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Catchwords: CIVIL PROCEDURE — application by second defendant to dispense with requirement to plead defences to civil claims — exercise of privilege against self-incrimination

Legislation Cited: Corporations Act 2001 (Cth)
Crimes Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 15.1

Cases Cited: In the matter of Bleeker Property Group Ltd (In Liquidation) [2023] NSWSC 858
Macdonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612; (2007) 65 ACSR 299; [2007] NSWCA 304

Category: Procedural rulings

Parties: Rhiana Rose Froome (Plaintiff)
State of New South Wales (First Defendant)
John Newman (Second Defendant)

Representation: Counsel:
S Holmes (Plaintiff)
J Vermiglio
D Mackay (Second Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Wotton Kearney (First Defendant)
Fourtree Lawyers (Second Defendant)

File Number(s): 2026/83837

Publication restriction: No

ex tempore JUDGMENT - revised

1. These proceedings commenced with the filing of a statement of claim on 27 February 2026. An amended statement of claim was filed on 22 May 2026. In the amended pleading the plaintiff, in summary, alleges that:

2. When she was a minor, she was a student at a high school in Wyong.

3. The school was operated and managed by the Minister for Education and Training through the first defendant (the State of New South Wales).

4. The second defendant was a teacher at the school.

5. From about 2001, when the plaintiff was in Year 9, the second defendant began a process of grooming, which culminated in the second defendant taking the plaintiff to a motel where forceful sexual activity took place.

6. Over the next three years the plaintiff was taken, by the second defendant, to a motel in the Dural area, where sexual intercourse took place, on at least 10 occasions.

7. Many other instances of sexual activity, including sexual intercourse, took place at different locations during the same time period. The locations included the second defendant’s family home.

8. The first defendant was aware of the foreseeable risk of abuse by a teacher upon a pupil.

9. On several occasions the second defendant took the plaintiff into his school office, an activity which was observed by other teachers.

10. On other occasions the second defendant took the plaintiff out of school, again observed by other persons.

11. The first defendant was informed about the second defendant’s activities by other students.

12. The conduct of the defendants caused harm to the plaintiff which should be reflected in damages.

13. Neither defendant has filed a defence to date.

14. On 1 September 2026, the second defendant filed a notice of motion seeking orders relieving him of the obligation to meet the requirements for a defence as specified in rr 14.14 and 15.1 of the Uniform Civil Procedure Rules 2005 (NSW). These rules require that a defence contains a specificity in assertions and such particulars “as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.”

15. The second defendant also wishes to be relieved from filing a verified defence, as required by r 14.23.

16. The motion is supported by an affidavit of Mr Kevin Vierboom dated 1 September 2026. Mr Vierboom is the second defendant’s solicitor.

17. The reason that the second defendant is seeking the orders is that he does not wish to incriminate himself by being compelled to plead to the allegations contained in the statement of claim. Although the allegations have been reported to the police, the second defendant has not yet been charged with any criminal offence, although Mr Vierboom anticipates that criminal charges are on the close horizon.

18. Conviction of the second defendant for the relevant offences could result in very lengthy terms of imprisonment. I also note that for most, if not all of the potential offences, the consent of the complainant is not an available defence.

19. There is no doubt that the allegations made by the plaintiff describe crimes pursuant to the Crimes Act 1900 (NSW) as it was in force between 2001 and 2004 and, no doubt, at the present time.

20. The plaintiff consents to the orders. The first defendant neither consents to, or opposes, the orders sought by the second defendant.

21. The orders sought by the second defendant might be described as an exercise of his privilege against self-incrimination. A case in which a similar issue arose is In the matter of Bleeker Property Group Ltd (In Liquidation) [2023] NSWSC 858. In this case the plaintiff’s claim alleged breaches of civil penalties under the Corporations Act 2001 (Cth). It was asserted that information provided in a defence, as required by the rules, could result in the incrimination of some of the defendants. Williams J said, at [43]:

“Being compelled to plead a defence in accordance with the applicable pleading rules in a civil proceeding (where no penalty is sought) may tend to expose the defendant to a criminal charge or to a penalty if there are criminal proceedings or penalty proceedings on foot alleging the same or similar conduct that is the subject of the non-penalty civil proceeding, or if there is a real and appreciable risk of such criminal or penalty proceedings. This is one example of what is sometimes referred to as ‘exceptional circumstances’ which may warrant some dispensation from the pleading rules in the non-penalty civil proceedings.” (footnotes omitted)

