Anderson v State of New South Wales

[2024] NSWSC 561

Supreme Court

New South Wales

Medium Neutral Citation:

Anderson v State of New South Wales [2024] NSWSC 561

Hearing dates:

13 May 2024

Date of orders:

13 May 2024

Decision date:

13 May 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Leave is granted to commence the proceedings by the amended statement of claim filed on 10 October 2023 under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 nunc pro tunc.

(2)      The plaintiff's costs of the application are his 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

Legislation Cited:

Civil Liability Act 2002 (NSW), Part 3

Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5

Cases Cited:

Application of Malcolm Huntley Potier [2012] NSWCA 222

Jol v State of New South Wales (1998) 45 NSWLR 283

Category:

Procedural rulings

Parties:

Richard John Anderson (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
B Williams (Plaintiff)
D To (Solicitor) (Defendant)

Solicitors:
Harrow Legal (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

2023/208600

JUDGMENT

1. I am dealing with an application for leave to be granted to commence the proceedings purportedly initiated by the filing of a pleading styled “amended statement of claim” on 10 October 2023 after an earlier pleading of 23 June 2023 had been rejected by the registry for irregularity. Leave is sought nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW). While the notice of motion was not filed until 2 April 2024, it is well established that leave under the Act may be granted nunc pro tunc: Jol v State of New South Wales (1998) 45 NSWLR 283.

2. The plaintiff moves on the two affidavits of his solicitor, Mr Naushad Husaini, sworn on 2 April and 30 April 2024. From Mr Husaini's affidavits, I am satisfied that, at the time these proceedings were commenced, the plaintiff was (and presently is) serving a term of imprisonment at the Long Bay Correctional Centre for a serious indictable offence, namely, causing grievous bodily harm with intent. He is not eligible to be released until May 2026 at the earliest, and accordingly, requires leave under the Act to bring and maintain these proceedings.

3. The claim is one for child sexual abuse allegedly suffered by the plaintiff at a State high school in Sydney's west when he was a student there in 1983. There is no statute of limitation barring the bringing of these proceedings at this time. At the time of the alleged abuse, the plaintiff was aged about eleven, and it is his case that he was sexually abused on four occasions by a teacher at the school who is named and identified in the plaintiff's evidentiary statement, dated 15 January 2024, annexed to Mr Husaini's affidavit of 2 April 2024.

4. The averments upon which the plaintiff relies are fully pleaded, and his case is framed in both a breach of the non-delegable duty owed by the defendant as a school authority to him as a pupil, and by way of vicarious liability for the tort in particular of the perpetrator of the abuse.

5. It is clear from the statement of particulars filed on 10 October 2023 with the amended statement of claim that in addition to the sexual abuse constituted by the acts alleged in the statement of claim, the plaintiff relies upon psychiatric injury within the meaning of Part 3 of the Civil Liability Act 2002 (NSW), if it applies.

6. The plaintiff's claim in this regard is supported by the expert opinion of Dr Truls Bratten, consultant psychiatrist, whose report is dated 28 September 2022. Mr Husaini also annexed a report of Dr Justine Schelle of 25 February 2024. That report was obtained by the defendant, and I am unaware of whether the circumstances in which it was served on plaintiff's solicitor involved a waiver of privilege at this time.

7. Dr Schelle's report does provide at least partial support to the plaintiff's case. But given what I have said about the circumstances in which it is put before me, I will put it to one side and rely upon the other material, including the report of Dr Bratten. It is sufficient for me to say that the history recorded by Dr Bratten, as provided to him by the plaintiff, accords substantially with the allegations made in the statement of claim.

8. The plaintiff's psychiatric condition is a little complicated, which is not uncommon in these type of proceedings. However, Dr Bratten is of the opinion that the alleged sexual abuse had a "significant impact" on the plaintiff's post-traumatic stress disorder symptoms.

9. Having regard to the material to which I have referred, and bearing in mind that the process involved in considering this application requires a decision to be made in a summary fashion and in a broad and impressionistic way, in accordance with the Court of Appeal's decision in Application of Malcolm Huntley Potier [2012] NSWCA 222, I am satisfied that, if the evidence of the plaintiff at the hearing measures up to the history provided by him to Dr Bratten, and the expert's opinions are 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 Act, and that there is a prima facie case disclosed by the material properly before me. I observe that, in this context, an abuse of process does not refer to the question of whether or not the defendant can have a fair trial, having regard to the defendant's limited rights at this stage under s 7 of the Act.

10. For these reasons I make the following orders:

1. Leave is granted to commence the proceedings by the amended statement of claim filed on 10 October 2023 under ss 4 and 5 of the Felons (Civil Proceedings) Act1981 (NSW) nunc pro tunc.

2. The plaintiff's costs of the application are his costs in the cause.

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Decision last updated: 14 May 2024