Longin v The State of NSW

Catchwords: CIVIL PROCEDURE – tutor – where proceedings stayed until legal representation obtained – where statement of claim does not disclose a reasonable cause of action – where defendant seeks self-executing orders to have proceedings dismissed for want of due despatch – further adjournment of hearing of motion refused – self-executing orders made

Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Bi v Mourad [2010] NSWCA 17
Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806

Category: Procedural rulings

Parties: Katica Longin (Plaintiff)
Department of Communities and Justice (Defendant)

Representation: Counsel:
I Harvey (Defendant)
Solicitors:
Litigant in Person (Plaintiff)
Crown Solicitors Office (Defendant)

File Number(s): 2020/269392

JUDGMENT

1. On 20 June 2025, by consent, Cavanagh J adjourned the hearing of the State’s May 2025 motion to 4 August 2025: Longin v State of New South Wales (Unreported 20 June 2025). It seeking orders dismissing Ms Longin’s September 2020 statement of claim for want of due despatch in circumstances where she has pleaded claims in negligence both personally and on behalf of her child as tutor for her child.

2. The latter claims were stayed by Chen J in May 2025, until a solicitor was engaged. But the matter is listed for hearing in November 2025, together with other proceedings which Ms Longin pursues against her former husband.

3. There is no issue that Ms Longin suffers PTSD. While originally legally represented and despite having sought pro bono assistance, as well as recently having sought to engage solicitors and counsel, she still has legal representation in these proceedings. Although she is represented in the other proceeding she pursues which are also listed for hearing in November.

4. Nor has Ms Longin amended her pleadings, despite having long accepted that they need to be, if this matter is to be heard and having repeatedly been given the opportunity to amend those pleadings.

5. In June the adjournment of the hearing of the State’s motion was granted by Cavanagh J on the understanding that in order to do justice between these parties, the motion would have to be dealt with at the adjourned hearing in August, given the approaching 10-day hearing in November.

6. The position at the adjourned hearing was that Ms Longin had emailed, but not filed, a motion supported by an affidavit, by which she sought another adjournment of the hearing of the motion. She was granted leave to file the motion in court, that being consented to, but the adjournment was opposed and refused.

7. Annexed to her supporting affidavit was redacted correspondence which established that after the June hearing Ms Longin had engaged a private solicitor and paid undisclosed funds into trust, but on 30 July she had been advised that neither the solicitor nor counsel were able to act. She had not been able since then to engage others. The result was that the proceedings she pursues as tutor remain stayed.

8. It was in all those circumstances that I was satisfied that justice did not permit the further adjournment of the hearing of the motion. Despite then renewal of that application after an adjournment to allow the parties to confer.

9. Ms Longin’s case being that she had made the necessary efforts to obtain legal representation and that her inability to do so was the result of circumstances beyond her control and that accordingly, she required a further adjournment in order to be able to properly advance her case.

10. The case pressed by the State was that the interests of justice required that the adjournment be refused and the Court make self-executing orders of the kind made by McCallum J in Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806, which would bring the proceedings brought as tutor to an end if a solicitor was not promptly appointed. Further, that Ms Longin still not having amended her statement of claim, her claims should be dismissed for want of due despatch, she having had a fair opportunity to advance her case by pleading amendment.

11. On the evidence Ms Longin’s delays have repeatedly been explained by her pursuit of other proceedings which she twice unsuccessfully took to the High Court and difficulties in engaging legal representation, despite she being legally represented in those proceedings, as well as in the other proceedings which she pursues in this Court, which are listed for hearing in November. Her failure in the proceedings which she sought to pursue in the High Court raising the question of whether she will be able to establish her entitlement to pursue the case she seeks to advance in these proceedings as tutor, even if she does obtain legal representation.

12. Given all that has occurred since the proceedings were commenced and the diminishing time available before the November hearing to amend the pleadings and marshal evidence, I was well satisfied that a further adjournment of the State’s motion could thus not justly be granted.

13. What arose to be resolved on both motions having to be determined in light of the requirements of s 56 of the Civil Procedure Act 2005 (NSW) which requires the Court to exercise its powers in light of the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings.