11. Her Honour went on to say that any “dispensation from pleading rules should only go so far as is necessary to serve the privileges and the interests they protect”: at [44]. Her Honour referred to Macdonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612; (2007) 65 ACSR 299; [2007] NSWCA 304, where Mason P said from [64]:

“64. The privilege serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it (Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 559[31], Rich at 142[24]). But this does not define the scope of the privilege. The related privilege touching the criminal law is one of self-incrimination (emphasis added). The nub of the privilege is that the State should not be able to compel a defendant to provide proof against him or herself (Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 532; Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129). The privilege extends to protect against compelled disclosure of evidence or documents that would increase the tendency of exposure to penalty (Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 612F per Lord Wilberforce).

65. In Rich the High Court held that the privilege meant that a court could not order discovery in civil penalty proceedings under the Corporations Law. The High Court’s reasons for refusing in limine to order discovery illustrate its recognition of the need to guard against direct or indirect prejudice, including the prejudice of providing clues about where to trace documents or to link them with the defendant. In the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, the majority explained the setting aside of the order for discovery in the following terms (at 148 [39] citations omitted):

‘As Isaacs J pointed out in R v Associated Northern Collieries, once it is determined that the proceedings expose a person to penalty, the proper course is to refuse any order for discovery. As Isaacs J said, to leave the party at risk of penalty to object to production of documents, having first listed them, may lead to the very mischief which the privilege is designed to prevent. In the words of Lord Coleridge CJ in Jones v Jones, to which Isaacs J referred:

“The whole case for the plaintiff may depend upon his power to trace a particular document into the possession of the defendant, and, upon its non-production, to prove its contents by secondary evidence.”

That being so, the proper course in this matter was to refuse the application for discovery.’

66. A defendant is entitled to be protected against both direct and indirect self-incrimination. Accordingly, the privilege also protects against the compelled disclosure of information that ‘may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character’ (per Lord Wilberforce in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 443, cited by Gibbs CJ in Sorby v The Commonwealth (1983) 152 CLR 281 at 294. See also Sorby at 310 per Mason, Wilson and Dawson JJ; Reid v Howard (1995) 184 CLR 1 at 6-7 per Deane J.).

67. The need for a privilege claim to be bona fide and reasonable is well established (see generally Heydon J D, Cross on Evidence 6th Aust ed, Butterworths, Sydney, 2000 at [25100]). But courts err on the side of caution lest an apparently innocuous disclosure has unforeseen adverse consequences (see generally Re New World Alliance Pty Ltd (Receiver and Manager Appointed); Syncotex Pty Ltd v Baseler (1993) 47 FCR 90 at 96-7 per Sheppard J).”

12. The present case involves allegations far from the Corporations Act. Assuming the veracity of the plaintiff’s case, I feel a natural reluctance to allow the second defendant to not plead his defence as required by the rules. I have to recognise however, that it is a basic rule of the common law that a person is not bound to incriminate him or herself. I do not think I have much choice but to make the orders sought.

13. I also note the consent of the plaintiff which further enhances the second defendant’s request for the orders.

14. I make the following orders:

15. The second defendant is to file and serve an unverified defence before 23 October 2026 to the amended statement of claim.

16. The requirements of rr 14.14 and 15.1 of the Uniform Civil Procedure Rules 2005 (NSW) are dispensed with on the grounds of privilege against self-incrimination insofar as the rules would otherwise apply:

(a) to the pleading of defences to those paragraphs of the amended statement of claim which comprise paragraphs 17 to 52, 57, 58, 60 and 67 to 76; and (b) to the pleading of any facts and the provision of any particulars to be relied upon in support of any statutory defence or other positive case to be asserted by way of defence to any of the plaintiff’s claims, provided that the second defendant shall notify the plaintiff in his defence of any intention to invoke any such defence and (at least) the statutory provision or legal principle to be relied upon in respect of any such defence.

3. Note that the second defendant is entitled to respond to each of the allegations in the amended statement of claim referred to in order 2(a) above with a statement of non-admission, coupled with a statement that it invokes the second defendant’s privilege against self-incrimination in respect of its response to that allegation.
4. Costs of this application are to be costs in the cause.

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