CA1 v State of New South Wales

1. [1]

   In 2023, the then plaintiff, who was given the pseudonym of GP1, commenced representative proceedings against the State of New South Wales (“the State”) pursuant to Part 10 of the Civil Procedure Act 2005 (NSW).

2. [2]

   The proceedings claimed damages for a group of women who were inmates at the Dillwynia Corrections Centre (“Dillwynia”), and who were under the direction and/or supervision of Wayne Astill (“Mr Astill”) whilst he was employed by Corrective Services NSW (“Corrective Services”).

3. [3]

   The further qualifying requirement for membership of the group was that the women were subjected to trespass to their person and/or false imprisonment by Mr Astill.

4. [4]

   In due course, the plaintiff, GP1, was granted leave to settle her personal case, and she was replaced, as a plaintiff, by a person to whom the pseudonym CA1 has been given.

Some General Factual Background

1. [5]

   Mr Astill was a correctional officer with Corrective Services from about October 1999. He was transferred to Dillwynia, which is an all-female correctional facility, in February 2009, and remained working there until 20 February 2019.

2. [6]

   His conduct whilst an employee of Corrective Services at Dillwynia is now notorious. He has been convicted of 36 criminal offences against nine individual complainants who were incarcerated at Dillwynia. At his criminal trial in the District Court of NSW, he was also acquitted of a number of other charges. There were 13 complainants in all, with respect to whom Mr Astill faced trial.

3. [7]

   Such was the extent of Mr Astill's criminality, and the failures by Corrective Services and staff employed at Dillwynia, that on 28 July 2023, the NSW Government announced that it had appointed the Honourable Peter McClellan AM KC to conduct a special Ministerial Inquiry into the circumstances surrounding the offences committed by Mr Astill.

4. [8]

   On 13 September 2023, the Governor of New South Wales issued Letters Patent to the Honourable Peter McClellan AM KC authorising him, as Commissioner, to conduct the Inquiry as a Special Commission of Inquiry (the “Special Commission”).

5. [9]

   The Special Commission delivered its final report on 29 February 2024. That report was published on 6 March 2024 and has, at all times since then, been publicly available.

6. [10]

   Mr Astill’s criminal trial occurred in the District Court of New South Wales at Sydney, between 25 July 2022 and 25 August 2022. It was held in public. He was sentenced on 31 March 2023 by O’Rourke SC DCJ to an aggregate sentence of 23 years imprisonment with a non-parole period of 15 years and 4 months.

7. [11]

   An appeal to the Court of Criminal Appeal was heard on 19 June 2024 and, by a judgment delivered on 8 July 2024, was dismissed: Astill v R [2024] NSWCCA 118.

8. [12]

   As earlier noted, the trial was conducted in public, as was the sentencing process in the District Court and the appeal in the Court of Criminal Appeal.

9. [13]

   However, orders were made that the names, or any information tending to reveal the identity of 33 witnesses at the time, being former inmates at Dillwynia, were not to be published.

10. [14]

    The context in which the conduct of Mr Astill occurred, and the failure of Corrective Services to address it, was described in this way in the Executive Summary of the Special Commission’s Report:

11. [15]

    The Commissioner went on to say this:

Representative Proceedings

1. [16]

   These proceedings are founded upon three legal causes of action:

2. [17]

   The defendant, the State of NSW, is sued as being liable for the conduct of Mr Astill in respect of the first two causes of action, and vicariously liable for the third cause of action.

3. [18]

   The defendant pleaded a defence to the plaintiff’s claim in which it did not admit that the physical and sexual abuse of the plaintiff had occurred. Accordingly, it did not admit any cause of action in trespass or unlawful imprisonment.

4. [19]

   However, it did plead that, if the conduct towards the plaintiff was “admitted or proven”, that such conduct was deliberate, wrong and without lawful authority. It also admitted that, if the conduct was proved, then it constituted an abuse of power, or was otherwise unauthorised. The State admitted that, if the plaintiff established that Mr Astill had a personal liability for misfeasance in public office, it was vicariously liable.

5. [20]

   The State also raised a number of defences, including that if the claim of any group member, being a claim for damages for personal injury, was commenced more than three years after the cause of action arose, then such cause of action was “not maintainable by virtue of the operation of s 18A of the Limitation Act 1969”.

