CA1 v State of New South Wales (No.2)

Medium Neutral Citation: CA1 v State of New South Wales (No.2) [2025] NSWSC 1254

Hearing dates: 22 October 2025

Date of orders: 22 October 2025

Decision date: 22 October 2025

Jurisdiction: Common Law

Before: Garling J

Decision: The parties are directed to provide agreed Short Minutes of Order by 4pm on 23 October 2025.

Catchwords: CIVIL PROCEDURE – Representative proceedings – Conduct of proceedings – Notices – Group members – Identifying – Opting out – Where plaintiff proposes orders to encourage unknown group members to register for an ordered mediation via the distribution of an approved notice – Where the defendant opposes the imposition of the plaintiff’s registration process and seeks an order for the provision of information about presently known group members – Whether the plaintiff’s proposal will result in duplication of the process and wasted expenditure at a later point in proceedings following mediation – Whether the distribution of unnecessary notices will negatively affect vulnerable group members – Application of s 56 Civil Procedure Act 2005 (NSW) – Court determined that a greater number of known claimants prior to mediation will result in greater assistance in reaching settlement – Vulnerability of the class not affected by distribution of two notices – Orders made in favour of plaintiff

Legislation Cited: Civil Procedure Act 2005 (NSW) s 56

Cases Cited: Not Applicable

Texts Cited: Not Applicable

Category: Procedural rulings

Parties: CA1 (P)
State of New South Wales (D)

Representation: Counsel:
M Robinson (P)
J R Walker (D)
Solicitors:
Mills Oakley (P)
Makinson d’Apice (D)

File Number(s): 2023/209918

Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

1. On 18 September 2025, the Court declined to make an order granting leave to the plaintiff to amend her then existing pleading, so as to reduce the membership of the group by reference to a process of registration.

2. The parties were directed to provide Short Minutes of Order, in light of that ruling, for the further progress of this matter towards a mediation. The parties jointly seem to be of the view that the conduct of this representative proceeding is best progressed, initially, by providing a reasonable time to the parties to engage in a mediation in an attempt to resolve the proceedings, either in whole, or in part.

3. Given the nature of these proceedings, and the subject matter giving rise to the claims by the plaintiff and group members in the events which have happened, I am prepared to allow the parties a reasonable period to mediate the proceedings prior to making orders of the usual kind for the preparation of evidence for the hearing, which would likely be lengthy.

4. In part, my approach to that question is informed by the fact that the Defence of the State of New South Wales accepts that, if conduct of the kind pleaded as having taken place at the hands of Mr Astill in the Dillwynia Correctional Centre, being conduct which can be described as amounting to physical and/or sexual abuse, is either admitted by the State, or proven by the plaintiff or a group member, then such conduct was deliberate, wrong and without lawful authority.

5. I note that the State also admits that, if the conduct was proved, then it constituted an abuse of power or was otherwise unauthorised. Further, I note that the State admits that, if it is established that Mr Astill had a personal liability for misfeasance in public office to the plaintiff or a group member, then it is vicariously liable for that conduct.

6. The plaintiff proposes orders which would have the effect, via the distribution of an approved Notice, of encouraging, but not mandatorily requiring, the members of the group whose identities are not presently known, to register with the plaintiff for the purpose of enabling those persons' individual circumstances to be identified and established so as to enable them to be considered, as a known member of the group, in any upcoming mediation.

7. The plaintiff proposes a mediation which would occur on, or before, 1 July 2026. The defendant opposes the registration process and seeks an order for the provision of information about the presently known group members and the details of their claim to be provided to enable a mediation to occur. The State seeks that such mediation should occur on, or before, 31 July 2026.

8. Both parties seek an order extending the date for opting out of these representative proceedings to 27 February 2026, which is also the date proposed as the registration deadline.

9. The defendant submits that, whilst it is not prejudiced by the proposed registration procedure, there are two reasons that the Court would take into account in considering whether to make the orders sought by the plaintiff.

10. The first reason is that, regardless of the proposed registration procedure, if there is a successful mediation and an agreement is reached to resolve the proceedings as a whole, because any such agreement requires the approval of the Court, it will be necessary, at that stage, to engage in the distribution of a further Notice drawing attention to the fact of the settlement and, perhaps, the relevant terms of the settlement, and requiring registration of group members who wish to participate in the settlement, prior to the settlement being approved. The defendant submits that, because such a procedure would be required in any event, there would be a duplication of that procedure by what is proposed by the plaintiff, carrying with it a wasted expenditure on costs.

11. The second consideration advanced by the State to oppose the regime contended for by the plaintiff is that, having regard to the nature of these proceedings and the nature of the group for which these proceedings are brought, namely individuals who were, at a particular time, incarcerated in the Dillwynia Correctional Centre and who may still be incarcerated in one or other Correctional Centre, or else who may be vulnerable by reason of any mental health condition, either because such condition existed and was exacerbated by the conduct of Mr Astill or, alternatively, as a consequence of the conduct of Mr Astill, that there would be a risk to such vulnerable members of the group of, as I understood it, exacerbating their vulnerability and, perhaps, their mental state, by the sending of Notices, which were not necessary or otherwise essential.

12. The plaintiff had earlier submitted that the current state of the proceedings was that the group members have only received the original Public Notice, accompanied by an Opt Out Notice, and that the original Public Notice informed potential group members that, if they wished to remain a member of the group then they did not need to take any active step at that stage. The plaintiff submits that, in those circumstances, providing the proposed Notice would better inform the group members whose identities are not yet known to the plaintiff, so that they may consider registering for and progressing their claims in respect of the mediation.

13. In considering what the appropriate orders are, the Court needs to take into account that s 56 of the Civil Procedure Act 2005 (NSW), in its overriding purpose, calls on the Court to consider whether the orders will assist in the resolution of the real issues in the proceedings in a just, quick and cheap manner.

14. One of the matters which seems to me to be of importance is that, ultimately, should a settlement be reached and the Court be asked to approve that settlement, the Court will need to be persuaded that any settlement is neither unfair, nor unjust, to any of the group members, including those group members who are not identified or known.

15. It seems to me that the procedure proposed by the plaintiff which is, on my assessment on the probabilities, likely to increase the number of known claimants at an early stage and will certainly not, of itself, decrease the number of known claimants, is likely to prove beneficial to the Court's consideration of any proposed settlement.

16. As well, it seems to me that the greater the number of known claimants prior to any mediation, the greater the likelihood is that the parties will be further assisted in reaching a negotiated settlement.

17. I do not think that the additional cost of distribution of the approved Notice is such as, having regard to the number of potential group members and the benefit to be obtained by additional registration, to be out of proportion or unnecessary. I do not think, also, that the entirety of the costs involved in the current registration procedure will be completely duplicated, but rather that the cost of this present procedure is a small sum, being spent now, to assist in the resolution of the proceedings, when the alternative is that the Court would be required to fix the proceedings for a hearing and the parties would be required to incur very significant costs in the preparation of the matter for a hearing. Nor do I think that the vulnerability of the class will be particularly adversely affected by receiving two Notices, rather than one.

18. In those circumstances, I am of the view that the orders proposed by the plaintiff, more particularly, will favourably address an efficient and just means for maximising the prospects of the parties resolving the proceedings at any mediation.

19. For those reasons, I will make orders which broadly accord with the plaintiff's proposed scheme.

20. The parties are directed to provide agreed Short Minutes of Order by 4pm on 23 October 2025.

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