Barrett v State of New South Wales

[2024] NSWSC 332

Supreme Court

New South Wales

Medium Neutral Citation:

Barrett v State of New South Wales [2024] NSWSC 332

Hearing dates:

19 March 2024

Date of orders:

19 March 2024

Decision date:

19 March 2024

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) The plaintiff be granted leave to institute proceedings nunc pro tunc, pursuant to s 4 of the Felons Civil Proceedings Act1981 (NSW).

(2) Costs to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – application for leave to institute proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) – leave granted nunc pro tunc

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Noel Barrett (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
M McGirr (Plaintiff)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Crown Solicitor for New South Wales (Defendant)

File Number(s):

2023/448693

Publication restriction:

Nil

JUDGMENT

1. The applicant, Mr Noel Barrett, (“the applicant”) moved on a Notice of Motion filed on 22 February 2024 in which he sought an order that he be granted leave to institute proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). Costs on the application would be costs in the cause.

2. The defendant in the proceedings is the State of New South Wales. There is no appearance for that defendant today, although I attach no particular significance to that, given the nature of the application which has been made.

3. The application is supported by an affidavit of Alexander Morrison, the solicitor for the applicant, which has annexed to it the evidentiary statements of the applicant, and a medico-legal report of Dr Martin Allan, a consultant psychiatrist.

4. Section 4 of the Act provide that a person who is in custody as a result of having been convicted of or found to have committed a serious indictable offence may not institute any civil proceedings in any court except by leave of that Court granted on application. This is such an application and the provisions of s 4 are in my view, engaged.

5. The applicant has been convicted of a serious indictable offence, namely take/detain in company with intention to get advantage occasion actual bodily harm. It follows that the grant of such leave is governed by s 5 of the Act, namely, that leave may be granted only if the Court of satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings.

6. I have reached the conclusion that both of those conditions are satisfied. The proceedings go forward on the basis of an allegation of sexual abuse, when kept in an institution for which the State is responsible. The medico-legal report, apart from making other diagnostic findings, contributes two thirds of the overall difficulties experienced with respect to diagnoses of persistent depressive disorder, post-traumatic stress disorder, and antisocial personality disorder, alongside continuing polysubstance abuse, to the alleged traumatic rape of the applicant that occurred within Riverina.

7. In my view, therefore, the respective prerequisite conditions in s 5 are made out.

8. I grant the orders sought in the Notice of Motion.

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