Murphy v State of New South Wales

[2024] NSWSC 601

Supreme Court

New South Wales

Medium Neutral Citation:

Murphy v State of New South Wales [2024] NSWSC 601

Hearing dates:

16 May 2024

Date of orders:

16 May 2024

Decision date:

16 May 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Leave is granted to commence the proceedings by statement of claim filed on 15 January 2024 under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) nunc pro tunc.

(2)   Refuse the application for a suppression and non-publication order.

(3)   The plaintiff's costs of the application are costs in the cause.

Catchwords:

CIVIL PROCEDURE – application for leave for person in custody to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success – leave granted

CIVIL PROCEDURE – application for suppression and non-publication order – paramountcy of “open justice” – calculus of risk – no evidence of real risk of harm – application refused

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8

Felons (Civil Proceedings) Act 1987 (NSW), ss 4, 5, 7

Cases Cited:

Application of Malcolm Huntley Potier [2012] NSWCA 222

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

Lucas v State of New South Wales [2024] NSWSC 600

Category:

Procedural rulings

Parties:

Cassidy Murphy (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
M McGirr (Plaintiff)
C Higgins (Solicitor) (Defendant)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s):

2024/16609

EX TEMPORE JUDGMENT (revised)

1. This is an application for leave to commence proceedings purportedly initiated by statement of claim filed on 15 January 2024. Leave is sought nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW). While the notice of motion was not filed until 9 April 2024, it is well-established that leave under the Act may be granted nunc pro tunc; see Jol v State of New South Wales (1998) 45 NSWLR 283.

2. The plaintiff moves on the affidavit of his solicitor, Ms Melinda Griffiths, affirmed on 7 May 2024. From Ms Griffiths' affidavit I am satisfied that at the time these proceedings were commenced, and presently, the plaintiff is serving a term of imprisonment in a correctional centre for a series of serious indictable offences, and it is relevant to say for the purpose of this decision (see [3] below), including aggravated sexual assault upon a person under the age of 16, and having sexual intercourse with a child over the age of 10 but under the age of 14. The plaintiff's earliest release date is 21 February 2025 and, accordingly he requires leave under the Felons (Civil Proceedings) Act to bring and maintain these proceedings.

3. The plaintiff also seeks an order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the grounds specified in s 8(1)(c) of that Act that a non-publication order is necessary to protect his safety. He seeks an order that no information be published tending to identify him, and that he be given permission to proceed by way of a pseudonym.

4. I dealt with a very similar non-publication issue earlier case today in Lucas v State of New South Wales [2024] NSWSC 600. The evidence in this case, with one exception, is identical to the evidence in Mr Lucas' case, and having fully ventilated the issues with Mr McGirr of learned counsel, who appears for each of the plaintiffs, I would incorporate in these reasons the reasons I gave for dealing with that issue in that earlier case ([6]-[14]).

5. The one exception to which I have referred is the circumstance that this plaintiff is serving a term of full-term imprisonment for child sex offences. It is notorious that such persons are at risk of personal injury in custody because of the nature of their offending, and because of the disapproval of that type of offending by general members of the prison population.

6. That concern is not raised in Ms Griffith's affidavit. The difficulty I have in dealing with the argument is deciding whether the fact that he himself is a victim, on his case, of child sex abuse, and the consideration that he has brought these proceedings for damages, became known within the prison system enhances or increases that risk so that the non-publication or suppression order becomes necessary within the meaning of s 8 by application of the calculus of risk test.

7. It is also notorious that in general, persons serving terms of imprisonment for child sex abuse offences serve those sentences in protection which is always a factor taken into account in sentencing because for that reason their time in custody is likely to be more difficult than the ordinary prisoner. Obviously, protection in custody does not guarantee a person's safety. It is a factor which reduces and perhaps manages the risk that arises out of their offending and the nature of it, but there is just no evidence before me that the fact that he has brought these proceedings, if it became known, increases the risk to which he is otherwise subject.

8. Given the provisions of s 6 of the Court Suppression and Non-Publication Orders Act and the requirement that I give primacy to the public interest in open justice and the need to safeguard that public interest, I am not satisfied that grounds for a suppression or non-publication order have been made out, and I refuse that part of the application.

9. Turning then to the application for leave to bring the proceedings, the averments upon which the plaintiff relies are fully pleaded. His case is framed in both breach of the non-delegable duty owed by the defendant as a gaoler to a prisoner in respect of each cause of action pleaded and by way of vicarious liability for the tort of the perpetrators of the actual sexual abuse. In addition to the sexual abuse itself, the plaintiff relies upon consequential psychiatric injury. In this regard, the plaintiff's claim is supported by the report of Professor Ian Coyle, clinical psychologist dated 10 January 2024.

10. I have read Professor Coyle's report closely and it is sufficient for me to say that the history recorded by Professor Coyle accords substantially with the allegations contained in the statement of claim.

11. I have discussed with Mr McGirr whether it falls within the specialised knowledge of a clinical psychologist to make a medical diagnosis of a psychiatric injury and express an opinion about causation, but I am persuaded that Professor Coyle's expertise permits him to record that the tests he administered and his clinical evaluation of the plaintiff’s results are consistent with the plaintiff having developed PTSD, persistent depressive disorder, anxious distress disorder and an antisocial personality disorder as a result of the alleged sexual abuse he suffered within the juvenile correctional centre.

12. From Professor Coyle’s report, I am satisfied that if the plaintiff's evidence measures up at the hearing, and the opinions expressed by Professor Coyle are backed up by a psychiatrist, that the plaintiff has prospects of success.

13. I should say in any event whether or not I am entitled to take Professor Coyle's report into account in that fashion in this interlocutory application, the recorded details of the sexual abuse themselves are capable of satisfying the element of damage to the extent to which the claim is brought in negligence and of course to the extent to which trespass to the person is relied upon, it is not a tort for which damage is of the gist.

14. Having regard to the decision of the Court of Appeal in Application of Malcolm Huntley Potier [2012] NSWCA 222, I reiterate I am satisfied that if the evidence measures up to what is contained in Professor Coyle's report, the plaintiff has prospects of success, and to this extent, I am satisfied that the proceedings are not an abuse of process within the meaning of the Felons (Civil Proceedings) Act, and that there is a prima facie case disclosed by the material before me. I observe in this context that an abuse of process does not refer to the question of whether the defendant can have a fair trial having regard to the defendant's limited right of appearance at this stage under s 7 of the Felons (Civil Proceedings) Act.

15. For these reasons, I make the following orders:

1. Leave is granted to commence the proceedings by statement of claim filed on 15 January 2024 under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) nunc pro tunc.

2. Refuse the application for a suppression and non-publication order.

3. The plaintiff's costs of the application are costs in the cause.

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Decision last updated: 20 May 2024