Curtis v State of New South Wales

[2024] NSWSC 199

Supreme Court

New South Wales

Medium Neutral Citation:

Curtis v State of New South Wales [2024] NSWSC 199

Hearing dates:

4 March 2024

Date of orders:

4 March 2024

Decision date:

04 March 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Leave is granted to commence the proceedings by statement of claim filed on 15 November 2023 under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) nunc pro tunc.

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

Catchwords:

CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success

Legislation Cited:

Civil Liability Act 2002 (NSW), Part 3

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

Cases Cited:

Application of Malcolm Huntley Potier [2012] NSWCA 222

Jol v New South Wales (1998) 45 NSWLR 283

Category:

Procedural rulings

Parties:

Jed William Curtis (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
B Williams (Plaintiff)
A Skinner (Solicitor) (Observing)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Minter Ellison (Defendant)

File Number(s):

2023/363384

EX TEMPORE JUDGMENT (revised)

1. This is an application for leave to be granted nunc pro tunc to commence proceedings purportedly initiated by the statement of claim filed on 15 November 2023. The application is brought under ss 4 and 5 of the Felons (Civil Proceedings) Act1981 (NSW) (the “Act”). The notice of motion seeking leave was filed on 7 February 2024 and it is well established that leave under the Act may be granted nunc pro tunc: Jol v New South Wales (1998) 45 NSWLR 283.

2. The applicant moves on the affidavit of his solicitor, Aadil Ahmed sworn on 7 February 2024. When proceedings were commenced on 15 November 2024 the plaintiff was serving the custodial portion of a sentence of imprisonment, but he has since been released to his parole in December 2023. As Mr Williams of counsel, who appears on his behalf, correctly points out, notwithstanding the consideration he is currently at conditional liberty, because he was in full-time custody when the proceedings were commenced, leave under the Act is still required.

3. The plaintiff’s claim is one for sexual and physical abuse suffered by him at a state high school on the South Coast when he was a student there in 2014. At the time of the alleged abuse, he was aged about 16 and it is his case that he was sexually abused by a teacher at the school who is named and identified in the statement of claim.

4. The averments upon which he relies are pleaded fully and his case is framed in both a breach of the non-delegable duty owed by the defendant as a school authority to him as a pupil, and by way of vicarious liability for the tort, in particular, of the perpetrator.

5. It is clear from the statement of particulars filed on 15 November 2023 with the statement of claim that in addition to the physical abuse constituted by the acts alleged in the statement of claim, the plaintiff relies upon psychiatric injury under Part 3 of the Civil Liability Act 2002 (NSW). His claim in that regard is supported by the expert report of Dr Martin Robertson, a consultant psychiatrist dated 26 September 2023. I have read Dr Robertson’s report closely for the purpose of this application. It is sufficient for me to say that the history recorded by Dr Robertson, as provided to him by the plaintiff, accords substantially with the allegations contained in the statement of claim.

6. As is not uncommon in these cases the plaintiff’s psychiatric position is a little complicated, but Dr Robertson is of the opinion that the plaintiff’s chronic post-traumatic stress disorder, chronic schizophrenia and personality disorder have a direct relationship by way of cause or material contribution to the alleged sexual and physical abuse relied upon.

7. Having regard to the material to which I have referred and bearing in mind that the process involved is to be decided in a summary fashion in a broad and impressionistic way in accordance with the Court of Appeal’s decision in the Application of Malcolm Huntley Potier [2012] NSWCA 222, I am satisfied that if the evidence of the plaintiff at a hearing measures up to the history provided by him to Dr Robertson and the opinion of Dr Robertson is accepted, the plaintiff has prospects of success and to that extent, therefore, I am satisfied that the proceedings are not an abuse of process within the meaning of the Act and that there is a prima facie case disclosed by the material before me. I observe that in this context an abuse of process does not refer to the question of whether the defendant can have a fair trial, having regard to the defendant’s limited rights at this stage under s 7 of the Act.

8. For these reasons, I make the following orders:

1. Leave is granted to commence the proceedings by statement of claim filed on 15 November 2023 under ss 4 and 5 of the Felons (Civil Proceedings) Act1981 (NSW) nunc pro tunc.

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

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