Millar v State of New South Wales
[2018] NSWSC 1534
•12 October 2018
Supreme Court
New South Wales
Medium Neutral Citation: Millar v State of New South Wales [2018] NSWSC 1534 Hearing dates: 12 October 2018 Date of orders: 12 October 2018 Decision date: 12 October 2018 Jurisdiction: Common Law Before: Davies J Decision: The plaintiff is granted leave nunc pro tunc under ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings against the defendant.
Catchwords: CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 – plaintiff incarcerated for serious indictable offences – claim for damages for mental harm from physical and sexual abuse suffered in custodial institutions – leave sought subsequent to commencement of proceedings – whether prima facie case demonstrated – leave granted nunc pro tunc Legislation Cited: Crimes Act 1900 (NSW)
Felons (Civil Proceedings) Act 1981Cases Cited: SW v State of New South Wales [2010] NSWSC 966 Texts Cited: Nil Category: Procedural and other rulings Parties: Christopher Millar (Plaintiff)
State of NSW (Defendant)Representation: Counsel:
Solicitors:
K Balendra (ex parte)
Slater & Gordon Lawyers (Plaintiff)
File Number(s): 2018/109956 Publication restriction: Nil
Judgment
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The plaintiff commenced proceedings on 9 April 2018 in this Court seeking damages as a result of physical and sexual abuse which he claimed that he sustained in various custodial facilities in New South Wales between 1982 and 1985. He claims as a result of that abuse that he has suffered various forms of psychological injury.
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The plaintiff was convicted of a number of crimes in Victoria and sentenced in the County Court on 18 April 2018. The offences were making a threat to kill, aggravated burglary (the aggravation being that a person was present), common law assault, possession of a drug of dependence, and negligently dealing with the proceeds of crime. He was sentenced to a total effective sentence of four years and nine months imprisonment. The penalty for the charge of threatening to kill is a maximum of ten years imprisonment and the penalty for aggravated burglary is a maximum of 25 years imprisonment. Those offences are, therefore, serious indictable offences under the Crimes Act 1900 (NSW).
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Section 4 of the Felons Civil Proceedings Act 1981 (NSW) provides that a person who is in custody as a result of having been convicted of a serious indictable offence may not institute any civil proceedings in any Court except by leave of the Court. As a result of being imprisoned for two serious indictable offences, the plaintiff in the present case, needs to obtain leave under the Felons Act for the commencement of the proceedings.
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In SW v State New South Wales [2010] NSWSC 966 Johnson J held at [14] and [15] that leave under s 4 may be sought nunc pro tunc and that the commencement of proceedings without a grant of leave does not render the proceedings a nullity. Rather, those proceedings suffer from an irregularity which the Court can, in an appropriate case, be cured by grant of leave nunc pro tunc. Section 5 of the Felons Act provides that the Court is not to grant leave 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.
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The application is supported by affidavit from the solicitor for the plaintiff sworn 23 August 2018. The solicitor details, on information and belief, the abuse that the plaintiff claims to have suffered at the various institutions in the period I have mentioned. The solicitor further annexes a report from Dr Leon Turnbull, an occupational and forensic psychiatrist, who examined the plaintiff in January of this year. Dr Turnbull diagnosed the plaintiff as suffering from post-traumatic stress disorder. He said that childhood sexual abuse is a well-recognised precipitant to the development of symptoms that constitute PTSD.
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Dr Turnbull also diagnosed that the plaintiff had suffered pre-existing behavioural disturbances before being admitted to the institutions. He said:
I cannot neatly splice the total effect of the abuse between the two institutions other than to say he was initially psychiatrically affected at Cobham and the abuse at Daruk further added to that.
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He said his overall estimation was that the effect of Cobham and then Daruk was 50/50 on the development of his post-traumatic stress disorder. He said that there had been a partial contribution of the trajectory of the plaintiff's life by the PTSD which was also contributed to by pre-existing behavioural and attitudinal issues.
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In my opinion, the material in Dr Turnbull's report provides at least prima facie evidence that the plaintiff has a cause of action and that the cause of action does not constitute an abuse of process. It should, therefore, be permitted to proceed against the defendant.
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Accordingly, I make the following order:
The plaintiff is granted leave nunc pro tunc under ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings against the defendant.
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Decision last updated: 12 October 2018
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