Marks v State of New South Wales

1. [1]

   These proceedings arise out of a claim for damages against the State of New South Wales for sexual abuse allegedly committed against a student by a schoolteacher in its employ. The Plaintiff, Lisa Marks, claims that when she was a Year 7 or Year 8 student in the late 1980s at Moorefield Girls High School at Kogarah, a teacher at that school sexually assaulted her on several occasions, from which she suffered physical and psychological injury. By Amended Statement of Claim filed on 22 October 2025, she sues the Defendant in negligence and claims it is vicariously liable for the torts committed by the teacher.

2. [2]

   The Defendant has not put on a Defence to the claim because it has been unable to obtain medical evidence consequent upon a medical examination of the Plaintiff. On 30 September 2025, the Court ordered by consent of the parties that the Defendant be excused from pleading to the claim until after an initial settlement conference or mediation or otherwise by agreement. None of those events have yet occurred.

3. [3]

   The Plaintiff has not attended any of the medical appointments arranged by the Defendant. No settlement conference or mediation has occurred. The Plaintiff’s own solicitors have been unable to contact her. The proceedings are at a standstill.

4. [4]

   Before the Court are two competing motions. By Notice of Motion filed on 11 March 2026, the Plaintiff seeks that the proceedings be stayed for six months, pursuant to r 2.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), with costs of the motion to be costs in the cause. In her written submissions, the Plaintiff supplements this request by reference to s 67 of the Civil Procedure Act 2005 (NSW) (the CPA). In support of this motion the Plaintiff reads the affidavit of her solicitor, Peter Glover, sworn on 11 March 2026. I should note at the outset that the Plaintiff has not herself instructed her solicitors to seek such a stay. Rather, the purpose of the application is to enable the Plaintiff’s solicitors to re-establish contact with her and thereby allow her to prosecute her claim if she indeed wishes to do so.

5. [5]

   By Notice of Motion filed on 31 March 2026, the Defendant seeks that the proceedings be dismissed with costs for want of due despatch, pursuant to UCPR r 12.7(1). In support it reads the affidavit of Jacqueline Haski, solicitor, affirmed on 30 March 2026.

6. [6]

   Both motions came on for hearing before me as Common Law Duty Judge. Ms Shafizadeh, solicitor of Hunter Shafiz Lawyers, appeared as agent for the Plaintiff’s solicitors. Mr Bentley of Counsel appeared for the Defendant.

Procedural history

1. [7]

   It is necessary for the purpose of these applications to set out the procedural history of the matter in some detail.

2. [8]

   The Plaintiff first instructed her solicitors in relation to the claim in March 2022. On 11 April 2022, the Plaintiff’s solicitors notified the Defendant of a pending claim for damages, which the Defendant acknowledged. A request by the Defendant for further and better particulars in September 2022 went unanswered. The Defendant’s solicitors closed their file 11 months later.

3. [9]

   In the meantime, the Plaintiff attended a psychiatric assessment in June 2023 with Dr Samit Roy. In a report dated 18 July 2023, Dr Roy opined that the Plaintiff suffered from an array of moderately severe psychiatric conditions. He assessed her likelihood of recovering normal functioning as “quite poor” due to alcohol abuse and general instability.

4. [10]

   The Plaintiff commenced these proceedings by Statement of Claim filed on 10 October 2024. That pleading, a statement of particulars, and Dr Roy’s report were served on the Defendant four days later. Despite Dr Roy’s assessment and his prognosis, the proceedings were not commenced by a tutor appointed on behalf of the Plaintiff. I propose to return to this topic below.

5. [11]

   The matter first came on for directions on 28 November 2024. By consent, the Court made the following orders:

6. [12]

   Orders 1 and 2 were complied with. The parties arranged a mediation to occur on 9 September 2025.

7. [13]

   On 28 February 2025, the Defendant notified the Plaintiff that an appointment with Dr Apler on 2 July 2025 had been confirmed. On the same date, it sought clarification from the Plaintiff about the dates between which the abuse was said to have occurred.

