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[2025] NSWSC 1313
General information, not legal advice.
Supreme Court of NSW
2025-10-31
Garling J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Lane v State of NSW [2025] NSWSC 1313
Hearing dates: 31 October 2025
Date of orders: 31 October 2025
Decision date: 31 October 2025
Jurisdiction: Common Law
Before: Garling J
Decision: See [24]
Catchwords: CIVIL PROCEDURE – Pleadings – Amendment – Amendment to Statement of Claim – Application for leave to file a Proposed Second Amended Statement of Claim – Where no cause of action pleaded arising out of the material in a paragraph of a pleading – Where a paragraph in a pleading exists to provide context against which conduct can be considered – Paragraph deemed unnecessary – Reference to objects of the Crimes (Administration of Sentences) Act 1999 (NSW) deemed inappropriate for inclusion in pleadings – Leave granted to file Proposed Amended Statement of Claim
STATUTORY INTERPRETATION – Objects – s 2A of the Crimes (Administration of Sentences) Act 1999 (NSW) – ‘safe, secure and humane environment’ – Whether the incorporation of the objects of the Crimes (Administration of Sentences) Act 1999 (NSW) into a pleading is inconsistent with the provision in subs (3) of that Act – Whether one provision or statute can dictate the answer to a question of statutory construction – Whether the correct interpretation of subs (3) of the Crimes (Administration of Sentences) Act 1999 (NSW) is that the objects of the Act cannot give rise to a statutory civil cause of action – Issues demanding a full argument and hearing
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW) s 2A
Felons (Civil Proceedings) Act 1981 (NSW) ss 4, 5
Independent Commission Against Corruption Act 1988 (NSW)
Special Commission of Inquiry Act 1983 (NSW)
State Records Act 1998 (NSW)
Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16; (2022) 107 NSWLR 544
Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118
Texts Cited: Not Applicable
Category: Procedural rulings
Parties: Keli Lane (P)
Minister of Corrections (D)
Representation: Counsel:
C O’Neill (P)
A Williams (D1, D2)
Solicitors:
Carroll & O’Dea Lawyers
Makinson d’Apice Lawyers
File Number(s): 2024/454199
Publication restriction: Not Applicable
The plaintiff in these proceedings seeks leave to file a Second Amended Statement of Claim. The defendant, the State of NSW, opposes the grant of leave. The plaintiff accepts that there are some minor editing, typographical and other stylistic issues which need to be addressed, but putting those matters to one side, the substance of the issue which divides the parties is a matter of real significance.
The plaintiff claims damages against the defendant arising out of the conduct of named individuals who were either, at the relevant time: the Commissioner for Corrective Services, an Acting Commissioner for Corrective Services, or else officers in the employ of Corrective Services, responsible for the making of decisions about the placement, conditions and conduct of the plaintiff whilst she has been and is in custody.
The plaintiff claims damages, aggravated and exemplary damages arising from the tort of misfeasance in public office and also arising from assaults and batteries by three named individuals. In respect of the torts pleaded, the plaintiff pleads - and I do not understand that it is seriously in dispute – that, if she establishes the causes of action, the State is vicariously liable for the conduct of the individuals, or else has a legal responsibility with respect to the conduct of the individuals.
In paragraph 8 of the Statement of Claim, the plaintiff pleads that, at all material times, the officers whose conduct is dealt with in the Statement of Claim were subject to a range of statutory or other obligations, such as those created by a code of ethics and conduct and other procedures of various departments in the way in which they carried out their duties.
By way of example, paragraph 8 pleads that the officers were bound, when exercising their public powers, by the Special Commission of Inquiry Act 1983 (NSW), by the State Records Act 1998 (NSW), or the Independent Commission Against Corruption Act 1988 (NSW). All of those matters can be independently established. Paragraph 8 is submitted by the plaintiff to be drawing the attention of the Court to the terms of the statute and the obligation imposed by the statute. The fact that there may be obligations under the range of matters listed in paragraph 8 may be relevant for a Court to take into account when considering the manner in which powers were exercised by individual officers.
Put differently, the terms of the Statute's Codes and Procedures set out in paragraph 8 may inform the Court's decision as to whether conduct was, or was not, either unlawful or inappropriate. But no cause of action is pleaded arising out of the material in paragraph 8, and it seems to me that it is intended in the pleading to provide a context against which conduct may be considered.
In my view, the paragraph is unnecessary and has no role of substance to play in the pleading of the causes of action which have arisen, and I would not permit a pleading which contains that paragraph.
“9. At all material times, the custody of inmates by the Defendant was regulated by, among other things, the CAS Act, and in particular its objects in s 2A, which required the Defendant and those in its service, including any Commissioner and other Officers, to:
(a) know of, and be bound by the operation of the legislation;
(b) ensure that those offenders who are required to be held in custody and removed from the general community and placed in safe, secure and humane environment;
(c) ensure that all offenders are kept under supervision in a safe, secure and humane manner;
(d) ensure the safety of persons having the custody or supervision of offenders is not endangered;
(e) provide for rehabilitation of offenders with a view to their reintegration into the general community.”
“(1) This Act has the following objects—
(a) to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment,
(b) to ensure that other offenders are kept under supervision in a safe, secure and humane manner,
(c) to ensure that the safety of persons having the custody or supervision of offenders is not endangered,
(d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community.
(2) In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders.
(3) Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings.”
In particular, it is to be noted that the objects of the CAS Act, as set out in ss 2A(1)(a) and 2A(1)(b), include the phrase, "a safe, secure and humane environment."
