Towney v State of New South Wales [2024] NSWSC 118

Supreme Court New South Wales

Medium Neutral Citation: Towney v State of New South Wales [2024] NSWSC 118 Hearing dates: 16 February 2024 Date of orders: 16 February 2024 Decision date: 16 February 2024 Jurisdiction: Common Law Before: Davies J Decision: 1. The Plaintiff be granted leave to institute proceedings 2023/347466 nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) 2. Costs of the application to be costs in the cause. Catchwords: CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff serving a sentence for serious indictable offences – where proceedings commenced before leave was sought – where plaintiff alleged negligence when in the care of the Minister as a child and when incarcerated in juvenile institutions – alleged sexual assaults – leave granted Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW) s 4 Cases Cited: Jol v State of NSW [1998] 45 NSWLR 283 Re Application of Malcolm Huntley Potier [2012] NSWCA 222 Texts Cited: Nil Category: Procedural rulings Parties: Samuel David Jacob Towney (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: M McGirr (Plaintiff) No appearance (Defendant)

Solicitors: Melinda Griffiths Lawyers (Plaintiff) Maddocks Lawyers (Defendant) File Number(s): 2023/347466 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 1 November 2023. In that way leave is now sought nunc pro tunc. 2. In Jol v State of NSW [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 in October 1998. 4. The case set out in his evidentiary statement dated 17 November 2023 presents a tragic history. Because of his home circumstances he was placed in care at various foster homes between February 1991 and March 1999. He alleges that whilst he was at these foster homes in 1993, 1994 and 1998 he was sexually and physically assaulted by the people who were caring for him or by their children. 5. The evidentiary statement also discloses that between January 2002 and December 2004 the plaintiff was incarcerated in various juvenile institutions. He alleges in his Statement of Claim that whilst so incarcerated in 2002 he was sexually assaulted by an officer of one of those institutions. 6. The plaintiff says that the abuse he received has had a massive impact on his life. 7. There is a psychiatric report from Dr Zeeva Cohen dated 30 August 2022. Doctor Cohen described the plaintiff as suffering from chronic complex post-traumatic stress disorder, poly-substance abuse and anti-social personality traits. Doctor Cohen was of the opinion that the cause of that illness, that is those diagnoses, was multi-factorial including the severe abuse the plaintiff was exposed to in childhood, exposure to the criminal subculture, witnessing violence and because of the murders of his father and a good friend. Doctor Cohen was also of the opinion that the alleged molestation by the female custodial officer was another significant aetiological factor in the plaintiff's illness. 8. The plaintiff is currently incarcerated for a number of serious indictable offences including reckless wounding in company with intent, taking and detaining with intent and attempted murder. His non-parole period does not expire until February 2036. 9. He sues the State of New South Wales in a number of guises alleging, first, negligence on the part of the Department of Community Services in relation to his care or lack thereof when he was a young child, and his placement in various foster homes. He also sues the State for negligence arising out of his sexual assault whilst incarcerated in the juvenile institutions. In the latter case, there are claims pleaded of direct negligence on the part of the Department and also vicarious liability on the part of the Director General of the Department of Juvenile Justice. 10. 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 the proceedings. 11. The test was considered in 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 Cohen that the proceedings are not an abuse of process and there is a prima facie ground for these proceedings. 2. Accordingly, I make the following orders: 1. The Plaintiff be granted leave to institute proceedings 2023/347466 nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) 2. Costs of the application to be costs in the cause.