SY1 v State of New South Wales

[2024] NSWSC 327

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SY1 v State of New South Wales [2024] NSWSC 327

Hearing dates:

25 March 2024

Date of orders:

25 March 2024

Decision date:

25 March 2024

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), leave is granted to the plaintiff nunc pro tunc to commence the proceedings filed on 10 November 2023.

(2)   The plaintiff in these proceedings is to be known as SY1 and is to be described in all proceedings and all documents filed and served in the proceedings as SY1 and except as may be necessary for the proper conduct of the proceedings is to be only referred to as SY1.

(3)   The name of the proceedings be changed so that the proceedings be referred to as SY1 v State of New South Wales.

(4) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the name and identity of the plaintiff is supressed except as may be necessary for the proper conduct of these proceedings upon the ground that the order is necessary to protect the safety of any person.

(5)   Order 4 is to apply throughout the Commonwealth of Australia.

(6)   Order 4 is to apply until the determination of the plaintiff’s proceedings.

(7)   The costs of the motion are to be the costs in the cause.

Catchwords:

CIVIL PROCEDURE – application for leave under s 4 Felons (Civil Proceedings) Act 1981 (NSW) – claim for damages following alleged sexual assault by officer in juvenile detention – leave granted nunc pro tunc

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Crown Proceedings Act 1988 (NSW), s 5

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

Limitation Act 1969 (NSW), s 6A(2)

Cases Cited:

Application of Malcolm Huntley Potier [2012] NSWCA 222

Jol v State of New South Wales (1998) 45 NSWLR 283

Category:

Principal judgment

Parties:

SY1 (Plaintiff)
State of New South Wales (First Defendant)
Anglican Diocese of Newcastle (Second Defendant)

Representation:

Counsel:
J Mondel (Plaintiff)
C Moses (First Defendant)
L Biviano (Second Defendant)

Solicitors:
Karp O’Neill Lawyers (Plaintiff)
McCabes Lawyers (First Defendant)
Meridian Lawyers (Second Defendant)

File Number(s):

2023/00357752

REVISED EX TEMPORE Judgment

1. In this matter the plaintiff, by notice of motion, filed on 10 November 2023 seeks in effect an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the name and identity of the plaintiff be suppressed except as maybe necessary for the proper conduct of these proceedings upon the ground that the order is necessary to protect the safety of any person and the person in this case being the plaintiff himself.

2. It is sought that this order applies throughout the Commonwealth and I would have thought it is appropriate if the order is made, that it apply until the determination of the proceedings at which time, if a further order is necessary, it can be sought.

3. The second order sought is an order under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (the Felons Act) for leave nunc pro tunc to institute proceedings for damages for sexual abuse which the plantiff alleges was inflicted upon him while he was a child detained at the Frank Baxter Youth Justice Centre.

4. As to the order sought under s 4 of the Felons Act, on 10 November 2023 the plaintiff filed a statement of claim commencing the proceedings against both the first and second defendants, respectively the State of New South Wales and the Anglican Diocese of Newcastle, and, at the same time, filed a notice of motion seeking leave to commence the proceedings in the Supreme Court. It is permissible for leave to be granted nunc pro tunc if the pre-conditions to the making of such an order are met: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290.

5. The first defendant has been sued under s 5 of the Crown Proceedings Act 1998 (NSW) on the basis that it is both directly liable and vicariously liable in respect of the injuries, loss and damage allegedly suffered by the plaintiff, and similarly, the second defendant has been sued as being directly liable and vicariously liable in respect of those injuries, loss and damage.

The relevant provisions of the Felons Act

6. The relevant provisions of the Felons Act include s 4 which provides:

“A person who is 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 that Court granted on application.”

7. Section 5 states that the Court is not to 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 a prima facie ground for the proceedings.”

8. The test identified by this section has been understood as requiring no more than that the claim has a ground or basis which "on its face is not hopeless or unarguable": Application of Malcolm Huntley Potier [2012] NSWCA 222 (Potier) at [17]. That test requires reference to the legal principles invoked by the cause of action on which the claim is based and reference to the factual allegations contained in the proposed pleadings.

9. In determining whether the test has been satisfied, the Court in Potier held at [17]:

“…the Court is not required to embark upon a detailed analysis of the claims of the evidence which might support them but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is not 'hopeless' or 'unarguable'”.

Consideration

10. The plaintiff is a person who has been convicted of a serious indictable offence and was in custody at the time the statement of claim was filed. Leave to institute these civil proceedings against the State and the Anglican Diocese of Newcastle was therefore required under s 4 of the Felons Act.

11. The plaintiff’s claim is that in approximately 2000, when he was about 16 years of age, he was charged with assault occasioning actual bodily harm during an attempted theft of a car and was given a six-month control order to be served at the Baxter Youth Justice Centre (the Baxter Centre). During the plaintiff’s time at the Baxter Centre, it is alleged that he was under the care and control of a priest of the Anglican Church who was the chaplain at the Centre. The second defendant was allegedly responsible for the appointment and oversight of the priest as chaplain.

12. It is also alleged that while the plaintiff was at the Baxter Centre, he was allegedly sexually abused by a group of unidentified officers called the Target Squad.

13. The plaintiff’s case is that he has suffered psychiatric injury as a result of that abuse and claims damages for the loss and damage so suffered, allegedly due to the breach of both the defendants’ duty of care owed to the plaintiff.

14. The plaintiff has, in support of the orders sought, provided a copy of his evidentiary statement and a statement headed Victim Impact Statement and the affidavit of the applicant’s solicitor, which includes the report of a psychiatrist, Dr John Roberts, of 1 March 2023. These documents together set out the evidence of the alleged incidents and the consequences for the plaintiff.

15. In my view, as a whole, the material establishes that there is a case which is arguable. It is not plainly unarguable or hopeless. In the circumstances, although there appear to be some issues about timing of the alleged assault in light of the criminal history that is before the Court, I am nonetheless of the view that it is appropriate to make an order nunc pro tunc under s 4 of the Felons Act.

16. As to the application under the Court Suppression and Non-publication Orders Act, I note that these allegations relate to the time when the applicant was a child and they do appear to have had very significant consequences for him in relation to his mental health. There is evidence from the report of Dr Roberts of past suicidal ideation and attempts and I am satisfied, even bearing in mind the very important principle of open justice, that it is nonetheless appropriate to make an order under s 7 of the Court Suppression and Non-publication Orders Act, on the ground in s 8(1)(c) that the order is necessary to protect the safety of any person and in this case, that person is the plaintiff.

17. It also appears to me that, given the nature of modern media, the order should apply throughout the Commonwealth of Australia and should apply until the termination of these proceedings.

Orders

18. Accordingly, the orders of the Court are:

1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), leave is granted to the plaintiff nunc pro tunc to commence the proceedings filed on 10 November 2023.

2. The plaintiff in these proceedings is to be known as SY1 and is to be described in all proceedings and all documents filed and served in the proceedings as SY1 and except as may be necessary for the proper conduct of the proceedings is to be only referred to as SY1.

3. The name of the proceedings be changed so that the proceedings be referred to as SY1 v State of New South Wales.

4. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the name and identity of the plaintiff is supressed except as may be necessary for the proper conduct of these proceedings upon the ground that the order is necessary to protect the safety of any person.

5. Order 4 is to apply throughout the Commonwealth of Australia.

6. Order 4 is to apply until the determination of the plaintiff’s proceedings.

7. The costs of the motion are to be the costs in the cause.

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Amendments

29 March 2024 - 29 March 2024 - Typographical changes to 'Parties' section on cover sheet to insert numerical count of defendants

Decision last updated: 27 September 2024