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[2023] NSWSC 118

Butler v State of New South Wales

1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of NSW (2022/289375), with such orders made nunc pro tunc and taking effect from 28 September 2022. 2. An order that costs of the Motion be costs in the cause. 3. An order that the Justice Link record be amended to correct the plaintiff’s surname from Buter to Butler.

Catchwords

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff serving a sentence for serious indictable offence – where proceedings commenced before leave was sought – where plaintiff alleged he was sexually assaulted at two Juvenile Justice institutions – leave granted

Cases cited

  • Jol v State of New South Wales(1998) 45 NSWLR 283
  • Re Application of Malcolm Huntley Potier[2012] NSWCA 222

Legislation cited

  • Felons (Civil Proceedings) Act 1981 (NSW)

Judgment

  1. [1]

    The plaintiff seeks leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of New South Wales. The proceedings were commenced by the filing of a statement of claim on 28 September 2022. In that way, leave is sought nunc pro tunc.

  2. [2]

    In Jol v State of New South Wales (1998) 45 NSWLR 283, Sheller JA made clear (at 290) that the institution of proceedings without leave having been granted does not constitute a nullity but rather an irregularity which may be corrected at a later time.

  3. [3]

    The plaintiff was born on 18 April 1992. When he was aged 14 years, in October 2006, he was detained at Keelong Juvenile Justice Centre. Whilst there, he alleges he was sexually assaulted by being digitally penetrated by an officer there. He alleges further that in 2009, when he was aged 17, he was also sexually assaulted at Reiby Juvenile Justice Centre. The plaintiff claims, as a result of these sexual assaults, that he has suffered injury including mental harm.

  4. [4]

    A report from a psychiatrist, Dr Yvonne Skarbek, diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder, Substance Use Disorder and Anti-Social Personality Disorder, and said that the sexual abuse was a significant factor in the development of these disorders, and influenced his criminal record.

  5. [5]

    The plaintiff is currently incarcerated at the Metropolitan Remand Centre on convictions for manslaughter and two counts of dangerous driving occasioning grievous bodily harm.

  6. [6]

    The plaintiff sues the State of New South Wales on the basis that it owned and operated the Juvenile Justice Centres where he was subject to the assaults. The State is sued both on the basis of being directly negligent because of what it knew or ought to have known and the precautions it failed to take, and also on the basis that it is vicariously liable for the actions of the Juvenile Justice officers.

  7. [7]

    To obtain leave under s 4 of the Act, it is necessary for the plaintiff to show that the proceedings are not an abuse of process, and that there is a prima facie ground for bringing those proceedings. The test was considered in Re Application of Malcolm Huntley Potier [2012] NSWCA 222 at paragraph [17] in the joint judgment of Allsopp ACJ and Basten JA:

  8. [8]

    I am satisfied from the material, including the plaintiff's evidentiary statement of 17 November 2022, and from the report of Dr Skarbek that the proceedings are not an abuse of process and that there is a prima facie ground for those proceedings.

  9. [9]

    Accordingly, I make the following orders:

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.