Carter v State of New South Wales

[2023] NSWSC 172

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Carter v State of New South Wales [2023] NSWSC 172

Hearing dates:

27 February 2023

Date of orders:

27 February 2023

Decision date:

27 February 2023

Jurisdiction:

Common Law

Before:

Wright J

Decision:

1. Pursuant to section s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), leave is granted to the plaintiff nunc pro tunc to commence the proceedings filed on 25 October 2022.

2. The costs of the notice of motion are to be costs in the cause.

Catchwords:

CIVIL PROCEDUURE – application for leave under s 4 Felons (Civil Proceedings) Act 1981 – claim for damages following alleged sexual assault by officer in juvenile detention – leave granted nunc pro tunc

Legislation Cited:

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

Crown Proceedings Act 1988 (NSW), s 5

Limitation Act 1969 (NSW), s 6A(2)

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:

Benjamin Carter (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J Isackson (Plaintiff)

Solicitors:
Shine Lawyers (Plaintiff)
Maddocks Lawyers (Defendant)

File Number(s):

2022/00318993

JUDGMENT (EX TEMPORE REVISED)

1. In this matter the plaintiff, Benjamin Carter, by notice of motion filed 19 December 2022, seeks an order under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), (Felons Act), for leave nunc pro tunc to institute proceedings for damages for historical sexual abuse which he alleges was inflicted upon him while he was a child detainee at Cobham Juvenile Justice Centre in May 2008.

2. The plaintiff has in fact already commenced proceedings. A statement of claim was filed in this Court on 25 October 2022. Nonetheless, the proceedings are not a nullity but are treated as an irregularity. It is permissible for leave to be granted nunc pro tunc if the preconditions to the making of an order under s 4 of the Felons Act are met: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290.

3. The defendant, the State of New South Wales, has been sued under s 5 of the Crown Proceedings Act 1988 (NSW) on the basis that it is both directly liable and vicariously liable as the employer of the Corrections Officer who allegedly sexually assaulted the plaintiff.

4. The defendant has filed a notice of appearance but has not appeared in relation to the hearing of this notice of motion.

The relevant provisions of the Felons Act

5. The relevant provisions of the Felons Act include s 4 which provides:

"A person who is 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 that Court granted on application.”

6. Section 5 states that the Court is not to grant leave to a person to institute proceedings:

"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 test identified by this section has been understood as requiring no more than that the claim has a ground or basis which "on its face is not hopeless or unarguable": Application of Malcolm Huntley Potier [2012] NSWCA 222 (Potier) at [17]. That test requires reference to the legal principles invoked by the cause of action on which the claim is based and referenced to the factual allegations contained in the proposed pleadings.

8. In determining whether the test has been satisfied, the Court in Potier held at [17]:

"…the Court is not required to embark upon a detailed analysis of the claims of the evidence which might support them but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is not 'hopeless' or 'unarguable'".

Consideration

9. The plaintiff is a person who has been convicted of a serious indictable offence and was in custody at Bathurst Correctional Centre, New South Wales, at the time the statement of claim was filed. Leave to institute proceedings against the State was therefore required under s 4 of the Felons Act.

10. The plaintiff's claim is that whilst at Cobham Juvenile Justice Centre he was sexually abused by a Corrections officer when he was otherwise alone in his cell. His case is that he suffered psychiatric injury as a consequence of that abuse and he claims damages from the defendant alleging that the injuries, loss and damage suffered were due to the breach of a common-law duty and a non-delegable duty by the defendant and were injuries, loss and damage for which the defendant is vicariously liable as a result of the tortious liability of the officer.

11. The plaintiff has, in support of the orders sought, provided an evidentiary statement of the plaintiff which was undated but which was filed on 8 December 2022. That statement sets out, among other things, the plaintiff's evidence relating to his background, and his admission to Cobham Juvenile Justice Centre in May 2008 where he alleges he was sexually assaulted on one occasion. It also contains evidence of the alleged incident and its consequences for the plaintiff.

12. In addition, the plaintiff relied upon the report of Dr M Schramm of 8 August 2022, which established a potential evidentiary foundation for the alleged injury, loss and damage. In particular, Dr Schramm diagnosed post-traumatic stress disorder (PTSD), persistent depressive disorder and polysubstance dependence. He was of the opinion that the PTSD in particular was in great part caused by the incident at Cobham. Dr Schram also gave evidence as to the plaintiff's limited ability to work and the requirement for further treatment which he attributed to the injuries occasioned at Cobham.

13. As the plaintiff's claim relates to historical sexual abuse, s 6A(2) of the Limitation Act 1969 (NSW) permits the claim to be brought at any time.

14. Even though the plaintiff cannot identify the officer by name, I am satisfied based upon what is alleged in the statement of claim and the evidence to which reference has been made, that the proceedings are not an abuse of process and there is a prima facie ground for the proceedings. They could not properly, in my view, be described as hopeless or unarguable.

15. In all the circumstances, in my view, this is an appropriate case in which to grant leave to institute the proceedings nunc pro tunc under s 4 of the Felons Act.

Orders

16. The orders of the Court are:

1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), leave is granted to the plaintiff nunc pro tunc to commence the proceedings filed on 25 October 2022.

2. The costs of the notice of motion are to be costs in the cause.

**********

Amendments

15 March 2023 - Revised case name

Decision last updated: 15 March 2023