Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: State of New South Wales v Plaintiff A [2012] NSWCA 248
• Hearing dates: 10 May 2012
• Decision date: 09 August 2012
• Before: Beazley JA at [1]; Basten JA at [5]; Hoeben JA at [109]

Decision

(1) Dismiss the application for suppression orders in respect of the names of the plaintiff, the legal representatives of the State and the medical practitioners whose names were the subject of non-publication orders in the District Court.

(2) Grant the State leave to appeal against the interlocutory judgment in the District Court delivered on 1 July 2011, in respect of each proceeding in that Court.

(3) Dismiss the appeals.

(4) Order the appellant to pay the respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - civil - appeal from discretionary decision - whether appeal limited by principles in House v The King [1936] HCA 40; 55 CLR 499 - whether Supreme Court Act 1970 (NSW), s 75A confers larger powers on appeal from discretionary decision - whether distinction exists between sentencing and other discretionary decisions - Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 discussed; APPEAL - civil - leave to appeal - appeal from interlocutory judgment - whether errors in judgment below warrant a grant of leave to appeal - District Court Act 1973 (NSW), s 127(2)(a); PROCEDURE - summary dismissal - want of due despatch - period of incapacity of plaintiff - whether lapse of time rendered fair trial impossible - whether cause of delay is relevant - whether appropriate steps taken to obtain evidence - whether sufficient evidence available to resolve issues - whether defendant and court required to accommodate delay - Civil Procedure Act 2005 (NSW), ss 56-60; Uniform Civil Procedure Rules 2005 (NSW), r 12.7; PROCEDURE - interlocutory issues - suppression orders - order suppressing names of legal representatives and witnesses - plaintiff made threats of harm - whether plaintiff's existing knowledge of witnesses' identity renders order unnecessary - whether necessary to suppress names of legal representatives - whether evidence justifies order - Court Suppression and Non-publication Orders Act 2010 (NSW), s 8; PROCEDURE - interlocutory issues - suppression orders - order suppressing name of plaintiff - plaintiff a minor at the time of alleged sexual assaults - whether universal practice of suppressing names of minors involved in sexual assaults - whether suppression order available in civil proceedings involving sexual assault - Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
• Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-60, 67, 72; Children (Criminal Proceedings) Act 1987 (NSW), s 15A; Div 3A; Courts Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8; Sch 2.1; Mental Health Act 1989 (NSW), s 29; Protected Estates Act 1983 (NSW); Supreme Court Act 1970 (NSW), s 75A; Uniform Civil Procedure Rules 2005 (NSW), r 12.7; Pt 12, Div 3
• Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256; Birkett v James [1978] AC 297; Costa v The Public Trustee of NSW [2008] NSWCA 223; 1 ASTLR 56; Eades v Gunestepe [2012] NSWCA 204; Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; House v The King [1936] HCA 40; 55 CLR 499; The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404; Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41; 14 BPR 26,639; The Queen v Carroll [2002] HCA 55; 213 CLR 635; Rinehart v Welker [2011] NSWCA 403
• Category: Principal judgment
• Parties: State of New South Wales (Applicant); Plaintiff A by his tutor "Salin" (Respondent)
• Representation: Counsel: Mr A J Black SC/Mr S W Davis (Applicant); Mr M K Rollinson (Respondent); Solicitors: I V Knight, Crown Solicitor (Applicant); Lexington Law Group (Respondent)
• File Number(s): CA 2001/95166

Decision under appeal

• Jurisdiction: 9101
• Citation: "A" bht "S" v State of NSW [2011] NSWDC 54
• Date of Decision: 2011-07-01 00:00:00
• Before: Levy DCJ
• File Number(s): DC 1998/57017; 2001/95166

HEADNOTE

[This headnote is not to be read as part of the judgment]

The State of New South Wales is the defendant in two civil proceedings brought by the plaintiff in the District Court. The first matter, commenced in 1998, relates to alleged sexual assaults by fellow students while the plaintiff was a student between 1989 and 1991 ("the school claim"). The second matter, commenced in 2001, relates to an alleged sexual assault by a fellow prisoner while the plaintiff was in custody in 1999 ("the prison claim"). The plaintiff asserts liability on the part of the State in each matter.

On 23 April 2010 the State sought to have both matters dismissed for want of prosecution pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 12.7. On 1 July 2011 Levy SC DCJ dismissed the applications.

The State sought leave to appeal from those orders. The State also sought orders permanently staying or dismissing the District Court proceedings. At the hearing, the State sought orders suppressing the names of medical and legal practitioners involved in the State's defence. The plaintiff also sought an order for suppression of his name. The issues for determination on appeal were:

(i) whether either claim should be dismissed, and

(ii) whether the suppression orders should be made.

The Court held (per Basten JA, Beazley and Hoeben JJA agreeing), granting leave to appeal and dismissing the appeal:

In relation to (i)

1. The Civil Procedure Act 2005 (NSW), ss 56-60 has diminished the stringency of the principle that a court should be reluctant to exercise the power of summary dismissal absent intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible: [17]

Birkett v James [1978] AC 297 referred to.

2. A proceeding will involve an abuse of process in circumstances where the objective effect of the lapse of time since the cause of action arose is to render a fair trial impossible, despite the absence of any moral delinquency, oppressive conduct or misconduct on the part of the plaintiff: [17]

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 referred to.

3. A claim may be summarily dismissed, despite the incapacity of the plaintiff, if a fair trial can no longer be had. However, the cause of the delay, the available evidence, the attempts to obtain evidence in a timely fashion and the nature of the claim are all factors to be taken into account: [77]

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 distinguished.

4. A fair trial might still be had. There is a considerable volume of material which would allow an assessment of the likely issues. To the extent that the delay is not the result of culpable behaviour on the part of a capable adult, the alleged tortfeasors and the court may need to take reasonable steps to accommodate the difficulties which such delay creates in order to permit an assessment of a potentially valid claim: [83]

In relation to (ii)

5. No order suppressing the name of the plaintiff should be made. The practice of suppressing the name of a plaintiff when the plaintiff was a minor at the time of conduct of the kind alleged in the school claim has not been universally accepted. Further, care should be taken in placing undue weight on practices which preceded the commencement of the Court Suppression and Non-publication Orders Act 2010 (NSW). Finally, s 8(1)(d) of that Act does not extend to distress or embarrassment in civil proceedings: [94]-[95]

Rinehart v Welker [2011] NSWCA 403; Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 referred to.

6. No order suppressing the names of the medical practitioners should be made. The plaintiff knew who they were and where they could be contacted: [98]-[99]

7. No order suppressing the names of the legal practitioners for the State should be made. It is unclear how a trial could be conducted unless the parties are entitled to be present in Court, and therefore know the names of counsel and the judge or judges presiding. The material before the Court does not support the conclusion that a suppression order is necessary: [101]-[107]

Judgment

1 BEAZLEY JA: I have had the opportunity of reading in draft the reasons of Basten JA. I agree with the orders his Honour proposes and substantially with his reasons. I would only make the following additional brief comments.

2 The primary judge's determination involved the exercise of a discretion. In accordance with the majority decision in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 that discretion is to be exercised in accordance with the principles in House v R [1936] HCA 40; 55 CLR 499. Basten JA, at [22], has referred to the reasons of Callinan J in Batistatos and his own decision in Eades v Gunestepe [2012] NSWCA 204, raising the question whether House v R principles apply to an appeal against a discretionary determination in a civil case, or whether those principles are confined to appeals in criminal matters. A brief perusal of the authorities underlying the principles enunciated in House v R would indicate that the principles are not so confined. However, the matter does not need to be decided in this case and it is unnecessary to express any view upon it.

3 The other matter which has caused me concern is whether the Court should make an order, first that the respondent's name be anonymised by the use of a pseudonym and secondly, that the names of the legal representatives of the State and the medical experts who have provided reports to the State be suppressed. Basten JA has helpfully referred to the principles that govern both applications and to the factors relevant to the determination of both.

4 On their face, neither application was unreasonable. However, as Basten JA has explained, that is not the test and the evidence adduced to support the State's application was insufficient to satisfy the requirements of the Courts Suppression and Non-publication Orders Act 2010.

5 BASTEN JA:

INDEX	Paragraph
(1) Background	8
(2) Relevant legal principles	14
(3) Abuse of process - psychiatric evidence	23
(4) The school claim
(a) consequences of delay	38
(b) case as pleaded	40
(c) death of Ms Prytherch	42
(d) presumptive prejudice - fading memories	51
(e) unravelling causal connections	61
(f) conclusions - school claim	63
(5) The prison claim	65
(6) Conclusions - fair trials	77
(7) Anonymity of parties, witnesses and counsel	86
Conclusions	108

6 This matter involves an application for leave to appeal, heard concurrently with the proposed appeal. The State of New South Wales is the defendant in two civil proceedings brought by the person known as Plaintiff A ("the plaintiff"), originally in his own name, but now through the good offices of a tutor. The State sought to have both sets of proceedings presently on foot in the District Court dismissed or permanently stayed. Although both have been considered together in the District Court, it will be necessary to identify the circumstances of each separately.

7 As a preliminary matter, the Court made an order at the hearing that the plaintiff be referred to by a pseudonym. It also reserved its decision with respect to an application that the names of the present legal representatives of the State be "suppressed". I would have rejected both applications and remain of that view. However, the reasons underlying the applications are closely intertwined with the basis for the substantive orders and accordingly may conveniently be deferred until the substantive issues have been addressed.

(1) Background

8 In the first proceeding pending in the District Court, being matter 1998/57017, the plaintiff asserts liability on the part of the State for injuries to him resulting from sexual assaults by fellow students whilst he was at Glenfield Park Special School, between 1989 and 1991. The respondent was then between 12 and 14 years of age. It is conveniently referred to as "the school claim". This proceeding was commenced in May 1998 when the respondent was just 21 years of age. However, prior to this proceeding a claim had been made in the Victims Compensation Tribunal, apparently in 1995. The Tribunal had initially dismissed the claim in September 1996, but that decision had been reversed on appeal by the District Court which awarded the plaintiff $10,000 compensation in a judgment delivered on 12 June 1997.

9 In March 1999, the plaintiff was in custody at Long Bay gaol. He made a complaint of sexual assault against a fellow prisoner whilst in custody. On 12 December 2001 the plaintiff commenced the second proceeding in the District Court, being matter 14065 of 2001, also against the State, alleging that it was legally responsible for the sexual assault on him by a fellow inmate. It is conveniently referred to as "the prison claim".

10 Neither matter has come to a hearing. On 23 April 2010 the State filed notices of motion in each proceeding seeking to have them dismissed for want of prosecution, pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR").

11 In June 2011 these motions were considered by Levy SC DCJ, in a hearing extending for three days. On 1 July 2011 orders were made dismissing the motions: "A" bht "S" v State of NSW [2011] NSWDC 54. The State seeks leave to appeal against those orders and, in place thereof, seeks orders permanently staying or dismissing the District Court proceedings.

12 The grounds sought to be relied upon in the proposed appeal were, in broad terms, twofold. First, it was said that the primary judge had failed to accept both actual and presumed prejudice to the State in defending proceedings brought with respect to events which occurred so long ago. Secondly, it was contended that the primary judge had failed to give proper weight to the prejudice suffered by the State flowing from the unavailability of psychiatric consultants who had examined the plaintiff much earlier in the proceedings, but who had indicated their unwillingness to give evidence, due to threats they had received and the perceived dangerousness of the plaintiff.

13 The application for leave and the proposed appeal were considered concurrently and as applicable in relation to each proceeding. Arguably there should have been separate appeals in relation to each matter, as the relevant circumstances are not identical: it is sufficient to deal with the matters separately. It is appropriate that there be a grant of leave to appeal in each matter, but the appeals should be dismissed, for the reasons which follow.

(2) Relevant legal principles

14 The primary basis upon which dismissal was sought invoked UCPR, r 12.7, which appears in Pt 12, Div 3, entitled "Dismissal of proceedings etc for lack of progress". The Court is empowered to dismiss proceedings or make such other order as the Court thinks fit, "[i]f a plaintiff does not prosecute the proceedings with due despatch".

15 Although there was no reference to the provision in the Court below, reliance was placed in this Court on the power to stay proceedings found in the Civil Procedure Act 2005 (NSW), s 67. Section 67 does not identify any particular criteria as relevant to the exercise of the power but, at least in the Supreme Court, it may be understood to cover a variety of circumstances in which the Court's inherent jurisdiction to prevent abuse of its process may be invoked.

16 A question as to the appropriate basis on which the dismissal motions should have been brought arises from the fact that there were two quite distinct underlying bases for the proposed orders. The first was the passage of some 13 years (as at the date of the judgment in the District Court) from the time of commencing the proceeding in respect of the school claim. The second basis was the action of the plaintiff himself which amounted to deliberate conduct having the potential effect of perverting the course of justice. These separate grounds called into play different legal principles, which in turn depended on different factual considerations, which is not to say that the grounds did not overlap.

17 Although there is authority for the proposition that a court should be reluctant to exercise the power of summary dismissal without a hearing on the merits absent intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible - see Birkett v James [1978] AC 297 at 318 - the stringency of that principle has been diminished by the enactment of ss 56-60 of the Civil Procedure Act. Further, a proceeding will involve an abuse of process in circumstances where the objective effect of the lapse of time since the cause of action arose is to render a fair trial impossible, despite the absence of any moral delinquency, oppressive conduct or misconduct on the part of the plaintiff: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [69]-[70].

18 Despite the fact that misconduct on the part of a plaintiff is not a precondition to a finding of abuse of process, the reasons for any delay are relevant considerations. Thus, it would be a rare case in which a defendant could complain of unfairness where the delay was in large part due to the defendant's own behaviour. By parity of reasoning, a court is likely more readily to find an abuse of process where there is culpable misconduct on the part of a plaintiff.

19 The State did not complain about the direction the primary judge gave himself with respect to the relevant legal principles. The complaint was rather about their application. Accordingly it is not necessary to consider further the content of those principles.

20 It is, however, necessary to refer to the approach to be adopted in dealing with an appeal from a refusal to dismiss proceedings on the basis that, although not abusive when commenced, they have become an abuse of process. The kinds of question which may arise have been considered in a number of contexts: see, eg, Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41; 14 BPR 26,639 at [30]-[40] (Spigelman CJ), [100] (Handley JA) and [106]-[111] (in my judgment). However, it is not necessary to consider further the case law there referred to as there is explicit High Court authority on review of a finding with respect to an abuse of process in civil proceedings.

21 In The Queen v Carroll [2002] HCA 55; 213 CLR 635, the High Court considered whether an indictment for perjury, based on the testimony of the accused at an earlier trial for murder, in which he had asserted his innocence, should be stayed as an abuse of process. (The accused had been acquitted of murder on appeal.) The Court upheld his appeal against his conviction for perjury. In discussing the power to stay a proceeding, Gaudron and Gummow JJ noted that the power was not properly described as "discretionary" in the sense that once an abuse of process was established, there was a discretion to refuse a stay. They noted, however, that "as with discretionary decisions, properly so called, appellate review of its exercise" depended on House v The King principles: at [73]. That passage was adopted in civil proceedings involving an alleged abuse of process in Batistatos at [7] (Gleeson CJ, Gummow, Hayne and Crennan JJ). The appeal to this Court from the primary judge in Batistatos was governed by s 75A of the Supreme Court Act 1970 (NSW). Despite the potential breadth of the appellate powers conferred by that section, this Court is bound to review the evaluative judgment undertaken by the primary judge by reference to the same principles as if it were an exercise of discretionary power.

22 As pointed out by Callinan J in Batistatos, s 75A "makes no distinction between appeals on factual and legal grounds, it says nothing about, and in no way suggests that appeals against discretionary decisions require different treatment from other appeals": at [223]. Suggesting that the application of House v The King principles beyond a criminal case and in relation to a sentence might be inappropriate, Callinan J suggested that judges "need to be careful about erecting qualifications and barriers to their powers, whether out of expediency, judicial defensiveness, fear of the collapse of floodgates limiting the flow of appeals, or otherwise, if the relevant authorising statute makes no provision for them". To that may be added to oft cited admonition to similar effect, that it is "quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words": The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421. Ultimately, it may not be possible for an intermediate appellate court to reconcile these statements of principle: cf Costa v The Public Trustee of NSW [2008] NSWCA 223; 1 ASTLR 56. In the specific context of the present case, it is necessary for the Court to follow the guidance of the majority in Batistatos: cf Eades v Gunestepe [2012] NSWCA 204 at [2]-[7].

(3) Abuse of process - psychiatric evidence

23 It is convenient to consider first the claim made by the State in respect of the deliberate misconduct on the part of the plaintiff in refusing to co-operate with psychiatrists instructed by the State and then threatening them individually to prevent or at least discourage them from any further involvement with the litigation. This complaint had an additional element. The misconduct was said to have caused actual prejudice because for a period of years of the State was deprived of an opportunity to have the plaintiff assessed independently with respect to the possible effects of the allegations involved in the school claim and, separately, with respect to the possible effects of conduct the subject of the prison claim. If unsuccessful in its defence of either claim on liability, the State would wish to be in a position to distinguish between the applicant's psychological condition prior to the tortious conduct in each case and thereafter, in order to assess the asserted causal connection. This aspect of the challenge thus affects both claims and is conveniently considered first, as a common element, although it may operate differentially in each case.

24 It is not in doubt that the plaintiff is, and has for some time been, psychiatrically disturbed. The difficulty will be to assess the cause of his condition, given that there have been numerous episodes of abuse alleged by the plaintiff over the years, the results of which (if the allegations were accepted) have become more difficult to disentangle over time.

25 According to an affidavit of a solicitor acting for the State, two psychiatrists interviewed the plaintiff in 1999, one in 2000 and one in 2001. Each gave details of threats made by the plaintiff and each has declined to allow his or her report to be served or tendered in evidence. For the purposes of the State's application, the solicitor was, however, prepared to provide selected extracts from the reports which, on their face, were sufficient to explain the reasons why each doctor was unwilling to have any further involvement with the plaintiff or his case, each believing he or she had been credibly threatened with physical violence by the plaintiff. What is less clear is whether any of the doctors obtained any useful information in the course of their interviews. Dr B apparently advised that:

"The plaintiff was an extremely unreliable informant who provided inconsistent and/or incorrect information about the most salient issues in the claim including his family's functioning, his functioning prior to going to the School and the incidents which he alleged occurred there."

26 The doctor apparently expressed the further view that the plaintiff had "a gross personality disorder" but not one that the doctor attributed to the alleged assaults. Dr C, who also saw the plaintiff in 1999, appears to have expressed similar views. With respect to Dr D, who saw the plaintiff in 2000, the solicitor provided the following summary of a salient passage in his report:

"The plaintiff was an extremely difficult person to interview and ... his conduct suggested that he did not take the interviews seriously. Dr D thought that the plaintiff had established a pattern of lying, manipulation, deception and false allegations which have confounded the usual ways of [evaluating] mental state."

27 Although Dr D was also unable to obtain a relevant history, he expressed the view that "if the assaults had not happened, the plaintiff would have developed a personality disorder of a less severe type":

28 Dr A interviewed the plaintiff in August 2001. There was no interview, as the plaintiff was difficult and aggressive when he arrived at the doctor's rooms. There was a further incident one month later, when the doctor believed that the plaintiff had come to his home and sought access through the intercom at his gate, asking "Does [Dr A] live here?"

29 In addition, there were brief formal affidavits from each of the four doctors whose names had been anonymised indicating who each doctor was and stating that he or she had read the parts of the solicitor's affidavit "referable to" him or her and stating in identical (and inapt) terms, "I adhere to the contents". (Whether these affidavits were supplied to the plaintiff is unclear.) It might be inferred from that material that each practitioner was satisfied with the accuracy of the summaries given of his or her views by the solicitor in his affidavit. (Given that the views of the psychiatrists were central to one aspect of the State's application, it would take special circumstances to justify relying on this material by way of anonymous hearsay. That course could hardly be justified by reference to some claim that their identities should be concealed from the plaintiff as he self-evidently knows exactly who they are. Although no point was taken in this Court as to the admissibility of this material, it should not be assumed that the course taken was implicitly treated as justifiable.)

30 On one view, although the plaintiff's threatening conduct has deprived the State of relevant evidence, those parts of the summaries by the solicitor set out above suggest rather that the doctors, for the most part, failed to obtain any relevant information upon which to base a professional opinion as to the causative effects (if any) of the alleged assaults on the plaintiff's psychiatric condition. In other words, although the threatening conduct undoubtedly dissuaded the doctors from taking any part in the proceedings, the real problem was that, although he attended for appointments, the plaintiff did not co-operate in any relevant sense. The second point sought to be relied upon by the State was that, in seeking further medical assessments, its solicitors felt obliged to disclose the prior misconduct, with the result that other psychiatrists were not prepared to be involved. (The precise period during which this impasse arose is unclear from the evidence.)

31 The material summarised so far is not to be viewed in isolation, but in the context of the other evidence, including reports from three consultant psychiatrists obtained for the plaintiff. First, there was Dr Jonathan Phillips, who interviewed the plaintiff on 10 July 2001. His report dealt with the allegations of sexual assault at the school and made no reference to subsequent assaults. Although the report attributes an unquantifiable causal connection to the sexual assaults, it is undoubtedly an important professional assessment prepared in conformity with the code of conduct for expert witnesses, as it asserts. There was no suggestion that Dr Phillips would not be available for cross-examination.

32 A second report, prepared by Dr Osman Ali, dated 10 June 1999 related specifically to a history of assaults in gaol including, in particular, being sodomised by another inmate, apparently on 21 March 1999, as recorded in the prison medical records. Dr Ali referred to reports by Dr I Richards, of 20 April 1994 and from Rozelle Hospital of 6 March 1995, where the plaintiff was examined by a Registrar under s 29 of the Mental Health Act 1990 (NSW). In addition, Dr Ali detailed three other reports of psychiatrists prepared between January 1996 and July 1998 and two psychologist's reports of May 1995 and February 1996: see [48] below..

33 A third report was prepared by Dr Peter Vaux, who interviewed the plaintiff on 29 March 2011 at Silverwater Gaol. He had previously seen the plaintiff in 2008 and 2009 on five occasions and had had access to "multiple reports used for this case and other cases that have come before the courts": report, p 1. (The attachment listing these documents appears not to be in evidence.) Dr Vaux' report has the hallmarks of an objective assessment of the plaintiff, from a psychiatric point of view, noting the difficulties in both diagnosis and assigning or apportioning causal influences between genetic factors, assaults and the use of psychosis-inducing drugs. Dr Vaux concluded that "the events that are alleged to have happened would have contributed to his illness and personality disorder". He noted the recurrent nature and sheer number of the assaults at the school as a significant factor and the "threat of violence associated with the attack in prison" which made that "a very significant event and compounds the effect of the prior events". Nevertheless, Dr Vaux concluded, p 10:

"A true assessment of the individual impact of both similar events is difficult to unravel accurately now as their history is polluted by their retelling on many occasions and the only way to make a clearer judgment would be to assess the acute psychiatric records over the time between the events. However even this in my opinion would probably only lead to further guessing regarding this question rather than a true clear decision."

34 This brief synopsis of part of the available medical material leads to two conclusions. First, there is a volume of material available from qualified psychiatric sources whose expertise (with the possible exception of Dr Ali) would not be challenged and whose objectivity has not been questioned by the State in these proceedings. Part of that material was created between the events the subject of the separate claims. These circumstances diminish significantly the consequences for the State in being unable to obtain its own psychiatric evidence between 1999 and 2001, and until very recently.

35 Secondly, the material, particularly Dr Vaux' report, casts doubt upon whether the causal elements would have been more readily unravelled by the obtaining of further reports in 1999 or 2000. It is likely that far more weight will ultimately be given to such material as exists which pre-dates the events underlying the school claim and the material which post-dates those events but pre-dates the prison claim. It is also necessary to bear in mind that the plaintiff will bear the onus of proving a connection between any tortious conduct established on the facts and the psychological consequences which will found his claim in damages.

