Citation: SY1 v State of New South Wales [2024] NSWSC 327
Court: Supreme Court of New South Wales
Date: 25 March 2024
Judge: Wright J
Background
The plaintiff, referred to as SY1, is a person who was in custody at the time of filing, having been convicted of a serious indictable offence. He brought civil proceedings for damages against two defendants: the State of New South Wales and the Anglican Diocese of Newcastle.
The plaintiff alleged that around the year 2000, when he was approximately 16 years old, he was detained at the Frank Baxter Youth Justice Centre under a six-month control order. During that period, he alleged he was sexually abused by a group of unidentified detention officers known as the "Target Squad," and also that a priest of the Anglican Church serving as chaplain at the Centre subjected him to sexual abuse. The Anglican Diocese was sued on the basis of its alleged responsibility for appointing and overseeing that chaplain.
The plaintiff filed a statement of claim on 10 November 2023 and simultaneously filed a notice of motion seeking two orders: leave under the Felons (Civil Proceedings) Act 1981 (NSW) to institute the proceedings (sought retrospectively), and a suppression order protecting his identity.
Legal Issues
- Whether leave should be granted, retrospectively (referred to by the Latin term "nunc pro tunc," meaning "now for then"), under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to permit a person in custody to commence civil proceedings for damages
- Whether a suppression and non-publication order should be made under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) to protect the plaintiff's identity throughout the proceedings
Decision
Leave under the Felons Act
Under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), a person in custody following conviction for a serious indictable offence cannot institute civil proceedings in any court without first obtaining leave. Section 5 requires the court to be satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the claim. The applicable standard, confirmed in Application of Malcolm Huntley Potier [2012] NSWCA 222, requires only that the claim is not hopeless or unarguable, assessed broadly rather than through detailed examination of evidence.
Wright J was satisfied that the material before the Court, which included the plaintiff's evidentiary statement, a victim impact statement, and a psychiatric report from Dr John Roberts dated 1 March 2023, established an arguable case. The judge acknowledged some timing issues arising from the plaintiff's criminal history but concluded these did not render the claim hopeless. Leave was accordingly granted nunc pro tunc, consistent with the authority in Jol v State of New South Wales (1998) 45 NSWLR 283, which confirms that retrospective leave is permissible where the preconditions are met.
Suppression order
Wright J granted the suppression and non-publication order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), relying on the ground in s 8(1)(c) that the order was necessary to protect the safety of a person, namely the plaintiff himself. The judge noted the psychiatric evidence of past suicidal ideation and attempts, and the fact that the alleged abuse occurred when the plaintiff was a child. While acknowledging the important principle of open justice, the Court found that the plaintiff's safety warranted departure from that principle. The order was extended to apply throughout the Commonwealth of Australia and to remain in force until the determination of the proceedings.
Orders Made
- Leave granted nunc pro tunc under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence the proceedings filed on 10 November 2023
- The plaintiff is to be referred to as "SY1" in all proceedings and documents, except as necessary for the proper conduct of the proceedings
- The proceedings are to be renamed SY1 v State of New South Wales
- The plaintiff's name and identity are suppressed under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on the ground that the order is necessary to protect the plaintiff's safety
- The suppression order applies throughout the Commonwealth of Australia
- The suppression order applies until the determination of the proceedings
- Costs of the motion are costs in the cause
Key Takeaways
- Under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), a person convicted of a serious indictable offence and in custody must obtain leave before commencing any civil proceedings, but that leave may be granted retrospectively (nunc pro tunc) where the statutory preconditions are satisfied.
- The threshold under s 5 of the Felons Act is a low one: the court is not required to conduct a detailed evidentiary analysis, but only to form a broad impression that the claim is not hopeless or unarguable and does not constitute an abuse of process.
- Psychiatric evidence of vulnerability, including past suicidal ideation, and the fact that alleged abuse occurred during the plaintiff's childhood, were sufficient to justify a departure from the principle of open justice in favour of a suppression order protecting the plaintiff's identity.
- Suppression orders made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) may be framed to apply throughout the Commonwealth, and may remain in force until the final determination of proceedings, with liberty to apply for further orders at that stage.
- Some factual uncertainty, such as timing questions arising from the plaintiff's criminal history, does not necessarily defeat a leave application under the Felons Act where the claim remains arguable overall.
Legislation and Cases Referenced
Legislation
- Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8(1)(c)
- Crown Proceedings Act 1988 (NSW), s 5
- Limitation Act 1969 (NSW), s 6A(2)
Cases
- Application of Malcolm Huntley Potier [2012] NSWCA 222
- Jol v State of New South Wales (1998) 45 NSWLR 283