams of counsel for the defendant submitted that the pleading in the statement of claim showed that the liability of the defendant (if any) was said to derive entirely from the actions of the accused. He said that there is no pleading that the defendant was aware of the accused’s misconduct towards the plaintiff other than through the accused himself, and no claim in negligence was pleaded.

18. Mr Williams submitted that the accused had a privilege against self-incrimination, and the prospect of him cooperating would increase substantially should the criminal proceedings against him resolve. Even if he does not co-operate after the trial, the defendant will have access to the record of the trial including the testimony of the witnesses including the plaintiff.

19. Mr Williams submitted that although a stay was sought, the matter could be managed in an alternative way involving case management. On that basis, the Court could simply make directions that any defence was to be filed at some reasonable time after the conclusion of the trial.

20. A number of matters suggest that the alternative course proposed by counsel for the defendant should be adopted. First, whilst I accept that the principles in McMahon v Gould and the other considerations dealt with in Halabi, (particularly by Kirby P and McHugh JA), are relevant and applicable to the present case, there is the further factor that the defendant here is not the accused, but a party sought to be made liable as a result of the position it stands in relative to the accused. Whilst, in a sense, an accused named as a defendant in civil proceedings in these circumstances, has a choice whether or not to participate actively in the proceedings, a person in the present defendant’s position has no such choice if the accused declines to cooperate. In other words, the ability of a party in the position of the present defendant to participate fully to defend and/or to resolve the proceedings, is largely (but not wholly) dependent on the cooperation of the accused person.

21. Secondly, the trial date is imminent and the trial will conclude within three months. In that regard, it cannot be overlooked that the present proceedings only commenced on 6 August 2021, with leave to proceed only being given on 10 December 2021.

22. Thirdly, whatever the outcome of the trial, the evidence given, including any evidence by the plaintiff, is likely to be of considerable assistance in the civil proceedings either going forward or resolving.

23. Fourthly, the defendant is in the position it is through no fault of its own. The accused was charged in February 2019 and the civil proceedings did not commence until August 2021. It was always likely to be the case that the accused would not cooperate with his former employer (the State) whilst ever the criminal proceedings were pending. The defendant is prejudiced in its defence of the proceedings at the present time.

24. Fifthly, it is clear that if the defendant is now required to file a defence, the defence will be of no assistance in defining the issues in the case. In the absence of the solicitors for the defendant being able to speak to the accused, the high likelihood is that on the crucial matters of pleading, the defendant at the present time will simply not admit the allegations, because it does not know the truth or otherwise of them. In those circumstances, it would be necessary for an amended defence to be filed after the conclusion of the trial whether or not the accused cooperates at that time. In that way, little would be achieved by insisting on that defence at the present time, when in any event matters will not be able to move forward on any proper basis until the trial is concluded. Wasted costs in that regard are not consistent with s 56 of the Civil Procedure Act 2005 (NSW).

25. Finally, when regard is had to the time at which the assaults are said to have been committed, the charging of the offender, the reasons for the earlier trial dates being vacated, the commencement of the proceedings and the imminence of the trial date, I do not consider that there is more than minimal prejudice to the plaintiff if the defendant was not required to file a defence until a reasonable period of time after the conclusion of the trial.

26. For those reasons, I consider that, while a stay should not be granted, the defendant should not be required to file a defence until 30 September 2022. Such an order, unlike a stay, leaves open the possibility of other steps being taken to advance the proceedings in the meantime.

27. The defendant seeks costs of the application on the basis that it has been successful in obtaining one of the orders it sought, even though a stay was not granted.

28. In the ordinary course, it is entirely reasonable for a plaintiff to seek to insist on compliance with the Uniform Civil Procedure Rules 2005 (NSW) to require a defence to be filed when proceedings have been on foot regularly for five months. However, the present unfortunate situation was not of the making of either party. Had it not been for the pandemic, the accused’s trial would likely have concluded. The defendant tried unsuccessfully to speak with the accused, but he, of course, has a right not to incriminate himself prior to the conclusion of his trial.

29. In all of those circumstances, I consider that each party should pay their own cost of the motion.

30. Accordingly, the orders in respect of the motion are these:

1. Refuse to stay the proceedings.

2. Order the defendant to file and serve a defence by 30 September 2022.

3. No order as to costs, to the intent that each party bears her and its own costs.

4. List the proceedings before the Common Law Registrar at 9.00am on 5 October 2022.

5. Grant liberty to apply on 2 days’ notice.

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Amendments

08 April 2025 - Publication restriction lifted

Decision last updated: 08 April 2025