36 In this situation, three considerations militate against dismissal of the claim on this ground alone. The first consideration is the possibility that the plaintiff's misconduct is indeed a function of abuse for which the State bears part of the responsibility. A party whose tortious conduct causes harm should not readily be permitted to escape a trial because the harm has disabled its victim, even if the disability expresses itself by misconduct prejudicial to the interests of the alleged tortfeasor. This factor militates against dismissal of the proceedings on the basis of the misconduct alone. The second consideration is the absolute injustice to the plaintiff if his misconduct is treated as a disqualifying factor and his claim has merit. By contrast, the injustice to the State in allowing the claim to proceed will not be absolute, partly because the plaintiff bears the onus of proof and partly because the State will not be wholly precluded from defending itself, but will merely be subject to the constraints which may have resulted from the plaintiff's misconduct and, indeed, it may succeed. The third consideration, which is relevant in the preceding assessment, is the volume of material available from psychologists and psychiatrists, which evidence may be of greater objective value than that obtained specifically for forensic purposes.

37 These consideration favour an assessment of prejudice which has regard to other elements, including the other effects of the delay in bringing the proceedings to trial.

(4) The school claim

(a) consequences of delay

38 Although the State relied in relation to the school claim upon the total period of time which has elapsed since the alleged assaults, it did so as a contextual element against which to view the primary complaint, directed to the inaction between 2001 and 2012. That primary complaint relied on three elements of prejudice, namely:

(a) the death of a potentially important witness, Ms Prytherch;

(b) the fading of recollections generally, and

(c) the difficulty of unravelling the consequences of the alleged abuse, if established, from subsequent events.

39 The primary judge undertook a meticulous, not to say exhaustive, analysis of the history of the proceedings. Whilst accepting that there had been substantial delays, he concluded that the plaintiff "should not be procedurally penalised" for the delays incurred, because "during the entire period under consideration, he has been a person affected by legal incapacity who has, until very recently, also been without legal representation and without representation by a legally responsible tutor": at [247]. The State's criticisms of the lengthy judgment may be summarised in the following terms:

(a) the primary judge wrongly dismissed the claims of actual prejudice advanced by the State;

(b) the primary judge also failed to give proper weight to prejudice which should be presumed from the long lapse of time;

(c) the approach of considering each specific element of prejudice separately failed to give proper weight to the whole circumstances viewed collectively, and

(d) the fact that it was possible to identify reasons for each period of delay which did not involve blameworthy conduct on the part of the plaintiff provided no answer to the complaint that a fair trial was no longer possible.

These criticisms have force, for the reasons given below. It is therefore convenient, in assessing those criticisms, for this Court to make its own assessment of the evidence and submissions.

(b) case as pleaded

40 The school claim, in the form of the amended statement of claim filed on 10 March 2003, which is the only pleading before this Court, alleged that between 1989 and 1991 the plaintiff was sexually assaulted and otherwise assaulted and beaten by three named fellow students at Glenfield Park Special School. It alleged that the school was "managed and controlled" by the State, either through the State Department of Education or the State Department of Community Services. It alleged negligence on the part of the State in "the care, control, management and supervision of the Glenfield Park Special School, its employees, its students and/or the Plaintiff thus allowing, facilitating and/or resulting in acts of violence, physical and sexual assaults upon the Plaintiff". Amongst other matters, the particulars of negligence included exposing the plaintiff to a risk of injury of which it knew or ought to have known and failing to "observe" that the plaintiff was in a position of peril. The particulars of injury were not physical, but shock and psychological injury. The particulars of disabilities identified various psychological and psychiatric conditions and, more generally, "constant feelings of anger and rage" and "inability to lead a normal adult life".

41 Although the language and formulation of the pleading leaves something to be desired, it is clear that, if the matter goes to trial, it will be necessary for the Court to address at least the following factual questions:

(a) was the plaintiff assaulted, sexually or otherwise, by the three named students?

(b) should the officers of the State have taken steps, whether based on that which they knew or that which they should have known as to the situation of the plaintiff, to prevent such assaults?

(c) if the assaults took place, did they cause or materially contribute to any, and if so which, of the psychological conditions suffered by the plaintiff?

(c) death of Ms Prytherch

42 Ms Prytherch was an employee in the Department of Education who held the position of "dormitory supervisor" from 1975 until her retirement in July 1992. On 16 May 1993 she provided an unsigned statement in relation to a complaint which the plaintiff had by then made to police in respect of the alleged assaults in 1989. Her evidence might have been relevant to the case because she remembered the plaintiff, apparently throughout the time that he attended Glenfield Park Special School. In particular, her statement said that he came into the dormitory where she was working in "about 1989", being the first year of the alleged assaults. The statement asserted that she had "no knowledge about [the plaintiff] making any complaints to anyone about having been sexually assaulted". She further stated by way of particularity that he never complained to her, although she said that she "always got on well" with the plaintiff. She did, however, refer to the fact that the plaintiff was given "a hard time" because others "used to pick on him", that he was "a bit effeminate", that there was talk amongst the boys and the staff about the plaintiff "having sex with the other boys" and that many reports were made, apparently to the principal, and never recorded.

43 Ms Prytherch died in July 1998.

44 The primary judge noted that the proceeding in respect of the school claim was commenced within the limitation period, in May 1998 and before Ms Prytherch died. He considered that the availability of her statement, although unsigned, and the fact that the death of a witness was an inevitable risk in relation to any litigation, meant that no prejudice was demonstrated. While accepting the general propositions, the State complained that the primary judge had failed to consider the consequences of her absence for the prospect of the State obtaining a fair trial. The State further rejected the inference of any lack of diligence on its part, given that the proceedings were commenced only two months before Ms Prytherch's death and that there was evidence that she had been diagnosed with the cancer which ultimately took her life some 10 months before the proceedings were commenced.

45 Taken in isolation and understood in context, the death of Ms Prytherch could not have caused the continuation of the proceedings to become an abuse of process. It is necessary, however, to recount some further procedural history in relation to the claim. There was material before the Court which indicated that the plaintiff left Glenfield Park Special School in December 1992. He was then 15 years of age. There was also evidence that the incidents at the school occurred in July 1989, when he was 12 years of age. He reported the matter to police in January 1993, within two months of leaving the school. On 19 March 1993 Detective Sergeant Issanchon, then stationed at Ashfield Police Station, took a statement from the plaintiff. In it, the plaintiff named his assailants. Detective Sergeant Issanchon located and interviewed two of the young men involved, each of whom admitted "belting" the plaintiff but each denied sexual assault.

46 On 15 January 1993 the plaintiff was referred to the Child Protection Unit at the Children's Hospital, Camperdown. An assessment report was prepared by a paediatrician and social worker at the Hospital. The report recorded that the plaintiff had made a complaint on 7 January 1993 at the Strathfield Community Service Centre of sexual abuse by three students. The report stated that the plaintiff had "submitted a written report concerning allegations of anal intercourse and fellatio by three boys", who were named. It continued that the plaintiff alleged that "he made a statement in 1990 to Max Bancroft and Shirly Slater, school staff, which apparently was misplaced, but [the plaintiff] has since produced a photocopy of his statement in 1991". The report described the allegations of assault and continued:

"[The plaintiff] tended to strongly relate all these offences to a litany of present physical complaints.... He reported that these symptoms mainly began occurring when he was 13 years old. [He] maintains that after the first incident he was very disruptive at home damaging objects and swearing. He was sent to see a psychologist but he could not explain what was happening. The students at school started calling him a bastard and a poofter. He still feels very resentful to the teachers who used to push him around. He could not tell his father as he thought he would be kicked out of the house. His main complaint is that he maintains that Max Bancroft, the head of Glenfield Park, told him that he enjoyed it and his mother also [reiterated?] this."

47 In early 1995, the applicant registered a claim against the Victims Compensation Fund. Applications in respect of seven alleged acts of violence were ultimately determined by the Tribunal in a decision delivered on 3 September 1996. In relation to the school claim, it is apparent that the Tribunal had before it a statement of the house parent at the school, the school principal, a residential co-ordinator at the school in 1991-1993, as well as Detective Sergeant Issanchon's statement. The claim was dismissed. An appeal was taken to the District Court in which proceeding the plaintiff gave evidence on 11 June 1997. He was cross-examined by counsel for the Compensation Fund. The judge concluded that the assaults did occur substantially as alleged and that some injury of a psychological kind was caused to the plaintiff. He awarded compensation in an amount of $10,000.

48 On 28 April 1997, prior to the appeal being heard, the plaintiff was referred by his then solicitors to Terry Kesby-Smith, a clinical psychologist. A copy of his report, of the same date, was in the material tendered before the primary judge. Although the Child Protection Unit report is probably the earliest assessment made following the plaintiff's statement of his claims with respect to the conduct in the school, it may be noted that by June 1999, Dr Ali had before him a report of Dr I Richards dated 20 April 1994; a report from Rozelle Hospital dated 6 March 1995; a report of Dr Carne, dated 8 January 1996 and a report of Dr John Taylor, clinical forensic psychologist, dated 21 February 1996. There followed the careful assessment by Mr Kesby-Smith of 28 April 1997 and then a report of Dr John Roberts dated 6 April 1998 and a further report of Dr Rosalie dated 28 July 1998. (Dr Ali's report was dated 10 June 1999.) Whilst not all this material was in the evidence before the primary judge, the evidence did not demonstrate that it was unavailable to the State, nor, if that was the case, why that was so. (The evidence did demonstrate unsuccessful attempts to locate former Det Sgt Issanchon.)

49 It follows from this brief synopsis of the written documents created between 1993 and 1999 that the plaintiff's allegations had been clearly put, with detail as to individuals involved, to the police, to child protection authorities and to independent professionals. Further, statements appear to have been taken from at least some of the staff at the school during the relevant time. Whether these staff (other than Ms Prytherch) are now unavailable to give evidence does not appear from the material tendered in the District Court. However, apart from the fact that Ms Prytherch provided an unsigned statement, there appears to be a significant amount of material, broadly contemporaneous with that statement, which has not been shown to be unavailable and (other than that which was obtained after her death) would all have been available at the time of her death. It follows that the death of Ms Prytherch cannot, by itself, have caused irreparable prejudice to the State. Indeed, put in context with other statements, it is partly supportive of the State's case (absence of complaint to a self-identified sympathetic ear) and partly supportive of the plaintiff's case (he was subject to bullying and there were rumours of sexual activities). Finally, it was unclear in what sense Ms Prytherch was to be treated, as the State submitted, as the officer for whose conduct the plaintiff was alleging responsibility on its part.

50 Her death is not to be excluded from consideration, but it should have quite limited weight in a final balance.

(d) presumptive prejudice - fading memories

51 In addition to the death of Ms Prytherch, the State noted that Detective Sergeant Issanchon was unable to be located, according to the evidence before the primary judge, and hence was unavailable. The primary judge made no reference to that unchallenged fact.

52 In considering the question of faded recollections, the primary judge undertook a similar exercise to that set out above in assessing the evidence obtained prior to 2001. He referred to the statements before the Victims Compensation Tribunal from staff at the school and found that there was "no evidence these witnesses are either unavailable or that their recollections have significantly faded": at [210]. He also found that the plaintiff's statement of 19 March 1993 provided "a coherent account of the events comprising the sexual assault claim concerning the plaintiff's time at the school": at [212]. However, each of these points was misconceived. The submission that recollections would have faded did not depend on evidence; nor was the existence of a statement of the plaintiff's claim relevant to the complaint that witnesses who might have been able to give evidence for the State would no longer recall the detail required of them.

53 The reasoning continued in like vein. Following a reference to the records available and relevant to the prison assault - at [213] - the analysis appeared to divert to a consideration of whether there was evidence corroborative of the plaintiff's claim: at [214]-[216]. The primary judge noted that there was "no legal or evidentiary requirement that for their acceptance, the plaintiff's claims must be supported by corroborative evidence" and that the claims "are capable of being sustained on the basis of the evidence of the plaintiff alone": at [215]. He further stated (at [216]) that it was -

"... unreasonable for the defendant to assert that it is relevantly or even significantly prejudiced by reason of the absence of corroborative material with which to test the veracity of the evidence of the plaintiff. That unreasonableness necessarily arises because corroboration is not a legal pre-condition or requirement for success of the claims made by the plaintiff. Further, there is no evidence that such corroborative material existed at an earlier time but is no longer in existence. No relevant prejudice can arise from those circumstances".

54 It is true to say that a complaint of prejudice arising from the fading of recollections need not be limited to witnesses potentially supportive of the State's defence, but could also operate with respect to the plaintiff's evidence. Thus, there are significant difficulties in challenging by cross-examination the accuracy of a statement made long before the trial, of events as to which the deponent can only say that his account given closer to the time was accurate and that he has no independent recollection of the events in question or, perhaps more importantly, the surrounding circumstances. However, the thrust of the State's complaint appeared to be the presumption that its own witnesses will have limited recollection of the events in question and may, indeed, no longer be able to give material evidence.

55 The primary judge concluded at [217]:

"On the foregoing analysis I reject the submission that material, relevant or significant prejudice arises because of the effluxion of time and the likely fading of memories so as to diminish the likelihood of reliable evidence being available to be called at the trial of these proceedings, to either test the plaintiff's versions of events, or to contradict them."

56 The "foregoing analysis" was flawed for the reasons noted above. The State complained that it did not provide a basis for rejecting its submissions. That complaint should be accepted. However, thereafter the submissions for the State took a different turn. They noted that "there were no witnesses to either of the alleged torts" and that the school assaults "were not reported to the school at the time": par 22. The available evidence, it was suggested, was limited to the affidavit of the plaintiff of 19 November 1996, the unsigned statement of Ms Prytherch and the transcript of the plaintiff's oral evidence before the District Court on 11 June 1997. For reasons set out above, there may have been other material available, even though it was not before the Court. However, the submission then proceeded that:

"The Court and the parties will be thrown back upon wishfully hoping that someone will have some memory of these unwitnessed and essential undocumented and uncorroborated sexual assaults that are alleged to have occurred between 12 and 22 years ago. It is submitted that the trial would be even less than ceremonial enactment.

The absence of useful documentary corroboration means that this is essentially a case dependent upon the oral evidence of witnesses, a contest which the applicants are essential locked out of because the torts were unwitnessed, and the tortfeasor for whom Education is allegedly vicariously liable, Prytherch, is dead."

57 These submissions do not take the matter very much further. The fact that the alleged assaults were unwitnessed (presumably meaning by independent bystanders) merely means that there were no independent recollections to fade. A more important factual dispute is likely to turn on evidence that those for whom the State was responsible either knew or should have known of the risk to which the plaintiff was exposed and which, if the assaults took place, materialised. There may have been an element of inconsistency in the evidence given by the plaintiff as to whether he made any prior complaint to an officer at the school. Alternatively, there may have been a question as to whether, to the extent that the plaintiff was "acting up", the officers should have investigated the reason for such behaviour. In this regard, the potentially relevant evidence was not so much that of Ms Prytherch, to whom the plaintiff does not appear to have suggested he made any complaint, but the evidence of any person to whom he claimed he might have complained. That issue was not explored in submissions for the State. Ms Prytherch's evidence, on one view, supports the plaintiff indirectly in that she suggested he had an "effeminate" quality and was bullied by the elder boys. Further, two of the boys appear to have admitted assaulting him, to Detective Sergeant Issanchon. Whether a court would infer, in the face of their denials, that he was sexually assaulted is a question for a trial court. No clear submission was made that the evidence of either the plaintiff or the claimed assailants would have faded with regard to such incidents, if they occurred. The weakness in the argument for the State is not that the presumption that recollections will have faded should not be accepted, but the concession that there were no independent eye-witnesses with recollections.

58 It must be accepted that the recollections of officers at the school at the relevant time will by now have faded. What is not revealed by the evidence tendered by the State on its strike out motion is the extent to which it has obtained statements from potentially relevant officers, including those who have by now retired. That such steps were taken and that some potentially relevant material exists may be inferred from other evidence. The State's failure to provide a comprehensive account of the material it does have prevents this Court making the necessary full assessment of prejudice and must weigh against acceding to the State's application.

