Stoeski v State of New South Wales

1. [1]

   The plaintiff commenced proceedings on 9 June 2023 in this Court seeking damages as a result of physical and sexual abuse which he claimed that he sustained whilst a high school student at Tempe High School in 2002.

2. [2]

   He claims as a result of that abuse that he has suffered various forms of psychological injury set out in his unsigned statement that is annexed to the affidavit of Alexander Morrison sworn 20 July 2023, as well as in the statement of particulars filed on 9 June 2023 on his behalf, and in the complaints he has made to psychiatrist, Dr Martin Allan, when he was assessed by Dr Allan on 19 May 2023.

3. [3]

   The plaintiff was convicted of manslaughter in March 2022 and was sentenced to a total effective sentence of 5 years and 6 months imprisonment with a non-parole period of 4 years and one month. That offence is a serious indictable offence under the Crimes Act 1900 (NSW).

4. [4]

   Section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“Felons Act”) provides that a person who is in custody as a result of having been convicted of a serious indictable offence may not institute any civil proceedings in any court except by leave of the Court. As a result of being imprisoned for that serious indictable offence, the plaintiff in the present case needs to obtain leave under the Felons Act for the commencement of the proceedings.

5. [5]

   In SW v State of New South Wales [2010] NSWSC 966 Johnson J held at [14] and [15] that leave under s 4 may be sought nunc pro tunc and that the commencement of proceedings without a grant of leave does not render those proceedings a nullity, rather, those proceedings suffer from an irregularity which the Court can, in an appropriate case, cure by grant of leave nunc pro tunc.

6. [6]

   Section 5 of the Felons Act provides that the Court is not to grant leave unless the Court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings.

7. [7]

   The application is supported by an affidavit from the solicitor for the plaintiff, Mr Morrison, sworn 20 July 2023. The solicitor details on his information and belief, the plaintiff's allegations as to being the victim of sexual abuse while a student at Tempe High in the period that I have mentioned. The solicitor annexed the evidentiary statement from the plaintiff and the report of Dr Allan.

8. [8]

   Dr Allan has diagnosed the plaintiff as suffering from persistent depressive disorder, post-traumatic stress disorder, antisocial personality disorder and polysubstance misuse. He has provided an analysis of the plaintiff's early life and associated trauma and concluded that:

9. [9]

   In my opinion, the material in Dr Allan's report provides at least prima-facie evidence that the plaintiff has a cause of action and that the cause of action does not constitute an abuse of process. It should therefore be permitted to proceed against the defendant.

Orders

1. [10]

   Accordingly, I make the following order: the plaintiff is granted leave nunc pro tunc under s 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings against the defendant.