RP v Northern Territory of Australia [2025] NTSC 58

Groote Eylandt Aboriginal Trust Inc v Skycity Darwin Pty Ltd [2014] NTSC 28; BCI Media Group Pty Ltd v Corelogic Australia Pty Ltd [2020] FCA 1556; Vestas - Australian Wind Technology Pty Ltd v Lal Wind Farm Nom Co Pty Ltd [2020] VSC 554; LG v Brian Brock as executor of the estate of the late Leo Clarke [2016] NSWSC 323; Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc. [2018] VSC 602; Stephensen v The Salesian Society Inc & Ors; Easton v The Salesian Society Inc. & Ord [2018] VSC 602; Lenscak v Trustees of the Marist Brothers & Ors (No.2) [2021] VSC 49; Gibson v ANZ Banking Group Ltd (VSC, Gobbo J, No 10670/91, 30 August 1991, unreported); JCB v Bishop Paul Bird for the Diocese of Ballarat & Anor [2019] VSC 348; Paxus Services v People Bank [1990] FCA 500; (1990) 99 ALR 728; St. George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; referred to.

Williams Civil Procedure, paragraph 32.05.0, "Discretion".

RP v Northern Territory of Australia [2025] NTSC 58

• [1] The Applicant makes application by amended summons on originating motion filed 13 June 2025 seeking preliminary discovery pursuant to Rule 32.05 of Supreme Court Rules 1987. Additionally, the Applicant seeks its costs of the application on an indemnity basis.[1]
• [2] After some agreement between the parties following the commencement of proceedings and prior to the hearing of this application, the application for preliminary discovery was narrowed down to three categories of documents as outlined in the amended summons. Those categories are as follows:

(1) The Plaintiff's complete and unredacted youth detention file including any medical, educational, disciplinary, housing, case management, movement, admission discharge, incident and social work records, including photographs (the Youth Detention File).

(2) Personnel files including details of on-boarding (including resumes, criminal history searches, reference checks), offer letter, contract, performance/competency reviews, complaints, disciplinary actions, training records, etc. for Youth Justice Officers TH, SS ad SH (the Personnel Files).

(3) All formal complaints and notifications regarding child abuse at Don Dale perpetrated by any employee of Don Dale that occurred from 5 July 2006 to the conclusion of the relevant period (1 July 2009) inclusive held by (All Formal Complaints):

1. The relevant Minister for Corrections (or the Minister with responsibility for the Don Dale Youth Detention Centre (Detention Centre) from time to time);
2. The Superintendent of the Detention Centre;
3. Any person with delegation from the Superintendent;
4. The appropriate Ministry with control of the Detention Centre from time to time;
5. The Northern Territory Police;
6. The Detention Centre;
7. Any predecessors or successors of the above.

• [3] The need for a pre-discovery process, and applications such as this, have diminished since the operation of Supreme Court Practice Direction 6 of 2009 (PD6) and its recent incorporation by amendment to the Supreme Court Rules inserting Order 1A in respect to pre-action conduct. Nonetheless, where, as in this case, there has been a dispute or a purported refusal to provide copies of alleged essential documents (as envisaged by Rule 1A.09 or PD6) there is scope for this type of application.
• [4] Rule 32.05 requires three criteria to be met, namely:

(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description he has ascertained;

(b) after making all reasonable enquiries (first limb), the applicant has not sufficient information to enable him to decide whether to commence a proceeding in the Court to obtain that relief (second limb); and

(c) there is reasonable cause to believe that the person has or is likely to have or has had or is likely to have had in his possession a document relating to the question whether the applicant has the right to obtain the relief (first limb) and that inspection of the document by the applicant would assist him to make the decision (second limb).

• [5] However, even if those criteria are met the Court retains a discretion to refuse relief, although there may usually be little scope for refusal. One recognised ground is whether discovery would be onerous.[2]
• [6] The principles in respect to the application of Rule 32.05 are well established and were set out by Luppino M (as he was) in Groote Eylandt Aboriginal Trust Inc v Skycity Darwin Pty Ltd, as follows:[3]

The requirements for a successful application for an order for pre-action discovery were succinctly summarised by Hely J in St George Bank Ltd v Rabo Australia Ltd & Anor. That case dealt with the equivalent of Rule 32.05 in New South Wales, which was then sufficiently similar to Rule 32.05 to validate comparison. Adopting the summary made by Hely J, the principles are:

