Pizarro v State of New South Wales

The plaintiff has filed a summons seeking leave to commence proceedings against the defendant for damages for personal injuries he allegedly suffered as a result of a sexual assault he claims to have been the victim of whilst detained in Reiby Juvenile Justice Centre. That assault is alleged to have occurred in 1994.

As the plaintiff is currently incarcerated at the Macquarie Correctional Centre, having been convicted in 2017 of charges of aggravated sexual assault (a serious indictable offence), he requires leave to commence these proceedings under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).

The plaintiff has provided a statement to his solicitors in which he sets out his recollection of the events about which he complains, in some detail. He has identified a possible name for the alleged perpetrator and has expressed a clear memory that the perpetrator was an officer then employed to work at the Reiby Juvenile Justice Centre.

The statutory power to grant leave to the plaintiff to commence his proceedings is contained in s 4 of the Act:

To exercise that power, I must be satisfied of the statutory preconditions provided for in s 5 of the Act:

The principles to be applied in the exercise of this discretion were considered by Wilson J in TS v The State of New South Wales [2021] NSWSC 1649 at [11]-[12]. I note and adopt that useful summary.

To similar effect are the observations of Leeming J in Potier v Attorney General (NSW) [2015] NSWCA 129 at [57] where his Honour noted:

The plaintiff has relied on an affidavit sworn by his solicitor, Thomas Wallace-Pannell, affirmed on 10 November 2025, which annexes the plaintiff's criminal history, a statement prepared by the plaintiff, the plaintiff's custodial history (which establishes that he was incarcerated at the Reiby Juvenile Justice Centre at the time of the alleged assault), and a report prepared by Dr Sathish Dayalan, a forensic psychiatrist, dated 21 February 2025.

Dr Dayalan's report includes a record of the history provided by the plaintiff, which is broadly consistent with that as set out in his statement. Dr Dayalan has expressed an opinion that the plaintiff experiences a range of mental health challenges (including post-traumatic stress disorder) and has expressed the further view that the alleged assault "was a precipitating factor for his PTSD and substance use disorder and contributed to his psychiatric conditions."

Having reviewed the material in support of the summons, I am satisfied that the claim is not an abuse of process and that there are prima facie grounds for the civil action contemplated. I have been informed that the defendant has been notified of this application and has not appeared.

In these circumstances, I make the following orders: