Gillon v State of New South Wales [2024] NSWSC 906

Supreme Court New South Wales

Medium Neutral Citation: Gillon v State of New South Wales [2024] NSWSC 906 Hearing dates: 12 July 2024 Date of orders: 12 July 2024 Decision date: 12 July 2024 Jurisdiction: Common Law Before: Garling J Decision: (1) Order pursuant to rule 12.7 of the UCPR 2005 upon the grounds that the plaintiff has not prosecuted these proceedings with due despatch that the proceedings be, and hereby are, dismissed. (2) Order the plaintiff to pay the defendant's costs. Catchwords: CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Want of due despatch – Where plaintiff does not have capacity to conduct proceedings – Where plaintiff cannot be examined by a psychiatric expert. Legislation Cited: Limitation Act 1969 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Principal judgment Parties: Neil Gillon (P) State of New South Wales (D) Representation: Counsel: J Isackson (P) A Robinson (D)

Solicitors: Shine Lawyers (P) Wotton Kearney (D) File Number(s): 2022/38327 Publication restriction: Not Applicable

EX TEMPORE JUDGMENT 1. On 9 February 2022, these proceedings were commenced by the filing of a Statement of Claim in which the plaintiff claimed damages against the State of New South Wales for historical sexual abuse which is alleged to have occurred during a time when he was a juvenile detainee at Reiby Juvenile Justice Centre and at Riverina Juvenile Detention Centre.

Plaintiff's Evidence 1. A few weeks after the Statement of Claim was filed, an Evidentiary Statement was filed which outlined the plaintiff's recollection of what had occurred to him whilst he was at those two Centres. 2. That Evidentiary Statement also set out in some detail, but not completely, the significant mental health issues from which the plaintiff was then suffering. Of course, the Evidentiary Statement did not purport to give any expert evidence about those mental health issues. 3. The plaintiff served, in support of his case, two expert reports of Dr Malcolm Foxcroft, a consultant psychiatrist, dated December 2021 and November 2022. Subsequently, in the period from April through to May 2023, a number of solicitors in the firm acting for the plaintiff, who had conversations with the plaintiff, formed the view that the plaintiff did not have sufficient capacity to provide instructions to conduct the litigation.