Kucinskas v Lane

The plaintiff was born in 2001. She alleges that when she was six and seven years of age she was sexually abused by the defendant. He was her babysitter. The plaintiff says that she suffered significant psychological injury as a result of the abuse.

In order to obtain compensation for her injury the plaintiff commenced proceedings against the defendant by the filing of a statement of claim on 9 November 2023.

The defendant has not responded to the commencement of the proceedings. He is in prison. Despite having been served with all appropriate documents, he has taken no interest in the case.

On 25 January 2024 the plaintiff filed a notice of motion seeking default judgment for unliquidated damages: r 16.7 Uniform Civil Procedure Rules 2005 (NSW) (UCPR). On 6 March 2024 the Court ordered, inter alia, that the motion be set down for hearing on 10 April 2023 and that if default judgment was entered, that the matter proceed to an assessment of damages.

One of the orders sought in the notice of motion is:

The defendant was declared bankrupt on 8 December 2023. A trustee in bankruptcy, Mr Stephen Dixon, was appointed to the defendant’s bankrupt estate.

My initial reaction to the application was that it could not proceed because consent had not been obtained from the Federal Court. This requirement arises from s 58(3)(b) of the Bankruptcy Act 1966 (Cth) which states:

The notice of motion is clearly a fresh step in the proceedings. I could not have granted the leave required by s 58(3). In Yan v Spyrakis as trustee in bankruptcy for Liu [2022] FCA 872 Katzmann J, at [9] said:

The plaintiff submitted however that leave from the Federal Court was not necessary because the claim was for unliquidated damages falling within the scope of s 82(2) of the Bankruptcy Act:

The plaintiff submitted that her claim was for unliquidated damages, and they did not arise from a “contract, promise or breach of trust”. It was submitted that her damages arose from sexual assault and/or a battery, an intentional tort or, alternatively, negligence.

In Doman & Anor v Leadenhall Australia Pty Ltd [2023] SASC 97, McDonald J analysed a number of authorities arising from s 82(2), but in particular Foots v Southern Cross Mine Management (2007) 234 CLR 52; [2007] HCA 56 and Coventry v Charter Pacific Corporation Ltd (2005) 227 CLR 234; [2005] HCA 67. His Honour said at [107]-[110]:

An assessment of damages for personal injury is obviously very different to a costs order, as existed in Foots, but they nevertheless share the characteristics of not having been assessed when the bankrupt person entered bankruptcy and there was then no obligation to pay any amount.

Although not expressly dealing with the issue I note the following passage from Ryu v Karadjian [2006] NSWCA 144, which was a personal injury case, at [17]:

Returning to the notice of motion, the plaintiff relied on two affidavits, her own sworn on 24 January 2024 and the affidavit of Mr El-Jradi, sworn on 7 March 2024. Mr El-Jradi is the plaintiff’s solicitor.

The contents of the affidavits encompass the requirements of r 16.7(2), with the exception that they do not state that the proceedings have not settled. Although there is an overwhelming inference to that effect, I allowed the plaintiff to give oral evidence of the fact. To the extent necessary I rely on s 14 of the Civil Procedure Act 2005 (NSW) to dispense with the necessity for the statement that the matter had not settled to be included in an affidavit.

Based on the affidavit material, and on the plaintiff's oral evidence, I am satisfied that the plaintiff is entitled, pursuant to r 16.7, to judgment against the defendant for damages to be assessed and for costs. I make the following orders: