Hofman; Sly, Powderly & Cunnington v State of New South Wales

This is the hearing of four identical Notices of Motion, one in each of the proceedings that are travelling together. The Notice of Motion in each case was filed 12 February 2015 filed pursuant to orders that I made on 1 December 2014. The Motion in each case by the State of New South Wales, the First Defendant in the proceedings, is to amend the Cross-Claims filed in the proceedings on 24 January 2014.

The proceedings are claims by four Plaintiffs alleging assault including sexual assault and mistreatment of them by the Second Defendant when they were students at Young Public School for which the State of New South Wales has a liability.

Each of the four matters was settled as between the Plaintiffs and the State of New South Wales, and judgment entered in favour of each of the Plaintiffs on 23 May 2014 for the amounts specified in those judgments together with an amount in each case for costs. The judgments in each case were entered against the First Defendant only. As a result of the entry of those judgments, the First Defendant, which is pursuing its Cross-Claims, wishes to make clear the proper basis of the claim already made in the cross-claim against the Second Defendant.

I have been case-managing the proceedings since 28 October 2014 when the matter was first listed before me for hearing. On that date I gave leave to the parties to obtain a fresh hearing date for the determination of the Cross-Claims. By that time the Second Defendant, who had previously been legally represented in the matter, was acting for himself. He appeared on that day. Because the Second Defendant lives in Queensland, I gave him leave to appear by way of telephone on 1 December 2014 being the next date appointed for directions in the matter.

The directions made on 1 December provided for service of draft amended Cross-Claims, time for the Second Defendant to indicate whether or not he consented to them and, in the event that he did not, provision for the filing by the First Defendant of the present notices of motion. The First Defendant did not consent to the filing of the proposed amended Cross-Claims with the result that the present motions were filed.

My Associate received a contact from the Second Defendant by way of telephone yesterday, 26 February, where he indicated that he would be seeking an adjournment of the hearing of the Motions today. My Associate asked that he put his application into an email, copied to the First Defendant’s solcitors, and forward it to her. Such an email was not received until 11.44 am today, 27 February.

In that email the Second Defendant says this:

Subsequent to receiving that email my Associate spoke to Mr Taylor to inform him that his matter was not the only matter listed at 2 o'clock this afternoon and that he should wait until he was telephoned from 2 o'clock onwards.

The matter was reached at about twenty past two and a call was made to Mr Taylor’s mobile phone. He answered the phone but despite efforts on my behalf, Mr Taylor’s continued repeating of “hello” indicated to me that he may not be able to hear me. Accordingly, I instructed that a further call be made to his mobile telephone. That call went to voicemail. I then instructed a call to be made to his landline but that call also went to voicemail. A further call was made to his mobile phone and that went to voicemail as well.

In those circumstances I considered that there was no appearance of the Second Defendant when the matter was called and I proceeded to deal with the matters notwithstanding the absence of the Second Defendant.

I considered whether I should, on the basis of the email received from the Second Defendant, grant an adjournment. However, a number of matters persuaded me I should not do that. The first was that on 1 December 2014 at 1.34 pm an email was sent from my Associate to Mr Taylor at the email address that he provided on that day and which was also the email address h appearing as the sender’s address on the email received today, informing him of the orders that were made on 1 December 2014.

Secondly a perusal of the transcript of 1 December 2014 relevantly discloses the following exchanges:

I am entirely satisfied from that material that the Second Defendant was aware that these Motions would be filed and when they would be filed, and that they would be returnable today and dealt with today. He was agreeable to that course of action as the transcript demonstrates.

Finally, no indication is provided in the Second Defendant’s email when it was that the sought Legal Aid. He did not give any indication on 1 December 2014 that he had done so prior to that date nor that he intended to do so. His previous solicitors ceased to act for him on 5 June 2014.

For those reasons I declined to grant the adjournment that the Second Defendant seeks in his email.

The First Defendant seeks leave to amend the Cross-Claims and calls in aid s 26 of the Limitation Act 1969 (NSW) of its right to do so.

It is clear that the First Defendant is not, contrary to what the Second Defendant has previously asserted, statute-barred from bringing or amending the cross-claims that are sought now to be filed. In any event there was not any application on the Second Defendant’s part to strike out the Cross-Claims filed on 24 January 2014.

The judgments entered on 23 May 2014 mean that any limitation period is a period of two years running from the date of judgment, which by s 26(2)(a) is defined as being when the cause of action for contribution first accrues to the person relevantly claiming.

I am comfortably satisfied that there is nothing in the Limitation Act which prevents the present Cross-Claims being pursued. The proposed amended Cross-Claims set out the material facts that provide the proper basis for the cross-claim being made so that any issues of limitation can be clearly identified. I am satisfied that the Limitation Act does not prevent the claims being brought. No other basis is suggested for the amendments being futile.

The complaint about delay does not appear to go anywhere. The proceedings are not listed for hearing for some months. The Second Defendant needs to understand precisely the claim being made against him in each case. The amendments do not give rise to new claims nor disputed factual assertions. The First Defendant agreed that he would have his evidence to answer the matters in the Cross-Claims by the end of February. He has not been recently joined to these proceedings. He has known from the outset what the allegations against him are.

Accordingly leave is given to the First Defendant in each matter to file an amended cross-claim.

The draft cross-claim attached to each Notice of Motion includes a paragraph that seeks an extension of time for the bringing of the cross-claim. For the reasons I have given I do not consider any extension of time is required. Accordingly, the form of the cross-claim to be filed will be the form annexed to the Notices of Motion omitting para 5A.

I will extend the time for the Second Defendant to file and serve any evidence he wishes to rely upon in relation to the hearing on Monday 23 March 2015. Any evidence not filed and served by that date will not be permitted to be relied upon without my leave or the leave of the Judge hearing the matter. I also direct that any defences to the Amended Cross-Claims are to be filed and served by 23 March 2015.

Ordinarily leave to amend is given on the basis that costs thrown away by reason of the amendment should be paid by the party seeking leave to amend. In the present case the respondent to the application should not have refused consent to the amendments because there was no proper basis for doing so. In those circumstances, the costs of the Motion should be the First Defendant’s costs in the cause.