1. The rule is to be beneficially construed;
2. Each of the elements in the subparagraphs must be established;
3. The test to determine whether an applicant has "reasonable cause to believe" as required by subparagraph (a) is an objective one. Further, the words "or may have" cannot be ignored and an applicant does not have to make out a prima facie case;
4. Belief requires more than mere assertion and more than suspicion or conjecture;
5. While uncertainty as to only one element of a cause of action might be compatible with the "reasonable cause to believe" required by subparagraph (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe;
6. The question posed by subparagraph (b) is not whether an applicant has sufficient information to decide if a cause of action is available but whether the applicant has sufficient information to make a decision whether to commence proceedings and therefore documents relevant to defences and quantum are also discoverable;
7. Determining whether an applicant has sufficient information for the purposes of subparagraph (b) also requires an objective assessment to be made and the subparagraph contemplates that an applicant is lacking information reasonably necessary to decide whether to commence proceedings;
8. Seeking documents which would be considered to be a "fishing expedition" in a regular discovery application is not prohibited in pre-action discovery applications.

• [7] Relevantly, in respect to subparagraph (b) of Rule 32.05 the principles applying were well expressed in Vestas - Australian Wind Technology Pty Ltd v Lal Lal Wind Farm Nom Co Pty Ltd (footnotes omitted):[4]

The second criterion is governed by the following principles:

(a) the requirement is primarily concerned with whether, as an objective fact, an applicant has sufficient information to determine whether to commence proceedings. The fact that an applicant for preliminary discovery already has enough evidence to establish a prima facie case against a proposed defendant does not mean that the applicant has sufficient information to enable it to decide whether to commence a proceeding. An applicant in that position may nevertheless 'need information to know whether the cost and risk of litigation is worthwhile.' For example, an applicant with sufficient information to plead a prima facie case may prudently wish to obtain preliminary discovery about 'what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award';

(b) it is for the court to determine whether an applicant has sufficient information available to it; the applicant's own assertion that it does not is neither determinative nor strictly necessary;

(c) accordingly, an application cannot succeed if the applicant has sufficient information (objectively assessed) but is unable to determine whether to commence proceedings due to subjective factors, for example, an overly cautious nature;

(d) courts have, however, approved litigants taking a cautious, conservative or prudent approach by applying for preliminary discovery under the rule. This approach is consistent with the policy underlying the rule. It is also consistent with the policy underlying the Civil Procedure Act 2010 (Vic) ('CPA') generally, and the 'proper basis certification' requirements in s 42 of the CPA in particular;

(e) if there is evidence that an applicant has in fact decided to commence proceedings, the application must fail. In determining whether an applicant has in fact already decided to commence a proceeding, irrespective of the outcome of the application, the Court should not give too much weight to posturing in correspondence prior to the making of the application, particularly correspondence alleging the existence of a strong case but nevertheless seeking preliminary discovery by letter prior to making a formal application to the Court;

(f) what constitutes 'reasonable inquiries' is a question of fact, to be considered in all the circumstances of the particular case.

• [8] The Applicant relied on the affidavits of Clarissa Phillips made 8 April 2025 (Phillips' First Affidavit) and 3 June 2025 (Phillips' Second Affidavit), and the Respondent relied on the affidavit of Ms Pikoulos made 29 May 2025 (Pikoulos Affidavit). All affidavits were taken as read for the purpose of the application.
• [9] The First Phillips Affidavit deposes to the Applicant's attempts to request documents from the Respondent, including an Information Act 2002 (NT) request (FOI request) made to the Department of Territory Families, Housing and Communities.[5] The documents sought are part of a suite of documents (including those now subject to this amended application) which are said to be required by the Applicant because "he has insufficient information to enable him to decide whether to commence substantive proceedings".[6] The basis of the requested documents is set out in Phillips' First Affidavit, and relates to abuse the Applicant can recall from three identified (or semi identified) youth justice officers which is alleged to have occurred at the Don Dale Detention Centre (the Detention Centre). Phillips' First Affidavit concludes that the Applicant does not know or cannot remember inter alia:

(a) How the perpetrators were employed or engaged by the Detention Centre;

(b) Whether the Detention Centre had received previous complaints about the perpetrators;

(c) Whether the Detention Centre undertook appropriate on-boarding, supervision and discipline of the perpetrators;

(d) Whether the staff of the Detention Centre ever received training in relation to the prevention, identification and reporting of sexual abuse;

(e) Whether there were policies or procedures in place relevant to the risk of sexual abuse or similar, and whether these polices were complied with.

