In the recent related matter of LSR3 v New South Wales [2024] NSWSC 1570, the plaintiff, LSR3 (a pseudonym), brought proceedings against the first defendant, the State of New South Wales, the tenth defendant, the South East Sydney Local Health District of Caringbah (“SESLHD”), and multiple other defendants seeking personal injury damages in relation to historical abuse the plaintiff suffered.
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 by virtue of the State’s own negligence and by virtue of the State’s vicarious liability for the conduct of others. Apart from detailed factual issues, questions may arise about the standard of institutional care at the relevant time, discharge of the duty of care, causation and loss. The plaintiff alleges loss which includes a variety of psychological injuries and disabilities, out-of-pocket expenses, economic loss and loss of superannuation entitlements. The plaintiff also claims aggravated and exemplary damages. Expert evidence may be required in relation to a number of issues. Compulsory production of documents may be required.
For current purposes it is sufficient to say that the proceedings contemplated by the plaintiff’s pleadings are extensive. None of the defendants has filed a defence. If contested, it is likely that the proceedings will be complicated to prepare for trial, to hear and to determine.
The current application arises because the plaintiff has previously sued the State and SESLHD in respect of (most of) the same allegations. As set out in more detail below, the plaintiff’s claims were twice settled on terms which included the payment of money by the State (the first in 2003 and the second in 2017). The plaintiff nonetheless claims to be entitled to bring the current proceedings by virtue of the regime set out in Part 1C of the Civil Liability Act 2002 (NSW). The State and SESLHD seek orders for the separate and prior determination of questions by which it is hoped to ascertain the applicability of Part 1C in the circumstances of this case. The plaintiff generally opposes that course. He wants the key Part 1C issues determined with all the other issues at trial.
In its consideration, the Court commented as follows:
The State and SESLHD submit that the extent of overlap will be limited because separate questions about whether it is just and reasonable to set aside the 2003 Agreement and the 2017 Agreement will be confined by the particulars currently set out in paragraphs 89 and 91 of the Amended Statement of Claim. The difficulty with that argument is the dynamic reality of litigation, especially where relatively new legislation is being considered by the Court. The decision to order separate questions must be made having regard not just to the current particulars but also to the realistic possibility of evolution in the plaintiff’s case [at 84].
In any event, even on the current particulars it seems that one issue which will be common to both the determination of the separate questions and the issues to be decided at the final hearing will be the credit of the plaintiff. This is a consideration which weighs heavily against an order for separate questions. In this case in particular, where the plaintiff alleges historic child abuse, it would be highly undesirable for the plaintiff to be required to give evidence and to be cross-examined twice. In the face of that prospect, it would be necessary for the State and SESLHD to demonstrate the most compelling reasons before an order for separate questions could be made [at 85].
In that context, another important consideration is the delay which will likely result from an order for separate questions. The questions will each have to be argued and decided. The proceedings in EXV v Uniting Church in Australia Property Trust (NSW) commenced in 2022, the separate questions were argued over four days in May and July 2023 and judgment was handed down in May 2024. Given the novelty of the legislation, Weinstein J was required to consider and decide a range of issues without the advantage of prior consideration by the Court. There may yet to be an appeal. The case before Weinstein J does not appear to be as complicated as the current case so the separate questions may take longer in this case. There is also a prospect of an appeal in the current case [at 86].
Notwithstanding the submissions of the State and SESLHD, the proceedings are not amenable to a separate hearing of the questions in the Notice of Motion [at 87].
Ultimately, on 6 December 2024, the New South Wales Supreme Court held that the State of New South Wales and SESLHD have not demonstrated that this is an appropriate case for ordering separate questions. Their Notice of Motion dated 6 August 2024 is to be dismissed with costs.
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