Sexual Abuse Claimant in Custody Allowed to Sue

The court granted the claimant leave to commence and maintain civil proceedings against the defendant, despite the claimant being in custody for serious offences. The claimant alleged sexual abuse during his schooling years and sought compensation for damages incurred.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v [NAME] [2023] NSWSC 739 Hearing dates: 29 June 2023 Date of orders: 29 June 2023 Decision date: 29 June 2023 Jurisdiction: Common Law Before: Davies J Decision:

1. Pursuant to section 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 New South Wales (2023/85800), with such orders made nunc pro tunc.

2. An order that costs of the Motion be in the cause. Catchwords: CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff was in custody awaiting sentence for serious indictable offences at the time proceedings commenced – where proceedings commenced before leave was sought – where plaintiff alleged he was sexually assaulted by a teacher at school run by the defendant – leave granted Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW) s 4 Cases Cited: DP v Bird [2021] VSC 850 [NAME] v the State of New South Wales (1998) 45 NSWLR 283 Re Application of [NAME] [2012] NSWCA 222 Texts Cited: Nil Category: Procedural rulings Parties: [NAME] (Plaintiff) [NAME] (Defendant) Representation: Counsel: [redacted] [NAME] (Defendant) (By leave of the Court)

Solicitors: [redacted] [NAME] (Defendant) File Number(s): 2023/85800 Publication restriction: Nil

Judgment 1. The plaintiff seeks leave under s 4 of the Felons (Criminal Proceedings) Act 1981 (NSW) to commence proceedings against the [NAME]. The proceedings were commenced by the filing of a statement of claim on 15 March 2023. The notice of motion seeking leave was filed on 30 May 2023. In that way, leave is sought nunc pro tunc for the commencement of the proceedings.

2. In [NAME] v State of New South Wales (1998) 45 NSWLR 283, Sheller JA made clear (at p 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. The plaintiff was born in [DATE]. He attended [COMPANY] in Randwick from 2001 to 2004. [COMPANY] was run by the Marist Brothers. The plaintiff alleges that when he was in years 8 and 9, that is, in the years 2002 and 2003, he was sexually abused by one of the brothers at the school on a number of occasions.

4. His statement of claim alleges negligence directly against the Trustee for its failure to take various precautions which are set out in the statement of claim. There is also a claim made on the basis of the vicarious liability of the Trustee for the actions of the particular brother concerned.

5. The plaintiff acknowledges that the issue of vicarious liability in these circumstances remains somewhat unsettled, as far as religious communities are concerned, but points to a recent decision of the Victorian Supreme Court in DP v Bird [2021] VSC 850, a decision upheld on appeal, that the Roman Catholic Bishop of the Diocese of Ballarat was vicariously liable for child sexual abuse committed by an assistant parish priest against a child parishioner. The decision is not on all fours with the relationship between a brother and the Trustee of the Marist Brothers, but may no doubt be called in aid in support of the submission that vicarious liability exists. The matter is certainly arguable and the direct case of negligence against the Trustee for the failure to take steps and precautions against sexual abuse by brothers at the school is certainly arguable.

6. The plaintiff has been examined by a [NAME], who has prepared a report dated 14 May 2022. [NAME] diagnosed the plaintiff as suffering from a chronic adjustment disorder, an anxiety and depressive disorder and a substance use disorder, said to be in remission because of the controlled environment that he was in at the time [NAME] saw him. 7. [NAME] records in his report that the plaintiff told him that he had been sexually abused on one or two occasions when he was aged about 11 years in a park near his home. The sexual abuse asserted against the defendant occurred perhaps two to three years later. However, what appears in the plaintiff's evidentiary statement and what was reported to [NAME] indicates that the deleterious effects from the sexual assault did not occur until the plaintiff was at least in grade 10 at the school. At that time, he left [NAME] and went to another school, and thereafter left school altogether in grade 12.

8. It was shortly after that time that he appears to have commenced taking drugs which ultimately led to a life of crime since that time. The plaintiff has been incarcerated on a number of occasions for various serious offences.

9. At the time the statement of claim was filed, the plaintiff was seemingly on remand awaiting sentence which was imposed on 11 May 2023 but backdated to 4 December 2021 when, presumably, the plaintiff went into custody after being arrested. The offences for which he was sentenced occurred in October and December 2021 and included supplying a commercial quantity of a prohibited drug, supplying an indictable quantity of a prohibited drug, possessing identity information to commit an indictable offence, aggravated entering a dwelling in company with intent to steal, and driving a motor vehicle while his licence was suspended.

10. A non-parole period was imposed which expired on 3 June 2023 and the plaintiff was released to parole at or about that time. Nevertheless, at the time the statement of claim was filed he was in custody, and leave was required under the Act.

11. There will no doubt be issues of causation at the civil trial as a result of the earlier sexual abuse the plaintiff suffered. 12. [NAME] said that the sexual abuse was a material and significant cause of the plaintiff's chronic adjustment disorder, which has been part of the cause at least of his drug use and his criminal convictions. [NAME] said the two different perpetrators of the sexual abuse had a significant impact on the plaintiff, and it was difficult to distinguish between the two in terms of impact.

13. There is, nevertheless, at least an arguable case that the sexual abuse alleged against the present defendant was the cause of, or contributed to, the injuries and disabilities from which the plaintiff has suffered subsequent to the time of that abuse.

14. 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 [NAME] [2012] NSWCA 222 at [17] in the joint judgment of Allsop ACJ and Basten JA as follows: Taken literally, that limb of the test refers to a claim which at first sight and without investigation appears to be a "ground". Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading. The purpose of the legislative scheme was, in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 that a convicted felon could not sue at law or in equity. On the other hand, the purpose of the statute was to permit the court to ensure that neither it nor prospective defendants were subjected to proceedings which were an abuse of process or which lacked any real merit: [NAME] v State of New South Wales (1998) 45 NSWLR 283 at 286E (Sheller JA, Beazley JA and Sheppard AJA agreeing). As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not "hopeless" or "unarguable". Different expressions used from time-to-time do not indicate any difference in the standard to be applied.

1. I am satisfied from the material, including the plaintiff's evidentiary statement and the report of [NAME], that the proceedings are not an abuse of process and that there is a prima facie ground for those proceedings.

2.

Accordingly, I make the following orders:

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 New South Wales (2023/85800), with such orders made nunc pro tunc.

2. An order that costs of the Motion be in the cause.

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