Doolan v State of New South Wales

[2023] NSWSC 990

Supreme Court

New South Wales

Medium Neutral Citation:

Doolan v State of New South Wales [2023] NSWSC 990

Hearing dates:

17 August 2023

Date of orders:

17 August 2023

Decision date:

17 August 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

In relation to the motion filed in court today make the following orders:

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

(2)      The plaintiff’s costs of the application are costs in the cause.

(3)      Note the undertaking of Ms Lisa De Luca, solicitor to pay any necessary fee for the filing of the Notice of Motion.

In respect of the Notice of Motion filed on 22 June make the following orders:

(1) Under r 28.2 Uniform Civil Procedure Rules 2005 (NSW) direct that all questions of liability, including the defendant's pleading of self-defence be determined separately from any other question arising in the proceedings, specifically all questions of quantum.

(2)      The costs of the motion of 22 June 2023 are the parties’ costs in the cause.

Catchwords:

CIVIL PROCEDURE — plaintiff sought leave nunc pro tunc to commence proceedings as a person in custody whilst convicted of a serious indictable offence

CIVIL PROCEDURE — claims for personal injury — gunshot wound from police — application for separate hearings of liability and quantum — by consent — the assessment of the full extent of injuries would delay the proceedings

Legislation Cited:

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

Uniform Civil Procedure Rules 2005 (NSW) r 28.2

Category:

Procedural rulings

Parties:

Dennis John Doolan (Plaintiff/Applicant)
State of New South Wales (Defendant/Respondent)

Representation:

Counsel:
M Pesman SC with S Walsh (Plaintiff/Applicant)
M Hutchings (Defendant/Respondent)

Solicitors:
Lisa De Luca & Company (Plaintiff/Applicant)
Crown Solicitor’s Office (Defendant/Respondent)

File Number(s):

2020/351930

ex tempore JUDGMENT (revised)

1. I am dealing with two notices of motion in this matter. Logically I should deal with the motion filed in court this morning which relates to the regularity of the proceedings which were commenced on 11 December 2020. From the affidavit of Ms Lisa Maria De Luca (sworn 17 August 2023), the plaintiff’s solicitor, who is instructing Mr Pesman SC and Ms Walsh who appear for the plaintiff, it appears that the plaintiff was in custody when the proceedings were commenced on 11 December 2020.

Application for leave pursuant the Felons Act

2. Without being in any way pejorative it is quite apparent from the material before me that the plaintiff has a most unfortunate custodial and criminal record and there is some doubt from the records according to Ms De Luca's affidavit about whether as at 11 December 2020 he was simply in custody on remand awaiting trial on fresh charges on the one hand, or he was also serving the balance of an existing sentence with parole having been revoked, on the other. In the former situation he does not require leave to commence his proceedings under the Felons (Civil Proceedings) Act 1981 (NSW) (“Felons Act”). On the latter scenario he does as he would then be a convict serving a sentence in custody.

3. As is well-known, leave which is necessary under the Felons Act, may be granted nunc pro tunc. As is also well-known, the defendant has no right of appearance in relation to the application. Moreover, the bar to be cleared is not a high one and I should simply say that from the material before me the plaintiff's claim is one for personal injury arising out of a serious gunshot wound inflicted on him on 28 September 2016 by arresting police.

4. In preparation for the hearing of the second motion I have had regard to not only the affidavits already filed but also to the pleadings and the plaintiff's evidentiary statement of 23 March 2023. The causes of action propounded in the statement of claim include trespass to the person in terms of assault and battery - the factual foundation being the infliction of the gunshot wound - wrongful arrest, false imprisonment and malicious prosecution. Claims are advanced for compensatory, aggravated and exemplary damages.

5. Having had regard to the material to which I have referred I am satisfied that the claim is not an abuse of process and has prima facie prospects if the evidence propounded is accepted at the ultimate hearing. In those circumstances I will, for abundant caution, make the orders sought under the Felons Act which I will pronounce in a moment.

Application for separate hearings on quantum and liability

6. I turn then to the second matter, the notice of motion filed on 22 June 2023 seeking severance of the issues of quantum and liability. Mr Hutchings of learned counsel appears for the State of New South Wales and I am informed by Mr Pesman and Mr Hutchings that the application is made by consent. However, given that it does involve an order which departs from the usual practice of the Court that the final hearing be conducted once and for all, it is necessary for me to give some short reasons why I propose to make an order that questions of liability in relation to all of the causes of action to which I have referred be determined in advance of any other issue in the trial, specifically the general issue of quantum including the entitlement to aggravated and exemplary damages.

7. I have already said that the event giving rise to these causes of action occurred as long ago as 28 September 2016. From the pleadings in the matter, including the defence, it is quite obvious to me that the liability questions in respect of all of the causes of action involve some degree of complexity and are also likely to involve a large number of witnesses, being both lay witnesses and police officers involved in the event and the subsequent prosecution. Obviously after seven years memories are at risk of fading and the sooner the matters in issue are brought to a hearing the better.

8. Although I do not have any medical evidence at this stage, it is quite apparent to me from the narrative provided in the evidentiary statement and from Ms De Luca's affidavit that the injuries suffered by the plaintiff were extremely serious involving orthopaedic injuries and injuries to his internal organs. His recovery and recuperation from those injuries, regrettably, were interrupted by his interactions with law enforcement and the criminal justice system. It seems that a severe infective process arose consequent upon a hip replacement that was undertaken to treat the orthopaedic injuries. That infectious process led to the hip replacement failing and while at liberty, I think for a short period of time, he underwent what is referred to in the evidence as a temporary hip replacement and he is in need of a new "permanent" prosthesis for his hip. It is unlikely that can occur until he is released from his current sentence which will not be until August 2024 at the earliest if he is then found eligible for parole.

9. Obviously, the process of assessing the full extent of his injuries will take some time after his release when relevant medical specialists can be qualified. It is also apparent from his statement, although once again there is no expert evidence available yet, that he has, as one may well understand given the nature of the injury suffered, what could be a significant consequent psychiatric condition. In all the circumstances it seems unlikely that the damages aspect of the claim will be ready for trial before sometime in 2025 at the very earliest.

10. For these reasons I think it appropriate to make the order sought severing the liability issue from the damages issue.

Orders

11. In relation to the motion filed in court today I make the following orders:

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

2. The plaintiff’s costs of that application are costs in the cause.

3. Note the undertaking of Ms Lisa De Luca, solicitor to pay any necessary fee for the filing of the notice of motion.

12. In respect of the notice of motion filed on 22 June I make the following orders:

1. Under r 28.2 Uniform Civil Procedure Rules 2005 (NSW) I direct that all questions of liability, including the defendant's pleading of self-defence be determined separately from any other question arising in the proceedings, specifically all questions of quantum.

2. The costs of the motion of 22 June 2023 are the parties’ costs in the cause.

**********

Decision last updated: 21 August 2023