Supreme Court New South Wales Medium Neutral Citation: Meredith v State of New South Wales [2023] NSWSC 1546 Hearing dates: 16 March 2023; 19 April 2023 (last written submissions) Date of orders: 13 December 2023 Decision date: 13 December 2023 Jurisdiction: Common Law Before: Garling J Decision: 1. Defendant's Notice of Motion filed 27 January 2023 is dismissed. 2. Defendant to pay the Plaintiff's costs. Catchwords: CIVIL PROCEDURE – representative proceedings – whether common questions of fact or law exist – whether representative proceedings efficient and effective means of dealing with claims – substantial common questions of fact and law – questions require objective determination by the Court – determination will apply to all group members – matters of commonality across wide range of music festivals and searches – hearing of individual claims against the interests of justice – interlocutory proceedings conducted in whole the most efficient course – representative proceedings should continue – application dismissed Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Cases Cited: Bright v Ferncare Ltd (2002) 195 ALR 574; [2002] FCAFC 243 Nguyen v Rickhuss [2023] NSWCA 249 Rickhuss v The Cosmetic Institute Pty Ltd (No.4) [2023] NSWSC 666 Bright v Ferncare Ltd (2002) 195 ALR 574; [2002] FCAFC 243 Texts Cited: Not Applicable Category: Procedural rulings Parties: Raya Meredith (P) State of New South Wales (D) Representation: Counsel: L Armstrong KC / A H Edwards (P) N Oreb (D) Solicitors: Slater & Gordon (P) Makinson d'Apice (D) File Number(s): 2022/214157 Publication restriction: Not Applicable JUDGMENT 1. On 21 July 2022, the plaintiff, Raya Meredith, commenced these proceedings against the State of New South Wales ("the State") as a representative action pursuant to Part 10 of the Civil Procedure Act 2005 (NSW) ("the Act"). This Representative Action 1. The proceedings were brought by the plaintiff on her own behalf and on behalf of a group described in this way: "7. The plaintiff brings this proceeding … on behalf of those persons (group members) who: 7.1 attended a music festival within NSW held on or from 22 July 2016 (Festival); 7.2 while on the Festival grounds or surrounds, was stopped and directed by police officers to an area where searches were conducted; 7.3 was subject to a search by police officers which included one or more of the following: 7.3.1 being asked to remove some or all of their items of clothing, other than a coat or jacket or similar article of outer clothing or any gloves, shoes, socks or hats; 7.3.2 police officers looking under a person's clothing at that person's body; 7.3.3 police officers placing their hand/s or finger/s under a person's clothing; and/or 7.3.4 police officers performing any act to a search a person other than those permitted within s 30 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (hereafter a strip search); and 7.4 that strip search was conducted and/or that person understood the strip search was conducted, on the basis of a suspicion of possession of a prohibited plant or drug." 1. The plaintiff pleads that the strip searches were not lawfully authorised by s 31 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") because the police officers did not have reasonable grounds to suspect that such searches were necessary and, further, that there was no seriousness or urgency of the circumstances which authorised police officers to conduct a strip search. 2. As well, the plaintiff pleads that the strip searches were conducted without compliance with the safeguards in ss 32 and 202 of LEPRA, without compliance with s 34A of LEPRA, and in contravention of the rules provided for in s 33 of LEPRA. 3. The causes of action relied upon are assault and battery, and false imprisonment. Compensatory, aggravated and exemplary damages are claimed. 4. The plaintiff set out a number of common questions as an annexure to the Statement of Claim. As the questions were later amended, there is no need to set out in detail this set of common questions. 5. Pursuant to leave being granted, the plaintiff filed an Amended Statement of Claim on 2 November 2022. The amendments were relatively minor and affected only two parts of the definition set out in [2] above. Sub-paragraph 7.3.4 was deleted, and sub-paragraph 7.4 was amended so as to read: "That person was told by police officers or otherwise understood that a strip search was conducted on the basis of a suspicion of possession of a prohibited plant or drug." 1. The plaintiff's Amended Statement of Claim maintained its pleading that the claims of the plaintiff and group members gave rise to substantial common issues of law and fact. 2. In the initial Defence filed in the proceedings, the State did not admit that any common questions of law and fact existed. In response to paragraph 7, which contained the definition of group members, the State pleaded that: "The lawfulness of the alleged searches of group members described in paragraph 7.3 will turn on the specific facts of each individual group member's case." 1. The State, as well, disputed the plaintiff's individual claim and pleaded that each of the three police officers who detained the plaintiff for the purpose of, or else who undertook the search of the plaintiff were acting lawfully and that they each had reasonable grounds to suspect that the plaintiff had in her possession or under her control a prohibited plant or prohibited drug. 2. The State pleaded particulars of the reasonable grounds relied upon by each of the three relevant police officers involved in the search of the plaintiff. Each officer nominated as one relevant fact for the existence of their reasonable grounds that a music festival was taking place. 3. One of the officers who was carrying out duties as a dog handler identified these matters amongst others: "(i) the plaintiff was at a large music festival in the mid-North Coast of NSW which was a geographic location associated with relatively common recreational drug use; (ii) his awareness that a warrant had been granted permitting general drug dog detection at the musical festival and that, typically, such warrants were granted after provision of police intelligence information including the history of drug detections at the particular festival in previous years; and (iii) [the drug dog] gave a positive indication that there was a prohibited substance in the airspace around the plaintiff." 1. The second police officer noted the following reasonable grounds amongst others: "(ii) the plaintiff was at a music festival with a younger demographic which, in his experience, was an environment where it was common for people to possess and supply prohibited drugs; (iii) the drug dog gave a positive indication that there was a prohibited substance in the air-space around the plaintiff; … (vii) information conveyed by way of pre-festival briefing regarding the use of drugs at the festival." 1. Although the plaintiff was stopped initially by these two police officers for the purposes of undergoing a search, the strip search of the plaintiff was carried out by a third officer who was a female. The Defence pleads that this third officer also had reasonable grounds for conducting the search. Particulars of those grounds included: "(i) her own prior experience working at music festivals and in general duties, searching people on the basis they were suspected to have prohibited drugs in their possession or under their control; (ii) that the plaintiff was at a music festival known for supply and possess offences and attracting a younger demographic which in [the officer's] experience attracted drugs of several different kinds including pills, cannabis, cookies and LSD; (iii) that a drug dog had given a positive indication that there was a prohibited substance in the air-space around the plaintiff." 1. Insofar as the third officer carried out a strip search, reasonable grounds for a belief that the strip search was necessary, and that the seriousness and urgency of the circumstances made the strip search necessary were separately pleaded. 2. As to necessity, relevantly two particulars were provided: "(i) the ordinary search had not yielded any prohibited drugs in circumstances where [the officer] had formed the view … that the plaintiff was likely to have drugs in her possession; (ii) her assessment of the extent to which the plaintiff's clothing or hairstyle would allow for a prohibited drug to be concealed even during an ordinary search." 1. With respect to the particulars relating to seriousness and urgency, they included the following: "(i) the health risk to the plaintiff if she went on to ingest a prohibited drug; (ii) the health risk to others if they ingested a prohibited drug brought into the festival by the plaintiff; (iii) if [the officer] did not conduct the strip search of the plaintiff now, she would not have another opportunity to search the plaintiff before the plaintiff or someone else ingested any prohibited drug on the plaintiff's person, or the plaintiff disposed of any prohibited drug in a way posing risk to others …; (iv) if [the officer] did not conduct a strip search of the plaintiff now, there was a limited opportunity for other police to detect any prohibited drug on the plaintiff once inside the festival and/or before the plaintiff or someone else ingested any prohibited drug on the plaintiff's person and/or before the plaintiff disposed of any prohibited drug in a way posing risk to others …; … (vii) history of recorded drug possession, use, supply and overdoses at the Splendour in the Grass festival in previous years." 1. On 30 March 2023, pursuant to leave which I granted on 16 March 2023, the plaintiff filed a Further Amended Statement of Claim. It included paragraphs 68A-68D which referred to the conduct of the State which was claimed to be relevant to an award of exemplary damages. 2. As well, the common questions identified were amended so as to pose 31 questions which the plaintiff said were common to the claims of all of the group members (including her). Those questions are set out in a schedule marked "Annexure A" attached to this judgment. 3. The State filed a Defence to the Further Amended Statement of Claim on 22 May 2023. It did not admit that the questions contained in Annexure A and described as common questions, were in fact common questions. In other respects, it largely maintained the defence which it had earlier pleaded. Notice of Motion 1. On 27 January 2023, the State filed a Notice of Motion in which it sought an Order pursuant to s 166 of the Act that these proceedings no longer continue as a representative proceeding under Part 10 of the Act. 2. On 13 December 2023, I made orders that the Notice of Motion be dismissed with costs. I informed the parties that reasons for those orders would be delivered later. 3. These are my reasons for making the order dismissing the Motion. Relevant Legislation 1. Part 10 of the Act makes legislative provision for the commencement and conduct through to judgment or final resolution of representative proceedings. Part 10 is beneficial legislation intended to enhance access to justice: Nguyen v Rickhuss [2023] NSWCA 249 at [47]. It is not to be construed as creating obstacles to the adjudication of claims involving multiple parties: Nguyen at [42]. 2. The threshold for the commencement of representative proceedings is set out in s 157 of the Act. It is in the following form: "157 Commencement of representative proceedings (1) Subject to this Part, where-- (a) 7 or more persons have claims against the same person, and (b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances, and (c) the claims of all those persons give rise to a substantial common question of law or fact, proceedings may be commenced by one or more of those persons as representing some or all of them. (2) Representative proceedings may be commenced-- (a) whether or not the relief sought-- (i) is, or includes, equitable relief, or (ii) consists of, or includes, damages, or (iii) includes claims for damages that would require individual assessment, or (iv) is the same for each person represented, and (b) whether or not the proceedings-- (i) are concerned with separate contracts or transactions between the defendant in the proceedings and individual group members, or (ii) involve separate acts or omissions of the defendant done or omitted to be done in relation to individual group members." 1. The present Notice of Motion seeks that this Court exercise its discretionary power to order that the proceedings, which are accepted to be properly commenced under s 157, ought not be permitted to continue as representative proceedings. That discretionary power is contained in s 166, which is in the following form: "166 Court may order discontinuance of proceedings in certain circumstances (1) The Court may, on application by the defendant or of its own motion, order that proceedings no longer continue under this Part if it is satisfied that it is in the interests of justice to do so because-- (a) the costs that would be incurred if the proceedings were to continue as representative proceedings are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding, or (b) all the relief sought can be obtained by means of proceedings other than representative proceedings under this Part, or (c) the representative proceedings will not provide an efficient and effective means of dealing with the claims of group members, or (d) a representative party is not able to adequately represent the interests of the group members, or (e) it is otherwise inappropriate that the claims be pursued by means of representative proceedings. (2) It is not, for the purposes of subsection (1) (e), inappropriate for claims to be pursued by means of representative proceedings merely because the persons identified as group members in relation to the proceedings-- (a) do not include all persons on whose behalf those proceedings might have been brought, or (b) are aggregated together for a particular purpose such as a litigation funding arrangement. (3) If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the defendant except with the leave of the Court. (4) Leave for the purposes of subsection (3) may be granted subject to such conditions as to costs as the Court considers just." 1. Although the State on this Motion does not seek to argue that the proceedings have not been properly commenced, the fact that they were, may be a relevant consideration when considering the exercise of the discretion under s 166: see Rickhuss v The Cosmetic Institute Pty Ltd (No.4) [2023] NSWSC 666 at [51]; Bright v Ferncare Ltd (2002) 195 ALR 574; [2002] FCAFC 243 at [128]. 2. In considering an application under s 166, it is relevant to note s 168 of the Act which is as follows: "168 Determination of questions where not all common (1) If it appears to the Court that determination of the question or questions common to all group members will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining questions. (2) In the case of questions common to the claims of some only of the group members, the directions given by the Court may include directions establishing a sub-group consisting of those group members and appointing a person to be the sub-group representative party on behalf of the sub-group members." Evidence on the Motion 1. The State tendered a bundle of correspondence dealing with the Motion which included debate between the parties with respect to whether or not there were common questions. The correspondence also included material relating to discovery. 2. The plaintiff relied upon an affidavit of Mr Rory Walsh to which was attached an exhibit containing various documents, including additional correspondence. 3. The following material emerges from the evidence before the Court. 4. Between 1 October 2016 and 14 May 2022, the plaintiff has identified 49 separate music festivals which took place and which, they will allege, are part of the proceedings because the definition of group members would be apt to include those who attended such festivals. The geographical spread of those music festivals covers the Byron Bay area, various parts of the Sydney Metropolitan area including from as far west as Penrith and to the Moore Park area in the east. There are a number of locations in the Hunter Valley and, as well, the Central Coast. There are also locations in Wollongong and Newcastle and in the Snowy Mountains. 5. The plaintiff has also identified that at the Splendour in the Grass Music Festivals, which were held in Byron Bay respectively in July 2016, July 2017, July 2018 and July 2019, there were a total of 323 strip searches carried out by NSW police officers. Of those, the plaintiff suggests that in 75 cases, an item or an object was found, however the nature or type of that item or object is not further identified. Based on the provision of broader statistics by NSW Police to the plaintiff's solicitors, it can be seen that not all items or objects found were illegal or unlawful, although some may be. 6. The statistics show that about 55% of those subject to a strip search were at or below the age of 21 years. A small number were juveniles (i.e. below 18 years old). 7. The material before the Court also showed that the Law Enforcement Conduct Commission ("LECC") has conducted at least three inquiries into the conduct of various members of NSW Police involved at a number of different music festivals. 8. In July 2020, in its report into Strike Force Blackford, which dealt with a music festival held in May 2018 at Olympic Park in Sydney, the LECC Report included these comments: "3.13 Investigation of each complaint highlighted a number of significant recurring issues for the NSWPF in relation to strip searches at festivals including: ● lawfulness of the searches; ● the adequacy of the record keeping of strip searches undertaken by police officers; ● officers stating that they felt under pressure to conduct strip searches at festivals; ● the adequacy of passing information from one officer to the searching officer prior to the search; ● police officer involvement in issuing banning notices for venues following a search, in circumstances where no offence has been detected; ● festivalgoers describing their experience of police practices such as requests to cough and squat or bend over as humiliating; and ● additional concerns about the inadequacy of privacy afforded during strip searches." 1. Of course, the Court is not bound by any finding of the LECC. The reports of the LECC may not ultimately be tendered upon the hearing of the proceedings, and, if they were, questions may arise as to the admissibility of parts of them. However, no objection was taken to the admissibility of that material before the Court on the hearing of this Motion. It provides useful contextual information for the consideration of the parties' submissions. Submissions of the State 1. In its written submissions in support of the Motion, the State argued that this representative proceeding was not an efficacious way of resolving the claims of all the group members. Rather, it submitted a far more efficient way of progressing all the claims would be to permit the claims of the group members to be progressed individually without delay in the forum of the individual's choice, rather than being considered sequentially after the plaintiff's claim is heard and determined (including the resolution of any possible appeal). 2. As well, the State submitted that there are no proper common questions of fact because it could not be expected that any findings of fact made in the plaintiff's case would bear upon the determination of the claims of the other group members. The State submitted that the claims which are necessarily individual in nature, arose out of allegations of individualised dealings between group members and members of NSW Police that were highly fact intensive, and which would need at some point to be properly pleaded and particularised. 3. The State submitted that to the extent that there were any common questions of law, those questions related to peripheral issues and were of insufficient utility to support the continuation of these proceedings under Part 10 of the Act. 4. Alternatively, the State submitted that there was not a sufficiently significant number of common issues of fact or law as would advance the interests of justice by the claim continuing as a representative action. 5. Finally, the State submitted that, having regard to the criteria set out in s 166(1)(b), (c) and (e) of the Act, it was not in the interests of justice for the proceedings to continue as representative proceedings. 6. In oral submissions, counsel for the State described the State's position "… in a nutshell". She said: "There are not a sufficiently significant number of common issues to warrant what are at their core fact-intensive individual actions being held back from prosecution in this class action format rather than proceeding now on an individual basis." Submissions of the Plaintiff 1. The plaintiff submitted that there were substantial issues of law arising from the pleadings, and substantial common issues of fact so as to support a conclusion that there was real utility in determining the construction of the police powers under consideration, how they may be exercised in similar circumstances, the availability of technical defences raised by the State and the existence of systemic issues, policies and directions referrable to strip searching in the music festival context. It was submitted that all of these issues were common to all group members. 2. The plaintiff submitted that the interests of justice did not favour an order that the proceedings be discontinued as representative proceedings because the costs and the practical barriers for individuals to proceed on their own were a significant disadvantage to these individuals, and that the advantages of Part 10 of the Act outweighed any other consideration. 3. The plaintiff points to the investigations undertaken by the LECC, and the report of an inquest by the NSW Coroner delivered on 8 November 2019, which point to and identify that there were recurrent issues of similarity about the conduct of police officers with respect to the individual cases which were investigated. Those recurrent circumstances included the inability of officers who had conducted strip searches to be able to demonstrate the seriousness and urgency of the circumstances which made it necessary to conduct such searches "in the field". In particular, the plaintiff draws attention to the conclusion of one of the LECC reports which included this statement: "Low rates of detection of relevant evidence during strip searches further suggests that officers have been routinely conducting strip searches without the requisite suspicion." 1. As I have earlier noted, this material can be considered in a determination of whether these proceedings should be the subject of an order pursuant to s 166 of the Act. 2. The plaintiff also submits that since the State is making an application under s 166 of the Act and not also under s 157 of the Act, this Motion proceeds on the assumption that the proceedings were properly commenced under Part 10 of the Act. 3. The plaintiff calls attention to the terms of s 166 and submits that the State has not established that it is in the interests of justice for the Court to make an order of the kind sought. Recent Authority 1. Recently, the Court of Appeal considered, on appeal, an application for relief under ss 157 and 166 of the Act which had been made and refused in representative proceedings: Nguyen v Rickhuss [2023] NSWCA 249 (generally known as The Cosmetic Institute Class Action). 2. The Cosmetic Institute Class Action involves a large number of group members who underwent breast augmentation surgery performed individually by one of a group of medical practitioners. The medical practitioners argued that the litigation should not have been commenced, nor should it continue as a representative proceeding because there was no substantial common question of law or fact and it was not in the interests of justice having regard to the fact that operations of the kind to which the group members submitted were inherently individualistic operations and any questions arising from complications due to such surgery could not be common questions. They submitted that it was in the interests of justice for individual claims to be litigated in the appropriate forum. 3. The plaintiffs contended that the operations were undertaken pursuant to a system which involved common elements and features for each of the operations, which common elements or features increased the risk of harm to individuals who underwent the surgery. 4. It seems to me that the decision of the Court of Appeal (Ward P, Leeming JA and Basten AJA) establishes these propositions: 1. the threshold test in s 157(1) of the Act for the commencement of representative proceedings requires the existence of a substantial common question of law or fact, a phrase the application of which ought not be narrowly constrained; 2. the determination of whether a question of law or fact is common, either for the purpose of s 157(1) or else in the consideration of an application under s 166 of the Act, does not introduce, nor is it to be determined by, any apparent dichotomy between whether a question is common or whether a question is individualistic; 3. the identification of whether a particular question of law or fact is a common one is not contradicted by the fact that the defendants might seek to lead evidence as to what occurred in any one or more particular factual instance involving any one or more individuals who are group members; 4. in considering whether or not a question is regarded as common for the purpose of Part 10, the evidence which may be led to disprove it is not necessarily determinative of that issue; and 5. having regard to the purpose of the legislation, it should not be lightly concluded that a claim that many persons have been treated in substantially the same way according to a system or practice, must be litigated as a series of individual claims. Discernment 1. The application of the State does not raise any question of the kind addressed by s 166(1)(a), namely that costs of the representative proceedings are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding. Accordingly, that issue, as a separate head for the exercise of the discretionary power, can be put to one side. Nevertheless, costs may be a relevant consideration in determining whether the representative proceedings provide an efficient and effective means of dealing with the claims of group members: see s 166(1)(c) of the Act. 2. The submissions of the defendant on its application invites the Court to consider whether such questions, which may be described as common questions of fact or law, are such that a representative proceeding is a more effective means of proceeding with this litigation. That is because, clearly, the relief claimed by way of an action for damages is available to be brought in other courts. Claims of the kind brought here can be and are regularly brought in the District Court and, on occasion, in the Local Court. 3. There is no suggestion that the plaintiff is not the sort of person who can adequately represent the interests of the group members: see s 166(1)(d) of the Act. 4. Fundamentally, what is being raised by the State is whether the nature of the common questions of fact or law which are set out in Annexure A to this judgment, are such as would warrant the proceedings to continue as representative proceedings because that type of proceeding does not provide an efficient and effective means of dealing with the claims of the plaintiff and group members. 5. LEPRA, the legislation at the centre of these proceedings, does not permit a police officer to conduct a strip search of an individual without any constraint at all in circumstances where a warrant for search or seizure has not been issued. The strip searches being undertaken in the circumstances covered by group members here do not involve the issue of any warrant. 6. Division 4 of Part 4 of LEPRA sets out the legal provisions pursuant to which strip searches may be carried out. As is apparent from the provisions of that Division, the legislation is detailed as to the circumstances in which personal searches generally may be carried out (s 30) and the essential circumstances which enable strip searches to be carried out (s 31). 7. It is apparent that within s 31(b) of LEPRA, which applies to the circumstances of the strip searches covered by these representative proceedings, there is both a partly subjective and partly objective test and separately an entirely objective test. The subjective test provided by the legislation is whether the police officer holds a suspicion that the strip search is necessary for the purposes of the search. It is apparent from the Defence filed in these proceedings that, notwithstanding that this is a subjective test, there are matters of fact in common which each police officer relies upon as constituting their suspicion that it was necessary to undertake the strip search. 8. It is not unlikely that those matters of fact may well be common to many of the strip searches undertaken given the nature and spread of these proceedings amongst a number of music festivals. A particular example can be seen at [12]‑[14] above when the facts of each defence relied upon included that the plaintiff or other group members were in attendance at a large music festival in a particular geographic location, or at which a particular age demographic may be expected to attend. 9. Once a suspicion is held, the subjective test is partially, but not entirely, complete. There is an objective component against which that subjective suspicion is to be measured before a strip search can be established to be lawful. That objective component is that the grounds upon which the subjective suspicion is held are "reasonable". LEPRA does not provide any definition of what may or may not be regarded as reasonable. 10. If the Court was to determine with respect to the plaintiff that the feature just described was not a reasonable basis for the requisite suspicion of a police officer or, alternatively, it was to determine that such a fact or matter did constitute a reasonable basis for an officer's subjective belief, then such findings are likely to be applicable far more broadly than just to the plaintiff alone. 11. Questions 4, 6 and 19-22 (inclusive) set out in Annexure A raise these issues for determination. 12. Importantly, the further part of the requirements of s 31(b) of LEPRA are capable only of an objective test, namely, that: "… the seriousness and urgency of the circumstances make the strip search necessary." 1. This calls for an objective determination by the Court of whether the circumstances were such as to give rise to the necessity which must exist before a strip search is lawful. 2. The particulars provided in the Defence, to which reference is made at [16]-[17] above, make it plain that these are matters of commonality across a wide range of festivals and of searches. Any finding by the Court with respect to those matters will be applicable to the claims of other group members. Questions 3, 5, 7 and 19-22 (inclusive) of Annexure A raise these issues for determination. 3. There are other questions which, the plaintiff submits, also need to be taken into consideration. Question 8 poses a question with respect to a claim for damages for false imprisonment, namely whether it was lawful to direct a person who was not under arrest to an inspection area for the purpose of undertaking a strip search. This is of itself obviously a common question. Question 11 poses a question as to whether a non-compliance with a safeguard of the kind set out in ss 32 and 33, would of themselves and without more, make a strip search unlawful. Again, this is a question of law relating to the proper interpretation of LEPRA and will be common to the plaintiff and group members. 4. In the State's Defence, it pleads at [91]-[95], that the provisions of ss 41 and 43A of the Civil Liability Act 2002 (NSW) are applicable to the circumstances of a police officer conducting a strip search. Questions 12 and 13 address this pleaded issue. By its nature, this is a question of law which is applicable to the claims of all group members. The single determination of this issue in the plaintiff's case will apply to all group members. 5. As well, there are other questions which seem to me to raise common issues of fact or law, including but not limited to the matters covered by Questions 13A to Questions 13E, Questions 16 to 18A.2 (questions related to entitlements to damages) and Question 25 (the extent of the entitlement of a police officer acting pursuant to LEPRA to compel a person being searched to do various things). 6. The State argues that such questions as may be common, are of insufficient substance to warrant these proceedings continuing. They submit that the proper course is for claimants to take individual proceedings against the State with respect to their individual cases. 7. The evidence on this Motion about the number of separate music festivals at which strip searches had taken place in the period between 2016 and 2022, together with the example of one festival, Splendour in the Grass Music Festival, which suggested that over a period four years, over 320 strip searches were carried out, suggests that there may be many hundreds of, if not more than a thousand, individuals who are potential group members. The time has not yet arrived for any precision in that calculation. 8. However, the State advances the proposition that whatever that number may be, a course which required each group member to take individual proceedings would be a more effective or efficient means of disposing of these claims and would be in the interests of justice. 9. Whilst this assessment leads to the broadest of predictions of the likely or reasonably likely number of individual proceedings this would involve, I would suggest that the number of proceedings would exceed 100, which I regard as a most conservative estimate. In those circumstances, it would be highly likely that in the course of the hearing of a hundred individual cases, there would be judgments which were either inconsistent, or at odds one with the other. The greater the number of individual proceedings which were brought, the greater this likelihood would be magnified. That is not an efficient means of delivering justice to the individuals who are group members. Rather, it would be more akin to a random determination of issues which have centrally common features. I do not regard such approach as being, in the circumstances of this case, in the interests of justice. 10. This review satisfies me that there are a significant number of common questions of fact and law which address issues of substance in the proceedings to satisfy me that I should reject the State's submission that such common questions as are of substance are insufficient to warrant these representative proceedings. 11. There is no evidence or material which suggests that the costs of bringing these representative proceedings would be unreasonably high when compared with individual proceedings. Nor did the State advance any other identified matter of a kind meriting any weight for consideration under s 166(1)(e). 12. Contrary to the submissions of the State, I am positively satisfied that these proceedings, as representative proceedings, provide the most efficient and effective means of dealing with the claims of group members. 13. In coming to this conclusion, I have not considered (at any length) the issue of whether the interlocutory steps necessary to enable claims of this kind to be brought are most efficiently conducted in one proceeding. But they are. Discovery should be given once only. The discovery in these proceedings is quite detailed and quite voluminous, and because of the nature of documents being discovered, requires careful attention by the lawyers for the parties to this litigation to questions of cyber-security, confidentiality and other like issues with respect to the contents of police documents. 14. Having those interlocutory proceedings conducted in whole in these proceedings, is the most efficient course to follow, and it is in the interests of maintaining the administration of justice to do so. 15. On any view, the smaller the number of parties who are entitled to see these documents, and who are required to keep them secure, the less likelihood there is of any breach of security or inadvertent breach of confidential material. 16. This consideration adds to my conclusion. Summary 1. I am satisfied that the questions listed in Annexure A are likely to be common questions of fact or law raised by the proceedings. 2. I am abundantly satisfied that these representative proceedings should continue because they are the most effective and efficient means of determining the issues raised by the group proceedings. 3. I have determined that the alternative to these representative proceedings, namely the conduct of individual cases by many, many individual possible claimants would not be in the interests of the administration of justice. 4. Accordingly, for these reasons the Motion was dismissed. Orders 1. On 13 December 2023, I made the following orders: 1. Defendant's Notice of Motion dated 27 January 2023 is dismissed. 2. Order the Defendant to pay the Plaintiff's costs. ********** ANNEXURE A: COMMON QUESTIONS QUESTIONS COMMON TO CLAIMS OF ALL GROUP MEMBERS Exercise of search powers 1. In determining whether it is necessary to conduct a strip search (within the meaning of s. 31 of LEPRA), does a Police Officer need to conclude that a search within the meaning of s. 21 of LEPRA (ordinary search) is insufficient in order to form the reasonable suspicion required for the exercise of the power to conduct the strip search? 2. Is a failure to carry out an ordinary search a factor in determining that a strip search was: 2.1 not objectively necessary for the purposes of the strip search; and/or 2.2 that the circumstances were not sufficiently urgent or serious to make a strip search necessary within the meaning of s. 31 of LEPRA? Circumstances of searches 1. In determining whether the seriousness and urgency of the circumstances necessitate a strip search being conducted, does the Police Officer have to form a view as to the type, quantity or effect of the prohibited drug or plant that the Police Officer suspects the Plaintiff or Group Member to have concealed? 2. Can suspicion of possession of a non-specified drug or plant alone provide a reasonable basis for a suspicion that there was health risk to the Plaintiff or Group Member? 3. If the answer to question 4 is "yes", is the risk reasonably characterised as "serious" and "urgent" enough to make a strip search necessary within the meaning of s. 31 of LEPRA? 4. Can suspicion of possession of a non-specified drug or plant alone provide a reasonable basis for a suspicion that there was health risk to others? 5. If the answer to question 6 is "yes", is such a risk "serious" and "urgent" enough to make a strip search necessary within the meaning of s. 31 of LEPRA? False imprisonment, assault and battery 1. What lawful basis is there to direct (whether verbally or physically) the Plaintiff or a Group Member not under arrest against whom an officer wishes to exercise the power under s 31(b) of LEPRA to an inspection area? 2. [Not used] 3. Is a strip search carried out by a Police Officer otherwise than in compliance with s 31 of LEPRA an assault on the Plaintiff or Group Member who is the subject of the search? 4. Does non‐compliance by a Police Officer with a safeguard contained in ss 32 and/or 33 of LEPRA make a strip search carried out by the Police Officer unlawful? Section 43A 1. Is a Police Officer exercising the power in s 31(b) of LEPRA exercising a special statutory power as a public or other authority in the meaning of ss 41 and 43A of the Civil Liability Act 2002 (NSW)? 2. If the answer to question 12 is "yes", can s 43A operate to prevent civil liability arising for the exercise of the powers under s 21 and 31(b) of LEPRA where it is determined that the Police Officer did not hold the necessary reasonable suspicion? Training and supervision – Senior Officers 13A. In the period between 2016 and 2019, was there a practice or pattern of conduct by Police Officers of carrying out strip searches of attendees at music festivals as a matter of routine and not in circumstances lawfully justified by the provisions of LEPRA concerning strip searches? 13B. What was appropriate practice in respect of the training and supervision of Police Officers in respect of the correct observance of the Strip Search Provisions at music festivals on or from 22 July 2016? 13C. What training and supervision was delivered or applied to Police Officers in respect of the correct observance of the Strip Search Provisions at music festivals on or from 22 July 2016? 13D. How, if at all, was the training and supervision referred to in Question 13C non- compliant with the appropriate practice(s) referred to in Question 13B, during the Period on or from 22 July 2016? 13E. If and to the extent that training and supervision referred to in Question 13C was non- compliant with the appropriate practice(s) as found in answering Question 13D, was the said non-compliance a result of a failure or failures by Senior Officers to exercise reasonable care to ensure that the training or supervision was compliant? 1. [Not used] 2. [Not used] Damages 1. Is non‐compliance by a Police Officer with a safeguard contained in ss 32 and/or 33 of LEPRA an aggravating factor when assessing damages for any intentional tort alleged by a person the subject of an unlawful strip search? 2. Does s 50A of the Limitation Act 1969 (NSW) apply to a claim for damages or aggravated damages referable to embarrassment, fear, loss of dignity, and humiliation for an intentional tort as a result of an unlawful strip search? 3. Are exemplary damages capable of being characterised as personal injury damages in the meaning the CLA and Limitation Act? 18A. Are exemplary damages against the State available: 18A.1 in the circumstances pleaded, other than in paragraphs 68A to 68D; 18A.2 in the circumstances pleaded, including paragraphs 68A to 68D? QUESTIONS OF SUBSTANTIAL COMMONALITY Circumstances of searches 1. Does the fact that a warrant was issued for the use of drug detection dogs provide reasonable grounds to form the suspicion that a strip search under s 31(b) of LEPRA of the Plaintiff or Group Member in the area of the warrant is necessary: 19.1 for the purposes of the search; and 19.2 because of the seriousness and urgency of that circumstance? 1. Does the fact that that the Plaintiff or a Group Member received a drug dog indication provide reasonable grounds to suspect that a strip search under s 31(b) of LEPRA is necessary: 20.1 for the purposes of the search; and 20.2 because of the seriousness and urgency of that circumstance? 1. Does the fact that that the Plaintiff or a Group Member was entering or at a music festival attended by a younger demographic provide reasonable grounds to suspect that a strip search under s 31(b) of LEPRA is necessary: 21.1 for the purposes of the search; and 21.2 because of the seriousness and urgency of that circumstance? 1. Do the circumstances identified in questions 19, 20 and 21 in combination provide reasonable grounds to suspect that a strip search under s 31(b) of LEPRA is necessary: 22.1 for the purposes of the search; and 22.2 because of the seriousness and urgency of that circumstance? False Imprisonment and Battery 1. Does a strip search carried out by a Police Officer otherwise than in compliance with s 31 of LEPRA constitute false imprisonment of the Plaintiff or Group Member who is the subject of the search if: 23.1 the subject does not consent; or 23.2 the subject consents but wrongly believes the search to be lawful. 1. Does an examination by a Police Officer of the body of the Plaintiff or Group Member by touch during a strip search constitute a battery? 2. Does LEPRA empower a police officer to compel a person to squat, bend over, move their genitals or breasts during a strip search to facilitate visual inspection? DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2023