Thurston v State of New South Wales

[2021] NSWSC 226

Supreme Court

New South Wales

Medium Neutral Citation:

Thurston v State of New South Wales [2021] NSWSC 226

Hearing dates:

12 March 2021

Date of orders:

12 March 2021

Decision date:

12 March 2021

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

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

(2)   The proceedings are referred to the Registrar of the Supreme Court for further directions;

(3)   No order as to costs.

Catchwords:

CIVIL LAW – procedure – leave to commence proceedings – when plaintiff in custody at the time proceedings commenced – Felons Act – institutional abuse suffered as a child – symptoms consistent with allegations – Latin – not generally spoken in New South Wales

Legislation Cited:

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

Category:

Principal judgment

Parties:

Lionel Thurston (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
G Barter (Plaintiff)
S Roberts (Defendant)

Solicitors:
Slater & Gordon (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2020/312951

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. Lionel Thurston has commenced proceedings in this Court for personal, psychological and psychiatric injuries sustained when he was allegedly subject to physical, sexual and psychological abuse at the hands of an officer at a juvenile detention centre back in 1987 or 1988.

2. At the time of the institution of proceedings Mr Thurston was in custody and, as a result and pursuant to the Felons (Civil Proceedings) Act 1981 (NSW), he is required to have leave of the Court before such proceedings can be commenced.

3. Mr Thurston brings the application now seeking leave as if leave had been sought at the time of the institution of proceedings. It is established that leave can be granted as if it had been granted at the time of the institution of proceedings nunc pro tunc (or, in a language more frequently spoken and understood in this jurisdiction, “now for then”).

4. The Felons (Civil Proceedings) Act requires that the Court not grant leave unless it is satisfied that:

1. The proceedings are not an abuse of process; and

2. That there are prima facie grounds for the proceedings.

5. Filed in support of the Notice of Motion seeking the relevant orders, dated 15 February 2021, is an affidavit of Mr Thurston which annexes some documents and sets out in general terms the allegations that he would make in his suit against the State of New South Wales.

6. The allegations articulated clearly give rise, if established, to tortious responsibility in the State. One of the documents annexed to the affidavit is a psychiatric report by Associate Professor Robertson which details the impact that the events have had upon the plaintiff. It also indicates that other circumstances in his life may have caused some symptoms, including symptoms consistent with post-traumatic stress disorder and similar disorders. The symptoms described are notoriously consistent with the kind of abuse alleged by Mr Thurston.

7. The State of New South Wales, represented by Mr Roberts, does not contest that the orders should be made and there is nothing before me that would suggest that these proceedings are an abuse of process or that there are not prima facie grounds for the proceedings.

8. Accordingly, I propose to make the orders sought in the Notice of Motion. The orders that I make are these:

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

2. The proceedings be referred to the Registrar of the Supreme Court for further directions;

3. No order as to costs.

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