Myers v State of New South Wales

[2022] NSWSC 291

Supreme Court

New South Wales

Medium Neutral Citation:

Myers v State of New South Wales [2022] NSWSC 291

Hearing dates:

7 March 2022

Date of orders:

7 March 2022

Decision date:

07 March 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

1. The plaintiff is granted leave nunc pro tunc pursuant to sections 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings by statement of claim filed on 7 July 2021.

2. By consent, each party to pay their own costs.

Catchwords:

CIVIL PROCEEDINGS – Felons (Civil Proceedings) Act 1981 – leave to commence proceedings

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)

Category:

Procedural rulings

Parties:

Troy Myers (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)
J Grace (Defendant)

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

File Number(s):

2021/194367

Judgment

1. By notice of motion filed on 18 February 2022, Troy Shannon Myers (“the plaintiff”) seeks leave to proceed under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Act”). That application was refined during the course of the proceedings by Mr Meakes, who appears for Mr Myers, to seek an order for leave nunc pro tunc under ss 4 and 5 of the Act. It was made clear, in that respect, that the application was made for the commencement of proceedings. The application is neither opposed, nor consented to, by the State of New South Wales (“the State”) which was given leave to appear in the proceedings pursuant to s 7 of the Act.

2. The application is supported by an affidavit of John McManis sworn on 15 February 2022. Mr McManis is the solicitor for the plaintiff. Accompanying that affidavit are various materials. In sum, the effect of the affidavit itself and that accompanying material is as follows:

1. That the plaintiff is currently imprisoned at South Coast Correctional Centre, New South Wales. The affidavit does not deal with the offence committed by the applicant such as to identify in the evidence whether the plaintiff committed a serious indictable offence for the purposes of section 4 of the Act. However, Mr Meakes' instructions are that the applicant was convicted of the offence of assault occasioning actual bodily harm which, by virtue of the maximum penalty attached to it, is a serious indictable offence. There was no demurral from the State.

2. The plaintiff was incarcerated at the Cobham Juvenile Detention Centre in 1986.

3. By a statement of claim sought to be commenced by leave of the Court, the plaintiff pleads historical sexual abuse as the basis for that claim. In particular, it is pleaded that the plaintiff was committed as a young person to the Cobham Remand Centre and that, whilst incarcerated at Cobham, the plaintiff was a victim of serious physical and sexual abuse and suffered trauma as a result. By the statement of claim, the plaintiff pleads that the offending officer at Cobham was an agent of the defendant to the statement of claim, namely, the State, and hence pleads vicarious liability. There are various particulars of injuries and disabilities within the statement of claim.

4. Also attached to the affidavit of Mr McManis is a statement of particulars of personal injury proceedings and a report of Dr John Albert Roberts who has made diagnoses of the plaintiff's psychiatric condition arising from the alleged abuse. Various diagnoses are made in that respect, including anxiety and acute stress disorder. The diagnoses include, in addition to the ones that I have mentioned, attention deficit disorder, hyperactive disorder and post-traumatic stress disorder.

3. The combination of those considerations, in my view, warrants the grant of the order sought in the notice of motion in its amended form. I accept that the plaintiff has been convicted of a serious indictable offence. Further, I consider that he is presently in custody as a result of the conviction for that offence. Further, I consider that there is, in the circumstances, a proper basis for the grant of leave to proceed with the statement of claim.

4. The Court orders:

1. The plaintiff is granted leave nunc pro tunc pursuant to sections 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings by statement of claim filed on 7 July 2021.

2. By consent, each party to pay their own costs.

**********

Decision last updated: 17 March 2022