Evans v State of New South Wales

[2024] NSWSC 229

Supreme Court

New South Wales

Medium Neutral Citation:

Evans v State of New South Wales [2024] NSWSC 229

Hearing dates:

6 March 2024

Date of orders:

6 March 2024

Decision date:

06 March 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Leave is granted to commence proceedings by the filing of the statement of claim on 22 December 2023 nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).
(2) The plaintiff's costs of the application are his costs in the cause.

Catchwords:

CIVIL PROCEDURE – application for leave for person in custody to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success – leave granted

Legislation Cited:

Civil Liability Act 2002 (NSW), Part 3

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

Cases Cited:

Application of Malcolm Huntley Potier [2012] NSWCA 222

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

Category:

Procedural rulings

Parties:

Kane Evans (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J. Georgaklis (Solicitor) (Plaintiff)
No appearance (Defendant)

Solicitors:
Slater & Gordon (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2023/465448

EX TEMPORE JUDGMENT

1. This is an application for leave to be granted to commence the proceedings which were purportedly initiated by the filing of the statement of claim on 22 December 2023. Leave is sought nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW). While the notice of motion was not filed until 15 February 2024, it is well-established that leave under the Act may be granted nunc pro tunc: Jol v State of New South Wales (1998) 45 NSWLR 283.

2. The plaintiff moves on the affidavit of his solicitor, Mr Jonathan Georgaklis, affirmed on 15 February 2024. From Mr Georgaklis' affidavit, I am satisfied that when the proceedings were commenced the plaintiff was in full-time custody serving a term of imprisonment at the John Morony Correctional Centre for a serious indictable offence.

3. The plaintiff's claim is one for sexual and physical abuse suffered by him at the Cobham Juvenile Justice Centre when he was incarcerated for periods between 21 November 2013 and 22 November 2013 and again between 7 April 2014 and 4 June 2014 at the age of 17 years. His claim is that he was sexually abused by a juvenile justice officer on two separate occasions during these periods.

4. The averments upon which he relies are fully set out in the statement of claim. His claim relies upon a breach of the State's non-delegable duty as a gaoler which is owed to him as a person in the position of a prisoner while still a juvenile, as well as upon vicarious liability for the tort of the officer involved.

5. It is clear from the statement of claim that, in addition to the injury constituted by the sexual abuse inflicted upon him, the plaintiff relies very substantially on a psychiatric injury under Part 3 of the Civil Liability Act 2002 (NSW). His claim in that regard is supported by the expert opinion of Dr Martin Allan, consultant psychiatrist, in a report dated 14 March 2022. I have closely considered the content of Dr Allan's opinion for the purpose of this determination.

6. It is sufficient for me to say that the history recorded by Dr Allan as having been provided by the plaintiff accords substantially with the averments advanced in the statement of claim. Although the psychiatric position is somewhat complicated, Dr Allan is of the opinion that the plaintiff's post-traumatic stress disorder, recurrent major depressive disorder, substance abuse disorder and antisocial personality disorder, each of which he has diagnosed, are directly related to the sexual and other abuse relied upon by the plaintiff.

7. Having regard to the material and bearing in mind that the process in which the Court is involved is for decision in a summary fashion in a broadly impressionistic way in accordance with the decision of the Court of Appeal in the Application of Malcolm Huntley Potier [2012] NSWCA 222, I am satisfied that if the averments in the statement of claim are made good and the opinion of Dr Allan is accepted, the plaintiff has prospects of success and, to that extent, I am satisfied that the proceedings are not an abuse of process within the meaning of the Act and that there is a prima facie case disclosed by the material before me.

8. For these reasons, I will make the following orders:

1. Leave is granted to commence proceedings by the filing of the statement of claim on 22 December 2023 nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).

2. The plaintiff's costs of the application are his costs in the cause.

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Decision last updated: 08 March 2024