Supreme Court New South Wales Medium Neutral Citation: Murray v State of New South Wales [2023] NSWSC 991 Hearing dates: 14 August 2023 Date of orders: 14 August 2023 Decision date: 14 August 2023 Jurisdiction: Common Law Before: Campbell J Decision: (1) Under s 4 Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave to commence civil proceedings in the Supreme Court in accordance with the proposed statement of claim forming annexure B to the affidavit of Thomas Wallace-Pannell affirmed on 7 July 2023. (2) The plaintiff's costs of the application are the plaintiff's costs in the cause. Catchwords: CIVIL PROCEDURE — plaintiff sought leave to commence proceedings as a person in custody whilst convicted of a serious indictable offence — application supported by expert evidence Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW) ss 4, 5, 7 Category: Procedural rulings Parties: Adam Scott Murray (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: J Isackson (Plaintiff/Applicant) Solicitors: Shine Lawyers (Plaintiff/Applicant) File Number(s): 2023/219542 JUDGMENT 1. The plaintiff, by summons filed on 7 July 2023, seeks leave pursuant to s 4 Felons (Civil Proceedings) Act 1981 (NSW) (the "Act") to commence proceedings against the State of New South Wales. He is currently serving a long sentence for a serious indictable offence committed in 2012. He seeks to institute proceedings for damages said to arise from physical and sexual abuse by a male staff member while he was in detention at the Keelong Juvenile Justice Centre in or about January 2000 when he was aged 13 years. Mr Isackson of counsel, who appears for the applicant, moves on the affidavit of his solicitor Thomas Wallace-Pannell affirmed on 7 July 2023. Annexed to that affidavit and marked with the letter B is the proposed statement of claim and with the letter D is an expert's report of Dr Sathish Dayalan a forensic psychiatrist dated 28 August 2022. 2. The plaintiff is unable to name or otherwise affirmatively identify the alleged perpetrator of the sexual abuse. This is hardly surprising given the amount of time that has past and his age at the time of the alleged event, but annexure A is a copy of his criminal record which does confirm that he was charged with a criminal offence said to have occurred on 14 December 1999, which was dealt with at the Port Kembla Children's Court on 12 April 2000. I do not have a custodial record relating to the plaintiff, but I accept the argument of Mr Isackson advanced in written submissions that that circumstance supports, as it were, the plaintiff's account that he was in detention at that time or at least is capable of supporting it which suggests that such an event could have occurred. 3. It is proposed to advance three causes of action, being a claim in negligence for breach of the State's personal duty to take reasonable care for the safety of the plaintiff as an inmate and also an indelible duty of care. I am not quite sure what the difference is between those two categories of liability given that it is clearly established that the State, or a gaoler, owes an non-delegable duty of care to an inmate under its authority. There is also a claim based on vicarious liability against the State for the act of the unknown officer. 4. Dr Dayalan received a history from the plaintiff largely consistent with the allegations made in the statement of claim, and he diagnosed that the applicant is suffering from the recognised psychiatric illness of Post-Traumatic Stress Disorder. He opines that the plaintiff has a substance-use disorder which he relates to the plaintiff's coping mechanisms for the sexual abuse. 5. I observe in passing that the doctor also received a history of a subsequent incidence of sexual abuse occurring when the plaintiff was aged about 14, and that is not the subject of the proposed action, and it is not clear to me on the basis of the facts as relayed to the doctor by the plaintiff that that would be a matter for which the State could be liable. However, the argument advanced on behalf of the plaintiff is that the event occurring at the Keelong Juvenile Justice Centre, on Dr Dayalan's evidence at the very least, materially contributed to the onset and continuance of the Post-Traumatic Stress Disorder and that seems to be a viable case. 6. I should say that, as I have raised with Mr Isackson, the defendant's solicitors have written to my chambers enclosing a copy of a letter to the plaintiff's solicitors which I infer is to the effect that the defendant neither consents nor opposes the plaintiff's application. I simply wish to make clear my own view that under s 7 of the Act the defendant has no right of appearance, as the solicitors acknowledge. I would have thought, as a matter of interpretation, that that prohibition could not relate simply to the right to sit at the bar table, but also extends to the right to make submissions about the matter, and that it is the intention of the legislation as encapsulated by s 7 that the application is to be made on an ex parte basis. In any event it is unnecessary to be definitive about that today given that apparently the defendant does not oppose the application. 7. In terms of s 5 of the Act, I am satisfied on the basis of the material attached to the affidavit to which I have referred that the proposed proceedings are not an abuse of process in that there is a prima facie ground for the proceedings and in the circumstances I will accede to the application made on behalf of the plaintiff. 8. My orders are: 1. under s 4 Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave to commence civil proceedings in the Supreme Court in accordance with the proposed statement of claim forming annexure B to the affidavit of Thomas Wallace-Pannell affirmed on 7 July 2023. 2. The plaintiff's costs of the application are the plaintiff's costs in the cause. ********** 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 August 2023