59 For example, in his interview with Detective Sergeant Issanchon, on 19 March 1993, the plaintiff stated, in the course of a question and answer interview that the first person he had told about the assaults at the school was a lady, referred to as "Sharon Hardy", who he said worked at the school. He said that he also told "some of the staff at the school" but that they had told him "to shut up and keep it as a secret". The Victims Compensation Tribunal appears to have had a police statement prepared by a Ms Sharon Harding, who is described as a "houseparent" at the school. The summary of her evidence in the reasons of the Tribunal appears to confirm that the applicant made allegations of sexual assault to her, but not with respect to the three alleged offenders whose conduct is relied on in these proceedings.

60 In his cross-examination in the District Court, the plaintiff was asked about the statement of Ms Harding and denied talking to her about sexual activity. He also denied complaining to her about the two students whom she had named in her statement: Tcpt, 11/06/97, pp 13-14. There was no evidence before the primary judge as to the unavailability of Ms Harding, the unavailability of Mr Bancroft, who was apparently the principal at the school at the relevant times, nor as to the unavailability of the school doctor, Dr Clayton, and other counsellors in relation to whose presence the plaintiff was cross-examined. There was no evidence as to whether the State had obtained statements from them between early 1995, when it might reasonably have been expected to become aware of the school claim (then a claim lodged in the Tribunal), and 2001 or even 2010. If statements have in fact not been obtained, that would require explanation.

(e) unravelling causal connections

61 At the hearing of the appeal, the State placed weight upon the difficulties in disentangling the causal events which may have contributed to the plaintiff's present psychiatric condition. As already noted, the plaintiff was interviewed by four doctors for the State, two in 1999, one in 2000 and one in 2001. In the course of submissions in this Court there were suggestions that the plaintiff is no longer uncooperative or abusive in respect of medical consultations. However, the State submitted that the prejudice which it had suffered was as a result of the unavailability of the material which might have been obtained between 1999 and 2001. That material, it submitted, would have allowed it to make a more closely contemporaneous assessment of the psychological state of the plaintiff and thus permit a realistic assessment as to the likelihood that his condition was caused or contributed to by the particular events the subject of the respective claims.

62 This complaint has substance, but its capacity to reveal prejudice to the State has already been addressed in considering the psychiatric reports that are available and, in particular, the observations of Dr Peter Vaux. It is, indeed, a difficulty which the Court will now face in unravelling the causal links between any alleged tortious conduct and the plaintiff's current psychiatric condition which underlies the claim of prejudice flowing from the plaintiff's misconduct in 1999 and 2001. No further consideration is required under this heading.

(f) conclusions - school claim

63 As a matter of principle, the primary judge erred in two primary respects in his approach to the question before him. First, by dividing the case for the State into separate elements and separate periods of time, he failed to assess adequately the collective consequences for the State being required (probably no earlier than 2013) to address a liability in respect of the school claim which arose some 24 years earlier. Secondly, whilst not required to ignore the lack of culpability on the part of the plaintiff for the delay, that factor was given inappropriate weight in rejecting the alleged abuse of process.

64 That conclusion requires that this Court reconsider the State's application. In that exercise this Court is in a similar position to the primary judge, no oral evidence having been taken on the motion.

(5) The prison claim

65 The submissions for the State paid little separate attention to the prison claim. In effect, the difficulty in obtaining a medical examination and report and the prejudice flowing therefrom pre-dated the commencement of proceedings, in December 2001, in respect of the prison claim. Thereafter, in the language of the submissions, the two proceedings ran together. It is necessary, therefore, to deal with the application for a stay of the prison claim by reference to the overall circumstances involved in the lapse of time since December 2001. The State says that some account must be taken of the period from the date of the assault until the filing of the claim. That may be so, although that period is not itself excessive and is of less significance except by way of context.

66 There are two dates of central significance in respect of the events of the last 12 years. When the school claim proceeding was commenced, the plaintiff was represented by Voros Lawyers of Burwood. They were still acting for him in December 2001 when the prison claim proceeding was commenced. However, in circumstances which are not revealed in the evidence (but may have included his non-compliance with directions to attend interviews with the State's experts and his alleged abusive behaviour), both the plaintiff's solicitor and senior counsel appear to have formed a view that the plaintiff's mental state was such that he required a tutor. As far as the evidence shows, the school claim was adjourned on 14 February 2001 to allow an application to be made to the Protective Commissioner for that office to act as tutor. On 8 May 2002 the Guardianship Tribunal made an order under the Guardianship Act 1987 (NSW) which committed the management of the plaintiff's estate to the Protective Commissioner. As explained by a solicitor for the State in an affidavit of 3 December 2007 (par 65), the effect of the order was to suspend the power of the plaintiff to deal with his own estate without authorisation from the Protective Commissioner. That order was not revoked until 22 November 2005.

67 There is no evidence from the Protective Commissioner as to precisely what took place over that period, slightly in excess of 3.5 years. It appears, indirectly, that the Protective Commissioner was considering acting as tutor, but sought some assurance that an earlier grant of legal aid would be continued and also sought co-operation from the plaintiff, which was apparently not forthcoming. At some stage, it appears that legal aid was revoked, or not continued, and Voros Lawyers ceased to act. By late 2005, however, it was clear that the Protective Commissioner was not prepared to act as tutor. In principle, that meant that the plaintiff was free to act on his own behalf. However, on 23 June 2004 Robison DCJ had ordered that both matters be stayed pending the appointment of a tutor in each matter. Accordingly, no further steps could be taken until that appointment occurred. In speaking of the difficulties faced by the Protective Commissioner, in his interlocutory judgment of 24 June 2004, Robison DCJ noted at p 4:

"In this regard the plaintiff's counsel has referred to the incarceration of the plaintiff at respective times, having regard to his criminal history. I would go further than that. It is possible that the lack of co-operation in part is explained by the very nature of the plaintiff's incapacity itself."

68 The significance of that comment, if soundly based, was, however, not recognised in the ensuing steps, nor acknowledged by the State in these proceedings.

69 The matter came back before Robison DCJ on 11 February 2008. In a further interlocutory judgment, his Honour stated at p 3:

"What has happened since [23 June 2004] is that the financial management order made by the Tribunal was revoked on 22 November 2005. That appears to have been the trigger for the plaintiff's application to continue these proceedings without the appointment of a tutor. He relies significantly on what the Tribunal found which led up to the revocation of its order and I shall return to those specific matters later during the course of this judgment.

The defendant, on the other hand, is effectively keen to have these proceedings permanently stayed but as I indicated earlier, that application needs to be held in abeyance at this stage.

As to the issue of the plaintiff's competency to continue these proceedings, effectively the submissions of senior counsel for the defendant are that the plaintiff is really not competent to continue these proceedings without the appointment of a tutor."

70 After noting that the plaintiff himself did not wish to have a tutor (judgment, p 20) his Honour came to "a very firm conclusion, that there are no circumstances which would justify the revocation of the order that I made in 2004, that is, the order staying the proceedings pending the appointment of a tutor": p 21. He described the order as "a protective order for the plaintiff" as it protected him from "any further action that the defendant may seek to take in relation to the motions which the defendant has placed before the Court; that is, effectively, for a permanent stay of the proceedings".

71 In the chronology provided by the State, by way of a solicitor's affidavit, reference was made (par 7, p 7) in the entry for 11 February 2008 to the State's notice of motion seeking a permanent stay and the order made by Robison DCJ. Reference was also made to the plaintiff saying from the bar table, as recorded by the judge, "I don't want a tutor as a tutor is only going to mess the case up". The inference which might have been drawn from that synopsis was that it was the plaintiff who was delaying proceedings by not obtaining a tutor, whereas the State had in fact submitted during the course of the proceedings that the evidence supported the continuation of the protective order.

72 Nothing further is noted in the chronology until 19 November 2008, when the plaintiff provided the Crown Solicitor with a copy of Dr Vaux' report of 6 June 2008. After quoting from the report, the plaintiff's letter concluded:

"In view of the above findings made would you kindly arrange for further cognitive testing through a chosen doctor employed by the Crown Solicitors Office as soon as possible". (Blue 207.)

