Roberts v State of New South Wales

[2023] NSWSC 996

Supreme Court

New South Wales

Medium Neutral Citation:

Roberts v State of New South Wales [2023] NSWSC 996

Hearing dates:

17 August 2023

Date of orders:

17 August 2023

Decision date:

17 August 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Leave is granted to commence the proceedings pursuant to ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW) nunc pro tunc.

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

Catchwords:

CIVIL PROCEDURE — plaintiff sought leave nunc pro tunc to commence proceedings as a person in custody whilst convicted of a serious indictable offence — application supported by expert evidence

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW) ss 4, 5

Cases Cited:

Jol v New South Wales (1998) 45 NSWLR 283

Category:

Procedural rulings

Parties:

Shaun Michael Roberts (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)
No Appearance (Defendant)

Solicitors:
Wyatts Lawyers (Plaintiff)

File Number(s):

2023/178985

ex tempore JUDGMENT (revised)

1. This is an application for leave granted nunc pro tunc to commence proceedings under ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW). The statement of claim was filed on 5 June 2023 without leave. The notice of motion seeking leave not being filed until 26 June 2023, but it is well-established that leave under the legislation may be granted nunc pro tunc: see Jol v New South Wales (1998) 45 NSWLR 283.

2. When the proceedings were commenced on 5 June 2023 according to the affidavit of Ms McAndrew, solicitor, on which Mr Meakes of counsel moves, the plaintiff was serving a sentence of imprisonment at the South Coast Correctional Centre for a serious indictable offence, namely engaging in a police pursuit and aggravated break and enter offending. He is not eligible to be released until 2025.

3. The plaintiff's claim is one for child sexual and physical abuse suffered by him at the Glenfield Park Special School where he was a student. He was sexually abused by a fellow student sometime between 2005 and 2006. It is said that the proclivities of the other student were well-known to teachers at the school.

4. He also alleges that he suffered sexual and physical abuse when he was a juvenile on remand in the Reiby Youth Justice Centre sometime between 2007 and 2009 and again when he was a juvenile on remand at the Cobham Youth Justice Centre in about 2009.

5. The averments which he relies upon are fully set out in the statement of claim. He relies upon both breach of a direct duty owed by the State of New South Wales in respect of each cause of action as well as vicarious liability for the negligence, or other tort, of the direct liability of the employees of the State of New South Wales employed at the various institutions to which I have referred.

6. It is clear from the statement of particulars filed 5 June 2023 that in addition to the physical abuse constituted by the acts allegedly perpetrated against him the plaintiff relies very substantially on a psychiatric injury under Part 3 Civil Liability Act 2002 (NSW). His claim in that regard is supported by the expert report of Dr Michael Davie, a consultant psychiatrist, which I have considered for the purpose of the application. It is sufficient for me to say that the history given by the plaintiff to Dr Davie accords substantially with the averments advanced in the statement of claim. Although the plaintiff's psychiatric position is a little complicated, Dr Davie is of the opinion that the plaintiff's post-traumatic stress disorder, which he has diagnosed, is directly related to the sexual and physical abuse relied upon. There is also a diagnosis of paranoid schizophrenia and antisocial personality disorder and while Dr Davie expresses the view that those conditions may have other causes, he is of the view also that their onset in this particular case is related, at least by way of material contribution, to the sexual and physical abuse relied upon as founding the cause of action.

7. Having regard to the material and bearing in mind that the process in which the Court is involved is to be decided in a summary fashion in a broad and impressionistic way, I am satisfied that if the averments in the statement of claim are made good and the opinion of Dr Davie is accepted, the plaintiff has prospects of success and to that extent therefore I am satisfied that the proceedings are not an abuse of process within the meaning of the act and that there is a prima facie case disclosed by the material before me.

8. For those reasons I will make the orders sought:

1. Leave is granted to commence the proceedings pursuant to ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW) nunc pro tunc.

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

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Decision last updated: 21 August 2023