Holland v State of New South Wales

[2023] NSWSC 495

Supreme Court

New South Wales

Medium Neutral Citation:

Holland v State of New South Wales [2023] NSWSC 495

Hearing dates:

12 May 2023

Date of orders:

12 May 2023

Decision date:

12 May 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:

Carl James Holland (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr J S Isackson (Plaintiff)
Ms J Cheng (Sol) (Defendant)

Solicitors:
Fern Lawyers (Plaintiff)
MinterEllison (Defendant)

File Number(s):

2023/47898

JUDGMENT

1. By way of a notice of motion filed on 17 April 2023, Carl James Holland seeks leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (the Act) to commence and maintain civil proceedings against the State of New South Wales. The nature of those proceedings, pursuant to a statement of claim that was filed without leave by oversight on 13 February 2023, is a claim for damages in negligence arising from a period in the applicant’s youth that he spent in juvenile detention in State-operated institutions.

2. Leave is required by s 4 of the Act because at the time of the institution of proceedings, he was, and still is, serving a sentence of imprisonment for serious indictable offences.

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 is 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 application includes a report by a consultant psychiatrist, Dr Justine Schelle, dated 10 January 2023. Dr Schelle took a history from the applicant, which included a childhood of disadvantage and disruption leading to drug abuse and incarcerations in juvenile justice from the age of 14. The history includes detailed accounts of repeated sexual and physical abuse by multiple staff members. Dr Schelle diagnosed the applicant as having a Post-Traumatic Stress Disorder (PTSD) and an Anti-Social Personality Disorder.

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 Holland. 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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