8. [14]

   At the directions hearing on 6 March 2025, the Court relevantly made the following orders by consent:

9. [15]

   The Plaintiff complied with Orders 1 and 2.

10. [16]

    On 24 March 2025, the Plaintiff emailed her solicitors and apologised for the difficulty in contacting her. Mr Glover deposes that from this date, his firm received no communication from the Plaintiff for several months. Between 17 July 2025 and 14 October 2025, a total of 30 attempts were made to contact the Plaintiff by post, telephone, email, text and Facebook, each without response.

11. [17]

    By letter dated 20 June 2025, the Defendant’s solicitors confirmed the details of the appointment with Dr Apler on 2 July 2025.

12. [18]

    On 2 July 2025, Dr Apler postponed the appointment by a day because the Plaintiff had not provided her phone number or email address. The next day, the assessment was cancelled because the Plaintiff could not be contacted.

13. [19]

    On 22 July 2025, the Defendant’s solicitors informed the Plaintiff’s solicitors that an appointment with Dr Apler had been rebooked for 5 November 2025.

14. [20]

    On 15 August 2025, the mediation which was scheduled to occur on 9 September 2025 was cancelled because the assessment by Dr Apler had not occurred.

15. [21]

    At the directions hearing on 30 September 2025, the Court made the following orders by consent:

16. [22]

    Brief contact was made with the Plaintiff by a paralegal of her solicitors on 15 October 2025. A telephone call the following day was arranged but did not eventuate.

17. [23]

    The Amended Statement of Claim was filed on 22 October 2025. On this date, the Defendant’s solicitors informed the Plaintiff’s solicitors that they were experiencing difficulties contacting the Plaintiff. By return letter, the Defendant’s solicitors said that if the Plaintiff did not attend the appointment with Dr Apler on 5 November 2025, they would seek instructions to apply for the proceedings to be dismissed for want of due despatch. In the circumstances, the Plaintiff’s solicitors requested that the appointment be cancelled. That appointment was cancelled the following day.

18. [24]

    Following several further attempts to contact the Plaintiff by her solicitors, the Plaintiff sent the firm a text message on 29 October 2025. She expressed gratitude to her solicitors for their assistance but asked them to “please back off for a bit” while she dealt with other matters, including her dying mother. The Plaintiff’s solicitors have not had contact with the Plaintiff since this date, despite 41 further attempts being made up to 10 March 2026.

19. [25]

    The matter returned for directions on 17 December 2025. At that hearing, the Plaintiff sought a six-month stay, and the Defendant sought dismissal under UCPR r 12.7. The Court made the following orders:

20. [26]

    On 22 December 2025, the Defendant’s solicitors wrote to the Plaintiff’s solicitors and notified them of an appointment with Dr Apler on 22 January 2026. Further correspondence ensued.

21. [27]

    On 15 January 2025, the Plaintiff’s solicitors informed the Defendant’s solicitors that the Plaintiff could not be contacted. The appointment with Dr Apler was cancelled.

22. [28]

    On 6 February 2026, the Defendant’s solicitors confirmed that an appointment with Dr Samuell had been arranged for 17 February 2026. They gave notice that if the Plaintiff did not attend this appointment, a further stay would be opposed and the Defendant would renew its application for dismissal.

23. [29]

    On 10 February 2026, following further communication between the firms of solicitors, it became apparent that the Plaintiff could not be contacted. The appointment with Dr Samuell was cancelled.

24. [30]

    On 16 February 2026, the Plaintiff’s solicitors informed the Defendant’s solicitors that the Plaintiff could not be contacted and that they would file a motion seeking a stay.

Observations as to the Plaintiff’s engagement with these proceedings

1. [31]

   It was submitted by the Plaintiff’s solicitor that this was not a case where the Plaintiff has abandoned the proceedings or a finding should be made of “unexplained disinterest”. The Plaintiff’s text message of 29 October 2025 is relied upon to demonstrate that, as at that date, there remained some vestigial interest in the proceedings. I am not altogether persuaded by this. The Plaintiff’s text, imploring her solicitors to “back off”, is bizarre in circumstances where, at that point in time, the Plaintiff had not had contact with her solicitors for six months and had not attended the scheduled medical appointments. It seems to me that whilst the Plaintiff had not wholly abandoned the proceedings, equally she had no interest in progressing them other than at a pace that suited her convenience and no one else’s.

2. [32]

   Perhaps it can be said that the Plaintiff’s solicitors could and should have taken more direct steps to engage the Plaintiff when, plainly enough, the strategy of deploying a paralegal to repeatedly call her was failing. Having someone attend her residence for a welfare check and to consult the Plaintiff as to her appetite to continue this litigation, or to ascertain whether she needed a tutor appointed, would have been justified. So would have been an attempt to contact her son to ascertain her welfare. Whether such steps would have yielded any better outcome is moot. Those steps have not been taken. All the while the proceedings have been in stasis.

3. [33]

   The Plaintiff’s solicitor at the hearing, who quite properly acknowledged that further steps could have been taken by her principals, implored the Court not to visit any sins of the solicitors on the Plaintiff. I do not intend to do so. Whilst further and different steps could and should have been deployed, for the reasons set out below I remain of the view that the Plaintiff herself was so disengaged from the proceedings that she has disentitled herself to obtain any further indulgence from the Court. The Plaintiff is not a mere passenger in the vehicle that is this litigation. She had the wherewithal in October 2025 to appreciate that these proceedings remained on foot but neglected her solicitors’ overtures to commit herself to this endeavour.

4. [34]

   This Court does not subserviently acquiesce in phlegmatic conduct of litigants where the Court’s resources can and must be deployed to assist those litigants who are energetically engaged in pursuing their claims to finality.

The Plaintiff’s motion for a stay

1. [35]

   The Plaintiff (by her solicitors) seeks a stay of the proceedings for six months under UCPR r 2.1 which provides:

2. [36]

   It also invokes s 67 of the CPA which provides:

3. [37]

   I observe at the outset that that what the Plaintiff seeks is akin to an adjournment of the proceedings. This is not a case where a defendant invokes s 67 to seek a permanent stay to prevent an abuse of process, or where a fair trial cannot be had. Therefore, the question of whether to grant a stay is discretionary: cf. GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at 459–460 [24] (Kiefel CJ, Gageler and Jagot JJ). That discretion is to be exercised in accordance with the overriding purpose of civil litigation, being the just, quick and cheap resolution of the real issues in the proceedings: CPA s 56(1). The parties themselves are under a duty to assist the court to further the overriding purpose and to participate in the processes of the court: CPA s 56(3).

4. [38]

   Section 57 of the CPA prescribes the objects of case management to which the Court is to have regard in furthering the overriding purpose:

5. [39]

   Section 59 of the CPA also provides that Court is bound to minimise delay so far as is possible consistent with the just determination of the proceedings:

6. [40]

   The Plaintiff draws the Court’s attention to the remarks of Basten JA (with whom Beazley and Hoeben JJA agreed) in State of New South Wales v Plaintiff A [2012] NSWCA 248 at [83], where his Honour noted in part that:

7. [41]

   That case was on somewhat of a different footing to the present. There, the State sought the permanent stay or dismissal of proceedings on the basis that a fair trial could not be held for several reasons, including the effluxion of time and the unavailability or reluctance of witnesses to testify. The Court of Appeal relevantly held that a fair trial could still occur because there was a considerable volume of material which would allow an assessment of the likely issues in respect of liability and causation.

8. [42]

   However, putting those differences to one side, I accept the broader proposition in the observations set out above. In a case such as this, where the Plaintiff’s conduct may well be attributable in part to the abuse alleged by her, the Defendant and the Court may need to take reasonable steps to accommodate the difficulties that have arisen.

9. [43]

   In my view, those accommodations have been made. The Defendant has taken a reasonable and understanding approach to the Plaintiff’s lack of engagement in these proceedings. It has arranged four successive medical assessments over seven months, each of which had to be cancelled. It has consented to procedural orders which delayed the progress of these proceedings to allow the Plaintiff further opportunities to advance her claim.

10. [44]

    There is force in the Plaintiff’s submission that the prejudice to the Defendant that would be occasioned by a six-month stay, in the context of the time that has elapsed since the alleged tortious conduct, would be minimal. However, prejudice to the Defendant is not the sole consideration. The Court and other parties with cases before it also have an interest in the just, quick and cheap resolution of proceedings. Modern case management principles reflect the reality that the conduct of litigation is not merely a matter for the parties but is also one for the Court, accounting for the need to avoid inconvenience to the Court and prejudice to the interests of other litigants waiting to be heard: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at 211 [93]; Sali v SPC Ltd [1993] HCA 47; 67 ALJR 841 at 849.

11. [45]

    In deciding whether to grant a stay in this case, the central question to my mind is utility: what will be achieved by pausing these proceedings for a further six months? The Plaintiff’s solicitors do not, and in all fairness cannot, answer that question with any certainty. They submit that if the matter cannot be advanced after a six-month stay then the proceedings can be dealt with at that time. I accept the Defendant’s submissions that the six-month period is arbitrary and is not moored to any timetable or plan that is to be worked through in that time. It appears to be a high-level aspiration that, with some hope, the proceedings can be revivified during that period.

12. [46]

    That is an unsound basis upon which to order a stay. This ‘wait-and-see’ approach is inconsistent with the principles of case management that inform the Court’s discretion. As at the hearing, the Plaintiff was still not in communication with her solicitors. There is no evidence before the Court to suggest that the position will change.

13. [47]

    In those circumstances, there is no utility in ordering a stay. The Plaintiff’s application must be refused.

The Defendant’s motion for dismissal

1. [48]

   The Defendant moves the Court to dismiss the proceedings pursuant to UCPR r 12.7(1), which relevantly provides:

2. [49]

   The discretion reposed in the Court by this power “is broad and should not be confined by rigid formulae”: Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 (Ghosh) at 602 [40] (Macfarlan JA, Leeming JA and Adamson J agreeing). In Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534, Walsh JA observed that:

3. [50]

   Moreover, the principles of case management prescribed by the CPA set out above are of “fundamental importance” in determining an application under r 12.7(1): Ghosh at 602 [43].

4. [51]

   The Defendant’s position is that the matter has been on foot since October 2024 and has not progressed. The pleadings have not yet closed. The Defendant sought dismissal on a prior occasion and the Court gave the Plaintiff a further opportunity to prosecute her claim, while noting that the Court may consider dismissing the proceedings under UCPR r 12.7.

5. [52]

   The Defendant took the Court to two similar cases. In Linnell v Channel Seven Sydney Pty Limited [2015] NSWSC 583, the plaintiff in a defamation action had not been in contact with his solicitors for nearly seven months. On the defendant’s application for dismissal of the proceedings under r 12.7, McCallum J (as the Chief Justice then was) determined that “the dictates of justice plainly require that the proceedings now be dismissed”: at [11]. That was so even where any reinstituted proceedings would be out of time. By contrast, Ms Marks’ claim has no limitation period: Limitation Act 1969 (NSW) s 6A.

6. [53]

   In Gillon v State of New South Wales [2024] NSWSC 906, the plaintiff pursued the State of New South Wales for damages for historical sexual abuse. An issue as to the plaintiff’s capacity to conduct the proceedings arose. The plaintiff and his solicitors were required either to apply for the appointment of a tutor or put on an affidavit confirming the plaintiff’s capacity to conduct the litigation. A number of medical appointments were arranged by the State for that purpose. The plaintiff failed to keep any of them. There was no obvious tutor readily available who could assume conduct on behalf of the plaintiff. In those circumstances, Garling J determined that the interests of justice required that the proceedings be dismissed for want of due despatch: at [10]. Central to his Honour’s determination was the fact that, as in this case, the plaintiff’s claim was not constrained by any limitation period and could be recommenced at any time.

7. [54]

   While these cases do not dictate the outcome of this application, I consider them highly instructive.

8. [55]

   The Plaintiff’s solicitors offer a candid and credible explanation for the delay that has occurred. The difficulty here is that, as adverted to above, there is no indication as to when the cause of the delay will be rectified. That is no fault of the Plaintiff’s solicitors.

9. [56]

   The Plaintiff submits that the delay in this case is properly characterised as a “procedural lapse” that the Plaintiff should be permitted to cure, and that a dismissal in those circumstances is a “drastic remedy”. I disagree. First, there has not been one lapse but several. Secondly, and more significantly, the Plaintiff does not come before the Court seeking to cure those lapses. She is disengaged from the proceedings and has not communicated with her solicitors in nearly six months. She has not attempted to remedy this default and there is no evidence that she will.

10. [57]

    The Plaintiff’s solicitors also contend that a dismissal of these proceedings would in effect operate as a permanent stay, because the Plaintiff may not have the mental or financial capacity to recommence the proceedings in future. In this regard, they seek to call on the principles which govern the ordering of a permanent stay. I reject this approach. The Defendant is not seeking a permanent stay and it is unhelpful to draw upon principles which have no application to the issue before the Court. The Defendant is seeking that the proceedings be dismissed for want of due despatch which, as the Defendant acknowledges, permits their being reinstituted: CPA s 91(1). Furthermore, there is no evidence of the Plaintiff’s current financial capacity before the Court from which to draw an inference that she does not have the means to commence proceedings at a later date. At the hearing, the Plaintiff’s solicitor referred to the report of Dr Roy, in which he recounted that the Plaintiff informed him that she was unemployed and on Centrelink benefits. While that may be, the report was composed nearly three years ago, and no further information of the Plaintiff’s financial circumstances has been proffered since that time.

11. [58]

    These proceedings were commenced in October 2024 and have seen little progress. The Plaintiff has been extended latitude in her conduct of the case and has been afforded every opportunity to prosecute her claim. She is no longer in contact with her solicitors and there is no indication that she intends to advance her case in the near future. Considering the overriding purpose and objects of case management by which this Court is bound, it cannot allow this case to stagger between directions hearings without end.

12. [59]

    For those reasons, making full allowance for the difficulties from which the Plaintiff suffers in light of the nature of her claim, I consider that the Court is compelled to dismiss the proceedings for want of due despatch.

Costs

1. [60]

   The usual rule is that costs follow the event: UCPR rr 42.1 and 42.20(1).

2. [61]

   The Plaintiff’s solicitors submit that the imposition of a costs order would “deprive the Plaintiff of justice”, primarily by reference to the operation of UCPR r 12.4. That rule applies to proceedings which are discontinued; these proceedings are to be dismissed. The relevant rule is UCPR r 12.10, which provides as follows:

3. [62]

   I am not persuaded by this submission for two reasons. First, as stated above, there is no evidence of the Plaintiff’s financial capacity before the Court. There is no basis to assume that she could not meet a costs order. Secondly, r 12.10 is not mandatory but discretionary. Even on the assumption that the Plaintiff recommences these proceedings without having satisfied a costs order, I am not in a position to predict how a judge may determine any such application by the Defendant (assuming the Defendant makes such an application). That would be a matter for that judge based on the evidence tendered on that application and the submissions made in relation thereto.

4. [63]

   The Plaintiff has been unsuccessful on both motions before the Court and the proceedings commenced by her are to be dismissed. There is no reason why costs should not follow the event.

Conclusion

1. [64]

   I have a deal of sympathy for the Plaintiff. She is a woman who is evidently distressed. If her case be correct, it takes little to accept that the psychiatric conditions from which she suffers are caused, at least in part, by the reprehensible crimes found to have been perpetrated against her. Nevertheless, she elected to commence these proceedings at a time of her choosing. The law requires a plaintiff who does so to prosecute their case with reasonable effort so that their claims may be heard and determined without delay. These proceedings cannot be allowed to continue while the Plaintiff fails to advance her case.

2. [65]

   I commend the parties’ solicitors for their conduct of the case in trying circumstances, none of which were their fault.

3. [66]

   The Court orders that:

   1. (1)

      The Plaintiff’s motion be dismissed.

   2. (2)

      The proceedings be dismissed for want of due despatch, pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW).

   3. (3)

      The Plaintiff pay the Defendant’s costs of the proceedings.