• [10] I note that of the five categories above, the first three relate to the specific perpetrators, and the last two relate to training, prevention and adherence to policies.
• [11] The First Phillips Affidavit concludes "The requested Documents are required so the Applicant can decide whether to commence substantive proceedings".[7] The First Phillips Affidavit annexes the PD6 letter to the Respondent's Solicitor.[8] The PD6 letter, some 29 pages long:
  • Sets out a time period in relation to a civil damages claim on behalf of the Applicant arising as a result of alleged sexual abuse at the Detention Centre during the relevant period (defined as various periods between 5 July 2008 to 1 July 2009).
  • Confirms that the Applicant intends to bring proceedings in the Supreme Court of the Northern Territory in relation to the alleged abuse and proposes to bring the proceedings against the Northern Territory of Australia as a representative of the former Department of Correctional Services.
  • Sets out allegations against at least three named officers and other unnamed officers supervising the Applicant, and outlines instances of abuse which the Applicant says occurred in the shower and in his room, by the named officers and others unnamed.
  • Sets out the Applicant's reasons for failing to report the assaults to police and his belief that similar abuse may have been perpetrated against two other detainees as they had made similar disclosures to each other.
    • Alleges a duty of care owed to the Applicant, namely a non-delegable duty of care for his safety whilst in the care of the Centre and that the risk of the Applicant being sexually abused by Youth Justice Officers was reasonably foreseeable and not insignificant.
    • Alleges a breach of the duty, causation of harm and that the Northern Territory would be held vicariously liable for the acts of its staff.
    • Sets out by way of disclosure what information the Applicant has including: affidavit of RP dated 21 February 2023, Youth Justice File as at 19 May 2023, Custodial Episode History as at 8 February 2023, and various other documents including police records as of 25 July 2023.
    • Ends with a request for disclosure of a large category of documents, including the documents required under this application. Specifically, all records of Don Dale complaints against officers for the period 1 July 2004 to 1 July 2009 (regardless of when the complaint or allegation was actually made) were requested on the basis they went to the matter of prior knowledge and foreseeable risk on behalf of the Northern Territory.
• [12] For the purposes of this application the Respondent did not take issue with the fact that the grounds for Rule 32.05(a) and the first limb of Rule 32.05(b) had been made out. It was the Applicant's case that, as set out in PD6 correspondence[9] the Applicant believes that he may have a cause of action in negligence, and the documents requested are to assist in determining whether he ought to commence a proceeding against the Respondent. On the basis of the evidence and submissions made, I accept that the requirement of Rule 32.05(a) is made out. That is, the Applicant has reasonable cause to believe that he has or may have the right to obtain relief from the Court. The remaining argument centred on the second limb of Rule 32.05(b) (whether the Applicant had sufficient information to commence a proceeding to obtain relief) and the two limbs of Rule 32.05(c).

• [13] The Applicant has in his possession a redacted copy of his entire youth detention file (including custodial episode/movement history). However, the Applicant submits that it is not clear if all of the documents that relate to his detention have been provided,[10] and because he does not have all of the documents, it follows that he cannot make a decision to commence a proceeding. There is no doubt that the Respondent has this document or documents in its possession.
• [14] The Applicant submits that the documents would allow for a decision whether to commence proceedings on the basis of staff that he was in contact with at the relevant time and will assist with the potential identification of perpetrators together with the Applicant's movements in the Centre. The documentation will assist with a timeline of historical events, evidence of changes in the Applicant's behaviour which may assist in establishing a timeline of abuse including in reports and also assists to determine whether there were observations or management plans in place pertaining to behaviour or concerns, going to matters of foreseeability and knowledge.

• [15] Unlike the youth detention file, the Applicant does not have any personnel files, and it is not controversial that the Respondent possesses the relevant personnel files.
• [16] The Applicant submits that the personnel files will be essential to assessing prospects of success. It is submitted that on-boarding processes will give an understanding of how staff were assessed when commencing employment and whether regard was had to their suitability to interact with vulnerable children. It is submitted that performance/competency reports would speak to the issue of continued supervision, training and may indicate patterns of concerning behaviour, complaints/specific investigations being clearly relevant. The Applicant concedes that some documents may be irrelevant to the making of a decision (payroll, leave and other related documents) and would be amenable to the Respondent discovering documents but indicating what documents were excluded in a schedule.

• [17] The Applicant does not have any information regarding complaints over the required period.
• [18] The Applicant submits that discovery of such documents would go towards establishing tendency and culture in the Detention Centre, a question of occasion and opportunity for youth justice officers to abuse children, the question of foreseeability of child abuse (presumably in respect to its prevalence as indicated by complaints), the protocols adopted by investigating said complaints together with enforcement. The Applicant says that if there are such documents they will be of significant probative value and essential to the Applicant's decision whether to commence proceedings. In support, the Applicant submitted that the relevance of previous complaints in determining foreseeability has been well established in child abuse cases across Australia.[11]
• [19] In respect to the onerous obligation which may be imposed by discovering such documents, the Applicant submitted that he had limited his request to a three year period, that the number of complaints would not be unmanageable, and if there is no centralised register then he would agree to a time frame for provision of documents in tranches to minimise any burden.

• [20] The Applicant seeks his costs of and incidental to this application to be taxed on an indemnity basis. The basis of that application is the alleged non-compliance by the Respondent with PD6 over an extended period of time, which the Applicant says precipitated this application for discovery. The Applicant submitted that it was only upon the making of this application that the Respondent was prompted to provide discovery of other categories of documents, leaving just three remaining categories the subject of this application. On the evidence tendered, the Applicant submits that there has been a disregard for the spirit of PD6 and the obligations to provide prompt pre-trial disclosure.

• [21] The Respondent submits that the Applicant has received his entire youth detention file, all 625 pages of it, and submits that the only information which was redacted were the names of detainees and some mobile phone numbers. The Respondent submits that it cannot understand how the information is insufficient save and except that it has minor matters redacted. Notwithstanding, the Respondent indicated that it would be willing to make available all essential documents relevant to the Applicant's claim from the Applicant's physical detainee and case management files.

• [22] The Respondent submits that the information that the Applicant believes is in the personnel files is in fact not and therefore those files are unlikely to assist him. Notwithstanding this the Respondent indicated that it is willing to discover "essential documents in the youth detention files relating to resumes, criminal history results, reference checks, offer letters, contracts, complaints, disciplinary action, training records" for the named youth justice officers.

• [23] The Respondent submits that the Applicant does no more than raise an assertion or suspicion that the Respondent knew or should have known about unspecified child abuse in the Detention Centre and may have failed to take reasonable steps in response. No submission was made in relation to how the suspicion bears upon the Applicant's belief that he may have a right to obtain relief. The Respondent says that the Applicant does not address the alleged insufficiency of information possessed by him nor does he articulate why the prior complaints are said to be necessary in order to enable him to determine the question of whether to commence proceedings. The Respondent objects to documents beyond complaints relating to the named officers on the basis that it constitutes a fishing expedition, beyond that which is permitted even in these types of applications. The Applicant submits that Respondent has not established the criteria required in Rule 32.05 to enliven the Court's discretion. In the event that discretion has been enlivened, the Respondent points to evidence of the onerous obligation which would be imposed on it should discovery be ordered, given there is no single repository of complaints[12], and that relief should be denied on that discretionary basis.

• [24] The Respondent concedes that a costs order in the Applicant's favour on the standard basis is appropriate up to and including 29 May 2025 due to its delay in responding to the Applicant's PD6 letter. However, the Respondent opposes a costs order on an indemnity basis, pointing to the Pikoulos Affidavit which sets out the various inquiries and work undertaken behind the scenes to find the information requested by the Applicant. The Respondent opposes any costs order in favour of the Applicant from 30 May 2025 onwards, if it is successful in opposing this application.

