Millar v State of New South Wales

The case of Millar v State of New South Wales involved the plaintiff, incarcerated for serious indictable offences, who sought damages for mental harm arising from physical and sexual abuse during his time in custodial institutions. The defendant was the State of New South Wales, represented by the Director of Public Prosecutions. The plaintiff filed a claim for damages following the expiration of the three-year statutory limitation period. The matter was before the Supreme Court of New South Wales, which had to determine whether the plaintiff was entitled to seek leave to commence the action after the statutory limitation period had lapsed.

The primary legal issue the court needed to address was whether the plaintiff had demonstrated a prima facie case for the granting of leave to commence the action under the Felons (Civil Proceedings) Act 1981, despite the statutory limitation period having expired. The court had to consider whether the plaintiff's claims of physical and sexual abuse, and the subsequent mental harm, were sufficiently credible and whether there were any circumstances that justified the delay in seeking leave. Additionally, the court needed to assess whether the plaintiff had acted with reasonable diligence in pursuing the claim.

The court found that the plaintiff's allegations were credible and demonstrated a sufficient basis for a prima facie case. The court noted that the plaintiff had acted with reasonable diligence in bringing the claim and had provided evidence to support the allegations of abuse and the resulting mental harm. The court emphasised the importance of considering the unique circumstances of the plaintiff, who was incarcerated, and the difficulties he faced in accessing legal assistance. Consequently, the court granted leave to the plaintiff to commence the action, nunc pro tunc, recognising the exceptional circumstances and the need for justice in such cases.

The final order of the court was that leave was granted to the plaintiff to commence the action against the defendant, with the proceedings to continue on the merits. The court emphasised that the granting of leave was subject to the plaintiff continuing to act with reasonable diligence in pursuing the action. The court also directed the parties to proceed with the matter in accordance with the Civil Procedure Act 2005, ensuring that the case was managed efficiently and justly.