Gala v The State of New South Wales

[2022] NSWSC 1322

Supreme Court

New South Wales

Medium Neutral Citation:

Gala v The State of New South Wales [2022] NSWSC 1322

Hearing dates:

29 September 2022

Date of orders:

29 September 2022

Decision date:

29 September 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Leave to the Defendant to appear.

2. Leave to the plaintiff to commence proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).

3. No order as to costs with the intent that each party pay their own costs of the application.

Catchwords:

CIVIL PROCEDURE - commencement of proceedings – leave to commence action – where plaintiff serving a sentence for a serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused as an inmate of a juvenile correctional centre – leave granted

Legislation Cited:

Crimes Act 1900 (NSW) s 4

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

Cases Cited:

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

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Joshua Albury Gala (Plaintiff)
The State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)
S Roberts (Defendant)

Solicitors:
Wyatts Lawyers (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2022/107889

Publication restriction:

Nil

Judgment

1. The plaintiff seeks leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of New South Wales. Section 4 of the Act provides that a person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in the Court except by the leave of that court granted on application.

2. Section 5 says that "a court shall not grant leave unless the Court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings".

3. In fact the proceedings were commenced by the filing of a Statement of Claim on 14 April 2022. In that way the leave is sought nunc pro tunc. Leave nunc pro tunc may be granted, see Jol v State of New South Wales (1998) 45 NSWLR 283 where Sheller J made clear (at 290) that the institution of proceedings without leave having been granted does not constitute a nullity but rather an irregularity which may be corrected at a later time.

4. The plaintiff, who was born on 3 July 1995, alleges in the Statement of Claim that whilst he was incarcerated at the Reiby Juvenile Justice Centre he was sexually abused by a person with whom he was sharing a cell and was otherwise physically abused. He alleges in the Statement of Claim that the State is both directly and vicariously liable for the abuse he suffered.

5. The plaintiff is, at the moment, currently imprisoned at Woodford Correctional Centre in Queensland in respect of a number of offences, including entering a dwelling with intent whilst armed in company, assault occasioning actually boldly harm, unlawful wounding and stealing. These are serious indictable offences within the meaning of s 4 of the act by reason of the definition in s 4 of the Crimes Act 1900.

6. There is a report prepared by Dr Geoff McDonald, a consultant psychiatrist, who assessed the plaintiff on 9 February 2022. If breach of duty is established against the State, Dr McDonald's report, if accepted, demonstrates that the mental harm that the plaintiff now suffers from has, at least, been significantly contributed to as a result of the abuse the plaintiff claims he suffered in the Juvenile Justice Centre.

7. In those circumstances I am satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for bringing the proceedings.

8. I make the following orders:

1. Leave is granted nunc pro tunc to commence proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).

2. There be no order as to costs with the intent that each party pays their own costs in the matter.

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Decision last updated: 30 September 2022