• [25] In respect to the application for access to the youth detention file, as I understood the oral submissions, the Applicant sought only access to unredacted names of officers, and was not interested in names of other detainees or other information such as phone numbers, from the records already received. What the Applicant had received in terms of the 625 pages of the youth detention file, provided following his FOI request, was not in evidence. I accept that the Applicant has received a copy of his entire youth detention file, with certain parts redacted. What parts of that file is redacted, and what particular documents with redactions cause issues for the Applicant in terms of preventing a decision to commence proceedings, is not in evidence. It seems to be the Applicant's position that he does not know what is missing so he cannot make a decision whether to commence proceedings, whereas the test is whether after making all reasonable enquiries, the Applicant does not have sufficient information to enable him to make that decision. As noted above, it is for the Court to determine whether an applicant has sufficient information available to it; the applicant's own assertion that it does not is neither determinative nor strictly necessary. Additionally, it needs to be determined as an objective fact whether the Applicant has sufficient information to determine whether to commence proceedings. As part of that process, it will be necessary to determine if the information that the Applicant possesses is still relevantly insufficient.
• [26] This is a different situation to where an applicant does not have any information at all and therefore may make more general submissions as to what documents he does not have, what those documents may reveal and how they may assist the decision making process. Here, the Applicant has documents, and in fact those documents likely form the whole youth detention file with certain parts redacted. The onus is on the Applicant to show, by reference to what material the Applicant has in terms of that information, what is lacking and why that information would assist. That may or may not be difficult to do in terms of documents which have been redacted. However, where an Applicant has received information via other reasonable enquiries, the Applicant bears the onus and needs to do more. The Applicant does not state why what he has already been provided with is insufficient to make a decision to commence proceedings. I am unable to find that the second limb of Rule 32.05(b) has been satisfied. That is, I am not objectively satisfied that in respect to the class of documents sought, the Applicant has insufficient information to enable him to decide whether to commence a proceeding.
• [27] If I have misconstrued the Applicant's position such that he says that notwithstanding the provision of the youth detention file (following the FOI request) there are other documents relating to his detention that he has not received which do not strictly form part of his youth detention file, and were therefore not provided in the FOI request, then I cannot see why he could not have made further reasonable enquiries for them via the FOI process. If the Applicant claims that there are more documents relating to his youth detention outside of those received under FOI request (ie. the request for a complete copy of his youth detention file, including a custodial episode history (movement history))[13] there is no evidence that he has made reasonable enquiries for that information. If that is the case, the Applicant has failed to satisfy the first limb of Rule 32.05(a).
• [28] I would decline to make this part of the discovery order sought. However, having said that it would not preclude the Applicant from seeking another order in more specific terms with reference to what he has received and what is missing from those documents in terms of being able to make a decision whether to commence proceedings.
• [29] In respect to the personnel files, that they may be essential to assessing the prospects of success in pursuing a negligence claim is not the test.[14] However, I am prepared to accept that information relating to the on-boarding process, competence/performance reviews and complaints/specific investigations in respect to the named officers are of a class of documents which would assist the Applicant make a decision in respect to commencing proceedings. I would be prepared to order discovery of such documents, however I also accept that certain documents in personnel files would have no bearing on a relevant decision (payroll, superannuation, leave records, records relevant to employment in other Agencies) and would be prepared to order that the Respondent need not discover such documents other than to identify (by reference to type or name of document in a schedule) which documents were not discovered.
• [30] In respect to discovery of all previous complaints within the Centre, in support of this aspect of the application, the Applicant cited numerous authorities in which previous complaints of child abuse were found relevant to allegations that defendants ought to have known abuse was occurring, and to foreseeability and implementation of duty of care.
• [31] The cases of LG v Brian Brock as executor of the estate of the late Leo Clarke[15], and Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc[16], involved a subpoena in respect to documents relating to complaints of child sexual assault by named individuals. The case of Lenscak v Trustees of the Marist Brothers (No 2)[17] , and cases cited therein,[18] is more insightful. In Lenscak, Ierodiaconou AsJ stated:[19]

Addressing these factors, the proceeding is one of alleged institutional abuse. The documents evidencing abuse allegations by other complainants may be significant in respect of issues such as foreseeability and damages.

• [32] Additionally, in JCB v Bishop Paul Bird for the Diocese of Ballarat & Anor Mc Donald J held:[20]

First, evidence of widespread sexual abuse of minors within the Diocese during the period preceding the sexual abuse of the plaintiff by Ridsdale [a priest] may bear upon the defendants' duty of care to have taken steps to prevent Ridsdale from sexually abusing the plaintiff. Secondly, evidence of widespread sexual abuse of minors prior to March/April 1982 may be relevant to the plaintiff's claim for aggravated and/or exemplary damages. I reject the defendants' contention that the plaintiff should be precluded from pleading the particulars of knowledge regarding the offending of other priests.