Those words, or that combination of words, are to be found in paragraph 9 and in a number of other paragraphs of the pleading, where the failures of individuals to exercise their role, in accordance with a positive obligation, are pleaded. As well, as is apparent, sub-paragraphs 9(b) through to 9(e) substantially repeat and rely upon, the contents of sub-s 2A(1)(a) through to (d) of the CAS Act.
The State draws attention to the provisions of sub-s (3) of s 2A of the CAS Act and submits that the way in which the plaintiff has pleaded the various obligations, and breaches of obligations, in the proposed pleading are in breach of s 2A(3), and, accordingly, the Court should not permit the pleading to go forward.
The defendant accepts that, whilst the interpretation of s 2A(3) of the CAS Act may be difficult, it can nevertheless be said with clarity, however it is to be interpreted, that the way in which the plaintiff has approached the objects section, namely by incorporating it in substance in its pleading, offends the provision in s 2A(3).
The defendant draws attention to some remarks of Leeming JA in Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16; (2022) 107 NSWLR 544 at [235], where his Honour said that if that subsection "bears its literal meaning, it is self-defeating”. Clearly, his Honour was troubled by that literal meaning. He went on to raise a potential corrected meaning so as to posit sub-s (3) as meaning that:
"Nothing in s 2A(1) or (2)… can be taken into account in any civil proceeding.
Then it raises a large question whether one provision of a statute can dictate the answer to a question of statutory construction.”
The plaintiff submits that the complexities involved in the interpretation of s 2A, and its true meaning, give rise to a number of potential meanings. It submits that one, but not the only, interpretation of sub-s (3) is that the objects of the CAS Act cannot give rise to any civil cause of action of a kind which is well known in the common law as a statutory cause of action. Nor can the objects of the CAS Act be relied upon for example in pleading a breach of a duty of care in a tortious claim in negligence as a particular of the breach such as in words such as a person for whom the party is liable, was in breach of sub-s (1)(a) of s 2A of the CAS Act.
The plaintiff submits that, limited in that way, the section is capable of clear application. If that is how it should be limited, the plaintiff submits that the proposed ASOC does not offend against any such interpretation.
The issue which has been posed for my determination on the application to amend the Statement of Claim arises in this way. The State submits that leave ought not be granted to file a proposed pleading which, as it submits, the authorities provide, would be liable to be struck down because the ground of such leave would be futile.
Again, applying authorities generally, where such an argument is raised, the test which the Court applies is similar to a summary judgment or summary disposal test of the kind found in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118, and other like decisions. In summary, the issue has to be entirely clear and beyond real argument before the Court would act in accordance with it. Accordingly, if there is an argument of substance about the way in which sub-s (3) of s 2A ought be interpreted, then one could not readily come to a conclusion that it would be futile to allow the pleading.
There is much to be said for the interpretation for which the State contends. However, I see significant difficulties in according to sub-s (3), the width of the work for which the State contends. The construction given to s 2A(3) by counsel for the plaintiff is arguable. It may raise some eyebrows as to whether it is, in fact, the correct argument, but nevertheless it certainly cannot be dismissed out of hand without a full hearing.
I have reached the conclusion that, such is the complexity of interpreting s 2A(3) of the CAS Act, that it is a matter which should await pleadings and full argument, and it ought not stand in the way of the filing of the proposed amended pleadings. However, I am of the view that in whatever way the arguments are to be put, that it is inappropriate for the words in paragraph 9 "and in particular its objects in s 2A" to remain in the pleadings.
**********
Lane
State of NSW [2025] NSWSC 1313
(1964) 112 CLR 125
(2022) 107 NSWLR 544
No doubt, however, the omission of the paragraph would not be taken by the defendant to indicate that the Statute's Policies, Codes and Procedures are now conceded to be irrelevant to the facts, matters, and circumstances raised by this pleading. They remain relevant because those particularised obligations continued to exist whilst the officers were exercising their powers as Corrective Services officers.
Paragraph 9 of the proposed Amended Statement of Claim (“proposed ASOC”), and a number of other paragraphs containing similar material, are objected to by the defendant. It is appropriate to set out, at this stage, only paragraph 9:
As I understand the proposed amended pleading, paragraph 9 is the only place in which those words appear, although it is clear, as the State has demonstrated, that the phrase "safe, secure and humane environment" is repeated in many paragraphs of the proposed ASOC.
Accordingly, I am satisfied that there should be a grant of leave to file a proposed ASOC, but in a form which takes account of any typographical error or other formatting which the parties can agree upon, which removes the words to which I just made reference in paragraph 9, and removes paragraph 8. For those reasons, there will be a grant of leave. It seems to me that a period of two weeks ought be sufficient for the exercise of that grant of leave.
I make the following orders:
Grant leave to the plaintiff to file a proposed Second Amended Statement of Claim in the form served on 25.9.25, subject to adjustment to reflect the terms of the ex-tempore judgment of today.
Order the plaintiff to pay the defendant’s costs of, and occasioned by, the amendment.
In accordance with s 5 of the Felons (Civil Proceedings) Act 1981 (NSW), the Court is satisfied that these proceedings are not an abuse of process, and that there is a prima facie ground for these proceedings.
Order, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), that the plaintiff has leave to institute these proceedings.
Order, pursuant to rule 36.4(3) of the Uniform Civil Procedure Rules 2005 (NSW), that preceding order is to take effect, as and from an earlier date, namely, 25.11.2024.
Order that the plaintiff’s Amended Notice of Motion filed 11 August 2025 be otherwise dismissed.
Order that the costs of the plaintiff’s Amended Notice of Motion filed on 11 August 2025 be costs in the cause.
Stand over the proceedings for directions before the Common Law Registrar on 26.11.25.