GP1 v State of New South Wales (No.2)

Representative proceedings were commenced in this Court on 30 June 2023 against the State of New South Wales (“the State”) when a Statement of Claim was filed by a person to whom the pseudonym “GP1” has been given. The definition of the group for the purpose of the proceedings was as follows:

The cause of actions relied upon were trespass to the person, unlawful imprisonment and misfeasance in public office. The plaintiff claimed damages, aggravated damages and exemplary damages. Her pleading sought to make it plain that the damages she was claiming would not fall within the definition of "personal injury damages" in the Civil Liability Act 2002 (NSW).

Insofar as the claims of group members were separately articulated, the pleading read:

The proceedings were commenced a few weeks before the NSW Government announced that it had constituted a Special Commission of Inquiry (the “Special Commission”) to enquire into the circumstances surrounding the conduct of Mr Astill at Dillwynia Corrections Centre (“Dillwynia”) and associated matters, including the knowledge of fellow employees at Dillwynia and various matters of system issues existing within Corrective Services NSW (“Corrective Services”).

During the time when the Special Commission was being conducted, these proceedings effectively went into hibernation because both parties accepted that the extent of the crossover of these proceedings with the subject matter of the Special Commission meant that there was a risk that these proceedings might adversely impact on the work of the Special Commission, and it was appropriate for these proceedings to await the final report of the Special Commission.

The report of the Special Commission was delivered on 29 February 2024. It was a lengthy report which would have taken some time to read and synthesise.

A Defence was first filed in these proceedings on 16 May 2024. The Defence drew attention to the fact that Mr Astill's employment at Corrective Services extended between October 1999 and August 2022, and that he held the rank of “Senior Correctional Officer”. The Defence says that Mr Astill was attached to Dillwynia from February 2008 until his suspension in February 2019.

In further answer to the claim, the State pleaded that the term "Chief Correctional Officer" was a rank not a position, and that Mr Astill was appointed to act in that rank from 26 September 2016. The Defence did not admit that the abuse actually pleaded by way of physical conduct with respect to the plaintiff, had in fact occurred, the State did not admit that the conduct pleaded constituted trespass to the person, and denied that the conduct had the consequence that the plaintiff was imprisoned by Mr Astill without lawful authority.

Insofar as the plaintiff pleaded a cause of action in misfeasance in public office, the Defence (without admitting that the conduct relied upon to constitute misfeasance in public office in the case of the plaintiff) admitted that if such conduct was proved, then that conduct was deliberate, wrong and without lawful authority and that it constituted an abuse of power or was otherwise unauthorised. Whilst it admitted that it was vicariously liable for Mr Astill's personal liability to the plaintiff for misfeasance in public office, the State did not admit that the plaintiff's cause of action of misfeasance was established.

In the Defence, the State pleaded that it relied on all available limitation periods with respect to the claims of any group member. The Defence does not seem to raise a limitation defence with respect to the plaintiff's individual claim.

Shortly after the Defence was filed and served, within a matter of six or seven weeks or so, the plaintiff indicated an intention to seek the leave of the Court to file an Amended Statement of Claim which had the effect of amending the group definition and making a consequential amendment to paragraph 45 to the claims of group members.

In light of the fact that consent to that amendment was not forthcoming, a Notice of Motion was filed, returnable before me today, seeking orders for the grant of leave to make the amendments by the filing of a further pleading.

The amendments are short and can be encapsulated in this way. Sub‑paragraph (b) of the group definition would be amended so that it read "were under the direction and/or supervision of Wayne Astill whilst he was employed or otherwise engaged at Dillwynia". At paragraph 45 the proposed amendment is that the words "in a senior role at Dillwynia" would replace the words "was a Chief Corrections Officer at Dillwynia".

As the earlier recitation of the Defence establishes, Mr Astill, although a Senior Corrections Officer acting in the rank of Chief Correctional Officer on and from 16 February 2016, for the six years or so previously he had been working at Dillwynia.

The defendant does not oppose the amendment itself, but submits that such non-opposition is to be accompanied by, or perhaps be conditional upon, an order being made pursuant to s 65(3) of the Civil Procedure Act 2005 that the amendment is taken to have had effect as at the date that the Court makes the order granting leave for the amendment rather than as from the date on which the proceedings were commenced.

The plaintiff submits that the Court would permit the amendment and would not "otherwise order" in accordance with s 65(3). The debate has been conducted, if I may say with respect to counsel, concisely and efficiently. First, counsel for the State submits that the Court should otherwise order because there is no adequate explanation provided by the plaintiff's solicitor for the change being made now, and explaining why such a change was not made at the time of original pleading; secondly, that there is significant prejudice for the State in meeting additional claims or, putting it differently, in permitting the group to expand to an unknown extent; and, thirdly, that the context for which such expansion may be claimed has the effect that, to the extent that a limitation period has expired, the case now to be met by the defendant with respect to a larger group of members would need to include, in respect of each additional member, an investigation either into whether they were disabled within the meaning of that term as it is used in the Limitation Act 1969 or else, if in truth, the damages sought by the plaintiffs constituted personal injury damages under the Civil Liability Act, whether significant issues will arise about date of discoverability of relevant matters, for the purpose of the determination of a limitation period.

