ST1 v The State of New South Wales

[2024] NSWSC 1534

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

ST1 v The State of New South Wales [2024] NSWSC 1534

Hearing dates:

29 November 2024

Date of orders:

29 November 2024

Decision date:

29 November 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Order that there be judgment for the State of New South Wales against the cross defendant, Mr Wayne Astill, for $284,473.60.

(2)   Order that the cross defendant, Mr Wayne Astill, indemnify the State of New South Wales for the costs of the proceedings brought against it by the plaintiff known as ST1, such indemnity to be given effect to once the sum of costs has been ascertained.

(3)   Order the cross defendant, Mr Wayne Astill, to pay the State of New South Wales’ costs of the cross claim on the ordinary basis.

(4)   Grant the parties liberty to apply.

Catchwords:

JUDGMENTS AND ORDERS – Default judgment – Cross-claim brought by the defendant/cross-claimant against the cross-defendant – Where the defendant/cross-claimant settled the claim brought by the plaintiff – Where no defence to the cross-claim has been filed and no appearance has been made by the cross-defendant – Whether the Court should order complete indemnity by the cross-defendant of the cross-claimant – Judgment for the defendant/cross-claimant against the cross-defendant – Order that the cross-defendant indemnify the defendant/cross-claimant.

Legislation Cited:

Not Applicable

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

W Astill (Cross-defendant)
State of New South Wales (Cross-claimant)

Representation:

Counsel:
A Williams (Cross-claimant)

Solicitors:
Makinson d’Apice (Cross-claimant)

File Number(s):

2021/231701

Publication restriction:

Not Applicable

EX TEMPORE JUDGMENT

The Proceedings

1. In 2021, the plaintiff to whom the pseudonym of ST1 has been given, sued the defendant for compensatory damages, aggravated damages and exemplary damages, arising out of a course of conduct by way of sexual abuse perpetrated upon her whilst she was an inmate at the Dillwynia Correctional Centre by an employee of the State, Mr Wayne Astill. The defendant in its Defence admitted that the conduct engaged in by Mr Astill constituted the tort of misfeasance in public office. It admitted that as a matter of law it was legally liable to the plaintiff for the consequences of that conduct.

2. Acting entirely appropriately, the defendant settled the claim brought by the plaintiff and a consent judgment was entered by this Court on 2 July 2024. That consent judgment terminated the proceedings between the plaintiff and the defendant.

3. On 30 September 2022, the defendant filed a cross‑claim against Mr Astill claiming indemnity or contribution from Mr Astill with respect to any award of damages or payment for damages which the State incurred with respect to the claim made by the plaintiff ST1.

4. I am satisfied that that cross‑claim was appropriately served on Mr Astill in October 2022. Mr Astill has never appeared by filing a Notice of Appearance, nor when the proceedings were called outside this Court this morning was he in attendance. That is unsurprising. Mr Astill is presently serving a sentence of imprisonment, having been convicted, amongst other things, of four offences of which the victim was the plaintiff ST1.

Notice of Motion

5. By Notice of Motion filed on 10 October 2024, the State seeks the following orders:

“1.   Judgment for the cross‑claimant against the cross‑defendant for $284,473.60.”

6. I note that sum is the amount of the consent judgment payable by the defendant to the plaintiff pursuant to the judgment entered on 2 July 2024 together with interest pursuant to s 100 of the Civil Procedure Act 2005.

7. The State seeks the following further orders:

“An order that the cross‑defendant indemnify the cross‑claimant for the costs of the proceedings brought against the defendant/cross‑claimant by the plaintiff and for which the defendant/cross‑claimant is now liable to the plaintiff, and a further order that the cross‑defendant pay the cross‑claimant's costs of the cross‑claim, to be agreed or assessed on the ordinary basis.”

Discernment

8. A question arises as to whether the Court should order complete indemnity by the cross‑defendant of the cross‑claimant, or whether it would be just and equitable, in accordance with the legislation, to merely order a partial contribution.

9. Having regard to the facts of this case, where the cross‑defendant engaged in conduct of the kind I have briefly touched upon, I am satisfied that the cross‑defendant should completely indemnify the defendant with respect to any damages and expenses incurred by the defendant with respect to that conduct.

10. The first reason for this is that the conduct was itself of a kind, namely a sexual assault perpetrated by a senior prison officer on a prisoner, which demonstrated a complete abuse of power by the cross‑defendant. The defendant is not said to have been on notice of the particular conduct against ST1.

11. Secondly, the claim against the cross-defendant only relates to his misfeasance in office or gross abuse of power, and the settlement of the plaintiff’s claim centres upon that. Given that the cross‑defendant was the sole author of the plaintiff's damages, it is appropriate that he indemnify the defendant in respect of the damages paid.

12. Thirdly, it is important to state that from the defendant's point of view as the employer of the cross‑defendant, the conduct engaged in by the cross‑defendant was conduct which could not, on any view at all, be regarded as conduct which was discharging properly and responsibly the obligations of his employment. Put differently, the conduct was well outside the terms of the employment entered into between the State and the cross‑defendant.

13. There is simply no reason to attribute for the purposes of this cross‑claim any fault upon the defendant. In those circumstances, I am satisfied that the orders sought in the Notice of Motion should be made.

14. I make the following formal orders:

1. Order that there be judgment for the State of New South Wales against the cross‑defendant, Mr Wayne Astill, for $284,473.60.

2. Order that the cross‑defendant, Mr Wayne Astill, indemnify the State of New South Wales for the costs of the proceedings brought against it by the plaintiff known as ST1, such indemnity to be given effect to once the sum of costs has been ascertained.

3. Order the cross‑defendant, Mr Wayne Astill, to pay the State of New South Wales’ costs of the cross‑claim on the ordinary basis.

4. Grant the parties liberty to apply.

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Amendments

16 December 2024 - Incorrect date on coversheet

Decision last updated: 16 December 2024