Carter v State of New South Wales [2023] NSWSC 172

Supreme Court New South Wales

Medium Neutral Citation: Carter v State of New South Wales [2023] NSWSC 172 Hearing dates: 27 February 2023 Date of orders: 27 February 2023 Decision date: 27 February 2023 Jurisdiction: Common Law Before: Wright J Decision: 1. Pursuant to section s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), leave is granted to the plaintiff nunc pro tunc to commence the proceedings filed on 25 October 2022. 2. The costs of the notice of motion are to be costs in the cause. Catchwords: CIVIL PROCEDUURE – application for leave under s 4 Felons (Civil Proceedings) Act 1981 – claim for damages following alleged sexual assault by officer in juvenile detention – leave granted nunc pro tunc Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5 Crown Proceedings Act 1988 (NSW), s 5 Limitation Act 1969 (NSW), s 6A(2) Cases Cited: Application of Malcolm Huntley Potier [2012] NSWCA 222 Jol v State of New South Wales (1998) 45 NSWLR 283 Category: Procedural rulings Parties: Benjamin Carter (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: J Isackson (Plaintiff)

Solicitors: Shine Lawyers (Plaintiff) Maddocks Lawyers (Defendant) File Number(s): 2022/00318993

JUDGMENT (EX TEMPORE REVISED) 1. In this matter the plaintiff, Benjamin Carter, by notice of motion filed 19 December 2022, seeks an order under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), (Felons Act), for leave nunc pro tunc to institute proceedings for damages for historical sexual abuse which he alleges was inflicted upon him while he was a child detainee at Cobham Juvenile Justice Centre in May 2008. 2. The plaintiff has in fact already commenced proceedings. A statement of claim was filed in this Court on 25 October 2022. Nonetheless, the proceedings are not a nullity but are treated as an irregularity. It is permissible for leave to be granted nunc pro tunc if the preconditions to the making of an order under s 4 of the Felons Act are met: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290. 3. The defendant, the State of New South Wales, has been sued under s 5 of the Crown Proceedings Act 1988 (NSW) on the basis that it is both directly liable and vicariously liable as the employer of the Corrections Officer who allegedly sexually assaulted the plaintiff. 4. The defendant has filed a notice of appearance but has not appeared in relation to the hearing of this notice of motion.