The State points to the fact that the nature of the conduct which is relied upon of itself must have been known to each group member or potential group member. After all, in one way or another, it was constituted by physical threats and imposts upon each plaintiff. In those circumstances, the defendant says it is particularly important for there to be a full and proper explanation from the solicitor for the plaintiff as to why a late amendment is being sought.

Before considering the matter, it is convenient to set out the provisions of s 65 of the Civil Procedure Act because it is those provisions which are the subject of the competing submissions:

Amendment to the definition of a group in proceedings under Part 10, where that amendment results in an expansion of the group members, seems to me to fall within either of the provisions in s 65(2)(a) or (2)(c). On one view, an amendment enables the plaintiff to maintain the proceedings in a capacity which was different from that at their commencement because she is being held to represent a group of a different definition; or, alternatively, she might be seen to be adding a new cause of action in respect of those additional group members.

In any event, it is not to be doubted that the Court has the power to grant the amendment even after expiry of the limitation period for some group members or potential group members. As well, it is not to be doubted that the ultimate determination of the existence or otherwise of a limitation period is to be carried out on an individual basis when claims of group members come to be individually assessed.

The change, which I accept will potentially increase the size of the group is, it seems to me, a very minor change. In its original form, Mr Astill was described as a Chief Correctional Officer or Acting Chief Correctional Officer, being a description of his capacity to direct or supervise the plaintiff and group members. It was not a definition which required the conduct to occur by reason of the rank that he held. It was an adjectival description of him as being a person who was able to direct and supervise inmates. The change from the precise rank which he held whilst he was employed or otherwise engaged at Dillwynia, given that at all times he held the substantive rank of Senior Correctional Officer, does not strike me as a significant change at all because it is also a descriptor of why it was that the plaintiff and group members were under the direction and supervision of Mr Astill. The change is not significant and of itself, and without more, would not cause any prejudice to the State.

I interpose to say that the State does not submit that it has suffered any actual prejudice in the sense that it could not deal with such claims, or could not investigate the circumstances surrounding such claims, or otherwise meet such claims. It eschews such prejudice. But it does point to another form of prejudice which is that it is being exposed to claims now which it previously was not exposed to and, it adds, in the absence of any good reason being proffered to the Court.

I accept the submission of counsel for the plaintiff that such explanation as is required in the circumstances here applicable, is not necessarily the same explanation in terms of detail and persuasiveness as one would expect to see if the amendment was itself opposed, as contrasted with the fact that what is opposed here is the date of commencement of the amendment.

The explanation provided could have been fuller but, in my view, is adequate. In paragraph 18 of the affidavit of Georgia Deguara Davis sworn 22 August 2024, the solicitor for the plaintiff has stated that she knows of several women who were sexually assaulted prior to 2016. She says:

The solicitor notes that, as far as she is currently aware, the earliest assault is alleged to have occurred in 2010.

In the context in which this statement is given, I am satisfied that paragraph 18 should be read as being the knowledge of the solicitor for the plaintiff at the time she swore the affidavit, not being knowledge that she had at an earlier time. Indeed, it is plain that the facts set out in sub‑paragraphs (b) and (c), at the very least, would not have been available to her at the time proceedings were commenced.

My interpretation of paragraph 18 is confirmed by the material set out in paragraphs 21 to 26 of the affidavit of Ms Davis; and it is in the light also of her concern, in paragraph 27, that there are group members of whom she is not yet aware.

It is also important to note that, in paragraph 27, Ms Davis says she has continually received new referrals over the past five years, that is to say, since the relevant limitation period of six years would have expired.

Ms Davis returns to the subject in a subsequent affidavit of 20 September 2024, in which she says this in paragraph 15:

That statement, and the material contained in paragraphs 21 and 22 which enables the timing of interactions with NSW Police insofar as potential group members are concerned, make it clear that the significant explanation for the amendment being sought now is the increase in knowledge of the solicitor for the plaintiff about the likely group members over and above that which was held in 2023 when the proceedings were commenced.

In my view, particularly having regard to the provisions of s 56 of the Civil Procedure Act and the “dictates of justice” which are to be considered by the Court when permitting the amendment of any document, I am well satisfied that the amendment should be granted and that it should date from the commencement of proceedings rather than from today.

Put differently, I am not persuaded that I should "otherwise order" in accordance with s 65(4) of the Civil Procedure Act.

Accordingly, I make the following orders: