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Representation: Counsel:
K Nomchong SC with A H Edwards and J C Smith (Plaintiff)
J Sexton SC with C Langford (Defendant)
Solicitors:
Slater and Gordon Lawyers (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s): 2022/214157

JUDGMENT

1. HIS HONOUR: This is a further judgment in representative proceedings being pursued by claimants arising out of strip searching undertaken by members of the New South Wales Police Force at various times.

2. The claim brought by the lead plaintiff (“the plaintiff”) has already been determined, both as to liability and damages: see Meredith v State of New South Wales (No 5) [2025] NSWSC 1133 (“the principal judgment”). Some of the findings of the trial judge, Yehia J, have also been the subject of an appeal to the Court of Appeal. That Court’s decision is reserved on the appeal.

3. This judgment relates to the application by the plaintiff to strike out parts of a document styled as a “Reply to Statement of Particulars” filed by the defendant in relation to a further sample group of claimants whose claims the plaintiff now proposes will be the subject of the next round of the litigation.

4. On the hearing of the motion, Ms Nomchong SC appeared with Mr Edwards and Ms Smith for the plaintiff. Mr Sexton SC appeared with Ms Langford for the defendant. Both parties provided helpful and extensive written and oral submissions.

Background

5. It is not necessary to set out the background to the current application in any detail. Suffice to say that these are representative proceedings pursued under Pt 10 of the Civil Procedure Act 2005 (NSW), consequent on strip searches conducted by police at music festivals in New South Wales between 2016 and 2022.

6. The proceedings were commenced in 2022. Yehia J entered judgment for the plaintiff on 30 September 2025.

7. The plaintiff now seeks to advance the proceedings by way of sample claims of a number of different persons who say they were also strip searched at the same music festival which the plaintiff attended, being the Splendour in the Grass 2018 music festival (“SITG 2018”).

8. In February 2026, each of those claimants filed a statement of particulars, in effect setting out their points of claim. As I have indicated, the defendant then filed a document styled as a “Reply to a Statement of Particulars” (“Reply/Replies”) for each claimant.

9. Each of the claims are for intentional torts, battery, assault or false imprisonment. Each of the claims are subject to any defence of lawful justification. As far as the parties are concerned, they are treating each of the statements of particulars filed as a summary of the cases being pursued by each of the sample members of the class, and the Replies as setting out the basis on which the defendant either admits, denies or does not admit the claims and the assertions made by each of those sample members.

10. In respect of five of the sample members of the class, the State has not admitted their entitlement to damages and provided particulars as to the lawful justification for the strip search.

11. The plaintiff maintains that the attempt by the defendant to plead lawful justification should be struck out, as the matters raised by the defendant in each of their Replies have already been the subject of determination by her Honour, as set out in her Honour’s principal judgment.

12. Whilst the motion was originally pleaded on an alternative basis, that is that each Reply constituted a pleading and should be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), it was by the end of the hearing accepted by the plaintiff that neither the statement of particulars nor the Replies would strictly fall within the meaning of a pleading having regard to the Civil Procedure Act and the UCPR.

13. As such, reliance on the rule providing for striking out of a pleading has no application. However, the plaintiff submits that each of the statements of particulars and the Replies should be considered a quasi-pleading or like a pleading because the documents set out the case which each sample group member intends to pursue and defendant’s answer to those claims.

14. The principal submission advanced by the plaintiff is that, in respect of each of the paragraphs of the Replies identified by the plaintiff in her notice of motion, the matters referred to have already been the subject of determination by her Honour and the defendant should not be permitted to re-litigate an issue which has already been the subject of final determination by her Honour. To do so would be an abuse of process.

15. The plaintiff says that she is not seeking to rely on issue estoppel for the purposes of the application as this application is brought as part of the original proceedings, that is, those in which Yehia J made findings and provided reasons for judgment and entered a judgment. The proceedings involving the additional sample class of group members are not new proceedings.

16. It is submitted on behalf of the plaintiff that regard must be had to ss 56 and 58 as well as ss 61 and 62 of the Civil Procedure Act which provide the Court with specific power to prevent an abuse of process (in addition to the Court’s inherent power to control its own processes and to prevent an abuse of process).

17. The defendant’s position is that none of the matters raised in the Replies to each of the five claims could constitute an abuse of process. The issues as they relate to each of the five individual claimants have not yet been determined by her Honour.

18. The defendant submits that the plaintiff’s approach appears to be akin to that of a demurrer in which the plaintiff invites the Court to assume that there is no dispute as to the matters referred to in each of the Replies and make some determination on that basis.

Determination

19. There could be no dispute that the power to dismiss or strike out a part of a document at this stage so as to deprive a party from pursuing an issue which it wishes to purse, should only be exercised where the claim or defence is so obviously untenable that it cannot possibly succeed: General Steels Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1964] HCA 69 (Barwick CJ) or where there is a high degree of certainty about the ultimate outcome if the matter proceeded to trial in the ordinary way: A**gar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] (Gaudron, McHugh, Gummow and Hayne JJ).

20. It is up to the plaintiff to establish that those paragraphs of the Replies should be struck out as an abuse of process because they cannot possibly succeed as the issues raised have already been determined in these proceedings adverse to that which is asserted.

21. The plaintiff must establish both that:

22. I have the power to make the orders sought; and

23. I should make the orders sought.

24. As the plaintiff no longer asserts that the Replies are pleadings, the plaintiff no longer relies on UCPR, r 14.28. Instead, the plaintiff relies on the Court’s inherent power to prevent abuse of its processes and its powers under ss 61 and 62 of the Civil Procedure Act.

25. It is not necessary that I refer to ss 61 and 62 in any detail. Suffice to say that, as set out s 61, the Court may give such directions as it thinks fit (whether or not inconsistent with the rules of Court) for the speedy determination of the real issues between the parties to the proceedings. Further, as set out in s 62, the Court may give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made.

26. It does not seem to me that s 62 has any application, but s 61 provides a general power to make such orders as the Court thinks fit for the determination of the real issues between the parties. In any event, the defendant does not dispute that the Court has the power to control its own processes and make orders preventing an abuse of process.

27. I accept that just as the Court has the power to strike out a defence if it constitutes an abuse of process, I would have the power to strike out each of the defendant’s Replies, which is in the nature of a response to the points of claim being raised by the sample group members, if it constitutes an abuse of process.

28. As observed in UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 (“UBS v Tyne”) at [1]:

“The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.”

27. Whether an aspect of a party's defence gives rise to an abuse of process turns upon all of the circumstances and involves a “broad, merits-based judgment which takes account of the public and private interests involved”: see UBS v Tyne at [7], quoting Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31.

28. A determination of whether the circumstances amount to an abuse of process is an evaluative decision: see GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [15] (“GLJ”).

29. Whilst the power to strike out is not in issue, such a power must be exercised cautiously. As observed recently in GLJ (Kiefel CJ, Gageler and Jagot JJ), at [18]:

“The doctrine of abuse of process is one element in a court’s armoury to protect the administration of justice, but it is to be understood as a measure of last resort to be exercised only in exceptional circumstances.”

30. The real question which arises in these proceedings is whether the orders sought should be made. The principal submission of the plaintiff is that the reliance on the particulars set out in each of the five Replies is an abuse of process and that, having regard to ss 56 and 58 of the Civil Procedure Act, the Court should exercise its power to strike out those parts of the Replies.

31. As set out in s 56 of the Civil Procedure Act, the overriding purpose of the Act and the rules of Court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Court must seek to give effect to this overriding purpose when exercising any power given to it under the Act or by the rules of the Court. Further, as set out in s 58, in considering what are the dictates of justice in a particular case, the Court must have regard to the factors set out in s 56.

32. In essence, the Civil Procedure Act requires that I have regard to the overriding purposes and objects of case management in determining what may be the dictates of justice in any particular case (s 58(2)(a)). Section 58(2)(b)(vi) provides that in determining what the dictates of justice are in a particular case, I may have regard to the degree of injustice which would be suffered by a party as the consequence of any order or direction.

33. I must ensure that justice is done to both parties.

34. It is notable that what the plaintiff is really seeking is an order that the defendant be prevented from pursuing a defence of lawful justification to the strip searching, on the grounds set out in the Replies. Although the application is brought only in respect of the five particular members of the class, who all attended the 2018 SITG and were all strip searched, the effect of the orders sought by the plaintiff must be that at least the same findings of Yehia J would apply to all persons who attended the 2018 SITG and were strip searched.

35. The plaintiff estimates that there may be over 150 of those persons participating in this class action who attended the 2018 SITG. Indeed, at [1] of the principal judgment, her Honour identifies that 205 searches were conducted during the 2018 SITG and approximately 143 of those searches were strip searches.

36. Further, as her Honour identified, this case is not about harm minimisation policies or initiatives. The Court was required to consider the conduct of the police officers in the exercise of their powers by reference to the legal requirements, constraints and safeguards Parliament has seen fit to impose on the exercise of police powers in conducting strip-searches (the principal judgment at [3]).

37. At least part of the defendant’s case was that the searches were lawfully authorised pursuant to s 31(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) because the searching police officers suspected on reasonable grounds that a strip search was necessary for the purposes of the search and that the seriousness and urgency of the circumstances made the strip search necessary (see the principal judgment at [11]).

38. Although the defendant originally denied liability in response to the lead plaintiff’s claim, by the time of the hearing, liability was admitted and the hearing proceeded on the basis of an assessment of damages. However, as part of the damages assessment, including whether aggravated and/or exemplary damages should be awarded, her Honour was required to consider and assess the conduct of the defendant through its police officers and whether the conduct was in any way justified, having regard to LEPRA*.*

39. The principal contention raised by the plaintiff in support of her application at this time is that, as part of that process, her Honour considered the various provisions of LEPRA, applied them to the facts and circumstances of the plaintiff’s case, which also involved a strip search at 2018 SITG, and made findings as to whether the same matters raised by the defendant in the Replies to the new sample claims could operate to provide a statutory justification for the strip searching of the plaintiff and, the plaintiff submits, the strip-searching generally which took place at the 2018 SITG.

40. That is, on the plaintiff’s case, the very points raised in the Replies have already been the subject of detailed consideration and analysis by her Honour, and a conclusion that those matters could not provide any justification for the strip searching.

41. Because the defendant had admitted liability in respect of the plaintiff’s claim, her Honour was not required to consider whether the defendant had any defence to the plaintiff’s claim but was considering those matters in the context of their relevance to the claims for aggravated and exemplary damages. The defendant emphasises this distinction for the purposes of resisting the orders sought in the application. The plaintiff submits that the distinction is of no consequence. The question remains whether the issue has already been determined.

42. The conduct of class actions in New South Wales is governed by the Pt 10 of the C**ivil Procedure Act and UCPR, Pt 58. As is highlighted in this case and in many class actions, the Court will often, at the preliminary stage of the principal hearing, determine common questions identified by the parties. That has occurred in this matter. Her Honour has answered the common questions identified by the parties. The defendant accepts that the answers to those common questions binds the defendant in respect of the ongoing conduct of this litigation (subject to the appeal which the defendant is pursuing).

43. To the extent that the defendant seeks to raise as part of its response to the claims of other class members matters determined by the common questions, the defendant accepts that it would not be permitted to do so but contends that it is not doing so. It says that it is not seeking to go behind the answers to the common questions in any of the Replies that it has served.

44. Whilst the plaintiff does not agree and suggests that the defendant may be seeking to traverse the answer to common question 4, the plaintiff’s real point is that the defendant is seeking to re-agitate issues already determined as part of what the plaintiff described as the “general findings” of her Honour set out in the principal judgment. On the plaintiff’s case, these general findings bind the defendant even though they were made specifically in consideration of the lead plaintiff’s claim for damages.

45. To understand this contention, and indeed the defendant’s response to it, it is necessary to highlight some of the detail in terms of the way in which the parties have agreed the case will progress and the content of the documents now relied upon by the parties.

46. The plaintiff submits that, her Honour having determined the principal issues and common questions, there has been agreement to a form of “bespoke” procedure to allow the class action to proceed. As is obvious, in circumstances in which the principal judgment deals only with the plaintiff’s claim and common questions, it is then necessary for a procedure which will provide for the determination of the claims of the other class members.

47. There are said to be thousands of members of the class in this matter. The parties have agreed that the next stage of the process (subject to the determination of the appeal) will be determination of 12 sample claims also from the 2018 SITG. The plaintiff seeks orders only in respect of five of those 12 sample claims.

48. In accordance with the case management orders made by Yehia J, the plaintiff has filed and served a document which is styled a “statement of particulars”. There is a dispute between the parties as to whether these claims are claims for personal injury, but it must be said that a document styled “statement of particulars” is generally used in the context of personal injury claims as a means of requiring the plaintiff to provide particulars of the injury, loss and damage suffered. The statements of particulars prepared by each of the sample group members are not really like that form of statement of particulars. It is more like a “points of claim” as each group member sets out in point form what happened to him or her, what his or her claim is and the consequences of the strip searching.

49. The defendant was then ordered to file a response. As I have indicated, defendant has termed its responses a “reply”. Again, the only type of reply referred to in the UCPR is the reply that the plaintiff files to a defence: see UCPR, r 14.4. This is not that type of reply.

50. Indeed, each Reply is akin to something that might be described to as “points of defence”. That is, it is the defendant putting each of the class members on notice generally of the matters it seeks to raise in defence to the group-members’ claims.

51. At [44] of the principal judgment, her Honour said:

“The defendant does not by the Amended Defence seek to establish lawful justification for the conduct of the searching police officers. The defendant admits that the conduct was unlawful, and therefore tortious, and that the plaintiff is entitled to an award of compensatory damages. In the absence of a suspicion on reasonable grounds, compliance with the safeguards in ss 32 and 33 of [the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)] cannot establish lawful justification, thereby rendering unnecessary the plaintiff’s proof of any breach of those sections on the issue of liability. However, as will be seen, whether (and to what extent) searching officers breached ss 32 and 33 is relevant to the question of damages.”

52. It follows that the issue that her Honour was determining and that the relevance of whether and to what extent the searching officers breached ss 32 and 33 of LEPRA, was the assessment of damages rather than whether the defendant was liable at all. That is, the defendant accepted that for the purposes of the plaintiff’s claim it could not establish lawful justification but, despite that, put before the Court various matters of fact which might have possibly led to a finding of lawful justification (should that issue have been pursued) or at least were raised to support a submission that the conduct of the police officers was not such as to warrant an award of aggravated and exemplary damages, particularly as the matters raised were capable of providing some justification for the conduct of the police officers.

53. As highlighted by the plaintiff on this application, on a fair reading of her Honour’s judgment, her Honour did not generally accept that the matters raised by the defendant could have provided lawful justification but (as highlighted by the defendant on this application), her Honour dealt with those matters in certain terms and for the purposes which I have outlined.

54. In oral submissions, the plaintiff highlighted the claim of Ms Campbell as exemplifying her position. The defendant highlighted the claim of Mr Hurt as highlighting its position.

55. In response to Ms Campbell’s statement of particulars the defendant filed a Reply and then an amended Reply. The plaintiff seeks to have par (10)(j) of that amended Reply struck out. That paragraph is in the following terms:

“10. In answer to [10], the defendant:

…

(j) says that the search of Ms Campbell was thought to be justified pursuant to sections 21 and 31 of [the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)] because the officer perceived there were reasonable grounds to suspect he was in possession of prohibited plant or a prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985 and there were reasonable grounds to suspect that a strip search was necessary for the purposes of the search and that the seriousness and urgency for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.

Particulars

(i) the particular music festival was well known for high volume or illicit drug use which could cause serious injury including death;

(ii) Ms Campbell appeared to be nervous;

(iii) a drug detection dog had detected the scent of illegal drugs in the airspace immediately around Ms Campbell …”

56. The plaintiff directed me to a number of paragraphs of the principal judgment for the purposes of the submission that the matters raised by the defendant had already been determined adversely to the defendant. In particular, the plaintiff highlighted [15], which is in the following terms:

“The factors which were commonly pleaded to have constituted reasonable grounds to stop, search, and detain the plaintiff included:

(a) Each officer’s personal experience in their role within the [New South Wales Police Force].

(b) The plaintiff’s attendance at a music festival in a location associated with common recreational drug use.

(c) Information about drug use at the music festival in prior years.

(d) A drug dog gave a positive indication that there was a prohibited substance in the air space around the plaintiff.

(e) The officers’ assessment of the plaintiff’s conduct and responses leading up to and during their dealings.

(f) Information that a subsequent officer had received from an officer who formerly interacted with the plaintiff.”

57. It can be seen that her Honour referred at [15] of the principal judgment to the plaintiff’s attendance at the 2018 SITG; there being information about drug use at the festival in prior years and that a police drug detection dog gave a positive indication. It is not necessary that I refer to her Honour’s extensive analysis of LEPRA, specifically including s 21. It is only necessary to include in this judgment the following paragraphs of the principal judgment:

“[154] Accordingly, in order to meet the criteria provided for by [the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)] in respect of a strip search in the field on the grounds of suspected possession of a prohibited plant or drug, a police officer must:

(1) Form a suspicion on reasonable grounds that the person has in his or her possession, in contravention of the Drug Misuse and Trafficking Act 1985 (NSW), a prohibited plant or prohibited drug: s 21(1)(d), and

(2) The police officer must suspect on reasonable grounds that the strip search is necessary for the purposes of the search: s 31(b); and

(3) The police officer must form the view that the seriousness and urgency of the circumstances make the strip search necessary: s 31(b).

[155] Proceeding with a strip search without meeting these requirements would render the strip search unlawful. Section 31(b) is not merely an extension of s 21. A suspicion held on reasonable grounds that a person has in his or her possession or under his or her control a prohibited plant or prohibited drug, is not sufficient to enliven the power under s 31(b) to conduct a strip search of the person.” (emphasis in original)

58. Her Honour then went on to consider some of the matters raised by the defendant in further detail. At [168] of the principal judgment, her Honour observed:

“As noted above, the notebooks and COPS event entries of searching police officers at [the 2018 Splendour in the Grass festival] are completely silent in relation to the circumstances that made the strip search necessary or any identification of the seriousness and urgency of the circumstances. The evidence therefore sheds no light on how the searching police officers themselves construed those requirements or the factors that satisfied those requirements as they perceived them. Indeed, the complete absence of notes relating to the issue of seriousness and urgency of the circumstances, leads me to the irresistible conclusion that the searching police officers did not turn their minds to those legal requirements, or, if they did, wrongly understood that the mere indication by [a police drug detection dog] was sufficient to undertake a strip search. That conclusion is relevant not only to the question of aggravated damages, but also to the issue of whether there was an ‘abject failure’ by senior police officers to train, educate, and monitor the exercise of police powers in respect of conducting strip searches. I will return to this question in due course.”

59. Further, her Honour then observed that the defendant relied on statistics relating to music festivals and went on to say:

“[171] … The statistics cited are highly relevant to policy considerations about harm minimisation initiatives. However, they are not by themselves sufficient to satisfy the requirements of ‘seriousness and urgency’.”

60. Further, the plaintiff relies on the findings of her Honour at [229]-[231] of the principal judgment:

“[229] The notebook entry of SC Petrie records that the plaintiff said she had smoked a joint of marijuana (evidence that I have rejected). Even if I were to accept, for present purposes, the reliability of that entry, at its highest, it establishes an admission on the part of the plaintiff that she had smoked marijuana. The only reasonable inference that could have been drawn by police is that the plaintiff may have been in possession of marijuana. There was no basis, in these circumstances, for the searching police officer to form a view that there was, for example, a risk of someone overdosing or dying or a risk that the drugs (if they existed) would be supplied to another person or a risk that drugs or incriminating evidence may be destroyed. There was no basis to form the view that the ‘seriousness and urgency of the circumstances’ made the strip search of the plaintiff necessary.

[230] The only available and reasonable inference is that the searching police officers not only failed to form a suspicion on reasonable grounds that the strip search was necessary for the purposes of the search but also failed to form a suspicion on reasonable grounds that the seriousness and urgency of the circumstances made the strip search necessary.

[231] The irresistible inference is that the searching police officers proceeded on the basis that because [a police drug detection dog] made an indication towards the plaintiff (and without more) the requirements pursuant to s 31(b) were met and the strip search was justified. That conclusion was entirely wrong and contrary to the relevant legislative provisions.”

61. Plainly, her Honour had regard to a number of matters raised by the defendant and made findings adverse to the defendant for the purposes of assessing the extent to which the defendant acted without lawful justification (for the purposes of considering exemplary damages). In doing so, her Honour made a number of statements which might be viewed as directly relevant to the particulars on which the defendant now seeks to rely in its Replies.

62. For example, to the extent to which the defendant seeks to assert that an indication from a police drug detection dog would be sufficient to meet the requirements of s 31(b) that the strip search was justified, her Honour found that such a conclusion would be wrong and contrary to relevant legislative provisions.

63. Further, to the extent that the defendant sought to rely on statistics, that is, that the particular music festival was known for a high volume of illicit drug use, which could cause serious injury including death, her Honour rejected that assertion as providing any justification, apart from anything else because there was no evidence that the use of marijuana was something which could cause serious injury including death (marijuana being the illicit drug relevant to the lead plaintiff’s claim).

64. On any analysis, the defendant seeks to re-agitate these matters in responding to the sample claims now being pursued. Further, the defendant seeks to re-agitate these matters in the context of strip searching at the same music festival as attended by the lead plaintiff. It is not difficult to understand why the plaintiff submits that those particular matters have already been raised and rejected by the trial judge, and that the proceedings remain the same proceedings despite the sample group members pursuing different claims.

65. However, in my view, there is also merit in the defendant’s response to the plaintiff’s contentions which might be summarised as follows:

66. Firstly, her Honour’s reasons and findings about what I will describe as the relevant matters must be viewed in the context in which the lead plaintiff’s claim was contested. Liability was not contested but the matters were raised for the purposes of assessing damages. Her Honour’s reasons thus go to the question of damages, in particular, aggravated and exemplary damages, rather than liability generally which the defendant now seeks to raise in the context of the new sample claims;

67. The defendant says this context is important. Because the defendant did not call evidence from any police officers on the principal hearing, her Honour was not prepared to draw any of the inferences which the defendant sought; and

68. The defendant acknowledges that, in contesting liability in the new sample claims, the defendant will need to satisfy two elements of s 31 being:

(a) it will be necessary to call the relevant police officer to adduce evidence of the basis of that police officer’s suspicions; and (b) it will then be necessary for there to be an objective assessment of whether there were reasonable grounds for that suspicion having regard to LEPRA.

66. Using the claim of Mr Hurt for example, the defendant pleads in its Reply the following:

“Particulars

(A) Mr Hurt was subjected to an ordinary search and no drugs were found;

(B) Mr Hurt was at a music festival at which it was known that a high volume of illegal drugs would be used by attendees;

(C) A drug dog had detected the presence of illegal drugs in the airspace around Mr Hurt;

(D) Mr Hurt had blood shot eyes;

(E) Mr Hurt appeared to be affected by a substance;

(F) Mr Hurt admitted to using drugs;

(G) Cst Lee-Winser had experience with people overdosing at music festivals;

(H) Cst Lee-Winser understood that illicit drugs can cause death.”

67. Perhaps importantly for the purposes of this application, the defendant highlights two matters about the particulars being:

68. A number of matters are raised in the particulars provided which were not the subject of any earlier consideration by her Honour; and that

69. The defendant should not be precluded from pursuing its defence based on the culmination or total of the particulars provided because there has been no finding by her Honour that the culmination of those matters would not provide lawful justification having regard to LEPRA, s 31.

70. The defendant submits that it should not be precluded by this interlocutory application from adducing evidence from police officers to support the particulars as to the basis of his or her suspicions in relating to each of the sample group members, in circumstances in which the defendant has not previously approached the issue by calling police officers to support the submissions.

71. The point is that the defendant intends to adduce evidence from the relevant police officer who will set out the basis of the suspicions. On a further hearing, her Honour may take the same approach to some matters raised but the defendant is seeking to defend the five sample claims not because the relevant police officer considered one or even more than one of the particulars, but because the police officer considered all of the matters referred to in the particulars in combination. On the defendant’s case, it is the combination which might provide the justification.

72. Further, the defendant submits that in rejecting individual aspects such as reliance on the police drug detection dog or the fact that the particular music festival was known for high use, her Honour was not making any finding about those matters being considered in combination with other matters.

73. For example, the defendant refers to [226] of the principal judgment when her Honour is dealing with the statistics issue and her Honour’s finding that “without more” the statistics could not be sufficient to make out the legislative requirements under s 31(b).

74. The defendant submits, in my view correctly, that in making the findings that she did, her Honour did not deal with a number of the matters set out in particulars (A)-(H) in Mr Hurt’s claim, and did not make any finding as to the effect of the combination of those matters.

75. It may not be difficult to anticipate what her Honour might say about a number of the matters when taken individually, having regard to the principal judgment. However, having regard to the submissions made on this application, the defendant is seeking to approach the issue of lawful justification both in a different context and in a different way for the purposes of defending these sample claims. That is, unlike in the earlier hearing, the defendant will be seeking to adduce evidence from the relevant police officers which presumably, based on instructions, will include evidence of consideration of the matters referred to in the particulars.

76. I am not undertaking some sort of merits-based decision and it is not necessary that I form a view as to the strength of the defendant’s arguments or matters that it wishes to raise in defence to these claims. That is, I would not infer an answer or a result.

77. It is only necessary to say, for the purposes of this application, that the defendant wishes to approach the defence of these claims in a different context and in a different manner from how her Honour was asked to deal with the issues of lawful justification for the purposes of assessing damages in the principal judgment.

78. I am not satisfied that, in making the findings that she did, her Honour was making a more global type of finding to the effect that no combination of factors, no matter how many or of what type, would provide a lawful justification for the exercise of the relevant power under LEPRA and it is not my function on an application such as this to determine that question.

79. This is a strike out application. The onus remains on the plaintiff to establish that it is an abuse of process, because the trial judge has already made findings which bind the defendant and which prevent the defendant from raising the same matters in the way in which the defendant wishes to.

80. As I have said, this is a high bar at this time. This is because the plaintiff must establish that there is no arguable case against her position, that is the suggestion by the defendant that it can rely on those matters in combination as providing a lawful justification cannot possibly succeed as her Honour has already determined the issue against the defendant.

81. In my view, there is at least an argument that the issue has not yet been determined having regard to the way in which the defendant now wishes to put it.

82. Further, even if I consider that there is some merit in the plaintiff’s submissions, I must exercise my discretion to strike out the impugned paragraphs of the Replies in accordance with the dictates of justice. Certainly, the plaintiff should not be required to re-litigate matters that have already been determined, and I must make orders to provide for the quick, just and cheap resolution of the real issues in the proceedings. However, I must do justice to both parties.

83. The effect of what the plaintiff is seeking is that the defendant be shut out from pursuing a defence based on the particulars provided (being those which the plaintiff seeks to strike out) at least in respect of the more than 100 other claims that might be pursued arising out of strip searching at the 2018 SITG.

84. In doing justice between the parties, it is an important discretionary factor that the effect of the orders sought would be to shut out the defendant from running any real defence to the claims being pursued arising out of the strip searching at the 2018 SITG.

85. Further, whilst I accept that the sample group members wish to know at this stage as to what the real defence is, it also seems relevant to the exercise of the discretion that there may be other steps which the plaintiff might take to deal with the issues raised by the defendant more quickly and cost-effectively (rather than having to meet the defences to every one of the over 100 claims).

86. Whilst it is not my task in this judgment to determine whether these matters could be the subject of further common questions, it at least seems arguable that they could be. It is possible that the matters raised by the defendant could be dealt with in another way, although obviously I will leave that to the parties and the trial judge.

Conclusion

85. In summary, the plaintiff seeks to strike out a document which she agrees is not a pleading, but is akin to a points of defence, on the basis that it is an abuse of process because it seeks to re-agitate matters that have already been the subject of determination.

86. To the extent that the matters raised have already been the subject of determination of common questions, the plaintiff would be on strong ground. However, I do not accept that the Replies seek to go behind the answer to common question 4. It is not suggested that the matters raised in the Replies are contradictory to the answers to any of the other common questions.

87. I accept the defendant’s principal submission, to the effect that it is at least arguable that the earlier findings of her Honour (made in a different context and on a different basis, and having regard to different evidence) do not go so far as to determine that the matters raised in combination in response to each of the five new group members’ claims could not provide any lawful justification irrespective of any evidence which might be adduced by the relevant police officers.

88. It is the plaintiff who bears the onus of establishing that there is no arguable case against her contentions (that is, those made on this application) or that the raising of the particulars is necessarily an abuse of process. The plaintiff has not discharged that onus and, in any event, I do not consider that I would be doing justice between the parties in exercising my discretion to shut out the defendant from running the defences which it wishes to pursue.

89. This is particularly so in circumstances in which only the lead plaintiff’s claim has been determined and the defendant did not seek to challenge its liability in response to that claim. It is difficult to accept (and I do not accept) that the defendant should be shut out from forever raising a defence based on lawful justification because of the way it conducted the original hearing on damages issues and her Honour’s findings made in the context of damages issues.

Orders

90. In all these circumstances, I make the following orders:

91. The plaintiff’s motion dated 10 July 2026 is dismissed.

92. The plaintiff is to pay the defendant’s costs of the motion.

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