Brown v State of New South Wales [2023] NSWSC 734

Supreme Court New South Wales

Medium Neutral Citation: Brown v State of New South Wales [2023] NSWSC 734 Hearing dates: 28 June 2023 Date of orders: 28 June 2023 Decision date: 28 June 2023 Jurisdiction: Common Law Before: Davies J Decision: 1. The plaintiff be granted leave to institute proceedings nunc pro tunc, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). 2. Costs to be costs in the cause. Catchwords: CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff in custody for serious indictable offence – where proceedings commenced before leave was sought – where plaintiff claimed to have been sexually assaulted by school teacher – leave granted Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW) s 4 Cases Cited: Jol v the 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: Jack Matthew Brown (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: M McGirr (Plaintiff) J Djasmeini (By leave of the Court) (Defendant)

Solicitors: Melinda Griffiths Lawyers (Plaintiff) Makinson d'Apice (Defendant) File Number(s): 2022/361518 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 on 30 November 2022. In that way, leave is now sought nunc pro tunc. 2. In Jol v the 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 March 1990. From 1997 to 2001 he attended the Palmers Island Primary School, which is a school run by the Department of Education of the State of New South Wales. The plaintiff claims that whilst he was at that school, in about 2000 or 2001, he was sexually assaulted by the principal of the school on at least two occasions. One of the assaults was alleged to have involved anal rape. 4. I have read the evidentiary statement from the plaintiff, which details not only the occasions of the abuse but the effect that that abuse is said to have had on the plaintiff's life and the course of the plaintiff's life since that time. The plaintiff effectively dropped out of school and commenced using drugs. He then became involved in criminality which ultimately involved him being incarcerated on a number of occasions. At the present time he is incarcerated, having been convicted of specially aggravated break and enter and commit a serious indictable offence. 5. There is a report from a psychiatrist, Dr Martin Allan, dated 29 November 2022. Dr Allan diagnosed the plaintiff as suffering from post-traumatic stress disorder alongside of persistent depressive disorder. He also had a substance misuse disorder which is said to be in remission, by reason of the controlled environment that he is now in. 6. Dr Allan was of the opinion that the sexual abuse and the effect that it had on the plaintiff was the cause of his diagnosed conditions. He did not consider, apart from the plaintiff having some vulnerability to depression by reason of his father's having suffered from it, that other matters were a cause of the problems the plaintiff has suffered from, nor did he believe that recent matters had exacerbated or aggravated the plaintiff's longstanding conditions which had their onset in adolescence after the sexual abuse. 7. The plaintiff sues the state of New South Wales on the basis that it operated the school where the abuse took place. The statement of claim asserts both direct negligence on the part of the State and also vicarious liability for the actions of the principal who assaulted him. 8. 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 these proceedings. The test was considered in Re Application of Malcolm Huntley Potier [2012] NSWCA 222 at 17 in the joint judgment of Allsop ACJ and Basten JA as follows: 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 and the report of Dr Allan, that the proceedings are not an abuse of process and that there is a prima facie ground for those proceedings. 2. A lawyer for the defendant has sought leave to appear this morning, to submit that each party should pay its own costs of the application. Counsel for the plaintiff informed me that no notice was given that such an application would be made. It is necessary under the Act for an application to be made whether the application is made before proceedings are commenced or whether leave is sought nunc pro tunc after proceedings are commenced. It is difficult to imagine that the costs differ whether the application is made before or after the statement of claim. Since it is a requirement of the Act, the appropriate order is that costs should be costs in the cause. 3. Accordingly, I make the following orders: 1. The plaintiff be granted leave to institute proceedings nunc pro tunc, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). 2. Costs to be costs in the cause.