Bowles v State of New South Wales

Texts Cited: Nil

Category: Procedural rulings

Parties: Thomas Bowles (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
J. Isackson (Plaintiff)
J. Sukkar (Defendant)
Solicitors:
Shine Lawyers (Plaintiff)
McCabes Lawyers (Defendant)

File Number(s): 2023/449678

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. By Notice of Motion filed on 30 September 2025 (“the motion”), the State of NSW (“the State”) moved the Court to dismiss proceedings brought by Mr Thomas Bowles (“the plaintiff”), by way of a Statement of Claim filed on 12 December 2023.

2. The motion was predicated upon r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW). In that respect, the State contended that the proceedings should be dismissed due to the plaintiff's failure to prosecute the proceedings with due dispatch. That application was opposed by the plaintiff, in circumstances to which I will return.

3. The factual underpinning of the motion was uncontroversial in the proceedings. I note, in that respect, that the Court received an affidavit of Shaheen Hoosen of 30 September 2025, which was read in support of the motion. The Court also received two affidavits of the plaintiff’s solicitor, Graham Ingleton, of 5 March 2025 and 31 October 2025.

4. The facts and circumstances, to which I shall refer momentarily, are given on the basis of the material bought to account by Mr Hoosen, and the evidence of Mr Ingleton, which confirms in frank terms, some of the factual underpinnings of the case brought on behalf of the State, as well as some frank statements as to the incapacity of Mr Ingleton to obtain instructions from his client. In particular, to obtain instructions in relation to medico legal assessments, to which I shall return, or have any commitments made in that respect adhered to by the plaintiff.

5. I make that observation at the outset because, in my view, the approach adopted by Mr Ingleton in his continued representation of the plaintiff by his affidavit, and Mr J. Isackson of counsel, who appeared on behalf of the plaintiff, are entirely appropriate in the discharge of those legal representatives as officers of the Court.

6. I turn then to the factual background in further detail, which, because of the absence of controversy in them, follows essentially the factual outline provided in written submissions on behalf of the State.

7. The Statement of Claim brought by the plaintiff brings a claim for damages in respect of an alleged sexual assault which he suffered while a child detainee at the Frank Baxter Youth Justice Centre. He sues the defendant in negligence and vicariously in respect of the alleged perpetrator's abuse. The defendant does not admit that abuse and denies the claim for negligence and vicarious liability.

8. I pause to note that the Court is not in a position, of course, to determine the allegations contained within the Statement of Claim. However, the Court has proceeded with particular care in the present circumstances, because of the nature of the allegations contained in the Statement of Claim, to ensure that so far as is possible, in all the circumstances, the interests of the plaintiff are properly protected.

9. Nonetheless, the factual circumstances confronting the Court on the present application indicate that the plaintiff failed to attend a total of seven medico legal assessments arranged by the State. Three of those medico legal assessments were arranged prior to the commencement of the proceedings (on the basis of an unlitigated claim by the plaintiff), and the other four medico legal assessments were arranged after the commencement of the proceedings.

10. The circumstances of the respective appointments (which were arranged between 2023 to 2025) were set out in the written submissions of the State. However, reference should be made, in particular, to the most recent failure by the plaintiff to attend upon a psychiatric medico legal appointment with Dr Wasim Shaikh on 22 August 2025.

11. It should also be mentioned, in respect of the present application, that the failure by the plaintiff to attend medico legal assessments has allegedly been in contravention of court orders on three occasions, respectively, 28 February 2024, 9 October 2024, and 10 March 2025.

12. Significantly, on 10 March 2025, a notation was made on the Court's file that the defendant intended to file a Notice of Motion seeking dismissal of the proceedings, in the event the plaintiff failed to attend further medico legal assessments. Since that date, as I have mentioned, the plaintiff failed to attend the appointment with Dr Shaikh on 22 August 2025.

13. It is of some significance to the disposition of the matter, that neither Mr Ingleton in his evidence, or Mr Isackson in oral submissions, were able to provide any surety to the Court, on the instructions that they have received, that there would be progress made in the prosecution of the claim.

14. I have referred to the difficulty of the plaintiff’s solicitor in obtaining instructions. There does not there appear to be any light at the end of the tunnel, to use a colloquial expression, which would suggest, even in the slightest respect, that there is a prospect for the plaintiff to attend upon medico legal assessments in the future.

15. All of that needs to be understood in a particular and final factual context. That is, on the evidence before the Court, the plaintiff is afflicted with what appears to be significant psychiatric disorders. Whether those disorders impact upon his attendance on medico legal assessments is not entirely clear on the report the Court has received dated 2022.

