Derosa v State of New South Wales

Cases Cited: Nil

Category: Procedural rulings

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

Representation: Counsel:
G Watson (Plaintiff)
Solicitors:
Shine Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2023/00148354

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. Pursuant to a statement of claim filed on 9 May 2023, the plaintiff seeks damages from the defendant, the State of New South Wales, based on an alleged physical and sexual assault which occurred whilst the plaintiff was a juvenile and held by the State in a juvenile facility.

2. The plaintiff was born on 27 July 1982 and, at the time of the alleged abuse, that is, in 1999, he was under the age of 18. He seeks to bring these proceedings against the defendant on the basis that the defendant is liable for the sexual and physical assault perpetrated on him back in 1999.

3. Sadly, the plaintiff died on 6 August 2023. Thereafter, the solicitors for the plaintiff sought to substitute his partner, Tammy-Lee Cooper, as a representative of the plaintiff’s estate for the purposes of the proceedings, pursuant to r 7.10 of the Uniform Civil Procedure Rules (2005) (“UCPR”).

4. As set out in UCPR, r 7.10, in circumstances in which a plaintiff dies, the Court may order that the proceedings continue in the absence of a representative of the deceased person’s estate, or may appoint a representative of the deceased person’s estate for the purposes of the proceedings, but only with the consent of the person to be appointed.

5. When the matter came before me on 24 June 2025, I raised a concern with Mr Watson, who appeared for the plaintiff as agent for the solicitors for the plaintiff, as to whether Ms Cooper had been properly advised of the risks of becoming a representative in this case. Plainly, once she becomes a representative, she represents the plaintiff in all aspects of the case until such time as other orders might be made whereby the actual legal representative of the estate might replace her.

6. The matter was stood over to allow the plaintiff to provide a further affidavit to that effect.

7. On this occasion, the plaintiff relies on affidavits of Tammy-Lee Cooper dated 7 June 2025 and 29 July 2025. In her affidavits, she says that she has been advised by the solicitors for the plaintiff of the risks and responsibilities of being appointed as a representative, including in relation to legal costs and any adverse legal costs orders, and she has instructed her solicitors to proceed with the notice of motion.

8. In the circumstances, I am now satisfied that the orders set out in the motion should be made, and I make the following orders:

9. Pursuant to UCPR, r 6.29, the plaintiff be removed as a party to the proceedings.

10. Pursuant to UCPR, r 7.10, appoint Tammy-Lee Cooper as representative of the estate for the purposes of these proceedings.

11. Leave be granted to file and serve an amended statement of claim substituting Thomas Derosa for Tammy-Lee Cooper as the plaintiff.

12. Costs be costs in the cause.

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