Bargashoun v State of New South Wales

1. [1]

   On 22 June 2023, Richard Bargashoun (“the plaintiff”) commenced proceedings against the State of New South Wales, as defendant (“the State”).

2. [2]

   The first Statement of Claim dealt with events, some of which occurred at the Mt Penang Detention Centre (“Mt Penang”), in which the plaintiff was detained between 15 and 17 years of age.

3. [3]

   The plaintiff claimed that, whilst a detainee at Mt Penang, on several occasions, he had been subjected to sexual assault by Mr Laurie Maher, who was identified as the Superintendent of Mt Penang.

4. [4]

   As well, during the same period, the plaintiff pleaded that he was detained at the Reiby Detention Centre (“Reiby”) where, on a number of occasions, he was subjected to serious physical and sexual abuse by various officers, including an officer, Bruce McDougal.

5. [5]

   The plaintiff claimed that, as a result of that sexual assault, he had suffered injuries, loss and damage.

6. [6]

   The plaintiff pleaded against those responsible for the care, control and management of Mt Penang and Reiby that they were negligent. Further, the plaintiff claimed that the State is vicariously liable for the conduct of his abusers. In addition to general damages, the plaintiff also claimed exemplary damages.

7. [7]

   On 12 December 2023, the State filed a Defence to the first Statement of Claim.

8. [8]

   The defendant made appropriate admissions with respect to the care, control and management of both Mt Penang and Reiby. The Defence also provided precise dates when the plaintiff had been detained in either, or both, of those detention centres.

9. [9]

   Of particular interest is that the Defence denied that Mr Maher was employed, engaged, or otherwise appointed by, the defendant during the period which the plaintiff spent in Mr Penang. It pleaded that Mr Maher was not residing, or working, at Mt Penang as an employee of the defendant during that period.

10. [10]

    The State did not admit that the pleaded sexual abuse at Mt Penang occurred.

11. [11]

    With respect to the claims of abuse at Reiby, the defendant did not admit those claims and did not admit that the plaintiff had suffered any injury, loss or damage.

12. [12]

    The Defence also specifically denied vicarious liability, with respect to the conduct of Mr Maher, asserting that he was not an employee, servant or agent of the defendant at the relevant time.

13. [13]

    The defence also included an entirely formulaic pleading with respect to various provisions of the Civil Liability Act 2002 (NSW).

14. [14]

    This judgment deals with a Notice of Motion which was filed by the plaintiff on 14 May 2025.

Notice of Motion

1. [15]

   On 14 May 2025, the plaintiff filed a Notice of Motion (“the Motion”) seeking a grant of leave to file and serve an Amended Statement of Claim (“ASOC”)

2. [16]

   That Motion was accompanied by an affidavit of the plaintiff’s solicitor, Ms Charlotte Rae. The affidavit informed the Court only of these matters:

3. [17]

   The defendant filed an affidavit of its solicitor, Mr Nick Thompson, who had the day-to-day conduct of the matter. Mr Thompson’s affidavit provided detail with respect to a series of procedural steps which had occurred in the proceedings leading up to the filing of the Motion.

4. [18]

   Having regard to the issues in dispute, it is unnecessary to detail that history.

5. [19]

   When it filed the Motion, the plaintiff provided what can be generously described as an outline of submissions, which constituted six paragraphs. The only matters of substance in those submissions were these:

6. [20]

   The defendant’s written submissions were, happily, of more detail and assistance. The defendant made it plain that it opposed the relief sought in the Motion, principally for two reasons. First, the defendant submitted that the proposed amendments to paragraphs 15 to 55 contravened well-settled principles governing the requirements of a proper pleading. The defendant noted that the amendments formed the basis of the plaintiff’s claim for vicarious liability but made allegations against “an unidentified officer with undisclosed rank and unidentified duties”.

7. [21]

   The second reason the defendant opposed the amendments was that the plaintiff’s delay, and the absence of any explanation for that delay, or the form of the amendments proposed, weighed against the exercise of the Court’s discretion to grant leave in favour of the plaintiff.

8. [22]

   With respect to the proposed amendments, the defendant submitted that its opposition was directed to the consequences of the “Mt Penang amendments” (being paragraphs 12-55), as bearing on the claim that the defendant was vicariously liable for the individual perpetrator of the abuse. The defendant emphasised that those amendments were not purely factual, but it submitted that they bore directly on the ability of the defendant to plead the vicarious liability claim.

9. [23]

   The defendant noted that the significance of the amendments was that, whereas in the first Statement of Claim, a specific individual was identified as the alleged abuser, being the Superintendent at that time, the Mt Penang amendments now pleaded in the fourth pleading that the sexual abuse was carried out by “an unidentified senior officer”. The defendant noted that there was some general description of the clothing and physical features of that officer.