• [33] On the basis of authorities such as Paxus Services v People Bank[21] and St. George Bank Ltd v Rabo Australia Ltd[22] I am prepared to accept that the third category of documents does not constitute impermissible fishing (even in the context of the Rule which generally allows it) and that, on the evidence, the Applicant does not have sufficient information to enable a decision to be made to commence a proceeding and further, that inspection of the relevant documents would assist in making that decision. However, as stated in Paxus, although the rule should be given the fullest scope that language will reasonably allow, the proper brake on any excesses in its use is the discretion of the Court.
• [34] In respect to the exercise of the discretion, the Pikoulos Affidavit deposes that there is not one single repository of complaints of child abuse, and I accept that one does not exist. The Pikoulos Affidavit deposes as to what would be required in terms of discovery in respect to the documents which were sought prior to amendment of the summons in this proceeding. Previously, the request for all documents was relatively unconstrained. Through the amended summons the Applicant has sought to narrow the field to formal complaints held by a class of persons or agencies. Notwithstanding that, I am still prepared to accept that undertaking the searches for documents would still impose an onerous obligation on the Respondent. Any search for formal complaints over a three-year period, particularly somewhat historical, would require an onerous manual search of the multitude of records as set out in paragraph [8] of the Pikoulos Affidavit. It is unlike the situation in Lenscak, where there was a digital database, and the Court held that "the defendants ought be able to conduct the search with relative ease and convenience".
• [35] It would seem to me that the onerous effect of discovery could be reduced by discovery of formal complaints received or held by those primarily in authority and responsible for the Detention Centre, who would, in the normal course of business of a youth detention centre, be expected to receive, and act on such complaints. Thus, in the exercise of my discretion, balancing the needs of the Applicant and the Respondent, I would be prepared to order discovery in the following terms:

All formal complaints and notifications regarding child abuse at the Don Dale Youth Detention Centre perpetrated by any employee at the Centre that occurred from 5 July 2006 to the conclusion of the relevant period being 1 July 2009 inclusive, received or held by (All Formal Complaints):

1. The Superintendent/General Manager of the Detention Centre (or Acting Superintendent/General Manager);
2. Any person with delegation from the Superintendent/General Manager;
3. The Commissioner for Correctional Services (or the Acting Commissioner for Correctional Services);
4. The appropriate Division/Unit or Workgroup, who would in the ordinary course of business receive such complaints/notifications (ie. what would be colloquially referred as the Professional Standards Unit) within the Department with control of the Detention Centre from time to time;

• [36] In the absence of a central register for complaints, the above would appear to strike a balance between ordering the documents the Applicant says he needs to make a relevant decision and the onerous obligations which may extend to locating them, given the lack of any formal recording system and their age.
• [37] In respect to the application for costs, I agree that the Applicant should have its costs awarded up to and including 29 May 2025. In respect to this application, I note that the Applicant has been partially successful in respect to discovery of the historic Detention Centre complaints, with the Respondent successful in respect to opposing discovery of the Applicant's youth detention centre file, and the outcome neutral in respect to the discovery of personnel records. In those circumstances, in the exercise of my discretion, and given that is it generally not the approach to order costs to be "in the proceeding" in respect to pre-proceeding discovery applications, each party should bear their own costs post 30 May 2025.
• [38] The remaining issue is whether costs should be awarded on an indemnity basis or the standard basis. Whilst I accept on the face of the Pikoulos Affidavit that significant work was being undertaken behind the scenes in respect to locating records relating to the Applicant, the relevant part of this proceeding, for which costs are being awarded, could have been avoided by more transparent communication from the Respondent in respect to the delays and difficulties faced around locating records. PD6 recognises that a defendant may not be in a position to respond to a plaintiff within the suggested timeframe and provides that such things should be communicated. That would normally require an explanation as to what the defendant was doing to comply and what compromises might be made in the circumstance of a delay, such as the release of documents in tranches. That process was largely absent and precipitated this application. Costs awarded on an indemnity basis are not designed to be punitive but are simply intended to more adequately compensate a receiving party for their legal costs incurred. In my opinion, this would be an appropriate case for an award of costs to be taxed on an indemnity basis.
• [39] I therefore make the following orders:

(1) The Respondent is to provide discovery to the Applicant of the following:

(a) "Personnel files", including details of on-boarding (including resumes, criminal history results, reference checks), offer letters, contracts, performance/competency reviews, complaints, disciplinary actions, training records) for the Youth Justice Officers TH, SS and SH except for documents falling under the categories of payroll records, leave records, superannuation records, rostering issues and the like. Upon discovery, the Respondent is to provide the Applicant with a schedule of those documents not discovered (ie. the excepted documents), describing the document, or class of documents where appropriate, with sufficient particularly to enable the Applicant to gain an understanding as to its nature.

(b) All formal complaints and notifications regarding child abuse at Don Dale Youth Detention Centre perpetrated by any employee at the Detention Centre that occurred from 5 July 2006 to the conclusion of the relevant period being 1 July 2009 inclusive, received or held by (All Formal Complaints):

1. The Superintendent/General Manager of the Detention Centre (or Acting Superintendent/General Manager);
2. Any person with delegation from the Superintendent / General Manager;
3. The Commissioner for Correctional Services (or the Acting Commissioner for Correctional Services);
4. The appropriate Division/Unit or Workgroup who would in the ordinary course of business receive such complaints/notifications (ie. what would be colloquially referred as the Professional Standards Unit) within the Department with control of the Detention Centre from time to time;

(2) Paragraph 2 of the Amended Summons filed 13 June 2025 is dismissed.

(3) The Applicant is awarded his costs of and incidental to this application up to and including 29 May 2025, such costs to be agreed or in default of agreement to be taxed on an indemnity basis.

(4) Each party is to bear their own costs post 30 May 2025.

[1] The names of the Plaintiff and the relevant youth justice officers, have been anonymised in this decision pursuant to a request by the parties for a suppression order in respect to the publication of their names.

[2] BCI Media Group Pty Ltd v Corelogic Australia Pty Ltd [2020] FCA 1556 at [88]. For other examples see Williams Civil Procedure, 32.05.0 "Discretion".

[3] [2014] NTSC 28 at [8] - [11].

[4] [2020] VSC 554 per Delany J at [21].

[5] Phillps' First Affidavit paragraphs [7-10]. A copy of the application decision letter is Annexure CP2 to the Phillips' First Affidavit. The application requested "a complete copy of our Client's Youth Justice file, including a custodial episode history (movement history)". In response, 625 pages held relevant information and was released in full subject to exemptions. The decision letter simply discloses that some information was redacted on certain grounds including s 55 (confidentiality), s 56 (unreasonable interference with a person's privacy), some exempt information consisted of personal information which identified individuals, including notifiers and individuals not named in the scope of the request. No schedule of documents or the redacted documents were provided.

[6] Phillips' First Affidavit paragraph [5]. There is no specific reference to what aspect of the proceeding may cause issue with a decision, whether it is with a cause of action, defence or quantum.

[7] Phillips' First Affidavit paragraph [22].

[8] Phillips' First Affidavit Annexure CP3.

[9] Annexure CP3 affidavit of Phillips' First Affidavit.

[10] Applicant's submissions paragraph [16].

[11] Citing LG v Brian Brock as executor of the estate of the late Leo Clarke [2016] NSWSC 323 at [24]; Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc. [2018] VSC 602; Stephensen v The Salesian Society Inc & Ors; Easton v The Salesian Society Inc & Ord [2018] VSC 602 at [47]; and Lenscak v Trustees of the Marist Brothers & Ors (No .2) [2021] VSC 49 at [8].

[12] Pikoulos Affidavit paragraph [8].

[13] That is, if outside the youth detention file there are other documents relating to the Applicant such as medical, educational, disciplinary, housing, case management, movement, admission, discharge, incident and social work records, as referred to in paragraph 2 of the Applicant's amended summons filed 13 June 2025.

[14] Gibson v ANZ Banking Group Ltd (VSC, Gobbo J, No 10670/91, 30 August 1991, unreported, BC9102880.

[15] [2016] NSWSC 323.

[16] [2018] VSC 602.

[17] [2021] VSC 49 "Lenscak".

[18] JCB v Bishop Paul Bird for the Diocese of Ballarat & Anor [2019] VSC 348 at [54];

[20] [2019] VSC 348 at [54].

[21] [1990] FCA 500; (1990) 99 ALR 728 at 733 "Paxus".

[22] [2004] FCA 1360 at [26].