Hunt bhnf Sexton v State of New South Wales

1. [1]

   By summons dated 28 February 2022, Mr Hunt (“the plaintiff”) seeks an order that the State of New South Wales (“the defendant”) pay a sum of damages into the nominated account of Mr Sexton, who is named in the summons as “the Plaintiff’s Financial Administrator”, pursuant to s 77(4) of the Civil Procedure Act 2005 (NSW) (“the CPA”). The sum of damages is to be paid by the defendant pursuant to orders made by her Honour Wilson J on 7 May 2021.

2. [2]

   The summons is supported by an affidavit of the plaintiff’s tutor and administrator, William Justin Sexton, and an affidavit of Allison Anne Clark, who is a solicitor employed by Porters Lawyers, who act on behalf of Mr Sexton in these proceedings. The plaintiff also filed written submissions in support of his application on 24 March 2022.

Background

1. [3]

   On 30 April 2020, the plaintiff filed a statement of claim in this Court claiming damages for psychiatric and psychological injuries which he alleged resulted from acts of physical and sexual abuse whilst he was admitted to Yasmar Shelter and Daruk Training School in or about 1981, when he was approximately 14 years old. The plaintiff alleged that the perpetrators were officers who were ultimately in the employment of the defendant.

2. [4]

   When the plaintiff commenced those proceedings, in his own name, he was not subject to any legal restriction on his capacity to conduct the proceedings or manage his affairs. Subsequently, Professor Lorraine Dennerstein, the plaintiff’s medico-legal expert, in a report dated 19 January 2021 annexed to Ms Clark’s affidavit, opined that the plaintiff lacked capacity to instruct solicitors and manage any settlement funds.

3. [5]

   Mr Sexton was appointed as the plaintiff’s tutor on 27 July 2021. A document indicating his consent to act as such was filed with this Court on 25 January 2021.

4. [6]

   At a mediation on 21 January 2021, the parties reached an in-principle settlement regarding those proceedings, which was listed before Wilson J on 7 May 2021 for approval. Her Honour made orders by consent of the parties on that date. Those orders included an order providing that the relevant sum of damages be paid into the Court pursuant to s 77(2) of the CPA until further order of the Court. Those funds were paid into the Court on 30 June 2021.

5. [7]

   The plaintiff submitted that this sum was paid into the Court “until the appointment of a financial manager/administrator”. In her affidavit, Ms Clark stated that Porters Lawyers made an initial application to the New South Wales Civil and Administrative Tribunal (“NCAT”) seeking a “Financial Management order” for the benefit of the plaintiff, but that the firm was advised that NCAT did not have jurisdiction to make those orders as the plaintiff is resident in Victoria.

6. [8]

   Accordingly, the plaintiff submitted that the Court should have regard to orders made by Member Topp of the Victorian Civil and Administrative Tribunal (“VCAT”). Those orders appoint Mr Sexton as the plaintiff’s “administrator” and grant him the power to “make decisions about all financial matters”, as well as powers under the Guardianship and Administration Act 2019 (Vic), ss 46(1) and 51.

The relevant legislation

1. [9]

   Section 77(4) of the CPA is contained in Pt 4 of that Act, which governs matters involving persons under legal incapacity. Section 77 relevantly provides:

Consideration

1. [10]

   The defendant has not filed pleadings in this aspect of the matter. During the hearing of the application, I was informed by Ms Clark that on 10 March 2022, on the occasion of a directions hearing before Registrar Jones, she spoke by phone to the solicitor in the Crown Solicitor’s Office with the carriage of the matter, Mr Anthony McCarthy, who indicated that the defendant did not intend to appear in relation to the matter. A notation on the Court file made on 10 March 2022 at the directions hearing before Registrar Jones is to the effect that the defendant neither consented to nor opposed the orders sought.

2. [11]

   I accept that the suitability of Mr Sexton to administer the financial affairs of the plaintiff was a matter considered and determined by VCAT. A copy of VCAT’s orders is annexed to Ms Clark’s affidavit. Those orders obliged Mr Sexton to furnish a “Financial Statement and Plan” to VCAT by 21 December 2021 and to furnish accounts annually thereafter.

3. [12]

   I am not aware of any reason as to why the order sought should not be made.

Orders

1. [13]

   I make the following order: