Sullivan v State of New South Wales

[2024] NSWSC 467

Supreme Court

New South Wales

Medium Neutral Citation:

Sullivan v State of New South Wales [2024] NSWSC 467

Hearing dates:

16 April 2024

Date of orders:

16 April 2024

Decision date:

16 April 2024

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) The plaintiff is granted leave to commence and maintain her civil proceedings in the Supreme Court of New South Wales.

(2) Costs of the motion be costs in the cause.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – nunc pro tunc – ancient and foreign tongue – Felons (Civil Proceedings) Act 1981 (NSW) – sad history –­ historic sexual assault – plaintiff in Minister’s care – a harrowing read – duty list – patent absurdity

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)

Category:

Procedural rulings

Parties:

Teagan Maria Sullivan (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J Isackson (Plaintiff)

Solicitors:
North Star Law (Plaintiff)
MinterEllison (Defendant)

File Number(s):

2022/00330518

EX TEMPORE JUDGMENT

1. The plaintiff was born in the middle of 1999 and was under the age of 18 at the time of the incidents that give rise to the present proceedings or proposed proceedings. Those proceedings relate to allegations that the plaintiff was repeatedly raped while she was in foster care organised by the defendants or its officers or employees. That description, perhaps, oversimplifies the situation. It is alleged, and no doubt, it can be established, that the plaintiff became pregnant at the age of around 13 years of age as a result of these asserted outrages.

2. The proceedings were commenced by statement of claim filed on 4 November 2022. At that time, the plaintiff was in gaol serving a 28-month sentence for offences of obtaining property by deception dishonestly, taking and driving a car without the owner’s consent, and four counts of being a passenger in a car without the owner’s consent. Because of her custodial status at the time the proceedings were commenced, she is, or more accurately, was required to obtain leave under the Felons (Civil Proceedings) Act 1981 (NSW), which I will refer to as the “Felons Act”. She now seeks leave retrospectively, or as the authorities insist on saying in an ancient and foreign tongue, nunc pro tunc, now for then.

3. The matter comes before me in the Common Law Duty List which is being conducted remotely by audio visual link from the Coffs Harbour Court complex, where I am managing a jury in a murder trial. The patent absurdity of that situation does not bear comment, other than to say that the jury’s deliberations are at a sensitive stage and responding to a question this morning from the jury has delayed the hearing of the present notice of motion. On behalf of the Court, I apologise to those appearing and the present parties for the delay, but the management of the jury and attempting to ensure the fairness of the trial and to avoid miscarriage in the criminal proceedings have to take priority.

4. Section 4 of the Felons Act imposes the requirement for leave on a person in custody who has been convicted of a serious indictable offence. Section 5 provides a prohibition on the grant of leave in certain circumstances. It provides:

“A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.”

5. A notice of motion seeking leave under the Felons Act was filed on 19 March 2024 and is supported by an affidavit of the plaintiff’s solicitor which annexes a number of relevant documents. The affidavit includes as annexures the plaintiff’s custodial and correctional records. Those established that she is indeed caught by section 4 of the Felons Act. The plaintiff’s evidentiary statement is annexure B. Annexure C is the original statement of claim. Annexure D is the particulars of the claim. Annexure E is an amended statement of claim filed on 13 March this year, and annexure F is a comprehensive psychiatric report authored by Dr Ash Takyar.

6. The amended statement of claim, the particulars and the plaintiff’s statement set out the sad history following which the plaintiff was placed in departmental care. She was exposed to domestic violence between her parents as a young child and was taken out of her home at about the age of eight years. She was removed in 2006 when she was 6 and a half years and placed under a temporary care order when she was almost 7 years. In 2011, she was placed by Court order in the Minister’s care. She states that various placements were organised, and there were difficulties in finding homes in which, and families with whom, she could live.

7. Thereafter, the statement is frankly a harrowing read. The plaintiff alleges that she and her sister were sexually abused by a person, I think that was her half-brother. She then went on to describe what she called her “last foster home” when she was about 12. After conflict in that home led to an incident described in her statement, she found herself essentially homeless again, and at around that time met a man called Sparks who claimed, or said, that he was her half-brother.

8. The plaintiff asserted that the police said she would “go to juvie” if she had nowhere to live, and that a NSW Department of Community Services (DoCS) caseworker suggested she stay with this half-brother, and if not, she would “go to juvie because there were no other options”. Over the next 30 paragraphs of her statement, she described awful scenes of violence and sexual abuse. She became pregnant, as I have said earlier, and gave birth to a son in the middle of 2014.

9. Throughout that period, there was little contact with DoCS until she was in hospital giving birth to the child. It seems that the perpetrator stopped or interfered with contact between the plaintiff and departmental officers. And the plaintiff, feeling powerless and afraid, lied to the police about the abuse. I really need to go no further for the purpose of the present application. The report of Dr Takyar provides expert evidence of the kinds of psychiatric scars and disabilities that this abuse had on the plaintiff. Those things are also set out in a little detail in the particulars.

10. While there may be some issues to be ventilated in defence of the attribution of blame to the Department, other government employees, and in turn, the State of New South Wales, I am very comfortably satisfied on the material that I have read that the claim is not an abuse of process and that there are prima facie grounds for the civil action. The State of New South Wales properly and fairly does not contend otherwise. It simply takes a neutral position on today’s application. Accordingly, I will retrospectively grant leave under section 4 of the Felons Act. The orders will be in the terms sought in the notice of motion, notwithstanding the deployment of the Latin.

11. Accordingly, I make the following orders:

1. Pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 (NSW), the plaintiff is granted leave to commence and maintain her civil proceedings in the Supreme Court of New South Wales (2022/002330518), with such orders made nunc pro tunc and taking effect from 25 August 2022.

2. An order that costs of the motion be costs in the cause.

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Decision last updated: 24 April 2024