Thomas v State of New South Wales

[2023] NSWSC 902

Supreme Court

New South Wales

Medium Neutral Citation:

Thomas v State of New South Wales [2023] NSWSC 902

Hearing dates:

19 July 2023

Date of orders:

19 July 2023

Decision date:

19 July 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1) Leave granted to the plaintiff to institute proceedings against the defendant nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).

(2)    Costs to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for abuse in institutions - leave granted nunc pro tunc – costs

Legislation Cited:

Child Welfare Act 1939 (NSW)

Crown Proceedings Act 1988 (NSW)

Felons (Civil Proceedings) Act 1981 (NSW)

Category:

Procedural rulings

Parties:

Trevor Thomas (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
P Clingan (Plaintiff)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2023/37157

Publication restriction:

Nil

EXTEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: The plaintiff has commenced proceedings in this Court by way of statement of claim filed on 3 February 2023. In that statement of claim he seeks damages for abuse occasioned while he was committed to various institutions under the Child Welfare Act 1939 (NSW). The plaintiff alleges that during the period of his committal to the institutions, he suffered physical, sexual, and psychological abuse at the hands of the defendant and/or its employees, servants, and/or agents.

2. The proceedings have been commenced against the defendant in accordance with s 5 of the Crown Proceedings Act 1988 (NSW). At all material times the defendant is and was the successor in law to the Minister of Child Welfare for the State of New South Wales in whom, pursuant to s 9 of the Child Welfare Act, legal guardianship of the plaintiff became vested during the periods of his committals to the relevant institutions.

3. At the time of the institution of proceedings, the plaintiff was in custody having been convicted of a serious indictable offence. Accordingly, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), he is required to have leave of the Court before such proceedings are instituted. A notice of motion seeking such leave was filed on 4 July 2023. The plaintiff brings the application now seeking leave to proceed as if leave had been sought at the time the proceedings were instituted by the statement of claim. It is established that leave can be granted nunc pro tunc, which means that if leave is granted, it is taken to be as if it had been granted at the time of the institution of proceedings.

4. Section 5 of the Felons (Civil Proceedings) Act provides as follows:

5 Grant of leave

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. The plaintiff's solicitor has filed an affidavit in which it is stated that the plaintiff was committed to the Mount Penang Training School for several periods in 1983 and 1984, and that during the time at that facility the plaintiff suffered physical, sexual, and psychological abuse at the hands of the defendant and/or its employees, servants, and/or agents. The particulars of the abuse have been set out in the statement of claim filed on 3 February 2023. I infer that the information in the solicitor's affidavit is based on instructions obtained from the plaintiff. There is additionally evidence provided by the plaintiff of harm suffered related to the alleged abuse.

6. The plaintiff has been convicted of the offences of aggravated sexual assault, robbery, and aggravated robbery, which are serious indictable offences, and for which he remains in custody, triggering the requirement for leave. I have been informed by the solicitor for the plaintiff that the representatives for the defendant neither consent nor oppose the grant of leave. I am, based upon the above, satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

7. Accordingly, I make the following orders:

1. Leave granted to the plaintiff to institute proceedings against the defendant nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).

2. Costs to be costs in the cause.

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Decision last updated: 02 August 2023