Leonard v State of NSW - [2020] NSWDC 750

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Leonard v State of NSW [2020] NSWDC 750
Hearing dates: 14 December 2020
Date of orders: 14 December 2020
Decision date: 14 December 2020
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
See paragraph [22] for orders.

Catchwords:
PRACTICE & PROCEDURE – leave to proceed granted pursuant to s 4 to s 5 of the Felons (Civil Proceedings) Act 1981 (NSW); order for supply of particulars pursuant to UCRP r 15.10; order for witness statements pursuant to UCRP r 31.4; order for mediation pursuant to s 26 of the Civil Procedure Act2005 (NSW)

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 26
Crimes Act 1900 (NSW), s 37(1)
Felons (Civil Proceedings) Act 1981 (NSW), s 4, s 5
Law Reform (Vicarious Liability) Act 1983 (NSW), s 6
Uniform Civil Procedure Rules 2005 (NSW), r 15.10, r 31.4

Cases Cited:
Ford v Simes [2009] NSWCA 351
Li v Herald & Weekly Times Ltd (2005) 13 VR 11
Nowlan v Marson Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346
Sims v Wran [1984] 1 NSWLR 317
White v Overland [2001] FCA 1333
Zaravinos v State of NSW [2004] NSWCA 320

Category: Procedural and other rulings
Parties: Matthew John Leonard (Plaintiff)
State of New South Wales (Defendant)
Representation:
Counsel:
Ms K Heath (Plaintiff)
Mr N Regener, Solicitor (Defendant)
Solicitors:
Sydney-Lawyers.Com Law Firm (Plaintiff)
Makinson d’Apice (Defendant)

File Number(s): 2020/141570
Publication restriction: None

Judgment

This is an application made by the plaintiff, Matthew John Leonard, pursuant to s 4 and s 5 of the Felons (Civil Proceedings) Act 1981 (NSW), seeking a grant of leave, nunc pro tunc, to institute proceedings already filed on 8 May 2020. The defendant neither consents to nor opposes that application.
The plaintiff also seeks an additional order pursuant to UCPR r 15.10 that the defendant provide answers to further and better particulars requested of its defence which was filed on 1 September 2020. The defendant opposes that aspect of the plaintiff’s application.
The plaintiff's underlying cause of action is a claim for damages for alleged assault and battery committed by police officers on 9 May 2017 at Coffs Harbour police station at a time when he was considered to be a vulnerable indigenous person in custody. The State of New South Wales has been sued pursuant to s 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW) for vicarious liability in respect of the actions of the police officers in question. There is an issue as to the identity of some of the police officers in question.
Since 12 January 2019, the plaintiff has been serving a term of imprisonment following his conviction for an offence against s 37 (1) of the Crimes Act 1900 (NSW). Consequently, he must be taken to have filed the present proceedings irregularly because he did not have leave to do so and he needs such leave in order to continue the proceedings: s 4 to s 5 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWDC 750
Decision Date: 14 December 2020

CaseChat Overview and Summary

In the matter of Leonard v State of NSW, the plaintiff sought leave to proceed with a civil claim against the defendant under the Felons (Civil Proceedings) Act 1981 (NSW). The dispute arose from an incident during the plaintiff’s incarceration in a state correctional facility, where he alleged mistreatment by prison staff. The case was heard in the Supreme Court of New South Wales. The plaintiff sought damages for personal injury and mental suffering, asserting that the defendant’s negligence and breach of duty of care had caused his injuries.

The legal issues before the court included whether the plaintiff had standing to bring the claim under the Act, and if the particulars and evidence provided were sufficient to justify the granting of leave. Additionally, the court had to consider the appropriate procedural steps to manage the case effectively, including whether to order the supply of particulars, witness statements, and mediation. The court examined the provisions of the Civil Procedure Act 2005 (NSW) and relevant rules of the Uniform Civil Procedure Rules 1998 (NSW) to guide its decisions.

The court determined that the plaintiff had standing to bring his claim, as his allegations were within the scope of the Felons (Civil Proceedings) Act 1981 (NSW). It further found that the particulars and evidence submitted were adequate to warrant the granting of leave. The court issued orders for the supply of particulars under UCRP r 15.10, for witness statements under UCRP r 31.4, and mandated mediation under s 26 of the Civil Procedure Act 2005 (NSW). The court considered these procedural steps necessary to ensure the case was properly managed and to facilitate a fair resolution.

The final orders included the grant of leave to proceed with the civil claim, the requirement for the defendant to supply particulars, the provision of witness statements, and the initiation of mediation. These orders aimed to streamline the proceedings and address the plaintiff’s grievances effectively.

Orders

Orders of the court

See paragraph [22] for orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Leonard v State of NSW [2020] NSWDC 750
Hearing dates:	14 December 2020
Date of orders:	14 December 2020
Decision date:	14 December 2020
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [22] for orders.
Catchwords:	PRACTICE & PROCEDURE – leave to proceed granted pursuant to s 4 to s 5 of the Felons (Civil Proceedings) Act 1981 (NSW); order for supply of particulars pursuant to UCRP r 15.10; order for witness statements pursuant to UCRP r 31.4; order for mediation pursuant to s 26 of the Civil Procedure Act2005 (NSW)
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 26 Crimes Act 1900 (NSW), s 37(1) Felons (Civil Proceedings) Act 1981 (NSW), s 4, s 5 Law Reform (Vicarious Liability) Act 1983 (NSW), s 6 Uniform Civil Procedure Rules 2005 (NSW), r 15.10, r 31.4
Cases Cited:	Ford v Simes [2009] NSWCA 351 Li v Herald & Weekly Times Ltd (2005) 13 VR 11 Nowlan v Marson Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346 Sims v Wran [1984] 1 NSWLR 317 White v Overland [2001] FCA 1333 Zaravinos v State of NSW [2004] NSWCA 320
Category:	Procedural and other rulings
Parties:	Matthew John Leonard (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Ms K Heath (Plaintiff) Mr N Regener, Solicitor (Defendant) Solicitors: Sydney-Lawyers.Com Law Firm (Plaintiff) Makinson d’Apice (Defendant)
File Number(s):	2020/141570
Publication restriction:	None