Bugmy v State of New South Wales

[2024] NSWSC 84

Supreme Court

New South Wales

Medium Neutral Citation:

Bugmy v State of New South Wales [2024] NSWSC 84

Hearing dates:

12 February 2024

Date of orders:

12 February 2024

Decision date:

12 February 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. The plaintiff be granted leave to institute proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).

2. Costs to be costs in the cause.

3. Defendant to request further and better particulars of the Statement of Claim by 31 January 2024.

4. Plaintiff to respond to defendant’s request for further and better particulars by 29 February 2024.

5. Defendant to file and serve Defence by 12 April 2024.

6. Defendant to serve expert medical evidence by 22 May 2024.

7. Plaintiff to serve mediation position paper 14 days prior to mediation.

8. Defendant to serve mediation paper 7 days prior to mediation.

9. Parties to engage in mediation by 28 June 2024.

10. Matter listed for Directions before the Registrar at 9am on 19 July 2024

11. Liberty to restore on 3 days’ notice.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff in custody for serious indictable offence – where proceedings commenced before leave was sought – where plaintiff claimed to have been assaulted when a minor and held at Mt Penang Training School – leave granted

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW). s 4

Cases Cited:

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

Re Application of Malcolm Potier [2012] NSWCA 222

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Trevor Shane Bugmy (Plaintiff)
State of New South Wales (Defendant)

File Number(s):

2023/346783

Publication restriction:

Nil

Judgment

1. The plaintiff seeks leave under section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of the New South Wales. The proceedings were commenced on 1 November 2023. In that way leave is now sought nunc pro tunc.

2. In Jol v State of New South Wales (1998) 45 NSWLR 283 Justice Sheller made clear at 290 that the institution of proceedings without leave having been granted does not constitute a nullity but rather an irregularity which may be corrected at a later time.

3. The plaintiff was born in November 1962. From 1978 until September 1980 he was at various times detained in the Mount Penang Training School for Boys. The plaintiff claims that whilst he was at Mount Penang in about August 1980 he was both physically and sexually assaulted by a named officer engaged by the Mount Penang Training facility.

4. I have read the evidentiary statement of the plaintiff dated 1 November 2023. That statement sets out the details of the plaintiff's life both before and after the alleged assaults upon him in August 1980. The evidentiary statement sets out the effects that the plaintiff claims the assaults have had upon him. He asserts that it led to psychiatric difficulties for him which led to excessive alcohol abuse and criminal behaviour.

5. At the present time the plaintiff is serving a sentence of imprisonment for what the plaintiff says in his evidentiary statement is attempted murder and malicious wounding, but what the Corrective Services records say is cause grievous bodily harm with intent. In either case, he has committed a serious indictable offence. His parole does not expire until 15 February 2025.

6. There is a report from a psychiatrist Associate Professor Michael Robertson who has diagnosed the plaintiff as suffering from chronic post-traumatic stress disorder, a major neurocognitive disorder secondary to alcohol use, traumatic brain injury and substance use disorder. Professor Robertson said that if compelled to a mathematical apportionment of cause he would apportion 35 percent of causation, to the plaintiff's prejudicial early environment and the remaining 65 percent attributable to the subject sexual abuse.

7. The plaintiff sues the State of New South Wales on the basis that it operated the Mount Penang facility. The statement of claim asserts both direct negligence on the part of the State and also vicarious liability for the actions of the officer who assaulted him.

8. To obtain leave under section 4 of the Act it is necessary for the plaintiff to show that the proceedings are not an abuse of process and that there is a prima facie ground for bringing these proceedings. The test was considered in Re Application of Malcolm Potier [2012] NSWCA 222 at [17] in the joint judgment of Allsop ACJ and Basten JA as follows.

Taken literally, that limb of the test refers to a claim which at first sight and without investigation appears to be a "ground". Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading. The purpose of the legislative scheme was, in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 that a convicted felon could not sue at law or in equity. On the other hand, the purpose of the statute was to permit the court to ensure that neither it nor prospective defendants were subjected to proceedings which were an abuse of process or which lacked any real merit: Jol v State of New South Wales (1998) 45 NSWLR 283 at 286E (Sheller JA, Beazley JA and Sheppard AJA agreeing). As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and 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 thus not "hopeless" or "unarguable". Different expressions used from time-to-time do not indicate any difference in the standard to be applied.

9. I am satisfied from the material, including the plaintiff's evidentiary statement and the report of Associate Professor Robertson, that the proceedings are not an abuse of process and that there is a prima facie ground for bringing these proceedings.

10. Accordingly, on the plaintiff’s notice of motion I make the following orders:

1. The plaintiff be granted leave to institute proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).

2. Costs to be costs in the cause.

   11. The parties had agreed on directions to be made to progress the proceedings should leave be granted under the Felons Act. Accordingly, I make the following further orders:

3. Defendant to request further and better particulars of the Statement of Claim by 31 January 2024.

4. Plaintiff to respond to defendant’s request for further and better particulars by 29 February 2024.

5. Defendant to file and serve Defence by 12 April 2024.

6. Defendant to serve expert medical evidence by 22 May 2024.

7. Plaintiff to serve mediation position paper 14 days prior to mediation.

8. Defendant to serve mediation paper 7 days prior to mediation.

9. Parties to engage in mediation by 28 June 2024.

10. Matter listed for Directions before the Registrar at 9am on 19 July 2024

11. Liberty to restore on 3 days’ notice.

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