6. [21]

   The defendant also, with respect to the claim of any group member, relied upon the provisions of Part 2A of the Civil Liability Act 2002 (NSW) (“the CL Act”), requiring the giving of notice with respect to a claim within six months after the relevant date for the claim: s 26BA of the CL Act.

7. [22]

   However, I note in this respect that the State has not applied, pursuant to s 26BD of the CL Act, for the dismissal of the proceedings within the period fixed under that section.

8. [23]

   The proceedings have been judicially case managed since they were commenced. They were not actively pursued whilst the Special Commission was being conducted.

A Further Amended Notice of Motion

1. [24]

   On 18 September 2025, at the hearing of the proceedings on a Notice of Motion, the Court granted leave to the plaintiff to file a Further Amended Notice of Motion (“FANM”).

2. [25]

   The relief sought in that FANM was quite detailed. The relief sought proposed a scheme which would facilitate the settlement of the proceedings through a mediation prior to any hearing, and further preparation for a hearing.

3. [26]

   The first step in the proposed scheme was for the Court to order that notices be sent, within the next few weeks, to potential group members, of a specific time deadline by which they were required to register with the solicitors for the plaintiff (“the Registration Deadline”). For this purpose, notices were provided to the Court for its approval. Such notices included a document entitled “Registration Form for Dillwynia Class Action”.

4. [27]

   The notices also included a document described as an Important Public Notice (“the Notice”), which was proposed to be sent which would include the following statements:

5. [28]

   The registration procedure was described in the Notice as “Class Closure”.

6. [29]

   The proposed Notice went on to say:

7. [30]

   The Registration Form accompanying the Notice included the following statement:

8. [31]

   The second step of the proposed scheme is that the Court would grant leave now to the plaintiff to file a Second Amended Statement of Claim (“2ASOC”) but not until the Registration Deadline had passed.

9. [32]

   The principal amendment in the 2ASOC to be made is to paragraph 1, the definition of group members. This amendment adds the following requirements to those described at [2]-[3] above, before a person could be a group member, namely, that the person needed to be:

10. [33]

    The third step of the proposed scheme was that an order be made that any limitation period applying to the claim of any group member who did not register as a group member, would begin to run again from 30 days after the filing of the proposed 2ASOC.

11. [34]

    The FANM contained a number of other orders which were necessary to facilitate the proposed scheme, and to make provision as to costs. No orders were included with respect to the undertaking of any mediation, nor the taking of any steps to enable proper preparation for the mediation.

Evidence on the Notice of Motion

1. [35]

   The solicitor for the plaintiff having the day-to-day carriage of the proceedings from offices in Brisbane, by affidavit, informed the Court that, since 2019 when she was first approached, she had spoken to about 400 women about their experiences at Dillwynia, many, but not all of whom, made allegations of criminal conduct by Mr Astill.

2. [36]

   She provided additional information, which was later supplemented by evidence provided by the solicitor for the defendant.

3. [37]

   By reference to both affidavits, it appears that the position with respect to possible group members is as follows:

4. [38]

   Ms Davis notes that, amongst those women to whom she has spoken, some have not yet divulged details of their experiences at Dillwynia for various reasons, including mental health issues. Some of those women are seeking counselling support. Ms Davis notes that the counselling may facilitate disclosure thereby enabling more individuals to register and formulate their claims.

5. [39]

   Ms Davis also notes that some women are refusing to, or else are reluctant to, divulge details of their experiences at Dillwynia for fear of repercussions or reprisals. Some who fall into this group continue to be incarcerated.

6. [40]

   As well, there are other women, of whom Ms Davis is aware, who have decided to make a complaint and a formal police statement and are awaiting the necessary assistance in order to participate in that police process. These women wish to first disclose the matters to police before discussing them with Ms Davis, or another lawyer at the plaintiff’s firm.

