L9E8 v State of New South Wales

[2023] NSWSC 1169

Supreme Court

New South Wales

Medium Neutral Citation:

L9E8 v State of New South Wales [2023] NSWSC 1169

Hearing dates:

13 September 2023

Date of orders:

13 September 2023

Decision date:

13 September 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) In accordance with s 4 of the Felons (Civil Proceedings) Act 1981, the Plaintiff is granted leave Nunc Pro Tunc to commence proceedings.

(2) The Plaintiff seeks an order pursuant to s7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the identity of the Plaintiff be suppressed on the ground that:

(a) The order is required for the safety of the Plaintiff.

(3) This order is to apply throughout the Commonwealth of Australia.

(4) Until further notice of the Court, these proceedings be known as:

(a) L9E8 v State of New South Wales.

(b) The proceedings be described as L9E8 v State of New South Wales and all proceedings and documents served or filed in these proceedings be referred to as L9E8 v State of New South Wales.

(c) The name of the proceedings be changed to L9E8 v State of New South Wales.

(5) No order as to costs.

Catchwords:

CIVIL PROCEEDINGS – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings - Leave granted nunc pro tunc – suppression orders

Legislation Cited:

Crimes Act 1900 (NSW), s 51H

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

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

Cases Cited:

Thurston v State of New South Wales [2021] NSWSC 226

Category:

Procedural rulings

Parties:

L9E8 (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
A Gauga (Plaintiff)
No appearance.

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Maddocks (Defendant)

File Number(s):

2023/206002

JUDGMENT

1. The plaintiff in this matter is presently incarcerated at the Macquarie Correctional Centre. He has been convicted of a serious indictable offence, namely, the supply of a stolen firearm contrary to s 51H of the Crimes Act 1900 (NSW). He is presently 21 years of age and has sought to commence proceedings against the first defendant, the State of New South Wales, by a Statement of Claim filed on 27 June 2023. By that claim, L9E8 seeks tortious relief against the first defendant as a result of alleged historical sexual assault whilst L9E8 was in detention.

2. That detention arose when L9E8 was, at 17 years of age, admitted to Orana in relation to a police charge. It is alleged that, when under the care of the State, L9E8 was assaulted by a correctional officer.

3. By a Notice of Motion filed on 27 August 2023, and now listed in the Court’s duty list, L9E8 sought two categories of relief (“the Motion”). By the first prayer for relief, L9E8 sought an order in accordance with s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Act”) that he be granted leave nunc pro tunc to commence proceedings. The second aspect of the prayers for relief are that orders be made pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the orders made at the conclusion of the proceedings resulted in the pseudonym being applied to the plaintiff in this judgment)

4. The Motion was supported by an affidavit of Melinda Griffith who is the solicitor acting on behalf of L9E8. Annexed to that affidavit is a report of Professor Ian R Coyle who is a principal consultant of the Australian Forensic and Personal Injury Consultants Pty Limited. Professor Coyle is a psychologist who holds a number of positions of an academic nature in the field of psychology.

5. Section 4 of the Act provides that a person who is in custody as a result of having been convicted or found to have committed a serious indictable offence may not institute any civil proceedings in any Court except by the leave of that Court granted on application.

6. I pause to note that L9E8 satisfies the first condition arising out of that section. As I have mentioned, he is presently convicted of a serious indictable offence.

7. Section 5 of the Act provides that a Court shall not, under s 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. In this case, the proceedings are the proceedings brought by Statement of Claim to which I have referred.

8. Two matters relevantly bear upon the consideration relevantly, in my view, of the Court's considerations under s 5. The first is that the defendant to the proceedings neither opposes nor consents to the present application. The second is the terms of Professor Coyle's report.

9. It is sufficient to refer for that purpose to the Executive Summary provided by Professor Coyle of his report which was in the following terms:

1. As a result of being physically, sexually and psychologically abused attending upon the Orana Youth Justice Centre, L9E8 developed post-traumatic stress disorder; comorbid persistent depressive disorder with anxious distress; comorbid antisocial personality disorder; comorbid stimulant use disorder; and comorbid cannabis use disorder.

2. The plaintiff's post-traumatic stress disorder is essentially unresolvable, but that treatment may alleviate the severity of his symptoms. He also stated that persistent depressive disorder with anxious distress can be ameliorated by psychopharmacological intervention. But given its chronicity, the prospect of complete resolution of this condition is low in the absence of conjoint psychological intervention.

3. The stimulant use disorder will be highly problematical until the plaintiff receives treatment for the PTSD.

4. Whilst not directly relevant in the present circumstances, Professor Coyle also opined that the criminal behaviour of L9E8 engaged in was directly or indirectly due to being sexually abused and repeatedly raped at the Orana Youth Justice Centre.

10. Professor Coyle opined, in my view, amply satisfies the requirements of s 5 of the Act. The Statement of Claim is not an abuse of process and there is a prima facie ground for the proceedings. It follows that the statutory conditions for the relief in prayer 1 of the Motion have been satisfied.

11. I note the observations of his Honour Hamill J in Thurston v State of New South Wales [2021] NSWSC 226 where his Honour observed that the plaintiff in that proceedings brought the application seeking leave as if leave had been sought at the time of the institution of the proceedings; hence, the application that the relief be granted nunc pro tunc. This case is no different as L9E8 seeks the leave in circumstances where the Statement of Claim has been filed on 27 June 2023.

12. I turn to the balance of the Motion vis a vis regarding suppression orders. In the affidavit of Ms Griffith, she deposed as to matters relevant to the relief there sought as follows:

1. She has represented other individuals where articles have been published in the Telegraph reporting that they had commenced proceedings and were bringing a claim for sexual, physical and psychological abuse without the consent of the parties.

2. L9E8 fears for his safety and that of his family with other offenders becoming aware that he is a victim of sexual abuse.

3. L9E8 fears that his family may be stood over for the payment of moneys with others knowing he may be entitled to receive compensation moneys.

13. Attention needs to be paid, in considering orders sought, to the provisions of s 8 of the Court Suppression and Non-Publication Orders Act. In this case, it appears to me that the requisite statutory conditions are met because of concerns for the safety of L9E8 and for the proper administration of justice. Therefore, it is appropriate in my view to grant the relief sought in prayers for relief 2 to 4, respectively, of the Motion.

14. In the circumstances of the position adopted by the defendant, I do not grant the relief sought in paragraph 5 of the Motion, but rather indicate there shall be no order as to costs.

15. In the result, I make orders in terms of prayers for relief 1 to 4, respectively, of the Motion.

16. I make orders in the terms identified.

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Decision last updated: 28 September 2023