Stoeski v State of New South Wales

[2023] NSWSC 926

Supreme Court

New South Wales

Medium Neutral Citation:

Stoeski v State of New South Wales [2023] NSWSC 926

Hearing dates:

8 August 2023

Date of orders:

8 August 2023

Decision date:

08 August 2023

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

The plaintiff is granted leave to institute proceedings nunc pro tunc, pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW)

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 – plaintiff incarcerated for serious indictable offence – claim for damages for psychological abuse whilst a student – whether prima facie case demonstrated – leave granted nunc pro tunc

Legislation Cited:

Crimes Act 1900 (NSW)

Felons (Civil Proceedings) Act 1981 (NSW)

Cases Cited:

SW v State of New South Wales [2010] NSWSC 966

Category:

Procedural rulings

Parties:

Peter Stoeski (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
M McGirr (Plaintiff)

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

File Number(s):

2023/00185898

Publication restriction:

Nil

REVISED EX-TEMPORE JUDGMENT

1. The plaintiff commenced proceedings on 9 June 2023 in this Court seeking damages as a result of physical and sexual abuse which he claimed that he sustained whilst a high school student at Tempe High School in 2002.

2. He claims as a result of that abuse that he has suffered various forms of psychological injury set out in his unsigned statement that is annexed to the affidavit of Alexander Morrison sworn 20 July 2023, as well as in the statement of particulars filed on 9 June 2023 on his behalf, and in the complaints he has made to psychiatrist, Dr Martin Allan, when he was assessed by Dr Allan on 19 May 2023.

3. The plaintiff was convicted of manslaughter in March 2022 and was sentenced to a total effective sentence of 5 years and 6 months imprisonment with a non-parole period of 4 years and one month. That offence is a serious indictable offence under the Crimes Act 1900 (NSW).

4. Section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“Felons Act”) provides that a person who is in custody as a result of having been convicted of a serious indictable offence may not institute any civil proceedings in any court except by leave of the Court. As a result of being imprisoned for that serious indictable offence, the plaintiff in the present case needs to obtain leave under the Felons Act for the commencement of the proceedings.

5. In SW v State of New South Wales [2010] NSWSC 966 Johnson J held at [14] and [15] that leave under s 4 may be sought nunc pro tunc and that the commencement of proceedings without a grant of leave does not render those proceedings a nullity, rather, those proceedings suffer from an irregularity which the Court can, in an appropriate case, cure by grant of leave nunc pro tunc.

6. Section 5 of the Felons Act provides that the Court is not to grant leave 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.

7. The application is supported by an affidavit from the solicitor for the plaintiff, Mr Morrison, sworn 20 July 2023. The solicitor details on his information and belief, the plaintiff's allegations as to being the victim of sexual abuse while a student at Tempe High in the period that I have mentioned. The solicitor annexed the evidentiary statement from the plaintiff and the report of Dr Allan.

8. Dr Allan has diagnosed the plaintiff as suffering from persistent depressive disorder, post-traumatic stress disorder, antisocial personality disorder and polysubstance misuse. He has provided an analysis of the plaintiff's early life and associated trauma and concluded that:

“There are two key areas contributing to his lifelong difficulties. One relates to his early adverse circumstances, including his father's alcoholism, the separation of his parents, the lack of a paternal figure in his life, the disruption associated with his mother's behaviour and her abandoning him. There is a history of apparent neglect and inadequate care from his grandparents. There were difficulties at school. These all predate the abuse at Tempe High School. The Tempe High School incident then contributed further difficulties. It was traumatising. It was an incident that continues to play on his mind and contributes to intrusive thoughts, distress and nightmares. The abuse of the person named as the abuser significantly impacted his overall trajectory. I believe that the early circumstances were a key driver of his mental health difficulties with the incident at Tempe of him being sexually abused being a further cause and I would equally apportion causation to both of these areas of difficulties in his early life.”

9. In my opinion, the material in Dr Allan's report provides at least prima-facie evidence that the plaintiff has a cause of action and that the cause of action does not constitute an abuse of process. It should therefore be permitted to proceed against the defendant.

Orders

10. Accordingly, I make the following order: the plaintiff is granted leave nunc pro tunc under s 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings against the defendant.

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