73 There is no suggestion of any response from the Crown Solicitor's Office to that letter. However, on 9 December 2008 the plaintiff sent the Crown Solicitor a copy of a "consent to act as tutor" executed by Ms Nina Salin and naming a firm of solicitors. The document was described in the chronology as "unsealed".

74 If the fact that the document was "unsealed" was considered a problem, that concern was apparently not expressed to the plaintiff. Rather, on 19 December 2008 the plaintiff wrote again, repeating a request made in his letter of 9 December 2008 enclosing the notice of consent to act as a tutor, for details of the solicitor having the carriage of the proceedings on behalf of the State. He did not receive the courtesy of a response, perhaps because the State Crown Solicitor's staff were wary of being identified. Three months later, on 10 February 2009, a solicitor from the Crown Solicitor's Office wrote to Slattery Thomson, the solicitors identified on the consent to act as tutor, seeking advice as to whether they did intend to act for the plaintiff.

75 Presumably no reply was received, because a further letter was sent on 23 February 2009. What happened thereafter is not clear. However, on 9 December 2009, not having heard from Slattery Thomson, the Crown Solicitor finally wrote to the plaintiff asking him to advise "what is happening in the above two matters". The letter noted (for the first time) that the consent to act as tutor had not been filed and therefore the matter could not progress. The letter further asked whether the plaintiff had legal representation. The plaintiff responded on 11 January 2010 noting that counsel had been instructed and that he intended to proceed.

76 It would appear that no point is taken in respect of any delay from 11 January 2010. The next document in the proceedings was an affidavit from a solicitor acting for the plaintiff, filed 3 May 2011, the plaintiff having then instructed Mr Ulysses Coustas of Lexington Law Group at Bankstown. The last affidavit filed on behalf of the State was a solicitor's affidavit of 23 June 2011 (Blue 455) which recorded inquiries made, apparently for the first time in 2011, seeking information which the existing records suggested might be available. The inquiries were mainly unsuccessful, although the affidavit did not seek to identify comprehensively the material which was available.

(6) Conclusions - fair trials

77 The State relied on the reasoning in Batistatos for the proposition that incapacity of a plaintiff does not prevent summary dismissal if a fair trial can no longer be had. That proposition is correct. However, the cause of the delay, the available evidence, the attempts to obtain evidence in a timely fashion and the nature of the claim are all factors to be taken into account. The material available in the present case puts it in a different category from Batistatos, where the paucity of the extant information was fatal to the plaintiff's attempt to proceed. That distinction may also not be determinative: each case must be evaluated on its own facts.

78 The long delay which has been incurred in respect of both proceedings is undoubtedly a matter for grave concern. What is apparent, however, is that for most of the period the proceedings were stayed, either because the plaintiff was subject to a financial management order or, and for most of the period additionally, because there was a stay pending the appointment of a tutor, the District Court being satisfied that a tutor was required for the proper management of the proceedings.

79 There is a further factor which should be noted. The correspondence between the plaintiff and the Crown Solicitor after 2008 sought to allow a further opportunity for a psychiatric assessment. That was ignored. Having outlined the abusive behaviour of the plaintiff in 1999-2001, the position apparently taken by the Crown Solicitor has been that no further attempt should be made to instruct a psychiatrist. Thus, in the third solicitor's affidavit filed for the State in the District Court, dated 22 April 2010, the deponent stated at paragraph 38:

"I am instructed not to attempt to have the plaintiff medico-legally assessed by any other medical practitioner because of the likelihood that the plaintiff will repeat his intimidation of any new witness brought into the case as evidenced by his intimidation of the above doctors."

80 The source of those instructions was not revealed nor was it indicated whether any consideration had been given to the possibility that the position might have changed since November 2005 when the Guardianship Tribunal concluded that the plaintiff was capable of managing his own affairs.

81 More significantly, it appeared from statements made in the course of argument in this Court that, in keeping with the plaintiff's suggestion in his letter of 19 November 2008, a further medical examination had in fact been arranged and a report obtained. Counsel for the State took the position at the hearing that this development, which post-dated the judgment in the District Court, did not need to be revealed by way of evidence to this Court. That position was erroneous. It was, however, consistent with one aspect of the conduct of the proceedings by the State in the District Court, namely an unwillingness to identify that material which was available to the State or which might have been available to the State which would have allowed a fairer assessment of the claims of prejudice.

82 Ultimately the extensive lapse of time may well be viewed as due in large part, first, to the abusive behaviour of the plaintiff and, secondly, to his failure or refusal to co-operate with the Protective Commissioner. However, as recognised by Robison DCJ, these behaviours may well be a function of his underlying mental state, which may itself be in part a function of the alleged tortious conduct. The State appears to have accepted for several years that the plaintiff needed a tutor, but it ultimately seeks to rely upon the fact that the plaintiff's incapacity may have effectively prevented him obtaining the assistance he needed as a basis for striking out the proceedings.

83 Objectively viewed, there is a considerable volume of material which would allow an assessment of the likely issues in respect of liability and causation. Many cases which have involved predatory sexual behaviour directed against children have involved lengthy delays between the events which form the basis of the claim and the trial. In no case is such a delay desirable. However, to the extent that the delay is not the result of culpable behaviour on the part of a capable adult, the alleged tortfeasors and the court may need to take reasonable steps to accommodate the difficulties which such delay creates in order to permit an assessment of a potentially valid claim. If satisfied that a fair trial can no longer be had, the court must accede to the defendant's application. I am not so persuaded in the present case in respect of either claim.

84 At one stage there was a suggestion made by a judge in the District Court that liability and damages might be separated. That was no doubt because the complaints about the difficulties in obtaining medical evidence appeared not to affect what was likely to be the principal issue in respect of liability, namely the extent to which officers of the State knew or ought to have known of the vulnerability of the plaintiff, both whilst at Glenfield Park Special School and whilst in Long Bay Gaol. Whether that course should now be taken is a matter for the trial court. The conclusion of the primary judge on the present application, however, was correct, although a number of complaints made by the State in respect of his Honour's reasoning had substance.

85 The judgment below being an interlocutory judgment, the State required leave to appeal. The errors warrant a grant of leave. Nevertheless, the appeal in relation to each proceeding should be dismissed; the State must pay the plaintiff's costs in this Court.

(7) Anonymity of parties, witnesses and counsel

86 In the District Court the primary judge made "non-publication orders" in respect of the names and identifying details of the plaintiff, his tutor, three solicitors for the State, the solicitor for the plaintiff and four doctors. Other persons, including two doctors, a District Court judge and counsel for the State and the plaintiff were identified by initials in his judgment.

87 No challenge was directed to these orders, so that it is unnecessary to consider the reasons for the orders, except to say that they appear to depend upon a view of s 72 of the Civil Procedure Act which belies the "strict reading" which the primary judge purported to adopt at [24]. The only factor which took the matter outside the ordinary run of civil litigation, otherwise than in respect of the plaintiff's name, was the plaintiff's abusive behaviour.

88 In this Court, the application was made by the State for an extension of the non-publication orders in respect of all those persons who had been subject to such an order in the District Court. The purpose of the order, as explained by senior counsel for the State, was that the plaintiff was the person who was not meant to know the identity of the various individuals the subject of the order: Tcpt, 10/05/12, p 1 (35).

89 There was no notice of motion seeking such an order, nor was any affidavit filed in support. Indeed, no evidence was relied upon. However, counsel, in the course of making the application, advised the Court that "the plaintiff was examined by Dr Adams on behalf of the State and two reports have been prepared by Dr Adams and have been provided to the [plaintiff's] lawyers and there is no application to adduce fresh evidence": Tcpt, p 3 (10). When pressed by the Court as to the State's failure to rely upon the report, counsel conceded that there was no material in the report to indicate there was a current perceived danger to any person: Tcpt, p 3 (20)-(35).

90 Counsel for the plaintiff did not consent to the State's application, but sought suppression of the plaintiff's name on the basis of what was described as "common practice" in the Court in a case where the plaintiff was a minor at the time of the commission of the torts of the kind involved in the school claim.

