Supreme Court New South Wales Medium Neutral Citation: Hillier v State of New South Wales [2018] NSWSC 1533 Hearing dates: 11 October 2018 Date of orders: 11 October 2018 Decision date: 11 October 2018 Jurisdiction: Common Law Before: Davies J Decision: The plaintiff is granted leave nunc pro tunc under ss 4 and 5 Felons (Civil Proceedings) Act 1981 to institute proceedings against the defendant. Catchwords: CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 – plaintiff incarcerated for serious indictable offences – claim for damages for mental harm from physical and sexual abuse suffered in custodial institutions – leave sought subsequent to commencement of proceedings – whether prima facie case demonstrated – leave granted nunc pro tunc Legislation Cited: Crimes Act 1900 (NSW) Felons (Civil Proceedings) Act 1981 Cases Cited: SW v State of New South Wales [2010] NSWSC 966 Texts Cited: Nil Category: Procedural and other rulings Parties: Mark Hillier (Plaintiff) State of NSW (Defendant) Representation: Counsel: K Balendra (ex parte) Solicitors: Slater & Gordon Lawyers (Plaintiff) File Number(s): 2018/205584 Publication restriction: Nil Judgment 1. The plaintiff commenced proceedings on 4 July 2018 in this Court seeking damages as a result of physical and sexual abuse, which he claimed that he sustained in various custodial facilities in New South Wales between 1983 and, at least, 1987. He claims as a result of that abuse that he has suffered various forms of psychological injury. 2. The plaintiff was convicted on 14 August 2017 of two offences of aggravated break and enter and commit a serious indictable offence, the aggravation being that he was in company with another. He was sentenced overall to a period of imprisonment of four years, commencing 27 November 2016, with a non-parole period of two years and six months, such non-parole period expiring on 26 May 2019. 3. The offence of aggravated break and enter is an offence against s. 109(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of twenty years imprisonment. 4. Section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) provides that a person who is in custody as a result of having been convicted of a serious indictable offence may not institute any civil proceedings in any court except by leave of the Court. "Serious indictable offence" is not defined in the Felons Act, but is defined in s. 4 of the Crimes Act as meaning an indictable offence that is punishable by imprisonment for life, or for a term of five years, or more. Accordingly, the plaintiff in the present case needs to obtain leave under the Felons Act for the commencement of the proceedings. 5. In SW v State of New South Wales [2010] NSWSC 966, Johnson J held at [14]-[15] that leave under s. 4 may be sought nunc pro tunc and that the commencement of proceedings without a grant of leave does not render the proceedings a nullity. Rather, those proceedings suffer from an irregularity, which the Court can, in an appropriate case, cure by grant of leave nunc pro tunc. 6. Section 5 of the Felons Act provides that the Court is not to grant leave unless the Court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. 7. The application is supported by an affidavit from the solicitor for the plaintiff, who details on information and belief from the plaintiff the abuse that he claims to have suffered at various institutions in the periods I have mentioned. The solicitor also annexes to her affidavit a report from Professor Ian Coyle, dated 4 August 2018. Professor Coyle is a psychologist, who examined the plaintiff. In his report, Professor Coyle notes the allegations that the plaintiff made to him, which largely accord with what appear in the statement of claim filed, and a summary of which is provided in the body of the solicitor's affidavit. 8. Paragraphs 61 and 62 of Professor Coyle's report relate the Post Traumatic Stress Disorder which Professor Coyle diagnosed directly to the plaintiff's having been sexually and psychologically abused whilst he was in the various institutions. Professor Coyle found further that the plaintiff's drug abuse and criminal behaviour, which he has engaged in since those times is also a sequelae of the abuse from which he suffered. 9. I am satisfied on the basis of that material that the proceedings which have been commenced are not an abuse of process and that the plaintiff demonstrates a prima facie case to go forward against the State of New South Wales. 10. Accordingly, I make the following order: The plaintiff is granted leave nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings against the defendant. ********** Amendments 12 October 2018 - Typographical error on cover sheet 12 October 2018 - Typographical error on cover sheet 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: 12 October 2018