Craig v State of New South Wales

[2023] NSWSC 356

Supreme Court

New South Wales

Medium Neutral Citation:

Craig v State of New South Wales [2023] NSWSC 356

Hearing dates:

5 April 2023

Date of orders:

5 April 2023

Decision date:

05 April 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Leave granted to the plaintiff to institute proceedings against the defendant nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW);

(2)      Costs to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – Leave sought subsequent to commencement of proceedings

Legislation Cited:

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

Cases Cited:

Thurston v State of New South Wales [2021] NSWSC 226

Category:

Procedural rulings

Parties:

Conrad Craig (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
B Williams (Plaintiff)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)

File Number(s):

2023/11953

JUDGMENT

1. Conrad Craig has commenced proceedings in this Court by way of a statement of claim filed on 12 January 2023 seeking damages for physical, sexual and psychological abuse allegedly sustained when he was detained at Cobham, Reiby and Baxter Juvenile Justice Centres.

2. At the time of the institution of proceedings, Mr Craig was in custody. Accordingly, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (the Act), he is required to have leave of the Court before such proceedings are instituted.

3. Mr Craig brings the application now seeking leave as if leave had been sought at the time that proceedings were instituted. It is established that leave can be granted as if it had been granted at the time of the institution of proceedings nunc pro tunc, the meaning of which is explained by Hamill J in Thurston v State of New South Wales [2021] NSWSC 226 at [3].

4. Section 5 of the Act provides:

“5   Grant of leave

A court shall not, under section 4, 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 prima facie ground for the proceedings.”

5. The alleged abuse that is particularised in the statement of claim would, if proved, establish a prima facie basis for damages of the type that is sought.

6. The State of New South Wales does not contest that the orders should be made. I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

Orders

7. Accordingly, I make the following orders:

1. Leave granted to the plaintiff to institute proceedings against the defendant nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW);

2. Costs to be costs in the cause.

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Decision last updated: 11 April 2023