Leal v State of New South Wales

[2022] NSWSC 673

Supreme Court

New South Wales

Medium Neutral Citation:

Leal v State of New South Wales [2022] NSWSC 673

Hearing dates:

12 May 2022

Date of orders:

12 May 2022

Decision date:

12 May 2022

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

(a) The Plaintiff is granted leave nunc pro tunc pursuant to ss.4 and 5 Felons (Civil Proceedings) Act 1981 to institute proceedings against the Defendant in the form contained in the Statement of Claim filed on 3 November 2021.

(b) Each party is to bear their own costs of the Notice of Motion.

Catchwords:

CIVIL PROCEDURE – application for leave under Felons (Civil Proceedings) Act 1981 – claim for damages following alleged physical and sexual assault by officer in juvenile detention – leave granted

Legislation Cited:

Felons (Civil Proceedings) Act 1981

Cases Cited:

Application of Malcolm Huntley Potier [2012] NSWCA 222

Ford v Simes [2009] NSWCA 351

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

SW v State of New South Wales [2010] NSWSC 966

Texts Cited:

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Category:

Procedural rulings

Parties:

Trevor Leal (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr T Meakes (Plaintiff)
Ms LHR Kidman, solicitor (Defendant)

Solicitors:
Beston McManis Lawyers (Plaintiff)
Wotton + Kearney (Defendant)

File Number(s):

2021/311668

Publication restriction:

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Judgment

1. JOHNSON J: By Notice of Motion filed on 27 April 2022, the Plaintiff, Trevor Leal, seeks an order for leave to proceed under s.4 Felons (Civil Proceedings) Act 1981 (“the Act”) concerning proceedings against the Defendant, the State of New South Wales.

2. By Statement of Claim filed on 3 November 2021, the Plaintiff seeks damages, for causes of action in trespass to the person, battery, and negligence against the Defendant.

3. The Plaintiff has filed an evidentiary statement dated 10 May 2022 in support of the claim. The Plaintiff was born in May 1997. The allegation is that in 2012 (when he would have been about 15 years of age) he was in the custody of the State at the Reiby Juvenile Justice Centre at Airds. At that time, it is alleged by the Plaintiff that he was sexually assaulted and otherwise physically assaulted by an officer employed at that Juvenile Justice Centre.

4. The claim against the Defendant is based upon suggested vicarious liability of the Defendant for the acts of its employee, together with a claim in negligence against the Defendant for allowing events of this type to occur in a facility over which the Defendant had care and control of the Plaintiff.

5. The Plaintiff relies upon material contained in affidavits of John McManis, solicitor, dated 8 March 2022 and 10 May 2022. The affidavit of Mr McManis dated 10 May 2022 annexes a report of Dr John Roberts, psychiatrist, dated 26 January 2022. The report of Dr Roberts expresses a conclusion and diagnosis of post-traumatic stress disorder, which is said to be the substantial result of the sexual assault alleged to have occurred at the Juvenile Justice Centre.

6. The evidentiary statement of the Plaintiff, and the report of Dr Roberts, also outline a range of areas of psychiatric impact and other adverse consequences which the Plaintiff asserts have flowed arising from the events said to have taken place in the Juvenile Justice Centre.

7. As at the time that the Statement of Claim was filed on 3 November 2021, the Plaintiff was serving a sentence of imprisonment for armed robbery. Contained in the report of Dr Roberts is an indication that the Plaintiff anticipated that he may be released on parole in April 2022. There is no information before the Court as to whether the Plaintiff has been released on parole. However, there is no question that, as at 3 November 2021, when the proceedings were sought to be commenced by the filing of the Statement of Claim, the Plaintiff was serving a sentence of imprisonment for a serious indictable offence.

8. Sections 4 and 5 of the Act require a person who is in custody, as a result of having been convicted of a serious indictable offence, to obtain the leave of the Court to institute civil proceedings. Section 5 provides that a Court shall not grant leave under s.4 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”.

9. It has been said that the purpose of the Act is to enable the Court to supervise proceedings by ensuring that they do not go forward to trial if they amount to an abuse of process, or there is no prima facie ground for them: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290.

10. As a matter of policy, the statutory gateway to be applied by the Court ought not be an overly demanding one: SW v State of New South Wales [2010] NSWSC 966 at [16]. In Ford v Simes [2009] NSWCA 351, it was said (at [30]-[31]) that the expression “prima facie ground” in s.5 of the Act meant no more than a basis that was arguable or not totally hopeless. These principles have been applied in subsequent decisions including Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17].

11. Counsel for the Plaintiff submits that a proper foundation exists for the making of the orders sought in this case. The Defendant neither consents to the order sought nor opposes it. It remains a matter for the Court to determine whether the order should be made.

12. If the order is to be made, it is submitted that leave should be granted nunc pro tunc so that the grant of leave operates from the date when the proceedings were instituted by the filing of the Statement of Claim.

13. I am satisfied that the material before the Court warrants a grant of leave under ss.4 and 5 of the Act. The proceedings are not an abuse of process and there is prima facie ground for the proceedings based upon both factual material emanating from the Plaintiff and expert medical opinion of Dr Roberts. It is appropriate to grant leave nunc pro tunc in this case.

14. The appropriate costs order should be that each party is to bear their own costs of the Notice of Motion.

15. I make the following orders:

1. The Plaintiff is granted leave nunc pro tunc pursuant to ss. 4 and 5 Felons (Civil Proceedings) Act 1981 to institute proceedings against the Defendant in the form contained in the Statement of Claim filed on 3 November 2021.

2. Each party is to bear their own costs of the Notice of Motion.

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Decision last updated: 05 June 2022