Gray v State of New South Wales

[2024] NSWSC 202

Supreme Court

New South Wales

Medium Neutral Citation:

Gray v State of New South Wales [2024] NSWSC 202

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 the filing of the statement of claim on 22 December 2023 nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act1981 (NSW).
(2) The plaintiff’s costs of this application are his 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:

Bradley John Gray (Plaintiff)

State of New South Wales (Defendant)

Representation:

Counsel:
J Georgaklis (Solicitor) (Plaintiff)
No appearance (Defendant)

Solicitors:
Slater + Gordon Lawyers (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2023/465529

EX TEMPORE JUDGMENT (revised)

1. This is an application for leave to be granted to commence the proceedings which were purportedly initiated by the filing of the statement of claim on 22 December 2023. Leave is sought nunc pro tunc under the provisions of ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) (the “Act”). While the notice of motion was not filed until 9 February 2024, 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 plaintiff moves on the affidavit of his solicitor, Ms Jessica Aird, affirmed on 8 February 2024. From Ms Aird’s affidavit, I am satisfied that when the proceedings were commenced, the plaintiff was (and is presently) in full-time custody, serving a term of imprisonment at the Compulsory Drug Treatment Correctional Unit for a serious indictable offence.

3. The plaintiff’s claim is one for sexual and physical abuse suffered by him at the Mount Penang Juvenile Centre, where he was incarcerated for the period between 6 May 1997 and 10 May 1997. His claim is that he was sexually abused by a juvenile justice officer during this period.

4. The averments upon which he relies are fully set out in the statement of claim and also in his evidentiary statement filed on 13 January 2024. His claim relies upon a breach of the State’s non-delegable duty as a gaoler which is owed to him as a person in the position of a prisoner at that time while a juvenile, as well as vicarious liability for the tort of the officer or officers involved.

5. It is clear from the statement of particulars filed with the statement of claim that in addition to the injury constituted by the sexual abuse inflicted upon him, the plaintiff relies very substantially on a psychiatric injury under Part 3 of the Civil Liability Act2002 (NSW). His claim in that regard is supported by the expert opinion of Dr Ash Takyar, consultant psychiatrist, in a report dated 31 October 2022. I have closely considered the content of Dr Takyar’s opinion for the purpose of this determination.

6. It is sufficient for me to say that the history recorded by Dr Takyar, as having been provided by the plaintiff, accords substantially with the averments advanced in the statement of claim and also with the contents of the evidentiary statement. Although the plaintiff’s psychiatric position is somewhat complicated, Dr Takyar is of the opinion that the plaintiff’s post-traumatic stress disorder and major depressive disorder, which he has diagnosed, are directly related to the sexual and other abuse relied upon by the plaintiff.

7. Having regard to this material and bearing in mind that the process in which the Court is involved is to be decided in a summary fashion in a broadly impressionistic way in accordance with the decision of the Court of Appeal in the Application of Malcolm Huntley Potier [2012] NSWCA 222, I am satisfied that if the averments in the statement of claim are made good by the evidence of the plaintiff, and the opinion of Dr Takyar is accepted, the plaintiff has prospects of success and to that extent, 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.

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

1. Leave is granted to commence the proceedings by the filing of the statement of claim on 22 December 2023 nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act1981 (NSW).

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

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