Supreme Court New South Wales Medium Neutral Citation: Hartley v State of New South Wales [2023] NSWSC 1083 Hearing dates: 5 September 2023 Date of orders: 5 September 2023 Decision date: 05 September 2023 Jurisdiction: Common Law Before: Campbell J Decision: (1) The plaintiff is granted leave to institute these proceedings nunc pro tunc pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 (NSW). (2) The plaintiff's costs are his costs in the cause. Catchwords: CIVIL PROCEDURE — plaintiff sought leave to commence proceedings as a person in custody convicted of a serious indictable offence — leave sought nunc pro tunc — allegation that the plaintiff was sexually abused whilst in juvenile detention — leave granted Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW) ss 4, 5 Category: Procedural rulings Parties: Paul Hartley (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: M McGirr (Plaintiff) No appearance (Defendant) Solicitors: Melinda Griffiths Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2023/8040 ex tempore JUDGMENT (revised) 1. By notice of motion filed 10 August 2023 the plaintiff, Paul Hartley, seeks leave to commence these proceedings pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 (NSW). The proceedings were commenced by statement of claim filed 9 January 2023. Then, and now, the plaintiff was and is a person serving a sentence of full-time custody for a serious indictable offence, and as such, this claim is covered by the provisions of the Act. It is necessary for leave to be granted if the proceedings are to be maintained. It is well established in this area that leave may be granted nunc pro tunc. 2. The statutory test for leave is expressed in section 5. The Court is not to grant leave unless satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings. That condition, of course, remains subject to a residual discretion to either grant or refuse leave. 3. Abuse of process in the context of the Act does not involve at this threshold stage any enquiry into whether or not the defendant can have a fair trial. Rather, as Mr McGirr submits, the function of the Court is to satisfy itself on the necessarily limited material available that the proceedings are not hopeless or brought for some collateral purpose. Naturally, this is related to the requirement that there be a prima facie ground for the proceedings. 4. Mr Hartley is aged 65 years and his claim goes back as far as 1974, when he was aged about 15 or 16 years, and he avers that he was subject to sexual abuse when he was detained in juvenile detention centres controlled by the State of New South Wales. He sets out in his pleading and his evidential statement acts of sexual abuse at Minda Remand Centre, the Metropolitan Boys Shelter, Yawarra Boys Home and Daruk Boys Home. There are a large number of breaches pleaded including 18 particulars of negligence are relied upon. 5. The claim is supported by the psychiatric opinion of Dr Martin Allen which also gives rise to some issues. Both in his evidential statement but, more extensively to Dr Allen, the plaintiff gave a history of a very dysfunctional and unstable childhood, during which he was subjected to repeated sexual abuse at the hands of close and extended family members. Dr Allen's opinion is that the plaintiff suffers a Post-Traumatic Stress Disorder, Pervassive Depressive Disorder and Polysubstance Abuse Disorder, the latter in remission. His opinion as to causation is that "…the extensive frequent penetrative abuse carried out by his father and uncle during his childhood" was the main significant factor leading to his psychiatric injury. In regard to the incidents of abuse in juvenile detention, Dr Allen said, "…these were traumatic events which occurred in the aftermath of the onset of his already significant psychiatric difficulties." Dr Allen's view is that the further assaults in juvenile detention "exacerbated" his pre-existing condition. He viewed the plaintiff's prognosis as poor, even with the recommended treatment. 6. It is quite apparent that there is a difference between what the plaintiff has said in his evidential statement and the more extensive history given to Dr Allen, and this will be an issue to be resolved at any trial. 7. There is also a question, as I have said, about the causal connection between the diagnosed psychiatric conditions and the institutional abuse in juvenile detention. Given that Dr Martin seems to be strongly of the view that the institutional sexual abuse is of itself a causal, even if lesser, factor, I am satisfied that the material does establish a prima facie case, although there will be significant complexities attending the assessment of damages if the case proceeds to a final hearing. 8. However, I am satisfied that the proceedings are not an abuse of process and there is a prima facie case demonstrated for the plaintiff's claim and I make the following orders: 1. The plaintiff is granted leave to institute these proceedings nunc pro tunc pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 (NSW). 2. The plaintiff's costs are his 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: 07 September 2023