14. The Court also having to have regard to the objects of case management specified in s 57(1) and what the dictates of justice require: s 58. The matters arising to be considered being those specified in s 58(2), if relevant:

“(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.”

15. Also relevant was that the Uniform Civil Procedure Rules 2005 (NSW) do not permit a tutor to commence or carry on proceedings except by a solicitor without the Court’s leave: r 7.14. Ms Longin has never sought nor obtained such leave. Nor has she procured the legal representation she requires to advance the claim she pursues as tutor.

16. As Cavanagh J had foreshadowed in June, I was satisfied that despite Ms Longin’s evidence about what she had done to secure legal representation, it was necessary to deal with the State’s motion, in order for the requirements of s 56 to be adhered to and justice to be done between these parties.

17. Ms Longin not only having had a fair opportunity to arrange the representation she required for these proceedings, but also to amend her pleadings, as she had repeatedly been ordered, but had still failed to do. It was regrettable that she had been unable to attend to this despite her recent efforts. But given the ongoing stay of the proceedings brought on behalf of her child, all else that has transpired and the approaching hearing, I was persuaded that justice did not permit the further adjournments she pressed to be granted, having had a fair opportunity to take the required outstanding steps.

18. But I was also satisfied that justice did not permit the proceedings to be entirely dismissed, but that orders did have to be made to put them back on track and to bring them to an end, if Ms Longin did not promptly avail herself of the final opportunity I considered she ought to be given to take the steps she has thus far failed to take. She finally did not oppose that course, although the State pressed its primary position.

19. The course I adopted reflected observations in Bi v Mourad [2010] NSWCA 17 at [31] that it must be remembered that “ss 56 to 60 of the Civil Procedure Act 2005 set up a regime that requires the courts to turn away reluctant gladiators and to ensure that they either prosecute their claims in due time or get sent away from the court”. Further, that parties who wish to bring a claim to court “must bring it and prosecute it with due diligence”: at [34]. That being because:

“47. Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act. It cannot always be done. This purpose is not through some parliamentary authoritarian or over-prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice. The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value-laden task of a decision-maker to do justice.”

20. I was well satisfied that Ms Longin had failed to do what the legislative scheme required.

21. But given that it was only on the Thursday preceding the adjourned hearing that she had learned that she would not have the benefit of the representation she had arranged, having instructed that her statement of claim be amended to properly plead the claims she sought to advance, I concluded that justice did require she should have a further short opportunity to comply with self-executing orders which would bring the proceedings to an end, if they, too, were not complied with.

Orders

22. Having foreshadowed and discussed the orders I proposed with the parties, for these reasons I thus later entered the following orders:

23. The Plaintiff’s motion filed in court on 4 August 2025, to adjourn the hearing of the State’s motion, is refused.

24. The status hearing listed before Justice Chen on 8 August 2025 is vacated.

25. The final hearing of the State’s motion is adjourned.

26. In the event that a solicitor is not engaged to carry on these proceedings on behalf of Ms Longin and a notice of appearance and the document required to be filed by r 7.28 are not filed by 8 August 2025, the following orders will be made automatically:

(a) Pursuant to r 12.7 the proceedings brought by Ms Longin as tutor be dismissed for want of prosecution; and (b) Ms Longin is to pay the State's costs of the proceedings as agreed or assessed.

5. In the event that a solicitor is engaged to carry on these proceedings on behalf of Ms Longin and a notice of appearance and the document required to be filed by r 7.28 are filed by 8 August, but an amended statement of claim is not filed on or before 15 August 2025, then the following orders will automatically be made:

(a) The proceedings will be dismissed for want of prosecution in their entirety; and (b) Ms Longin is then to pay the State's costs of the proceedings as agreed or assessed.

6. In the event that a solicitor is engaged to carry on these proceedings on behalf of Ms Longin and a notice of appearance and the document required to be filed by Rule 7.28 are filed by 8 August and the amended statement of claim is filed on or before 15 August 2025, the State is to approach the Court to have the matter listed before Justice Chen for further directions.
7. If the State then contends that the amended statement of claim still fails to disclose a reasonable cause of action, it may further press its motion to have the proceedings dismissed for want of prosecution.
8. Costs of the State’s motion are reserved.

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