Gordon v The State of New South Wales

[2022] NSWSC 1303

Supreme Court

New South Wales

Medium Neutral Citation:

Gordon v The State of New South Wales [2022] NSWSC 1303

Hearing dates:

28 September 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

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

2. There is to be no order for costs with the intent that each party will pay their own costs of the application.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – by person serving a sentence for a serious indictable offence – where plaintiff alleges he was sexually and physically abused by officers of juvenile correctional centres – leave granted

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Damian Grant Gordon (Plaintiff)
The State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)

Solicitors:
Wyatts Lawyers (Plaintiff)
McCabes (Defendant)

File Number(s):

2022/254516

Publication restriction:

Nil

Judgment

1. The plaintiff applies by summons for leave to commence proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). That section 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 proceeding in any Court, except by the leave of that court granted on application.

2. Section 5 of the Act provides that a court shall not grant leave under s 4 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. The summons is supported by an affidavit of Olivia Josephine Power, the solicitor in the employ of the plaintiff's solicitors. That affidavit discloses that the plaintiff is currently imprisoned in Lithgow Correctional Centre, having been charged with two counts of aggravated break and enter, three counts relating to proceeds of crime, a negligent driving charge, and three charges relating to the possession of illicit substances. At least some of those offences are serious indictable offences.

4. The plaintiff seeks to bring proceedings against the State of New South Wales alleging both physical and sexual abuse when he was incarcerated at various juvenile correctional centres between 2005 and 2007. At the time the plaintiff was aged about 14 to 17 years. A copy of the proposed Statement of Claim is annexed to Ms Power's affidavit. What is alleged in that statement of claim demonstrates a prima facie ground for the proceedings.

5. There is, in addition, a report from a psychiatrist, Dr Ajit Kumar, who conducted a Telehealth examination of the plaintiff on 18 May 2022. It is apparent from Dr Kumar's conclusions that if Dr Kumar's evidence is accepted, and liability is otherwise established in the matter, the plaintiff will be able to demonstrate a causal relationship between the abuse he allegedly suffered and the mental health issues identified by Dr Kumar in his report.

6. In all of those circumstances I consider that the plaintiff has a prima facie ground for bringing the proceedings and that the proceedings are not an abuse of process.

7. Accordingly, I make the following orders:

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

2. There is to be no order for costs with the intent that each party will pay their own costs of the application.

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Decision last updated: 28 September 2022