Cooper v State of New South Wales

[2023] NSWSC 189

Supreme Court

New South Wales

Medium Neutral Citation:

Cooper v State of New South Wales [2023] NSWSC 189

Hearing dates:

7 March 2023

Date of orders:

7 March 2023

Decision date:

07 March 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of NSW (2022/354317), with such orders made nunc pro tunc and taking effect from 24 November 2022.

2. Costs of the Motion be costs in the cause.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff in custody awaiting sentence for serious indictable offences – where proceedings commenced before leave was sought – where plaintiff alleged he was sexually assaulted at juvenile justice centre – 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 Huntley Potier [2012] NSWCA 222

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Aaron Mark Cooper (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J Lee (Plaintiff)
A Barry (By leave) (Defendant)

Solicitors:
New Path Legal (Plaintiff)
Norton Rose Fulbright (Defendant)

File Number(s):

2022/354317

Publication restriction:

Nil

Judgment

1. The plaintiff seeks leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of New South Wales. The proceedings were commenced by the filing of a statement of claim on 24 November 2022. In that way, leave is sought nunc pro tunc.

2. It appears the failure to seek leave prior to the commencement of the proceedings arose because, although the plaintiff had been charged with a number of offences in 2021, he was not convicted of them until sometime during November 2022. The solicitors acting for him in relation to these present civil proceedings appear not to have been aware of the conviction of the plaintiff at that time by reason of his having pleaded guilty to the charges.

3. In Jol v State of New South Wales [1998] 45 NSWLR 283, Sheller JA 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.

4. The plaintiff was born in October 1987. He was first detained at the juvenile justice centre at Reiby on 7 April 2002. Thereafter, he spent four short periods at that institution up until December 2003. Whilst he was at Reiby, and whilst first aged only 14, he alleges that he was sexually assaulted by one of the officers at that centre. Thereafter, when he reported the sexual assault, he was physically assaulted by another officer. Subsequently, on a number of occasions, more particularly detailed in his statement filed in these proceedings, he was subjected to various forms of sexual assault by officers and other employees of the juvenile justice centre. The plaintiff claims as a result of these sexual assaults that he has suffered injury, particularly mental harm.

5. A report from Associate Professor Michael Robertson, a psychiatrist, has been tendered on the present application. The report is a detailed one and resulted in Professor Robertson diagnosing the plaintiff as suffering from post-traumatic stress disorder, an alcohol use disorder, and a comorbid major depression. The plaintiff's present mental condition was said by Professor Robertson to derive not only from the sexual and other assaults whilst in the juvenile justice system but also as a result of his childhood and abuse that he there suffered, independently of the claims in the present proceedings. Nevertheless, Professor Robertson considered that the plaintiff's condition was contributed to, at least to the extent of 50%, by the sexual and other assaults sustained by the plaintiff within the juvenile justice system.

6. The plaintiff is currently remanded awaiting sentence for counts of possessing unregistered firearms, participating in a criminal group, acquiring a firearm part without authority, and cultivating a prohibited plant. Some of these offences are serious indictable offences.

7. The plaintiff sues the State of New South Wales on the basis that it owned and operated the Reiby Juvenile Justice Centre. The State is sued both on the basis of being directly negligent because of what it knew, or ought to have known, and the precautions it failed to take, and also on the basis that it is vicariously liable for the actions of the juvenile justice officer.

8. To obtain leave under s 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 those proceedings. The test was considered in Re Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17] in the joint judgment of Acting Chief Justice Allsop 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 from the report of Associate Professor Robertson, that the proceedings are not an abuse of process, and that there is a prima facie ground for those proceedings.

10. Accordingly, I make the following orders:

1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of NSW (2022/354317), with such orders made nunc pro tunc and taking effect from 24 November 2022.

2. Costs of the Motion be costs in the cause.

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