91 Coincidentally, s 72 of the Civil Procedure Act was repealed from the date on which judgment was delivered in the District Court, namely 1 July 2011: Court Suppression and Non-publication Orders Act 2010 (NSW) ("the Suppression Orders Act"), Sch 2.1. The power to make an order prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of a party or witness in proceedings is now found in s 7 of the Suppression Orders Act. The grounds for making such an order, set out in s 8, are, relevantly, as follows:

"8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

...

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice."

92 Quite apart from s 8(1)(e), the court is required to take into account the principle that "a primary objective of the administration of justice is to safeguard the public interest in open justice": s 6. Further, in making a suppression order, the court must specify the ground or grounds on which the order is made: s 8(2).

93 It is convenient to deal first with the claim for the suppression of the plaintiff's name, as that stands in quite a different category to the other suppression orders sought only by the State. At the commencement of the hearing of the appeal, the presiding judge directed that the plaintiff should be referred to by a pseudonym, subject to any different view being taken in the final judgment. There are a number of relevant considerations to be addressed. First, although the torts involved allegations of criminal offences on the part of the three named individuals, no one sought to suppress the names of those individuals. Secondly, although the names of those individuals and the plaintiff would be the subject of a statutory prohibition on publication if criminal proceedings were involved, these were not criminal proceedings: cf Children (Criminal Proceedings) Act 1987 (NSW), s 15A. Although Part 2, Div 3A of that Act does not apply to an official report of a proceeding of a court, the practice of the courts is to avoid naming children who might be the subject of the prohibition so as to avoid nullifying its effect through publication of a judgment.

94 Secondly, although there was reference to common practice, the practice has not been universally adopted. Further, care must be taken in placing undue weight upon practices which preceded the commencement of the Suppression Orders Act. That Act provides a different emphasis, as well as different linguistic structure to the factors required to be considered by the court, as discussed in Rinehart v Welker [2011] NSWCA 403 at [24]-[37] (Bathurst CJ and McColl JA); Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 at [8]-[9] (Bathurst CJ); [45]-[49] (in my judgment), Whealy JA agreeing with both.

95 Thirdly, despite the retention of s 15A of the Children (Criminal Proceedings Act, s 8(1)(d) refers to the need to avoid causing "undue distress or embarrassment" to a person in criminal proceedings involving an offence of a sexual nature, but does not extend to distress or embarrassment in civil proceedings. These being civil proceedings, the ground relied upon by the plaintiff must either be that found in paragraph (a) or that in paragraph (e).

96 There is no material before this Court to suggest that the plaintiff would be in any way inhibited in bringing these proceedings if he were to be named. Although it might be suggested that naming him would involve a deterrent to others who had been the victims of sexual attacks as children, there is, again, an absence of material upon which this Court could act to adopt that as a basis for finding a non-publication order was "necessary" under either provision. Accordingly, there is no adequate justification for an order suppressing the name of the plaintiff. No argument was presented in favour of an order suppressing the name of his tutor. Such orders should not be made. (The plaintiff has not been named to avoid pre-empting any further application.)

97 The application by the State extended to the four doctors who examined the plaintiff in 1999-2000 and the legal representatives for the State, including current solicitors and counsel.

98 Dealing first with the medical practitioners, the proposition that their names should be suppressed to avoid some risk emanating from the plaintiff was misconceived. He knew exactly who they were and where they could be contacted, as demonstrated by threats made in the past. Furthermore, in respect of "Dr A" the threats and hostile manner were expressed at a consultation in August 2001 and a telephone threat approximately one month later. Dr B's concern arose from a consultation in 1999, but there was no contact thereafter. Dr C also interviewed the plaintiff in 1999 and referred to a further telephone incident in July 2001. The most recent concern involved Dr D, who had interviewed the plaintiff in 2000 and reported a threatening call in January 2004. It is thus more than eight years since the most recent of these events.

99 It is apparent that the plaintiff distinguishes between those who are instructed by the State and those instructed by his own solicitors. However, the fact that he has recently been interviewed by a psychiatrist instructed by the State, from whom two reports have been received, indicates that concerns arising from his past behaviour have diminished. However, whether or not that is so, there appears to be no particular justification for anonymising the names of those four doctors and no order was made in the respect of their names at the hearing of the appeal. (They have been referred to by initials above to allow cross-references to the judgment below and to avoid pre-empting any further application.)

100 There remains a question as to whether anonymity should be preserved in respect of the solicitors and counsel appearing for the State at the present time. In respect of the names of the legal representatives of the State, the Court reserved its decision.

101 The circumstances of the application appear to be unique. Certainly no precedent for such an order was provided to the Court, other than the judgment of the District Court in this case. Normally a party to civil proceedings is entitled to be and will be present in Court and will therefore be likely to know the names of counsel and the judge or judges presiding. It is difficult to know how a trial could be conducted otherwise. The solicitors in the proceedings have filed affidavits which were read below. (They were not cross-examined.)

102 The evidence supporting some protection for the legal representatives of the State appears to be derived from three incidents recounted in an affidavit from a solicitor in the Crown Solicitor's Office dated 3 December 2007. The first incident involved a threatening phone call received by the solicitor then having carriage of the matter in the Crown Solicitor's Office, which call was made on 26 April 2000. It was said that the telephone call "necessitated that solicitor seeking an Apprehended Violence Order against the plaintiff" and stated that an interim apprehended violence order was made on 27 April 2000. Nothing more is recounted in the evidence, although it should be noted that it occurred within the period during which threats and harassment were being directed at medical practitioners instructed by the State.

103 A second incident, on 27 February 2003, involved a barrister briefed for the State. An abusive and threatening verbal assault occurred in the precincts of the Court following a directions hearing. The plaintiff's counsel apparently intervened, but before the plaintiff left the Court the barrister asked a court officer to get security and the plaintiff came back towards the barrister, although his counsel again intervened before he said anything.

104 The third incident, which apparently took place on 6 February 2004, involved a judge of the District Court. It involved a threat to kill the judge, made by telephone to the Attorney General's office. The evidence of this incident was, curiously, a quotation in the solicitor's affidavit from an article in the Daily Telegraph of Monday 9 February 2004. The report referred to a bail court appearance by the plaintiff, presumably on Saturday, February 7, in which the plaintiff (who was named in the article) was said to have told the Court that "he suffered a severe psychiatric condition and wanted to get help or get medication". This was a less than desirable form of 'evidence'.

105 It should perhaps be noted that the primary judge in this proceeding did not seek to suppress his own name or the names of counsel for the State, which are set out on the frontsheet to the published judgment.

106 What is missing in support of this application is not only evidence of threats of violence directed to legal representatives of the State during the eight years, but also a full chronology of the circumstances of the plaintiff, including periods in custody and periods in which he actively participated in the proceedings. In addition, there is no evidence from a psychiatrist suggesting that there is any current threat of violent behaviour towards the lawyers for the State. For example, the report of Dr Vaux of 29 March 2011 was in evidence in the District Court, as an annexure to an affidavit of the plaintiff's solicitor, apparently without objection and without any suggestion that Dr Vaux should be cross-examined. Dr Vaux considered with some care the possibility that the plaintiff was psychotic at the time of his report, but concluded that he appeared "to have no acute psychotic state as he is taking medications to treat psychosis": p 8. (He was at the time in gaol.) Dr Vaux considered that his "basic cognitive deficit" was set and would not change significantly but stated that his psychosis was "stable and well treated though further psycho-social recovery will occur over time should he remain compliant with treatment". No part of this report was relied upon in support of the orders now sought. Further, as already noted, the State having obtained its own more recent report, on which it did not rely, conceded that there was no basis for an order to be found in that report.

107 While accepting that there is an on-going psychosis, the material before this Court does not support the conclusion that a suppression order is needed in respect of the names of the legal representatives of the State. Accordingly, no such order can be made.

Conclusions

108 The following orders should be made:

(1) Dismiss the application for suppression orders in respect of the names of the plaintiff, the legal representatives of the State and the medical practitioners whose names were the subject of non-publication orders in the District Court.

(2) Grant the State leave to appeal against the interlocutory judgment in the District Court delivered on 1 July 2011, in respect of each proceeding in that Court.

(3) Dismiss the appeals.

(4) Order the appellant to pay the respondent's costs in this Court.

109 HOEBEN JA: I agree with Basten JA and the orders he proposes.

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Decision last updated: 09 August 2012