Sampson v The State of New South Wales

[2022] NSWSC 1305

Supreme Court

New South Wales

Medium Neutral Citation:

Sampson v The State of New South Wales [2022] NSWSC 1305

Hearing dates:

28 September 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Leave to defendant to appear.

2. Leave to plaintiff to commence proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).

3. No order as to costs with the intent that each party pay their own costs of the application.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – by person serving a sentence for a serious indictable offence – where plaintiff alleges he was sexually and physically abused by officers of juvenile correction centres – leave granted

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Ricky-Lee Sampson (Plaintiff)
The State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)
T Moosani (Defendant)

Solicitors:
Wyatts Lawyers (Plaintiff)
McCabes (Defendant)

File Number(s):

2022/256780

Publication restriction:

Nil

Judgment

1. The plaintiff, by summons filed 29 August 2022, seeks leave to commence proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). That section provides that a person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any Court, except by the leave of that court granted on application.

2. Section 5 of the Act provides that leave is not to be granted 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.

3. The summons is supported by an affidavit of Olivia Josephine Power sworn 29 August 2022. Ms Power is an employed solicitor in the employ of the plaintiff's solicitors. Ms Power discloses in her affidavit that the plaintiff is currently incarcerated at the Metropolitan Remand and Reception Centre, having been charged with aggravated burglary, stealing a motor vehicle, common assault, and obtaining money by deception. A number of those offences are serious indictable offences.

4. The plaintiff seeks leave to bring proceedings against the State of New South Wales alleging that when he was detained at various juvenile correction centres between 1995 and 1997, he was sexually and physically abused by various officers of those institutions. The plaintiff was born on 16 March 1981 and was aged between 14 and 16 years at the time of the alleged abuse.

5. The form of the Statement of Claim intending to be filed is annexed to the affidavit of Ms Power. I am satisfied, from a reading of that Statement of Claim, that prima facie a cause of action against the State of New South Wales is demonstrated if the factual matters alleged are found on the balance of probabilities. As a result of the alleged abuse the plaintiff claims damages for various forms of mental injury sustained.

6. Ms Power also annexes a report from Dr Clayton Smith, a consultant psychiatrist, who conferred with the plaintiff on 17 March 2022. I have read the report of Dr Smith. I am satisfied from Dr Smith's report that if the allegations made by the plaintiff are established at a hearing, the plaintiff will, if Dr Smith's evidence is accepted, demonstrate that the abuse suffered by him was causally related to the mental health issues that he now suffers from.

7. In those circumstances I am satisfied that there is a prima facie case for the plaintiff to bring the proceedings and that the proceedings are not an abuse of process.

8. Accordingly, I make the following orders:

1. Leave is granted to the plaintiff to commence proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).

2. There is to be no order for costs to the intent that each party will pay their own costs of the present application.

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Decision last updated: 28 September 2022