NJS v NSW Department of Education & Anor (No 1)

By notice of motion filed on 29 October 2018 the second defendant seeks an order pursuant to s 67 of the Civil Procedure Act 2005 (NSW) that the proceedings brought against him by the plaintiff be temporarily stayed. The motion is supported by two affidavits of Fotini Constantopedos sworn 29 October 2018 and 6 December 2018 respectively. Both of those affidavits have been read without objection. The application is opposed by the plaintiff who has not filed any evidence.

The background to the application can be shortly stated.

The plaintiff brought proceedings in this Court against the State of New South Wales seeking damages arising out of a series of alleged sexual assaults committed on him by the second defendant. The second defendant was later joined to the proceedings. As between the plaintiff and the first defendant, the proceedings have now settled.

On 7 November 2017 the second defendant was charged by police with a series of offences contrary to the Crimes Act 1900 (NSW). It is common ground between the parties that the allegations against the second defendant in those proceedings, insofar as they involve alleged sexual assault upon the plaintiff, mirror the allegations made by the plaintiff in the proceedings in this Court.

As matters presently stand the criminal proceedings against the second defendant remain before the Local Court. On 6 November last an application was brought pursuant to ss 91 and 93 of the Criminal Procedure Act 1986 (NSW) for the attendance of the alleged victims (including, I infer, the plaintiff) to give evidence, and to be cross-examined, at a committal hearing. For reasons which are not clear, that application is not listed for determination until 11 February 2019. However, I have been informed that irrespective of its outcome, it is expected that the second defendant will be committed for trial, be it on that day or shortly afterwards. There is no specific evidence before me which might indicate when the second defendant’s trial is likely to take place. However, I am aware from sitting in criminal matters in this Court that, as best one can determine, any trial is unlikely to take place until the latter part of 2019.

It is in those circumstances that the second defendant seeks a stay of the proceedings, effectively until such time as the criminal proceedings are determined. Counsel for the second defendant submitted that in circumstances where the criminal proceedings against her client remained outstanding, he should not be placed in a position where he was required to file any documents, much less any evidence, in the proceedings before this Court. Counsel submitted that to place the second defendant in such a position would be prejudicial to him, and contrary to the interests of justice.

Counsel for the plaintiff submitted that as a consequence of the conduct which is alleged (but which, I emphasise, is yet to be established), the plaintiff is suffering considerable trauma which will, in all likelihood, be exacerbated in the event that the proceedings are further delayed. It was further submitted that there had been undue delay on the part of the second defendant in the conduct of his defence in the proceedings. I should note that whilst I do not, in any way, underestimate the extent of the trauma suffered by any victim of sexual assault, no expert medical (or other) evidence has been placed before me which would suggest that any trauma from which the plaintiff may currently be suffering will be significantly exacerbated if the proceedings are stayed. I should also say that I do not accept that there has been any undue delay on the part of the second defendant since he was joined to the proceedings. His position is that he should not have to “conduct” any defence until the criminal proceedings against him are resolved. He has brought the present motion seeking orders to that effect, and has done so in a timely fashion.

An application of this nature involves carrying out a balancing exercise to determine how the proper administration of justice is best served. In McMahon v Gould (1982) 7 ACLR 202, Wootten J observed (commencing at 206) that it would be undesirable to attempt to define or fix particular criteria against which such an application should be determined. However, his Honour articulated a number of general principles, including the following:

Bearing in mind all of those matters, I have come to the view that the second defendant's application should succeed.

The second defendant faces serious criminal charges. If he is found guilty, a custodial sentence is likely. In those circumstances in my view, the balance, in terms of the proper administration of justice, falls in favour of the second defendant. He should not be placed in a position where he is required to file anything in the proceedings in this Court, particularly in circumstances where the allegations in those proceedings are identical to the allegations made against him in the criminal proceedings, at least insofar as such allegations relate to his conduct towards the plaintiff.

For those reasons I make the following orders: