Supreme Court New South Wales Medium Neutral Citation: Butler v State of New South Wales [2023] NSWSC 118 Hearing dates: 21 February 2023 Date of orders: 21 February 2023 Decision date: 21 February 2023 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of NSW (2022/289375), with such orders made nunc pro tunc and taking effect from 28 September 2022. 2. An order that costs of the Motion be costs in the cause. 3. An order that the Justice Link record be amended to correct the plaintiff's surname from Buter to Butler. Catchwords: CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff serving a sentence for serious indictable offence – where proceedings commenced before leave was sought – where plaintiff alleged he was sexually assaulted at two Juvenile Justice institutions – leave granted Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW) Cases Cited: Jol v State of New South Wales (1998) 45 NSWLR 283 Re Application of Malcolm Huntley Potier [2012] NSWCA 222 Texts Cited: Nil Category: Procedural rulings Parties: Darren Butler (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: J Isackson (Plaintiff) No appearance (Defendant) Solicitors: Shine Lawyers Ltd (Plaintiff) Norton Rose Fulbright Australia (Defendant) File Number(s): 2022/289375 Publication restriction: Nil Judgment 1. The plaintiff seeks leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of New South Wales. The proceedings were commenced by the filing of a statement of claim on 28 September 2022. In that way, leave is sought nunc pro tunc. 2. In Jol v State of New South Wales (1998) 45 NSWLR 283, Sheller JA made clear (at 290) that the institution of proceedings without leave having been granted does not constitute a nullity but rather an irregularity which may be corrected at a later time. 3. The plaintiff was born on 18 April 1992. When he was aged 14 years, in October 2006, he was detained at Keelong Juvenile Justice Centre. Whilst there, he alleges he was sexually assaulted by being digitally penetrated by an officer there. He alleges further that in 2009, when he was aged 17, he was also sexually assaulted at Reiby Juvenile Justice Centre. The plaintiff claims, as a result of these sexual assaults, that he has suffered injury including mental harm. 4. A report from a psychiatrist, Dr Yvonne Skarbek, diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder, Substance Use Disorder and Anti-Social Personality Disorder, and said that the sexual abuse was a significant factor in the development of these disorders, and influenced his criminal record. 5. The plaintiff is currently incarcerated at the Metropolitan Remand Centre on convictions for manslaughter and two counts of dangerous driving occasioning grievous bodily harm. 6. The plaintiff sues the State of New South Wales on the basis that it owned and operated the Juvenile Justice Centres where he was subject to the assaults. The State is sued both on the basis of being directly negligent because of what it knew or ought to have known and the precautions it failed to take, and also on the basis that it is vicariously liable for the actions of the Juvenile Justice officers. 7. To obtain leave under s 4 of the Act, it is necessary for the plaintiff to show that the proceedings are not an abuse of process, and that there is a prima facie ground for bringing those proceedings. The test was considered in Re Application of Malcolm Huntley Potier [2012] NSWCA 222 at paragraph [17] in the joint judgment of Allsopp ACJ and Basten JA: Taken literally, that limb of the test refers to a claim which at first sight and without investigation appears to be a "ground". Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading. The purpose of the legislative scheme was, in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 that a convicted felon could not sue at law or in equity. On the other hand, the purpose of the statute was to permit the court to ensure that neither it nor prospective defendants were subjected to proceedings which were an abuse of process or which lacked any real merit: Jol v State of New South Wales (1998) 45 NSWLR 283 at 286E (Sheller JA, Beazley JA and Sheppard AJA agreeing). As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not "hopeless" or "unarguable". Different expressions used from time-to-time do not indicate any difference in the standard to be applied. 1. I am satisfied from the material, including the plaintiff's evidentiary statement of 17 November 2022, and from the report of Dr Skarbek that the proceedings are not an abuse of process and that there is a prima facie ground for those proceedings. 2. Accordingly, I make the following orders: 1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of NSW (2022/289375), with such orders made nunc pro tunc and taking effect from 28 September 2022. 2. An order that the costs of the present motion be costs in the cause. 3. An order that the JusticeLink record be amended to correct the plaintiff's surname from Buter to Butler. ********** Amendments 21 February 2023 - Typographical error on title page 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: 21 February 2023