GP1 v State of New South Wales

[2023] NSWSC 1042

Supreme Court

New South Wales

Medium Neutral Citation:

GP1 v State of New South Wales [2023] NSWSC 1042

Hearing dates:

18 August 2023

Date of orders:

18 August 2023

Decision date:

18 August 2023

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [8]

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 – where proceedings are representative proceedings – leave granted

Legislation Cited:

Felons (Civil Proceedings) Act 1981

Government Sector Employment Act 2013

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

ST1 (P)
GP1 (P)
State of New South Wales (D) (in both matters)

Representation:

Counsel:
D Villa SC (P)
A Williams (D)

Solicitors:
Mills Oakley (P)
Makinson D’Apice (D)

File Number(s):

2023/209918

Publication restriction:

Not Applicable

JUDGMENT

1. By Notice of Motion dated 30 June 2023, the plaintiff in these representative proceedings seeks leave nunc pro tunc to commence and maintain these proceedings.

2. Section 5 of the Felons (Civil Proceedings) Act 1981 provides that the Court may grant such leave only if it is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings.

Satisfaction of section 5 matters

3. I am satisfied that there is a prima facie ground for the bringing of the proceedings pleaded and that the proceedings are not an abuse of process. I am so satisfied by reason of the following matters:

1. the terms of the pleading itself;

2. that in respect of conduct of the kind specified in the Statement of Claim, or else similar conduct, the alleged perpetrator has in fact been convicted with respect to some identified complainants, and

3. that the Minister for Corrections, on 28 July 2023, announced that the government had established an Inquiry under s 82 of the Government Sector Employment Act 2013 with the coercive powers of a Royal Commission, to examine and report on a number of terms of reference. These terms of reference include the adequacy of the systems of supervision and oversight that applied to the alleged perpetrator at the Dillwynia Women's Correctional Centre, whether any matters arising from the Inquiry should be referred to law enforcement or other agencies, and whether any employee other than the alleged perpetrator of Corrective Services NSW had knowledge or suspicion of his offending and what steps they took.

4. I note that the proceedings are representative proceedings and that the identified plaintiff is bringing the proceedings on behalf of a defined group.

5. I am informed that at present there are approximately 50 individuals who have identified themselves as potential members of the group. That fact is also relevant to a consideration as to whether or not, in this representative proceeding, there is any question of abuse of process or lack of a good prima facie ground for proceeding.

Conclusion

6. I am abundantly satisfied that this is a matter in which there ought be a grant of leave to the plaintiff known as GP1 to commence and maintain these proceedings.

Additional matter

7. I note that I am not called upon today to consider the application of the Felons (Civil Proceedings) Act to individual group members who might otherwise, should they commence proceedings on their own behalf, be required to obtain leave. That question can await another time.

Orders

8. Accordingly, I make these orders:

1. Grant leave nunc pro tunc to the plaintiff to institute and maintain these proceedings on her own behalf and on behalf of the group defined in the Statement of Claim.

2. Otherwise dismiss the Notice of Motion dated 30 June 2023.

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