Demaine v State of New South Wales

[2022] NSWSC 355

Supreme Court

New South Wales

Medium Neutral Citation:

Demaine v State of New South Wales [2022] NSWSC 355

Hearing dates:

29 March 2022

Date of orders:

29 March 2022

Decision date:

30 March 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

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

2. Costs of the application to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW)

Legislation Cited:

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

Category:

Principal judgment

Parties:

Peter Demaine (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Wallace-Pannell (sol) (Plaintiff)
J Pan (sol) (Defendant)

Solicitors:
Shine Lawyers (Plaintiff)
McCabes (Defendant)

File Number(s):

2022/62122

Judgment

1. By way of an amended summons filed on 4 March 2022, Peter Demaine (“the plaintiff”) seeks leave to commence civil proceedings in this Court. In support of his application, the plaintiff filed an affidavit of his solicitor Thomas Wallace-Pannell, dated 1 March 2022, which had annexed to it a draft statement of claim. The plaintiff filed written submissions in support of his application on 24 March 2022.

2. The civil proceedings which the plaintiff seeks leave to institute involve a claim for damages for psychiatric and psychological injuries which the plaintiff alleges resulted from acts of physical and sexual abuse. The plaintiff alleges that these acts were perpetrated by a male staff member between November 2017 and January 2018 while he was admitted to Orana Juvenile Justice Centre, at the age of 16. The proposed defendant is the State of New South Wales in right of the organisation formerly known as the Department of Youth & Community Services.

3. At the time of this application, the plaintiff is in custody for serious indictable offences. 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.

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 applicant, who is presently aged 20, is in detention serving a sentence of imprisonment. The application includes a report by a consultant psychiatrist, Dr Yvonne Skarbek, dated 29 November 2021. Dr Skarbek took a relevant history from the applicant, which was to the following effect. The applicant had a severely disrupted childhood, his parents having separated when he was aged six. He was brought up thereafter by his father. He attended three different primary schools, being expelled from each. His father died “in his arms” from lung cancer, when he was aged 15. When the applicant was aged 16, he was detained in Orana Juvenile Justice Centre. He alleged that, whilst there, he was repeatedly sexually assaulted by a male supervisor and warned by him to not complain.

6. Dr Skarbek diagnosed the applicant as suffering, as a consequence to the sexual assaults, from post-traumatic stress disorder (“PTSD”) and substance abuse, in early remission. Dr Skarbek also noted that the applicant was likely to have underlying attention deficit hyperactivity disorder, or ADHD, for which he had received a diagnosis as a child, and that this would require further assessment once his PTSD symptoms had been treated.

7. 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

8. I make the following orders:

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

2. Costs of the application to be costs in the cause.

**********

Decision last updated: 30 March 2022