Douglas v State of New South Wales

[2023] NSWSC 879

Supreme Court

New South Wales

Medium Neutral Citation:

Douglas v State of New South Wales [2023] NSWSC 879

Hearing dates:

27 July 2023

Date of orders:

27 July 2023

Decision date:

27 July 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:

Principal judgment

Parties:

Jackson Roy Douglas (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J B Masur (Plaintiff)
A Charchar (Sol) (Defendant)

Solicitors:
North Star Law (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2023/139235

JUDGMENT

1. By way of a notice of motion filed on 14 July 2023, Jackson Roy Douglas seeks leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (the Act) to maintain his civil proceedings against the State of New South Wales in this Court. The nature of those proceedings, pursuant to a statement of claim that was filed without leave (by oversight) on 1 May 2023, is a claim for damages in respect of physical and sexual abuse allegedly sustained when the Mr Douglas was a child detainee at Riverina and Cobham Juvenile Justice Centres.

2. Leave is required by s 4 of the Act because at the time of the institution of proceedings, he was serving a sentence of imprisonment for a serious indictable offence. He will be eligible for release on parole in September 2023.

3. Leave may be granted as if it had been at the time of the institution of proceedings nunc pro tunc, the meaning of which was 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.”

5. The notice of motion is supported by an affidavit of the plaintiff’s instructing solicitor which has annexed to it an evidentiary statement by the plaintiff, medical reports and relevant documentation generated by staff of Juvenile Justice NSW.

6. I am of the view that 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.

7. The State of New South Wales neither consents nor opposes the making of the orders sought by Mr Douglas. I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

Orders

8. 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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Decision last updated: 27 July 2023