Dang v State of New South Wales

[2023] NSWSC 624

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Dang v State of New South Wales [2023] NSWSC 624

Hearing dates:

5 June 2023

Date of orders:

5 June 2023

Decision date:

05 June 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court grants leave pursuant to Sections 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) nunc pro tunc to commence and carry on the proceedings filed by the plaintiff by Statement of Claim on 3 March 2023.

Costs are costs in the cause.

Catchwords:

CIVIL PROCEDURE – Application for leave under s 4 and 5 of the Felons (Civil Proceedings) Act 1981 – claim for damages following an alleged sexual assault by officer - Leave granted nunc pro tunc

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)

Cases Cited:

Malcolm Huntley Potier [2012] NSWCA 222

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

Category:

Principal judgment

Parties:

Linh Dang (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr J C Lee (Plaintiff)

Solicitors:
New Path Legal Pty Ltd (Plaintiff)
McCabes (Defendant)

File Number(s):

2023/71589

JUDGMENT

1. Linh Dang ("the plaintiff"), is presently incarcerated at South Coast Correctional Centre and has been convicted of serious indictable offences being murder and robbery in company while armed with a dangerous weapon.

2. The plaintiff was born on 14 November 1985 and is presently 37 years of age. As has been pointed out in oral submissions this morning, he commenced proceedings by way of a Statement of Claim on 3 March 2023 (“the proceedings”. That Statement of Claim was filed in the Registry of this Court on that date notwithstanding the provisions of the Felons (Civil Proceedings) Act 1981 (NSW). However, the form of relief sought, seeks to address the absence of leave under that Act at the time of the filing of those proceedings. At the time of the abuse alleged in the statement of claim, the plaintiff was 17 years of age.

3. By a Notice of Motion (“The Motion”), filed on 20 April 2023, the plaintiff applied for leave under the Act as outlined above. By that motion the plaintiff sought an order granting leave nunc pro tunc to commence and carry on the proceedings pursuant to s 4 of the Act. The basis for the form of order taken by the applicant was, as mentioned, the slightly unusual course, in having already filed the proceedings to which I have referred. The relief sought in The Motion is supported by two affidavits which have been read in the proceedings of Joshua Paul McKay, affirmed 18 April 2023 and 31 May 2023.

4. The written submissions filed in support of the application by Mr J C Lee of counsel for the plaintiff, articulated the principles relevant to the determination of an application under s 4 of the Act. I agree with the statement of principles therein provided and identify in short summary the propositions advanced by counsel in that respect as follows:

1. The test is an undemanding one, in that the Court is required to be satisfied that there exists a prima facie case against the defendant on the basis of the material adduced into evidence before the Court on the application: Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17] and;

2. Leave may be granted nunc pro tunc, as the effect of commencing proceedings without such leave is an irregularity not a nullity: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290.

5. In my view, for the reasons I will now give, the plaintiff has established a proper basis for the grant of leave and the making of the orders sought in these proceedings for two reasons. First, in respect of liability, the Court, as I have mentioned, has before it the statement of the plaintiff which directly supports the pleaded allegations in the Statement of Claim.

6. In my view, there is an inference that is available on the material that at the time of the alleged abuse relied upon by the plaintiff that he was unconscious. I accept the submission of counsel for the plaintiff that, if the applicant’s evidence was to be accepted, and in the absence of countervailing evidence, there is a rational inference available in that respect on the basis of the operation of the civil standard with respect to that evidence.

7. I note, in particular, that the plaintiff's proposed statement, which is annexed to the affidavit of Mr McKay of 31 May 2023, states in various respects the evidence that he would give, which bears out the factual allegations pleaded in the Statement of Claim at paras 6, 32 and 34 respectively.

8. As was submitted, in terms of the legal consequences of factual findings of that kind, if made, it would be properly concluded, and I do conclude, that the plaintiff has prima facie prospects for success. As a consequence of that legal aspect it follows that there is therefore an arguable case, at least sufficient to satisfy the undemanding test to which I referred in the principles earlier stated.

9. In respect of damages, the Court has before it the report of Associate Professor Michael Robinson dated 21 February 2022 which sets out a diagnosis, referable to the subject abuse that the plaintiff is alleged to have experienced, of chronic post-traumatic stress disorder as well as substance use disorder. In his report Associate Professor Robinson outlines the alleged abuse at pp 6 and 7 of his report, noting that the presumed sexual assault left the plaintiff with chronic anorectal problems, including haemorrhoids and perirectal bleeding. The report also outlines at pars 15-24 the psychiatric sequelae of the abuse on the plaintiff. He notes a number of aspects in that respect, which I do not separately identify, other than to note that they are summarised in the affidavit of Mr McKay of 18 April 2023 at par 20.

10. It is upon the basis of those circumstances that the Associate Professor made the diagnosis to which I have referred. He notes at p 12 of the report that the plaintiff presented with chronic PTSD comorbid with a substance use disorder and underlying personality disorder with Cluster B traits. On the same page of the report Associate Professor Robinson notes and I quote:

The subject sexual abuse was the substantial and main contributing factor to [the plaintiff's] chronic psychiatric disorder and psychosocial morbidity; however, there is a significant apportionment of cause to be made to his prejudicial environment.

From adolescence [the plaintiff] demonstrated features of a personality disorder manifesting as a conduct disorder, as well as a substance use disorder. These were severely exacerbated by the subject abuse. The PTSD emerged as a separate psychological injury derived from the effects of the subsequent sexual abuse.

11. Associate Professor Robinson noted at p 11 of his report that the prognosis is poor. Childhood sexual abuse is associated with poor outcomes in terms of mood and anxiety disorders.

12. The combination of those circumstances, and for the reasons I have given, it is appropriate that the Court grant the leave sought by the applicant in this matter. It follows that the first prayer for relief in the notice of motion filed on 20 April 2023 be granted.

13. The Court makes a further order, being the second prayer for relief in the notice of motion, that costs be costs in the cause.

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Amendments

09 June 2023 - First name removed

Decision last updated: 09 June 2023