From:

To:

Cc:

Sent:

Subject:

"Joanna.Mitchell" <joanna.mitchell@facs.nsw.gov.au>

Evangelos_Manollaras <evangelos_manollaras@agd.nsw.gov.au>

Jodie_ Vella <jodie_vella@agd.nsw.gov.au>

Thursday, 16/02/2012 03:08 PM

RE: mJ!I

CSO REFERENCE: 200801481 - 02012/51471

Evangelos and Jodie

I would be grateful if your request for a brief advice from Counsel regarding costs could also consider the question of an appeal and the prospects of the Court deciding to hear the stay application first.

Thanks and kind regards

Joanna

From:Evangelos_Manollaras@agd.nsw.gov.au [mailto:Evangelos_Manollaras@agd.nsw.gov.au] Sent: Thursday, 16 February 2012 02: 12 PM To: Joanna Mitchell Cc: Jodie_ Vella@agd.nsw.gov.au Subject: RE: mJ!I

Joanna

I can ask counsel to consider your question if you like.

It seems that when I told you that there is no practical remedy to an appeal ( in that any appeal would not be considered until after the hearing date which had been vacated), I omitted to add that her Honour's decision was discretionary. That being the case, any reviewer of her Honour's decision is not likely to substitute his/her view for that of her Honour, and I would think, certainly not, where there is no practical remedy.

I appreciate that it is a disappointing decision for the department, as it is for me, but I suggest that it is something we cannot do anything about.

On the other hand, the perhaps unintended result is that we get to run our stay application first, which if successful , could bring the whole 15 claims to an end, without paying any damages.

Evangelos G Manollaras Solicitor for Crown Solicitor

Torts Service/Regulatory Practice Group 9CROWN SOLICITOR'S OFFICE Level 5 960-70 ElizabethStreet 9Sydney NSW 2000 9DX 19 Sydney Direct Line 02 9224 5103 9Fax 02 9224 5122 * Evangelos_ G _Manollaras@agd.nsw.gov.au

NSW.2001.004.4862_R

"Joanna Mitchell" <Joanna.Mitchell@facs.nsw.gov.au>

15/02/2012 04:42 PM

To

<Evangelos_Manollaras@agd.nsw.gov.au>, <Jodie_ Vella@agd.nsw.gov.au>

cc

Subject

RE:.

Dear Evangelos and Jodie

Thank you for your comprehensive report.

I have just discussed with Jodie the possibility of receiving additional advice with respect to appealing her Honour Justice Truss' decision to vacate the hearing on 20 February 2012.

I understand from Evangelos' earlier email that, in practical terms, the hearing cannot proceed on Monday 20 February. However, if another Judge on appeal is minded to agree with our position that the matter should proceed, our current position would be preserved whenever the hearing is scheduled. If, as it is likely, further directions are made in March as to filing and serving additional evidence by the plaintiff, not only will more time elapse but additional costs incurred and no doubt new arguments to respond to.

It is possible that Evangelos addressed this point in the earlier email but some additional clarification would be appreciated.

Thank you and kind regards

Joanna Mitchell I Legal Officer I Child Law Team I Legal Services Department of Family and Community Services I Community Services T02 9716 2793 I F 02 9716 2988 A 4-6 Cavill Avenue, Ashfield 2131 NSW or DX 21212 Ashfield

NSW.2001.004.4863_R

E joanna.mitchell@facs.nsw.gov.au Wwww.facs.nsw.gov.au

From: Evangelos_Manollaras@agd.nsw.gov.au [mailto:Evangelos_Manollaras@agd.nsw.gov.au] Sent: Wednesday, 15 February 2012 03: 16 PM To: Joanna Mitchell Cc: Jodie_ Vella@agd.nsw.gov.au Subject:-

E-mail to: Joanna Mitchell, Community Services, FACS

Re: State of New South Wales ats ml!I& Ors Your Ref: 08/4090 MPL7300972 (Our Ref: 200801481)

I refer to my two e-mails to you dated 14 February 2012, briefly reporting as to what transpired in this matter at the District Court on 14 February when the plaintiff successfully vacated the hearing date of Kathleen Biles' limitation motion which was listed for hearing to commence next Monday 20 February 2012.

At that time I promised a fuller report, and I now provide it.

During your absence on leave, I sought and obtained instructions from David Wells to file our own motion seeking a permanent stay and/or a dismissal of the plaintiffs' claims on the basis that the unavailability of witnesses and evidence because of the passage of time, would prevent the defendant obtaining a fair trial.

The defendants were successful in a similar claim in Batistatos v RTA, a decision of the High Court, where the plaintiff's allegations in that matter dated some 28 1/2 years prior to the bringing of a claim, where the plaintiff was under a disability. The Court dismissed the claim on the basis that the defendant would be prevented from having a fair trial, as the delay in bringing the action had the effect of losing defence witnesses and evidence that the defendant might otherwise have been able to rely on. There were certain similarities between the circumstances in Batistatos and the circumstances in this claim and Mr Michael Cashion SC and Mr Paul Arblaster provided a joint advice which led to the obtaining of instructions to run a similar motion from Mr David Wells.

The motion was filed, with little notice prior to that , to the plaintiffs' lawyers. As you can imagine, the plaintiffs objected to this course of action as it was put to them that given the orders sought in that motion, it should be run as a preliminary issue to the limitation application by Kathleen Biles.

Following those initial objections by the plaintiffs' lawyers, we suggested to them that we run the motion only against Kathleen Biles (standing over the motion in relation to the other 14 plaintiffs) and the limitation motion concurrently, because the evidence on which the defendant would rely in respect of its motion, was exactly the same as the evidence it had already served in relation to all the plaintiffs' limitation motions. There would be no new evidence served.

That offer was made about the middle of last week and the plaintiff's lawyers never came back to us after that as to what they intended to do, other than to inform us on Monday afternoon 13 February that they had asked the List Judge to list the matter for directions on 14 February.

Given the importance of the matter, I requested Mr Cashion SC to appear at the

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directions hearing before the List Judge, her Honour Judge Truss. Mr Paul Arblaster appeared with Mr Cashion. Mr John Catsanos appeared for the plaintiffs leading Ms Helen Wall of Counsel. Without any prior notice to the defendant, Counsel for the plaintiff proposed vacating the hearing date of 20 February and stated the reason for that was the defendant's motion. Mr Cashion responded for the defendant that this was the first he had heard of any proposal by the plaintiffs to vacate the hearing date. Her Honour noted that the plaintiff had not filed and served any affidavit in support of an application to vacate the hearing date. Her Honour stood the matter down in the list to allow the parties to discuss the matter. Prior to the parties discussing the matter, I had a conference with Mr Cashion when we looked at our options and considered whether I should be telephoning you or Mr Wells in relation to instructions. Our options appeared to be: 1. That we press ahead for the hearing of both the plaintiffs' and defendant's motions. 2. Any argument as to whether the defendant's motion should be stood over was in our view a matter to be considered by the Trial Judge who got to consider the plaintiff's limitation motion. It was noted that it would be pointless torunning such argument today, because the same issues would need to be ventilated at the hearing of the defendant's motion. 3. There was some discussion in relation to whether the defendant was ready to respond to the plaintiff's limitation motion, and as there was no doubt that the defendant was ready, there was no question as to the defendant consenting to the plaintiff's application to vacate the hearing date. 4. It was noted that the defendant's preference was that both motions proceed concurrently on 20 February, but if the Court decided to stand over the defendant's motion, there was nothing we could do about that; we would still nevertheless want the plaintiff's motion dealt with commencing on 20 February. In the circumstances, we felt that if the plaintiffs were successful in vacating the hearing of the plaintiff's motion, the plaintiff should pay the costs thrown away. 5. Senior Counsel asked me whether I should be obtaining instructions from the Department in relation to these discussions. In view of the recent e-mail I received from Mr David Wells, in your absence, in reply to certain instructions I had sought from him, I concluded that this wasn't a matter for express instructions from the Department, but rather a question of "fine tinkering" which was the expression used by Mr Wells at the time of my seeking those earlier instructions. 6. It was also noted that even if the defendant's motion was stood over by the Court, and the plaintiff's limitation motion proceeded, the defendant could still make submissions along the lines of the decision in Batistatos. Following my short conference with Senior Counsel, there was some discussion with the plaintiff's Counsel and the matter was again back before her Honour. Counsel for the plaintiff indicated that the plaintiff wanted to vacate the hearing date because it was not in a position to respond to the defendant's motion. The plaintiff argued that the defendant's motion had to be dealt with as a preliminary point, as if it was successful, it would dispose of the entire plaintiffs' claims. Might I briefly digress to indicate that in correspondence between the parties prior to the mention, that was not the position put forward by the plaintiffs and what Counsel for the plaintiff told her Honour was a complete somersault on the position previously adopted by the plaintiffs. In response, Mr Cashion indicated that both motions could run concurrently and the defendant was ready to proceed on both.

NSW.2001.004.4865_R

The plaintiff handed up to her Honour copies of all the correspondence that had passed between the parties from 2 February 2012, which was the date on which the plaintiffs were first given notice of the defendant's proposed motion to stay/strikeout.

Counsel for the plaintiff pressed her Honour that the defendant's motion would have to be dealt with prior to the plaintiffs' limitation motions. In support of the application to vacate, Counsel for the plaintiff indicated that as the defendant's motion had to go first, the plaintiff was not in a position to answer that motion as it would need to seek further and better particulars, make further investigations and serve further evidence opposing the defendant's motion. Mr Cashion argued that the evidence in respect of both motions was the same and that the defendant did not propose to adduce any further evidence in support of its application . I pause here to caution that should the plaintiffs serve further evidence, naturally we would take the opportunity to respond to that evidence.

Her Honour noted that this matter had been back before the Court on many occasions for directions and although initially reluctant to accede to the plaintiffs application, appeared to gradually be swayed in favour of the plaintiffs. Her Honour vacated the hearing date and ordered the defendant to pay the plaintiffs costs thrown away. Given the circumstances leading to the plaintiffs application, the argument before her Honour in relation to the plaintiffs application to vacate the hearing date and the circumstances of this matter generally, I thought that was an unjust order to make and perhaps some sympathy by her Honour towards the plaintiffs generally may have influenced her Honour in making that order.

Her Honour listed the matter for directions on 14 March 2012 at 9:30am.

Following the mention before her Honour, I briefly discussed the matter with Senior Counsel and expressed my views in relation to what I thought was a very unjust costs order. Senior Counsel indicated that this was something that could be vacated in the future. I note from the e-mails that passed between us yesterday, that you have asked me to seek Counsel's advice in relation to the vacating of that costs order.

I will report further once I have received Counsel's views in relation to vacating the costs order made by her Honour on 14 February 2012.

I take the opportunity to advise that I will be acting up in another position for a few weeks and that during that time Ms Jodie Vella will have carriage of the mJ!lmatter. I quickly add that I will be supervising Ms Vella with the result that I have worked with Ms Vella on this matter for quite some time and continue to do so.

Evangelos G Manollaras Solicitor for Crown Solicitor

Torts Service/Regulatory Practice Group 9CROWN SOLICITOR'S OFFICE Level 5 960-70 ElizabethStreet 9Sydney NSW 2000 9DX 19 Sydney Direct Line 02 9224 5103 9Fax 02 9224 5122 * Evangelos_ G _Manollaras@agd.nsw.gov.au

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