Smith v State of New South Wales

[2025] NSWSC 1114

Supreme Court

New South Wales

Medium Neutral Citation:

Smith v State of New South Wales [2025] NSWSC 1114

Hearing dates:

24 September 2025

Date of orders:

24 September 2025

Decision date:

24 September 2025

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) Order that the Plaintiff be granted leave to institute and maintain proceedings nunc pro tunc, pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981.

(2) The costs of the Motion to be costs in the cause.

(3) These orders to be entered forthwith.

Catchwords:

CIVIL PROCEDURE – Notice of Motion – Felons (Civil Proceedings) – application for leave to commence proceedings – duty judge – leave granted nunc pro tunc

Legislation Cited:

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

Crimes Act 1900 (NSW), s 66C

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Thomas Martin Smith (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Jason Polese (Plaintiff)
No appearance (Defendant)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

2024/00314822

Publication restriction:

Nil

Revised ex tempore JUDGMENT

1. The plaintiff, Thomas Martin Smith, brought an application by a Notice of Motion (“the Motion”) filed 21 August 2025 in which the plaintiff seeks leave to enter these proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (“the Act”). The defendant to the Motion and the proceedings, to which I will turn, is the State of New South Wales.

2. There is no appearance by that entity today, which is hardly surprising having regard to the provisions of the Act.

3. I am indebted to Mr Polese of counsel, who appeared for the plaintiff in the proceedings, in the written submissions which he had provided, which will form the foundation of the judgment to which I will now give determining that the Orders so sought should be granted by the Court.

4. The plaintiff commenced proceedings in this Court on 26 August 2024 seeking damages arising from a sexual assault he alleges was inflicted upon him by a correctional officer at Keelong Juvenile Justice Centre in or about April/May 2001 when he was 14 years of age. He claimed that as a consequence of this abuse he has suffered long-standing psychiatric injury including post-traumatic stress disorder, depression, anxiety, polysubstance use disorder, and impaired functioning in his personal relationships and employment prospects.

5. The plaintiff described in detail in the pleadings the nature of the sexual assault that he suffered as a result of what he alleged is the actions of a male correctional officer whilst he was locked in his cell. He recounted, amongst other things, the enduring psychological effects of such treatment. He also noted that he subsequently engaged in conduct including violent and self-destructive behaviour.

6. In evidence before the Court in the psychiatric report of Dr Aman Suman dated 16 December 2024. Dr Suman diagnosed the plaintiff with PTSD arising from the sexual assault together with mixed anxiety and depressive disorder, anti-social personality disorder and polysubstance use disorder (which is said to be currently in remission). Dr Suman opined that the abuse was the substantial contributing factor to the plaintiff’s psychiatric injuries attributing approximately 60% of his long-term mental health impairments to the abuse. He noted that the plaintiff's prognosis was guarded and that he will require long term psychiatric and psychological care.

7. On 19 August 2024, the plaintiff was convicted in the District Court of New South Wales at a sitting of that Court in Nowra of three counts of having sexual intercourse with a child aged between 14 and 16 years. He was sentenced to an aggregate term of imprisonment of three years and six months commencing on 6 May 2023 with a non-parole period of one year and six months expiring on 2 November 2024.

8. That fact satisfies the conditions in s 4 of the Act as the offence with which the plaintiff was convicted and the subject of the incarceration was a serious indictable offence. The relevant provision of the Crimes Act 1900 (NSW) in that respect is s 66C.

9. 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 there is a prima facie ground for the proceedings.

10. I am satisfied that those conditions in the present case are met for the following reasons:

1. The proceedings are not an abuse of process on their face. The proceedings concern allegations of a serious institutional abuse of a child by a State officer, which is supported by detailed evidence and psychiatric opinion.

2. There is, in my view, for the purposes of the Act, a prima facie case having regard to the expert psychiatric evidence and the causal link between the psychiatric illnesses diagnosed and the abuse suffered by the plaintiff.

11. I note further in that respect the pleadings in the Statement of Claim brought by the plaintiff as to abuse, negligence, breach of statutory duty and common law duties and vicarious liability. I also note that there are pleadings concerning exemplary and aggravated damages.

12. It follows, in my view, that the conditions in s 5 of the Act are satisfied.

13. The proceedings have been commenced in this Court prior to the grant of an application of the kind now sought. As was amply demonstrated in the submissions advanced on behalf of the plaintiff, that circumstance represents an irregularity which may be cured by the Court by the making of the orders now sought.

14. In the circumstances then the plaintiff should be granted leave to institute proceedings and maintain proceedings nunc pro tunc pursuant to ss 4 and 5 of the Act. An order was also sought that costs of the Motion be costs in the cause.

15. The applicant has provided Short Minutes of Order in the proceedings. Those Short Minutes of Order correspond with the Orders that I have just announced save for Order 3, which seeks the matter be listed for directions. I do not propose to make that Order.

16. I shall make the Orders proposed in the Short Minutes of Order, save for Order 3. Order 4 shall be renumbered as Order 3.

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Decision last updated: 25 September 2025