The NSW government's claim strip searches at music festivals could be reasonable even if a judge finds they were unlawful has been criticised as illogical.
The allegation, which was made in the state government's defence to a class action by festival-goers, was questioned in the NSW Supreme Court during a brief hearing on Thursday.
Justice Peter Garling asked how, if he found the strip searches were illegal and amounted to either assault or battery, could he then defend the government's position by also finding the searches were reasonable.
"I think there is a logical problem," he told the state's barrister Naomi Oreb.
If the Commissioner of Police got into the witness box, could she argue that although the strip searches were unlawful, they were accepted practice by police forces across the globe, the judge asked.
"Really? You want me to accept that all around the world police forces engage in illegal conduct?" Justice Garling said.
The state has now been sent back to the drawing board and will file an amended defence by November 17.
In the class action, filed by lead plaintiff Raya Meredith in July, the state government is alleged to have been vicariously liable for individual police officers who conducted "invasive and unlawful" strip searches.
On Thursday, class action barrister Kylie Nomchong SC confirmed the class action encompassed 49 festivals held from July 2016.
Ms Meredith was searched at the Splendour in the Grass festival held in Byron Bay in July 2018. She says police forcibly removed her clothing, exposing her breasts, and made her remove her tampon during the 30-minute procedure.
Ms Oreb argued that even though no drugs were found on Ms Meredith, this did not mean the decision to search her was unreasonable, saying this depended on what police officers knew beforehand.
The lawsuit claims those who underwent these allegedly invasive searches suffered loss of liberty and embarrassment and were subject to assault and battery.
The NSW government faces a claim for damages, including aggravated and exemplary damages.
The state has hinted it may attack the class action through what's known as a de-classing application, arguing Ms Meredith can't represent all other festival-goers because her legal claim does not have enough in common with the others.
"We've raised the flag that we do think there's a real issue," Ms Oreb said.
The state has yet to come to a formal decision on whether this de-classing application will proceed.
The matter will next come before the court on December 12.