10. [24]

    The proposed additional paragraphs also set out, in somewhat more detail, the particular instances of abuse.

11. [25]

    The defendant submits that the proposed Mt Penang amendments raise allegations in respect of an unidentified officer, of an undisclosed rank, who held “unidentified duties”. It submits that the pleading of vicarious liability, which, in substance, was that the Mt Penang abuser was in a position of “almost complete authority over the plaintiff in the circumstances”, and whose duties “included the care, control and supervision of the plaintiff and the maintenance of order and discipline”, does not enable the defendant to understand the true nature of the duties of the alleged perpetrator, or the powers being used as pleaded.

12. [26]

    The defendant submits that there are few, or no, material facts expressed as to the nature of the employment or engagement of the alleged perpetrator to show that the employment or engagement provided an opportunity to commit the alleged offence or engage in the alleged conduct.

13. [27]

    For these reasons, and in the absence of any explanation for the delay, the defendant submits that the fourth pleading should be rejected.

14. [28]

    In oral submissions, counsel for the defendant took the Court to paragraphs 139 and 140 of the fourth pleading.

15. [29]

    They are in the following terms:

16. [30]

    I should, for completeness, add that reference was also made to paragraph 143, which related to the issue of vicarious liability, and was in these terms:

17. [31]

    Counsel articulated the defendant’s submission as being centred upon a paragraph in a previous judgment of mine, being the decision of PWJ1 v State of New South Wales [2020] NSWSC 1235 (“PWJ1”), where I said:

18. [32]

    Specifically, counsel for the defendant submitted that the pleading of vicarious liability does not allow the defendant to identify the nature of the role occupied by the perpetrator, the responsibilities, or any special relationship which the perpetrator had with the plaintiff so as to enable it to fairly plead to allegations that are made against it in a claim for vicarious liability.

19. [33]

    Distilled to its essence, the defendant complains, with respect to the Mt Penang amendments that the absence of the identified name of the alleged perpetrator, instead merely utilising reference to the roles of officers generally, makes it impossible for the defendant to carry out an objective assessment as to its potential vicarious liability, in respect of the particular perpetrator.

20. [34]

    It was submitted, by way of example, that if the employee was an officer who had only administrative duties and was restricted to carrying those out in an administrative area, and that their role had no direct interaction with detainees, then it would be open to the defendant to submit that they could not be vicariously liable in such circumstance, because any form of sexual abuse could not have occurred in the course of, or for the purposes of, that person’s employment.

21. [35]

    Accordingly, the defendant submitted that it was important for them to have sufficient facts to enable them to identify and articulate their potential liability and the basis for it.

22. [36]

    The State pointed out that an additional, and entirely appropriate, course would be available to it, if the particular role was identified with greater precision, to try and search for the relevant perpetrator, for the purpose of investigating and defending the plaintiff’s claim.

Discernment

1. [37]

   Although the plaintiff initially pleaded that the perpetrator of the Mt Penang abuse was a named individual and gave that individual their work title – Superintendent – after further investigations, it became apparent that the named individual was not, in fact, the perpetrator.

2. [38]

   The plaintiff has made further enquiries and has been unable to identify the alleged perpetrator other than in these terms:

3. [39]

   Elsewhere, the plaintiff pleads that the alleged perpetrator was an employee, servant or agent of the defendant, and also pleads in the following terms:

4. [40]

   The claim in vicarious liability arises on the basis of a number of integers. They are:

   1. (1)

      The plaintiff, as a child detainee at a juvenile detention centre, was in a position of extreme vulnerability.

   2. (2)

      The position of the perpetrators of the abuse was one of “… almost complete authority over the plaintiff”.

   3. (3)

      The perpetrators, as employees of the detention centre, had duties which included “… the care, control and supervision of the plaintiff, and the maintenance of order and discipline within [the detention centres]”.

   4. (4)

      The abuse occurred in the course of the perpetrator's employment with the defendant whilst they were exercising authority over the plaintiff at the detention centres.

5. [41]

   A further and separate pleading is that the defendant placed the perpetrators in a position of power and authority over the plaintiff, whilst he was detained in the detention centre, which required the detainees, including the plaintiff, to obey the perpetrators and other employees without questioning them, or their power or authority.

6. [42]

   The High Court of Australia in Bird v DPP [2024] HCA 41; (2024) 419 ALR 552 said, at [48]:

7. [43]

   The plurality judgment had earlier, at [46], set out the relevant enquiry for a Court in these terms:

8. [44]

   The fourth pleading deals with events which occurred over 30 years ago, at a time when the plaintiff was aged between 14 and 16 years. The events occurred within a detention centre.

