Supreme Court New South Wales Medium Neutral Citation: Lucas v State of New South Wales [2024] NSWSC 600 Hearing dates: 16 May 2024 Date of orders: 16 May 2024 Decision date: 16 May 2024 Jurisdiction: Common Law Before: Campbell J Decision: (1) Leave is granted to commence the proceedings by an amended Statement of Claim filed on 26 October 2023 under ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW) nunc pro tunc. (2) The application under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) is refused. (3) The Plaintiff's costs of the application are costs in the cause. Catchwords: CIVIL PROCEDURE – application for leave for person in custody to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success – leave granted CIVIL PROCEDURE – application for suppression and non-publication order – paramountcy of "open justice" – calculus of risk – no evidence of real risk of harm – application refused Legislation Cited: Children (Criminal Proceedings) Act 1997 (NSW), s 15A Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8 Crimes Act 1900 (NSW), s 578A Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5, 7 Cases Cited: AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6 AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 Application of Malcolm Huntley Potier [2012] NSWCA 222 Jol v State of New South Wales (1998) 45 NSWLR 283 Category: Procedural rulings Parties: Robert Lucas (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: M McGirr (Plaintiff) C Higgins (Solicitor) (Defendant) Solicitors: Melinda Griffiths Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): 2023/340383 ex tempore JUDGMENT 1. I am dealing with an application for leave to commence the proceedings purportedly initiated by the filing of a statement of claim on 26 October 2023. Leave is sought nunc pro tunc pursuant to ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW). While the Notice of Motion was not filed until 9 April 2024, it is well-established that leave under the Felons (Civil Proceedings) Act may be granted nunc pro tunc: see Jol v State of New South Wales (1998) 45 NSWLR 283. 2. The plaintiff moves on the affidavit of his solicitor, Ms Melinda Griffiths, affirmed on 5 April 2024. From Ms Griffiths' affidavit I am satisfied that at the time these proceedings were commenced, the plaintiff was, and presently is, serving a term of imprisonment at a correctional centre for a serious indictable offence, namely, aggravated break and enter a dwelling. The plaintiff is not eligible to be released until October 2026, and thus requires leave under the Act to bring and maintain these proceedings. 3. There is perhaps a logically preliminary point, and that is that the plaintiff also seeks an order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the ground specified in s 8(1)(c) that the order is necessary to protect his safety, that he be entitled to proceed by a pseudonym, and that no material or information arising out of the proceedings capable of identifying him be published. 4. The basis of the application, as set out in Ms Griffiths' affidavit, proceeds from an article in a daily newspaper about a similar matter which Ms Griffiths has attached or annexed to her affidavit in a heavily redacted form. I think I can deduce, however, from what she has put before me, doubtless to save me the trouble of reading the whole thing, that the author was extremely critical that a person described as a "teen killer" brought a civil case against the State for child sexual abuse, and that this Court gave him leave under the Felons (Civil Proceedings) Act to bring those proceedings. 5. From that article, Ms Griffiths, who has represented a number of plaintiffs propounding such causes of action, says that the plaintiff fears for his own safety and that of his family in the event that other offenders become aware that he was a victim of child sexual abuse. She also states that the plaintiff fears that his family may be stood over and demands made of them for money if this became known. 6. Certain victims of child sexual abuse, or indeed sexual abuse victims generally, have a statutory right to anonymity. Section 578A of the Crimes Act 1900 (NSW), s 15A of the Children (Criminal Proceedings) Act 1997 (NSW), and indeed s8(1)(d) of the Suppression and Non-publication Act provide examples of the availability of that right to anonymity. 7. So far as the Suppression and Non-Publication Orders Act is concerned, it is a right that depends upon the exercise by this Court of a judgment as to what is necessary in the particular circumstances of the case. The Plaintiff is not entitled to the protection of the Crimes Act, or the Children (Criminal Proceedings) Act because he has not been, and is not, a complainant in a criminal proceeding or a witness in a criminal proceeding related to sexual assault, or more specifically child sexual abuse, and his claim for an order preserving his anonymity depends upon my application of the law enacted in the Suppression and Non-publication Orders Act. 8. As Mr McGirr of learned counsel, who appears for the plaintiff, acknowledges, in exercising my powers under the Suppression and Non-publication Act I must have regard to the provisions of s 6, which is in the following terms: "In deciding whether to make a suppression order or non-publication order a court must take into account that a primary object of the administration of justice is to safeguard the public interest in open justice." The open justice principle of course is fundamental to the operation of our system of justice in Australia. It is fundamental that the business of the courts be conducted in public, and it is orthodox legal thinking that the open justice principle is enhanced by the existence of a free press entitled to fairly and accurately report upon the proceedings in our courts. Persons who come to court, and who invoke its jurisdiction, even in civil cases, need to be aware of the consideration that the Court guards jealously the firm operation of the open justice principle, and that the exceptions to it are also zealously guarded lest they too easily are permitted to expand in their application. 1. Section 8 of the Suppression and Non-publication Orders Act sets out the grounds upon which the Court, notwithstanding the primacy of the open justice principle, may create an exemption by making a suppression order, or a non-publication order in a given case, and the ground invoked by the Plaintiff is s8(1)(c), that the order is necessary to protect the safety of any person; and he relies upon his own safety, and his concerns about the safety of his family. 2. The key expression is "necessary" and, as Mr McGirr properly reminded me, in determining what is necessary, the Court applies what is referred to as the "calculus of risk" test rather than the "probability of harm" test; see AB (a pseudonym) v R (No 3) [2019] NSWCCA 46 at [56]-[58]. 3. Mr McGirr emphasised that by reference to the analysis of the Court of Criminal Appeal that even a risk of significant harm which does not arise above a mere possibility of materialisation might render an order for the protection of the safety of a person "necessary" in the statutory sense. And I bear in mind Nettle J's decision in AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6 at [15] that the risk need be more than trivial. 4. However, my concern in the present case is that the evidence does not persuade me that there is even a slim foundation for the concerns of the plaintiff that Ms Griffiths has expressed on his behalf. There is no evidence for instance that the publication of the article, which seems to be the only concrete consideration put forward, led to any threat or other risk to the claimant, the subject of the criticism advanced in that article. There is no evidence before me from which I can infer that adult survivors of child sexual abuse serving custodial sentences, as a class, are subject to a real risk of physical harm while in custody, even accepting a real risk might be one which is more than trivial. 5. In this regard perhaps a distinction can be made from the notorious position of persons who are child sex offenders in custody. And there is certainly no evidence beyond the subjective concern of the plaintiff expressed by his solicitor that his family are in any way at risk were there to be some publicity that he was a person who brought a claim of this nature. 6. I am not satisfied that the grounds for making an order under s 7 on the s 8(1)(c) ground have been established. That is to say, on the evidence before me, accepting that the "calculus of risk" test may be less demanding than the "probability of harm" test, I am not persuaded that it is necessary to make the order on the ground advanced. 7. I return then to the application for leave. The plaintiff's case is that the child sexual abuse which he allegedly suffered occurred at two different juvenile detention institutions in this state in the period between February and June 1999 when he was aged 14 years. His case is that he was sexually abused by multiple correctional officers at the Cobham Juvenile Justice Centre on three separate occasions in February 1999. He also alleges that he suffered further sexual and physical abuse by correctional officers while on remand as a juvenile at the Reiby Juvenile Justice Centre in June 1999. 8. The averments upon which the plaintiff relies are fully pleaded in the statement of claim, and his case is pleaded as both a breach of the non-delegable duty owed by a gaoler to a prisoner, as well as vicarious liability of the State for the tort of its employees who allegedly inflicted the abuse claimed. 9. It is clear from the plaintiff's evidentiary statement filed 9 April 2024 with the notice of motion that in addition to the sexual abuse constituted by the acts alleged in the statement of claim the plaintiff relies upon psychiatric injury as a consequence of that sexual abuse. The plaintiff's claim in this regard is supported by the expert report of Dr Martin Allan, consultant psychiatrist, dated 31 July 2023. 10. I have read Dr Allan's report closely for the purpose of this application, and it is sufficient for me to say that the history recorded by Dr Allan, as provided to him by the plaintiff, accords substantially with the allegations contained in the statement of claim, and with the content of the plaintiff's evidential statement. 11. As is not uncommon in these types of proceedings, the plaintiff's psychiatric condition is somewhat complicated. It is not for me to make any assessment at this stage about the merits of his claim, and it is sufficient that I record that Dr Allan is of the opinion that two thirds of the plaintiff's overall psychiatric condition including the diagnoses of schizophrenia, PTSD, polysubstance abuse disorder, and antisocial personality disorder has a direct relationship by way of cause or material contribution to the alleged sexual abuse. 12. Having regard to the material to which I have referred, and bearing in mind that the process involved is to be decided in a summary fashion in a broad and impressionistic way in accordance with the Court of Appeal's decision in the Application of Malcolm Huntley Potier [2012] NSWCA 222, I am satisfied that if the evidence of the plaintiff at the final hearing measures up to his evidentiary statement, and the history provided to Dr Allan, and Dr Allan's opinion is accepted, the plaintiff has prospects of success. To this extent I am satisfied that the proceedings are not an abuse of process within the meaning of the Felons (Civil Proceedings) Act, and that there is a prima facie case disclosed by the material before me. 13. I observe in passing that in this context an abuse of process does not refer to the question of whether the defendant can have a fair trial, particularly having regard to the defendant's limited right of audience at this stage by force of s 7 of the Felons (Civil Proceedings) Act. 14. For these reasons I make the following orders: 1. Leave is granted to commence the proceedings by statement of claim filed on 26 October 2023 under ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW) nunc pro tunc. 2. The application under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) is refused. 3. The plaintiff's costs of the application are 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: 20 May 2024