7. [41]

   Ms Davis concludes this section of her affidavit with this statement:

8. [42]

   Ms Thornely, the solicitor for the State, provides evidence that, pursuant to a recommendation by the Special Commission, counselling was made available to any victims of Mr Astill’s offending. Ms Thornely is aware that about 130 inmates, or former inmates, have been referred for counselling, and another 45 have contacted the relevant unit seeking a possible referral for counselling. It appears that about 30 of those people are already registered with the plaintiff’s lawyers, however she is unable to correlate the remaining 145 with the group of about 400 women with whom Ms Davis has spoken.

9. [43]

   Ms Thornely is instructed that NSW Police have spoken with about 130 women relating to Mr Astill’s conduct at Dillwynia. It is not clear, as yet, to NSW Police, whether each of these people is a victim of Mr Astill’s conduct, or only witnessed it.

10. [44]

    Ms Thornely says this in her affidavit:

11. [45]

    Ms Thornely predicts that the number of potential group members is unlikely to exceed 100 to 200.

12. [46]

    Ms Thornely concludes that, notwithstanding the best efforts of the defendant to ascertain the number of potential group members, any estimates are imprecise and impressionistic. She then says:

13. [47]

    Ms Thornely informs the Court that the defendant supports the proposed orders and mechanism, saying this:

Submissions for the Plaintiff

1. [48]

   The plaintiff submitted that the substance of the relief sought was directed towards the orderly and efficient management of the class action. She submitted that the orders were orthodox in the context of a “closure” of a class and would advance the overarching purpose of the Civil Procedure Act. She submitted that the proposed orders struck a careful balance, on the one hand facilitating a pathway to settlement by defining, with certainty, those group members who elect to participate, and on the other, preserving the rights of those who are not presently in a position to come forward by ensuring that they are not bound by any settlement or judgment.

2. [49]

   The plaintiff submitted that the Court had power to grant leave to the plaintiff to amend her pleadings so as to redefine what constitutes a group member and effectively close the class or ensure that the class can be fully identified. In that respect, the plaintiff drew attention to the decision of the NSW Court of Appeal in Haselhurst v Toyota Motor Corporation Australia Ltd [2020] NSWCA 66; (2020) 101 NSWLR 890 at [38], [67].

3. [50]

   The plaintiff submitted that the evidence before the Court on the FANM “well justifies” the necessity for closure in the present proceedings, bearing in mind the inability to develop a clear understanding of the number of group members “… and therefore the value of the representative proceeding as a whole ….”.

4. [51]

   The plaintiff submitted that the mechanism proposed would provide to the plaintiff (and her lawyers) the ability to determine the size of the class, identify the nature of the abuse to which group members allege they were subjected, and quantify the value of the class as a whole. The plaintiff submitted that the defendant also benefited, because it would receive information of a kind which would enable it to conduct its own assessment and analysis of the matters, make offers at mediation and if necessary, reflect on the size and assessed value of the claims of the group.

5. [52]

   The plaintiff submitted that registration of the kind sought in the FANM was a necessary precursor to any meaningful mediation.

6. [53]

   The plaintiff noted that what was proposed had the effect of ensuring that members of the group who did not register (and who were thereby excluded) were not bound by any mediation or settlement. Their rights were preserved subject only to ordinary limitation principles.

7. [54]

   Finally, the plaintiff submitted that, at its essence, the proposed scheme imposed a registration requirement now, rather than at a later point when approval may be sought and accordingly did no more than anticipate a step group members would, in any event, be required to take.

Submissions of the Defendant

1. [55]

   The defendant submitted that, subject to some minor variations of a technical kind in the orders, that it supported the Court making the orders. The defendant submitted that the power to make the amendment to the existing Further Amended Statement of Claim in the way envisaged in the 2FASOC was to be found in s 163(1) of the Civil Procedure Act. The defendant submitted that, although the heading to s 163 referred to “Causes of action accruing after commencement of representative proceedings”, it did not create any limitation on the Court’s power to order an amendment. The defendant drew attention to the decision of Murphy J in the Federal Court of Australia: Impiombato v BHP Group Limited (No 5) [2024] FCA 591 where it was held at [98] that provisions in similar terms in the Federal Court of Australia Act 1976 (Cth) did not preclude the operation of general powers to amend pleadings and were not limited only to the addition of causes of action accruing after the commencement of the proceedings.

2. [56]

   Ultimately, the defendant submitted that, based upon the case just referred to and a further decision of Katzman J in the Federal Court, there is power to amend the group member definition, and that said power is found in a combination of the powers in ss 163(1) and 183 of the Civil Procedure Act.

3. [57]

   The defendant also submitted that the grant of leave to enable the filing of the 2FASOC containing amendments limiting the definition of the group members would also require approval of the amendment under s 173 of the Civil Procedure Act, because the amendments had the substantive effect of discontinuing the claims of group members who did not register.

4. [58]

   In considering any approval under s 173, the defendant submitted that the Court would apply the test articulated by Murphy J in Ridge v Hays Specialist Recruitment (Australia) Pty Limited [2022] FCA 1613 where his Honour said, at [12]:

5. [59]

   The defendant submitted that, whilst the Court had the power to make the orders sought, whether to do so or not was a matter of discretion which needed to be exercised judicially, having regard to the nature and purpose of the power set out in s 163(1), and the consequences of its exercise for parties to the proceedings and group members.

6. [60]

   The defendant submitted that the nature, or practical effect, of the proposed orders was to put unregistered group members back in the position they were in before the proceedings were commenced. That position is one where they are free to commence proceedings against the defendant arising from any individual claims subject to any limitation period or other applicable procedural requirements such as leave under the Felons (Civil Proceedings) Act 1981 (NSW).

7. [61]

   The defendant emphasised that the importance of the amendment was that it “maximises the prospects of a successful mediation”. It submitted that the Court should infer that, as things stand, “… there is not likely to be a successful mediation without the amendment because neither party has a proper basis to estimate the size of the group or the quantum of the group members’ claims”.

8. [62]

   Further, the defendant submitted that the grant, by the Court, of leave to amend the existing pleading involving an approval under s 173(1) of the Civil Procedure Act would not be positively unfair or unreasonable for five reasons:

9. [63]

   Junior counsel for the defendant emphasised the importance of the defendant being able to resolve the proceedings with the knowledge of the total number of claimants and the overall cost to the State.

10. [64]

    At the conclusion of argument, I indicated to the parties that I was not prepared to grant leave to the plaintiff to file the 2FASOC, the substance of which was to redefine the description of the group members. I indicated that I was prepared to make orders giving effect to a Registration Procedure. I indicated that I would give reasons in due course. These are my reasons.

Discernment

1. [65]

   I accept the submissions of the parties that the Court has the power to grant leave to amend the proceedings by filing the 2ASOC, to amend the group member definition so as to reduce the number of group members which presently comprise the group.

2. [66]

   In light of the parties’ agreement as to the appropriate legal principle to be applied, and my decision, I have no need to consider, what I regard as a nice question, as to whether the heading to s 163 of the Civil Procedure Act limits the breadth of the section.

3. [67]

   The following are the matters and circumstances to which I have had regard in refusing to grant leave to file the 2FASOC, as proposed by the plaintiff in the FANM.

4. [68]

   The first circumstance is the stage which these proceedings have reached. At the moment, orders have not been made for the preparation and service of evidence. There have been no “Merck orders” made which would identify and define any common questions, the answers to which would apply to all group members. The mediation which is proposed to be undertaken is one which will occur in advance of any of those ordinary steps which further the litigation.

5. [69]

   It is a further consequence of this identified stage of the proceedings that:

6. [70]

   An early mediation undoubtedly has advantages to the parties, but it does not seem to me that having a mediation at this stage necessitates the closure of the group by any technique such as the amendment of the pleading to reduce the number of members the class and to identify the members.

7. [71]

   The next circumstance is that the proposed registration process can have more than one purpose, including the purpose of identifying those who are in a position presently to nominate themselves as members of the group and to articulate their claim. The evidence demonstrates that this is unlikely to be all of the members of the group. Particularly is this so, because the evidence shows, in light of the nature of the conduct engaged in by Mr Astill, some group members are reluctant to identify themselves as victims, describe what has occurred to them and pursue a claim for damages, for good reason. And those reasons are also associated with the vulnerability of the group members, what occurred to them, where it occurred and their present circumstances. Importantly, there may be significant mental health issues involved giving rise to such reluctance.

8. [72]

   However, there is no reason to think that registration carried out now may not identify a number of group members who want to have their claims addressed and resolved.

9. [73]

   There is no compelling reason advanced as to why the process of mediation and settlement for those who register needs to be the only, and the final mediation process, by which group members are identified and by which claims are resolved. That is so for a number of reasons:

10. [74]

    The circumstances of this case suggest, prima facie, that subject to any limitation period or other proper defence which may be raised, whether procedural or otherwise, the State is facing a liability for all claimants who fall within the existing description of the group.

11. [75]

    My conclusion from this is that the State gains a significant financial advantage by the proposed arrangement, to the detriment of group members who either do not register in accordance with the proposed registration process or else who, for good reason, may not yet be ready to formulate their claims. The prejudice differential i.e. a lack of knowledge for the State as to the totality of the group members, as opposed to the inability of the group members to advance their claims within these representative proceedings is, in my view, significant and the prejudice and unfairness is far greater for the group members, than it is for the State.

12. [76]

    I do not accept that the technically correct argument that the scheme proposed does not actually remove the rights of group members who do not register because there will be a period of one month for them to commence proceedings without adverse effect on the limitation period reflects the substance of what is likely to occur.

13. [77]

    In my view, this proposed scheme being put in place at this stage of these proceedings will have the substantive effect that very few, if any, people will be able to bring claims within a further period of one month. The position might have been different if the State had offered, by way of an undertaking, that it would not plead any limitation defence which had any greater or broader effect than that presently pleaded in these proceedings, by reference to the commencement date of these proceedings.

14. [78]

    Further, the proposed scheme, involving, as it does, the assertion that individual group members have a right to bring proceedings, ignores the underlying beneficial effect of these representative proceedings. These are claims for similar torts, that is misfeasance in public office, assault and battery, which involve quite significant evidence about the way in which the Dillwynia Correctional Centre in fact operated and the supervision of staff at Dillwynia. An individual claimant conducting proceedings on this claim would need to be able to corroborate their claim of sexual assault by obtaining evidence describing or confirming the internal rostering arrangements demonstrating when Mr Astill was, or was not, on duty, what position he was holding at the relevant time, where he may have been operating from, his access to prisoners and their obligations to comply with his demands. The evidence would also need to address the failure of officers of Corrective Services to act upon complaints being made to them, and the conduct of senior officers of Corrective Services who failed to take action in accordance with their obligation when notified of the conduct of Mr Astill.

15. [79]

    If each individual was obliged to contest and prove these matters of fact, it is likely that two things would ensue. First, that many claimants would not go ahead with their claims; and, secondly, that the costs of bringing an individual claim arising out of Mr Astill’s conduct would well exceed the capacity of individual litigants to fund the litigation.

16. [80]

    The position may well be different if the current proceedings had reached a stage where the Court had, by way of example, subsequent to a hearing, answered common questions dealing with liability, the availability of aggravated or exemplary damages and had made an assessment of the appropriate sum for damages, with respect to at least one group member, being the plaintiff, and maybe more group members who are nominated as sample members. But this stage has not yet been reached.

17. [81]

    Finally, it seems to me that there is no reason why any mediation of the claims of group members cannot be an iterative process. Those who register under the current proposed registration scheme can be dealt with at an initial mediation.

18. [82]

    Further group members who then identify themselves, in the knowledge that there has been a successful mediation involving a significant number of group members, can, either as an individual or else as part of a group, participate in further mediations.

19. [83]

    Ultimately, in that way, the Court can be satisfied that it is likely that as many group members as is possible will have their claims addressed under these representative proceedings.

20. [84]

    It was for those reasons that I declined to exercise my discretion to permit the plaintiff to amend her Statement of Claim so as to have the effect of reducing the description of the group members and thereby bringing, in the event of a successful mediation, the current proceedings to an end, subject of course to the approval of any settlement.

21. [85]

    Put differently, I am not satisfied that the proposed procedure would be fair to group members who did not take up the opportunity at this stage of these proceedings of registration.

22. [86]

    It is for these reasons that I declined to grant leave to the plaintiff to amend her existing pleading and make the other orders to facilitate the proposed registration process, and scheme.