16. However, those psychiatric conditions are said to be a product of the alleged abuse of the plaintiff. It is not beyond wit to come to a conclusion that those psychiatric conditions may have played a role in relation to the plaintiff’s compliance with his requirements to attend medico legal conferences. But on the other hand, this may also be suggestive that the plaintiff will never attend medico legal conferences, or, at least, that he will not do so in the foreseeable future.

17. Hence, the Court is left in a position where it has no other basis than to conclude that, as things presently stand, the plaintiff will prosecute his claim in any way which conforms with the rules of the Court, and the orderly discharge of proceedings, including attendance upon medico legal assessments.

18. In those circumstances, in my view, it is appropriate for the relief sought by the State on the motion, as to the dismissal of the proceedings, to be granted.

19. There was some discussion with the parties as to whether such an order may bar the plaintiff from bringing further proceedings, which would seek damages for the same alleged assault. It was common ground between the parties that the effect of the relevant rule, and the relevant legislation, does not create such a bar.

20. For more abundant caution, I should indicate that I proceed upon the basis that the dismissal does not have that effect. It is the intention of the Court that it would not do so.

21. I turn then to the second prayer for relief sought in the motion, which was that the plaintiff pay the State’s costs of the proceedings and the motion. The basis upon which that application was made, is plain. The State relied upon the provisions of r 42.1 of the Uniform Civil Procedure Rules to contend that costs should follow the event. It was further contended that there was a particular interest in the State obtaining such relief, notwithstanding the plaintiff’s accepted impecuniosity, because, as I have already passed upon, the dismissal of the proceedings would not prevent the plaintiff from commencing proceedings afresh.

22. In the event of the plaintiff not complying with a costs order, the effect of r 12.10 of the Uniform Civil Procedure Rules will be to affect a stay against further proceedings until the costs order is satisfied.

23. The factual background for the consideration of the costs application was, in part, the somewhat dated report of Dr Skarbek, in which the plaintiff was diagnosed with significant psychiatric disorders. Those disorders included post-traumatic stress disorder, substance use disorder, and antisocial personality disorder.

24. At least with respect to the first of those diagnoses, the consultant psychiatrist was of the view that there was a causal connection between the alleged sexual abuse of the plaintiff as a child, and the psychiatric condition in question. Nonetheless, at the conclusion of the psychiatric report, it was observed that the plaintiff had the capacity to manage his own affairs with respect to the legal proceedings, and that the plaintiff also had the capacity to pass upon a legal settlement.

25. The evidence of the plaintiff’s solicitor which was before the Court, explained, at least in part, the plaintiff’s basis for non-attendance upon medico legal conferences, and orders of the Court directing the same.

26. The sole basis for the orders made dismissing the proceedings for want of despatch, is that the psychiatric conditions were impacting upon the plaintiff in such a way as may preclude his attendance.

27. It may be implied from the evidence of his solicitor, that the plaintiff’s failure to attend was because of the afflictions he has and his concerns as to the prospect of reliving the trauma.

28. There was nothing before the Court which would indicate, on the evidence, that the proceedings were brought by the plaintiff fraudulently or vexatiously, or that there was not at least some evidentiary foundation which would have permitted his legal representatives to bring the proceedings, in accordance with the rules of the Court.

29. It was brought to my attention, in authority of the High Court of Australia, that impecuniosity is not a basis for the refusal of costs on the basis that the costs may never be recovered, because the High Court referred to the other functions of an order of full costs in that respect: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [35] (per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).

30. However, I do consider that impecuniosity is, in and of itself, a discretionary factor that the Court may have regard to in the course of considering whether or not to make an award of costs. So too are other considerations laying at the background of the present proceedings. Namely, the alleged abuse of the plaintiff and the prospect that the making of an order of costs, given his impecuniosity, might have the effect of shutting him out of bringing proceedings in support of his action for damages with respect to the alleged abuse at some later stage, by operation of r 12.10 of the Uniform Civil Procedure Rules*.*

31. In my view, whilst the submissions of the State, in this respect, were reasonable given the position the State has been placed in, the counterbalancing considerations in assessing costs are the plaintiff’s psychiatric condition, its potential connection to the alleged abuse, and the public interest considerations which would arise in effectively taking a course which may bar the plaintiff from bringing proceedings in the future due to the plaintiff’s impecuniosity. These factors represent a proper basis to refuse costs. In those circumstances, the application for costs is refused.

ORDERS

32. Pursuant to r 12.7 of the Uniform Civil Procedure Rules (NSW), the proceedings are dismissed.

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