Doolan v State of New South Wales

[2024] NSWSC 625

Supreme Court

New South Wales

Medium Neutral Citation:

Doolan v State of New South Wales [2024] NSWSC 625

Hearing dates:

22 May 2024

Date of orders:

22 May 2024

Decision date:

22 May 2024

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) The plaintiff is granted leave nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings against the defendant in the form contained in the statement of claim filed on 31 January 2024.

(2) Each party is to bear their own costs of the notice of motion.

Catchwords:

CIVIL PROCEDURE – application for leave under Felons Act – claim for damages following alleged physical and sexual assault by officers in juvenile detention – leave granted

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)

Cases Cited:

Ford v Simes [2009] NSWCA 351

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

SW v State of New South Wales [2010] NSWSC 966

Category:

Principal judgment

Parties:

Shannon Doolan (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J Ryan (Plaintiff)

Solicitors:
Slater & Gordon Solicitors (Plaintiff)
MinterEllison Solicitors (Defendant)

File Number(s):

2024/00037968

Publication restriction:

Nil

JUDGMENT – revised ex tempore

1. By notice of motion filed 1 May 2024, the plaintiff, Shannon Doolan seeks an order for leave to proceed under ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW) (“the Act”) in proceedings against the defendant, the State of New South Wales.

2. The plaintiff commenced proceedings against the defendant, or at least sought to do so, by the filing of a statement of claim on 31 January 2024.

3. Read in support of the notice of motion is an affidavit of Mariam Makki sworn 2 May 2024.

4. The plaintiff was arrested and charged by police officers from the Nepean Local Area Command on 31 October 2023 and was refused bail on 1 November 2023. At the time the statement of claim was filed, his status was that he was in custody but at that time was yet to enter a plea of guilty to any of the charges brought against him and had not yet been convicted or found guilty of those offences, although at the time of his arrest he was on parole.

5. Initially, the solicitors for the plaintiff took the view that in the circumstances leave was not required under the Act. However, that position has been revisited and the position correctly arrived at is that he is a person caught by the legislation and accordingly, under s 4 of the Act, he may not institute civil proceedings in any Court except by leave of the Court granted on application.

6. Section 5 of the Act provides that, “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.”

7. The construction of the Act has been considered in a number of decisions of this Court. Put shortly, the purpose of the Act is to enable the Court to supervise proceedings by ensuring that they do not go forward to trial if they amount to an abuse of process or there is no ground for them see: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290.

8. As a matter of policy, it has been said that the statutory gateway to be applied by the Court ought not be an overly demanding one: SW v State of New South Wales [2010] NSWSC 966 at [16]. In Ford v Simes [2009] NSWCA 351, it was said at [30]-[31] that the expression "prima facie ground" in s 5 meant no more than a basis that was arguable or not totally hopeless.

9. In support of the assertions made in the statement of claim is a report of a psychiatrist, Dr Cohen, who examined the plaintiff by telehealth for purposes of assessment and preparation of a report dated 19 April 2022.

10. Dr Cohen reviewed medical records, as well as taking a history from the plaintiff and Dr Cohen concluded that Mr Doolan, as a result of the abuses he alleges in his statement of claim were sustained by him, suffers from chronic complex post-traumatic stress disorder, opioid dependence disorder, and methamphetamine dependence disorder.

11. Having considered the material before the Court and having regard to the principles to be applied to applications such as this, I am satisfied that the plaintiff should be granted leave to institute proceedings in accordance with ss 4 and 5 of the Act. I am satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.

12. Counsel has appeared on behalf of the plaintiff on the present application. The defendant has appeared via its solicitor, who indicated that her client neither consents to nor opposes the application made. In any event, of course, it remains a matter for the Court to determine whether leave should be granted.

13. As I have said, I am satisfied that the leave sought should be given and, accordingly, I make the following orders:

1. The plaintiff is granted leave nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings against the defendant in the form contained in the statement of claim filed on 31 January 2024.

2. Each party is to bear their own costs of the notice of motion.

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