Woolley v State of New South Wales

[2023] NSWSC 997

Supreme Court

New South Wales

Medium Neutral Citation:

Woolley v State of New South Wales [2023] NSWSC 997

Hearing dates:

17 August 2023

Date of orders:

17 August 2023

Decision date:

17 August 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Leave to commence these proceedings pursuant to ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW) is granted nunc pro tunc.

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

Catchwords:

CIVIL PROCEDURE — plaintiff sought leave to commence proceedings as a person in custody whilst convicted of a serious indictable offence nunc pro tunc — not an abuse of process and there is a prima facie case

Legislation Cited:

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

Category:

Procedural rulings

Parties:

Deon Rodney Woolley (Plaintiff/Applicant)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff/Applicant)

Solicitors:
Wyatt Lawyers (Plaintiff/Applicant)

File Number(s):

2023/178952

ex tempore JUDGMENT (revised)

1. This is an application for leave nunc pro tunc to commence proceedings under ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW). It is well-established that leave can be granted nunc pro tunc and that the process involved, in accordance with the express language of the act, is simply for the Court to satisfy itself that the proceedings are not an abuse of process and that there is a prima facie case for relief if the facts averred are proved at the final hearing.

2. The plaintiff's claim is for damages for child sexual abuse suffered by him as a juvenile detainee at the Reiby Youth Justice Centre in or about October 1999 and again by a different perpetrator at the Cobham Youth Justice Centre at or around the same time.

3. It is not necessary for the purpose of this application to go into the details of the event or events relied upon at each of those establishments. It suffices to say that they are juvenile correctional centres under the auspices of the Commissioner for Correctional Services of New South Wales and that the appropriate defendant is the State of New South Wales.

4. The authorities which Mr Meakes of counsel, who appears for the plaintiff, forwarded to my chambers indicate that the questions I have identified may need to be approached in a broad and impressionistic manner. In that regard the affidavit of Ms McAndrew, solicitor affirmed 23 June 2023 sets out a history of the proceedings and attaches the statement of claim which contains the relevant averments advanced on behalf of the plaintiff, the statement of particulars required to be filed under the rules and the expert report of Dr Patricia Jungfer, a neuropsychiatrist.

5. I am satisfied from my reading of that material that if the averments in the statement of claim are established at the final hearing and the opinion of Dr Jungfer is accepted then the plaintiff's case is capable of establishing liability against the State of New South Wales for the psychiatric injury that Dr Jungfer opines he suffered as a result of the incidents to which I have referred. The relevant diagnoses seem to be both a Post-Traumatic Stress Disorder and a persistent Depressive Disorder, to say nothing of the physical assault. That is not to say that liability in these matters is an open and shut question.

6. I should say, although the legislation refers to an abuse of process, my satisfaction at this preliminary stage that the proceedings are not an abuse of process says nothing about the question of whether the defendant can have a fair trial. The defendant is not entitled to appear on these applications, or I think to be heard, and any question about a matter of that nature can only be determined as and when it is raised.

7. For those reasons I make the following orders:

1. Leave to commence these proceedings pursuant to ss 4 and 5 Felons (Civil Proceedings) Act 1981 (NSW) is granted nunc pro tunc.

2. The costs of the application are the plaintiff's costs in the cause.

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Decision last updated: 21 August 2023