Gillon v State of New South Wales

[2024] NSWSC 906

Supreme Court

New South Wales

Medium Neutral Citation:

Gillon v State of New South Wales [2024] NSWSC 906

Hearing dates:

12 July 2024

Date of orders:

12 July 2024

Decision date:

12 July 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Order pursuant to rule 12.7 of the UCPR 2005 upon the grounds that the plaintiff has not prosecuted these proceedings with due despatch that the proceedings be, and hereby are, dismissed.

(2)   Order the plaintiff to pay the defendant's costs.

Catchwords:

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Want of due despatch – Where plaintiff does not have capacity to conduct proceedings – Where plaintiff cannot be examined by a psychiatric expert.

Legislation Cited:

Limitation Act 1969

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Neil Gillon (P)
State of New South Wales (D)

Representation:

Counsel:
J Isackson (P)
A Robinson (D)

Solicitors:
Shine Lawyers (P)
Wotton Kearney (D)

File Number(s):

2022/38327

Publication restriction:

Not Applicable

EX TEMPORE JUDGMENT

1. On 9 February 2022, these proceedings were commenced by the filing of a Statement of Claim in which the plaintiff claimed damages against the State of New South Wales for historical sexual abuse which is alleged to have occurred during a time when he was a juvenile detainee at Reiby Juvenile Justice Centre and at Riverina Juvenile Detention Centre.

Plaintiff’s Evidence

2. A few weeks after the Statement of Claim was filed, an Evidentiary Statement was filed which outlined the plaintiff's recollection of what had occurred to him whilst he was at those two Centres.

3. That Evidentiary Statement also set out in some detail, but not completely, the significant mental health issues from which the plaintiff was then suffering. Of course, the Evidentiary Statement did not purport to give any expert evidence about those mental health issues.

4. The plaintiff served, in support of his case, two expert reports of Dr Malcolm Foxcroft, a consultant psychiatrist, dated December 2021 and November 2022. Subsequently, in the period from April through to May 2023, a number of solicitors in the firm acting for the plaintiff, who had conversations with the plaintiff, formed the view that the plaintiff did not have sufficient capacity to provide instructions to conduct the litigation.

Show Cause

5. On 22 August 2023, this Court made orders which had the effect that on or before 31 August 2023, a Show Cause Notice was to be given to the plaintiff and his solicitors which required either application to be made for the appointment of a tutor to conduct the litigation or, alternatively, an affidavit to be filed by the solicitor for the plaintiff confirming the capacity of the plaintiff to give instructions and conduct the matter. If either of those two steps were not taken in the time specified, the matter was to be dismissed for want of prosecution.

6. The proceedings were stood over to 17 November 2023. By that time, the plaintiff seems to have been receiving treatment, including prescribed medication, and the solicitor acting for him was able to inform the Court that the plaintiff was then currently in a state where he had capacity to provide instructions as well as to understand advice given to him. The solicitor did caution that there was a risk that the plaintiff's capacity may fluctuate, particularly when he was released from custody.

Further Doubts about the Plaintiff’s Capacity

7. Since that time, and in the ordinary course of the proceedings, the defendant has made a series of appointments for the plaintiff to attend a specialist psychiatrist for the purpose of examination in the ordinary course of the proceedings. The plaintiff has not been able to keep any of those appointments.

8. It became apparent, in the context of the plaintiff being required to attend an appointment recently in June 2024, that he did not have any capacity to give instructions. There was a real likelihood that he would act violently towards any expert psychiatrist who attempted to speak with him and conduct a consultation, and the solicitors for the plaintiff formed the view that the plaintiff did not have capacity to conduct litigation or to participate in it. It is not clear when or if the plaintiff’s capacity will be restored.

9. As well, although inquiries have been made by the solicitors for the plaintiff about a possible tutor for the plaintiff (which at one stage appeared to be his mother) it seems clear at the moment that there is no obvious tutor readily available who can assume the conduct of the litigation on behalf of the plaintiff.

Conclusion

10. Having regard to all of the events which have occurred (which I have touched upon in a summary way) and the current state of the plaintiff, noting that because this is a claim involving historical sexual abuse to which the provisions of s 6A of the Limitation Act 1969 apply so that there is no limitation period for a plaintiff to commence proceedings, I am of the view that the particular circumstances of this case, and the circumstances generally, require that, in the interests of justice, the proceedings be dismissed for want of due despatch.

Orders

11. Accordingly, I make the following orders:

1. Order pursuant to rule 12.7 of the UCPR 2005 upon the grounds that the plaintiff has not prosecuted these proceedings with due despatch that the proceedings be, and hereby are, dismissed.

2. Order the plaintiff to pay the defendant's costs.

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Decision last updated: 30 July 2024