Craig v State of New South Wales

Case [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.”

  1. 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.

  2. 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

  1. 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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Details
AGLC
Craig v State of New South Wales [2023] NSWSC 356
Case
[2023] NSWSC 356
Decision Date

CaseChat Overview and Summary

The case of Craig v State of New South Wales involved Craig, who sought to bring an action against the State of New South Wales. Craig's claim arose from alleged breaches of duty by the State in the context of his imprisonment. The dispute was heard in the Supreme Court of New South Wales. Craig sought to challenge the legality of his detention and conditions under which he was held, arguing that they constituted a breach of his civil rights.

The central legal issue before the court was whether Craig could be granted leave to commence his action under the Felons (Civil Proceedings) Act 1981 (NSW) after the proceedings had already been initiated. The court had to determine whether the statutory provision permitted such retrospective leave, or if leave was strictly required before the action was commenced. This raised questions about the interpretation and application of the Act in relation to the procedural requirements for commencing civil actions by individuals who were, at the time of the alleged wrong, a 'felon' as defined by the Act.

The court held that the Felons (Civil Proceedings) Act 1981 (NSW) did not permit the grant of leave subsequent to the commencement of proceedings. The court found that the statutory language was clear in requiring leave to be obtained prior to the action being initiated. It was held that the Act was designed to prevent the abuse of legal process by persons who had been convicted of serious crimes, and that allowing retrospective leave would undermine this legislative intent. Consequently, Craig's application for leave to proceed with his action was dismissed. The court's interpretation of the statutory provisions led to the conclusion that the proceedings were not permissible under the Act, as leave was not sought before the action was commenced.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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