9. [45]

   Whilst non-employees, who are visitors to such a centre may have access to particular areas, they could not access those areas unless authorised or permitted by those in control of the detention centre. However, employees acting in the role of officers interacting with detainees and exercising their power of control and management over the detainees, can only do so in their capacity as an employee, and for the purpose of carrying out their duties.

10. [46]

    There will be occasions, in litigation of this kind, involving plaintiffs who were young at the time of the abuse, and who were in a highly controlled environment, where they are unable to identify, by name, or by anything other than a general physical description, the person responsible for the abuse.

11. [47]

    That does not mean that the defendant cannot meet the claim. Nor does it mean that a claim so articulated and pleaded cannot be permitted to go to trial. It simply means that the plaintiff can only give their best particularisation of the claim.

12. [48]

    It may be possible, facing such consequences, for a defendant, by evidence, to show that they are unable to meet the claim. If so, then the appropriate relief for that defendant is to seek a permanent stay of the proceedings. Whether or not the prejudice confronted by the defendant is sufficient to persuade a Court to grant a permanent stay, will depend upon the case and the particular factual circumstances: see GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442.

13. [49]

    In my view, the pleading of vicarious liability, with respect to the abuse which is claimed to have occurred at Mt Penang, is adequate to enable the defendant to know the case it has to meet. There may be difficulties for the defendant in meeting that case. But that is not a reason why the leave sought by the plaintiff should not be granted.

14. [50]

    The reference to PWJ1 is unhelpful. The issues there were very different from the pleaded issues here. In PWJ1, there were a number of defendants said to be liable in respect of quite different categories of alleged perpetration, some of whom were clearly not employees.

15. [51]

    Here, the issue is about identification of an employee so as to enable the defendant to investigate and, if appropriate, to defend its exposure to a claim for vicarious liability.

16. [52]

    In my view, allowing for the fact that the plaintiff cannot identify the perpetrator by name, nickname or other description, the fourth pleading sets out the material facts which are known and can be properly pleaded to.

17. [53]

    It is a separate question as to whether the circumstances are such that the defendant wishes to apply for a permanent stay because it cannot identify the perpetrator and meet the plaintiff’s claim.

18. [54]

    Subject to matters of discretion and prejudice, the plaintiff ought to be entitled to prosecute his claim on the basis of the fourth pleading.

19. [55]

    The failure of the plaintiff to put before the Court any evidence, by way of an explanation as to why the proposed ASOC is sought to be filed in its amended form, is concerning.

20. [56]

    In Aon Risk Services Australia Ltd v ANU [2009] HCA 27; (2009) 239 CLR 175, in the plurality judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ, when dealing with an application for an amendment of a pleading which was made at the start of a trial fixed for hearing, their Honours said, at [102]:

21. [57]

    This application is being made consequent upon a previous fixture for hearing having been adjourned due to the late discovery of particular facts. That adjournment was separate to, and preceded, this particular application.

22. [58]

    As things presently stand, there is no further date fixed for a final hearing. There is no prejudice articulated by the defendant which cannot be cured by an order for the costs of, and occasioned by, the amendment.

23. [59]

    The absence of an explanation is certainly a discourtesy to the Court. It is redolent of an attitude of the solicitors for the plaintiff that they are entitled to amend their claim without regard to any discretionary factors. Such an approach is not an appropriate one.

24. [60]

    That said, in the circumstances of which the Court is aware, from its case management hearings of this case, having dealt with the successful adjournment application and having regard to the matters that I have discussed, I do not regard the absence of an explanation as being fatal to the success of this application.

25. [61]

    I am satisfied that this is a case in which the Court should exercise its discretion to grant the plaintiff leave to file the proposed ASOC.

Orders

1. [62]

   I make the following orders:

   1. (1)

      Grant leave to the plaintiff to file and serve an Amended Statement of Claim in accordance with the document Annexure CR-4 to the affidavit of Charlotte Rae sworn 12 May 2025.

   2. (2)

      Order that any proposed Amended Statement of Claim be filed and served by no later than 30 January 2026.

   3. (3)

      Order that the matter be listed for directions before the Common Law Registrar on 11 February 2026.

   4. (4)

      Order the plaintiff to pay the costs of the Notice of Motion filed 14 May 2025 and the costs of and occasioned by the filing and service of the Amended Statement of Claim.

   5. (5)

      Otherwise dismiss the Notice of Motion filed 14 May 2025.

   6. (6)

      Grant the parties liberty to apply.