Tarpey v State of New South Wales

[2022] NSWSC 1645

Supreme Court

New South Wales

Medium Neutral Citation:

Tarpey v State of New South Wales [2022] NSWSC 1645

Hearing dates:

23 November 2022

Date of orders:

23 November 2022

Decision date:

23 November 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

My orders are:

(1) The plaintiff be granted leave nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings commenced by the statement of claim filed on 20 October 2022.

(2) The costs of the application are costs in the cause.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – leave sought pursuant to Felons (Civil Proceedings) Act 1981 (NSW)

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5, 7

Category:

Consequential orders

Parties:

Joshua William Tarpey (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
B. Williams (Plaintiff)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)

File Number(s):

2022/313047

Publication restriction:

Nil

Judgment

1. By notice of motion, filed on 20 October 2022, the plaintiff seeks leave nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act1981 (NSW) to commence proceedings against the State of NSW (“the State”) in respect of allegations of child sexual abuse and child abuse he allegedly suffered while a juvenile inmate in detention centres operated by the State during 1996. The statement of claim was filed on 20 October 2022 and that is the date to which the plaintiff seeks to backdate leave.

2. I have read carefully the statement of claim, which seems to have been well drawn, and the supporting affidavit of Mr Williams’s instructing solicitor, Ms Natalie Butcher, sworn 20 October 2022. Ms Butcher annexes the plaintiff's custodial history which has been updated by exhibit A today and she also attaches the expert psychiatric report of Associate Professor Michael Robertson dated 24 July 2022. Quite apart from the physical injury constituted by the abuse allegedly suffered by the plaintiff, Dr Robertson expresses the opinion that because of the sexual and physical abuse the plaintiff endured at the detention centres he developed a chronic PTSD. He also suffered a material aggravation of an incipient substance use disorder involving the abuse of opiates.

3. In applications of this type a relatively low threshold test is established by the provisions of s 5 of the Act. I am not to grant leave, unless I am satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. Having regard to the evidence to which I have referred I am satisfied that low-set bar has been cleared and I propose to grant leave.

4. I also record that under s 7 of the Act the defendant is not entitled to appear or to be represented, but I note that Ms Bateman from the legal practice who have already been appointed on behalf of the defendant has been present in court to observe the proceedings.

5. For those reasons, in accordance with the relief sought on the notice of motion, my orders are:

1. The plaintiff be granted leave to institute nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act1981 (NSW) the proceedings commenced by the statement of claim filed on 20 October 2022.

2. The costs of the application are costs in the cause.

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Decision last updated: 02 December 2022