Wilson v State of New South Wales [2024] NSWSC 334

Supreme Court New South Wales

Medium Neutral Citation: Wilson v State of New South Wales [2024] NSWSC 334 Hearing dates: 19 March 2024 Date of orders: 19 March 2024 Decision date: 19 March 2024 Jurisdiction: Common Law Before: Walton J Decision: (1) The plaintiff be granted leave to institute proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). (2) The costs are to be costs in the cause. Catchwords: CIVIL PROCEDUURE – application for leave under s 4 Felons (Civil Proceedings) Act 1981 – leave granted nunc pro tunc Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5 Category: Procedural rulings Parties: Thomas Wilson (Plaintiff) State New South Wales (Defendant) Representation: Counsel: M McGirr (Plaintiff) K Lawrence (Defendant)

Solicitors: Melinda Griffiths Lawyers (Plaintiff) Makinson d'Apice Lawyers (Defendant) File Number(s): 2023/138897 Publication restriction: Nil

JUDGMENT 1. On 1 May 2023, the applicant, Thomas Wilson commenced proceedings against the State of New South Wales as the first and only defendant by way of a Statement of Claim alleging historic sexual abuse whilst the applicant was the subject of detention in the Riverina Juvenile Justice Centre and the Orana Juvenile Justice Centre. 2. By a Notice of Motion filed on 12 February 2024, the applicant sought orders, in substance, giving leave for him to commence the civil proceedings by Statement of Claim to which I have referred. Because of the timing of the making of that application, the leave is sought to institute the proceedings nunc pro tunc. The application is supported by an affidavit of Alex Morrison, which annexes to it a report of Dr Martin Allan, a forensic psychiatrist, and a report setting out the criminal history of the applicant. 3. Two things should be mentioned at the outset about that report in the context of the present proceedings. The first is that the applicant gave a report to Dr Allan of the alleged offending. There is no evidentiary statement or other affidavit which has been put on in the proceedings the plaintiff in that respect. That may have potentially created difficulty in the proceedings going forward today, but the representative for the State, properly, in my view, took no objection to the matter proceeding on that basis, although reserved all rights to contest the account of the applicant as to historic sexual abuse. 4. The second matter arising from Dr Allan's report is that he diagnoses the plaintiff as having a generic susceptibility to mental illness, referring in that respect to his mother. Nonetheless, he finds that the plaintiff suffers schizophrenia and has issues with paranoia, delusional thinking, passivity, and auditory hallucinations which are consistent with the diagnosis that he has been given. He also identified a long-standing substance misuse problem with heroin and cannabis being his main long standing drugs of abuse. 5. In answering the question on the balance of probabilities, "What is the cause of the illness", Dr Allan stated: "I believe he would not have been as severely impacted to the degree he is if he had not been sexually assaulted on several occasions as have been outlined." 1. The "outline" to which Dr Allan refers is, of course, the report given by the plaintiff. There are some weaknesses in that conclusion in the way that it is presently expressed, but given the nature of the proceedings today, in my view, the opinion given sufficiently establishes that there is relevant connection between the events of which the applicant has reported of sexual assault, and the diagnosis which has been given. I say no more about that matter at this stage. 2. Lastly, annexed to the affidavit is, as I have mentioned, the criminal history report. The substance of that report is that parole was granted to the applicant in respect of his offending, which parole was revoked and the sentence for the primary offence extended to 22 June 2023. The primary offence to which I refer is the conviction for enter dwelling with intention to steal. I turn then to the relevant statutory provisions. 3. In my view, for the purposes of s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) ("the Act"), the plaintiff is a person who was convicted of a serious indictable offence, and the term of that imprisonment for that indictable offence, after revocation of parole extended, until a time after the filing of the Statement of Claim in these proceedings. It follows that the provisions of s 4 are activated and the applicant requires leave to institute the civil proceedings. 4. In my view, the applicant has satisfied the prerequisite conditions under s 5 of the Act for the grant of leave in that respect. I am satisfied in particular that the proceedings commenced by the plaintiff do not represent an abuse of process and there is a prima facie ground for the proceedings. 5. In summary, there is sufficient evidence before the Court to establish prima facie basis for an action in tort for historical sexual abuse with respect to the defendant bearing responsibility by vicarious liability. 6. In the result, I make the proposed orders in the Notice of Motion dated 12 February 2024 in the terms proposed in the Motion.

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