Abuse Law – Case Law Update – Court Orders regarding mediations with incarcerated parties – Anderson v State of New South Wales [2024] NSWSC 1254

In the recent related matter of Anderson v State of New South Wales [2024] NSWSC 1254, the plaintiff, Mr Drew Anderson, brought proceedings against the defendant, the State of New South Wales. These proceedings are proceedings brought by the plaintiff against the State claiming damages for historic sexual abuse which he alleges occurred in two circumstances whilst he was a child. The first alleged circumstance is that he was abused whilst at home and was not removed from his mother’s care by the Department of Community Services (by its historic name), and that he was also sexually abused whilst he was detained at the Riverina Juvenile Detention Centre. The abuse is alleged to have occurred in circumstances where he was assaulted by his mother and another person in the years between 1997 and 2002, which were the first five years of the plaintiff’s life, and secondly, whilst he was incarcerated at about the age of 16 at the Riverina Juvenile Justice Centre. 

The purpose of this hearing was in response to a Notice of Motion filed by the defendant on 19 July 2024 seeking the following orders:  

1. The order made, pursuant to section 26 of the Civil Procedure Act 2005, requiring the parties to participate in a court ordered mediation be stayed and the defendant excused from participating in a mediation in these proceedings. 
2. In the alternative to prayer 1, the proceedings are stayed until 27 September 2024. 

An affidavit of the solicitor for the defendant provides that the plaintiff is the subject of two outstanding warrants issued by the ACT Magistrates Court respectively on 26 March 2021 and 28 May 2021. The offences in respect of which he was required to attend were an offence of minor theft involving a value of less than $2,000 and an offence of riding or driving in a motor vehicle without consent. 

The State does not contend that the claim being made by the plaintiff is not one which has been made improperly. The State accepts that it is a claim which it is required to meet and deal with in the ordinary course of civil litigation in New South Wales. Put differently, the State does not claim that the plaintiff’s case is vexatious or oppressive, or that it constitutes an abuse of process, or is otherwise subject to criticism. 

The State, when it came to learn of the outstanding Bench Warrants, declined to attend a mediation in compliance with the order of Registrar Hedge which had been made in October 2023. In support of this position, the State in a letter drew attention to Rule 3 of the Australian Solicitor Conduct Rules which it said provided that: “a solicitor’s duty to the Court and the administration of justice is paramount and prevails to the extent of any inconsistency with any other duty”. The defendant said: “The State is unable to properly engage in the mediation in circumstances where it is aware of [the plaintiff] potential fugitive behaviour. Our client’s paramount obligation is to the administration of justice.” The correspondence between the parties went on to say that the State asserted that the mediation could not proceed if there was an outstanding warrant and once there ceased to be an outstanding warrant, the mediation could proceed as arranged. 

The mediation did not take place in accordance with the Court’s order because of the unilateral position adopted by the State. 

The defendant submits that it should not be obliged to engage in any mediation for the following reason which is set out in its written submissions: 

The defendant is concerned with the parties’ and legal representatives’ ability to engage in a mediation session and to comply with the respective duties to participate in a mediation session in good faith and (on the part of the legal representatives at least), the duty to the Court and to the administration of justice, is put into conflict with the knowledge that the plaintiff has absconded from the ACT and is the subjective (sic) of an “active” bench warrant for his arrest (which is by virtue of his failure to appear at Court). 

The Court provided as follows:  

I do not accept that the fact that any plaintiff in this Court is the subject of an outstanding Bench Warrant or other obligation in the criminal justice system is a reason for any party to civil litigation which is not directly concerned with, or addressed to, the circumstances of the outstanding criminal obligation is thereby excused from participating in the civil proceedings in accordance with the Court’s order (at [17]).  

Whilst it will be a question of fact in each case as to the extent of any suggested failure of compliance with an obligation of the criminal law, it is simply not within the power or remit of a litigant in civil proceedings by use of the procedures available in the civil proceedings to compel another party to the litigation to address an outstanding obligation under the criminal law in either this State or another State. The matters are separate and independent, and one cannot compel compliance with an outstanding legal obligation by unilaterally refusing to engage in civil litigation (at [18]).  

In those circumstances, I am wholly unpersuaded that there is any basis for making any of the orders set out in the State’s Notice of Motion, and I order that the State’s Notice of Motion dated 19 July 2024 be dismissed (at [19]).  

Ultimately, on 23 August 2024, the New South Wales Supreme Court ordered that the  defendant’s Notice of Motion dated 19 July 2024 be dismissed.  

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to Littles Lawyers today. 

Further Abuse Law information and case law updates can be found on our website.

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