McDonald v State of New South Wales

Category: Procedural rulings

Parties: Lee Sam Dwayne McDonald (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
P Creed (Plaintiff)
A Charchar (solicitor) (Defendant)
Solicitors:
Slater + Gordon Lawyers (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s): 2025/00332655

Publication restriction: Nil.

EX TEMPORE JUDGMENT (REVISED)

1. By statement of claim filed on 29 August 2025, the plaintiff purported to sue the State of New South Wales for harm, falling within the definition of child abuse, under s 6A of the Limitation Act 1969 (NSW) (Limitation Act). The particular abuse relied upon is two counts, if I may put it that way, of sexual abuse giving rise to psychological harm as well as the physical injury involved.

2. The incidents are alleged to have occurred, first, at the Cobham Juvenile Justice Centre probably in or about the year 2000 and, secondly, at Reiby Juvenile Justice Centre also in or about the year 2000. The statement of claim that has been filed in these proceedings seems to rely principally upon the negligence of the then Director-General of the Department of Attorney General and Justice (Director-General) who had statutory responsibility for juvenile detention centres.

3. It is said that the Director-General owed a non-delegable duty of care to the plaintiff. It is also said that the State of New South Wales is vicariously liable for the negligence of the Director-General, but there does not appear to be any averment alleging that the State is vicariously liable for the tort of either of the two officers involved in the alleged abuse.

4. The statement of claim was filed contrary to the provisions of the Felons (Civil Proceedings) Act 1981 (NSW) (Felons Act) because it was filed without leave and the plaintiff was (and presently is) in custody serving a term of imprisonment for a serious indictable offence for which he was convicted in the District Court. On the evidence before me, his non-parole period does not expire until 23 December 2025, and accordingly, it is necessary, if the proceedings are to be maintained, for the plaintiff to obtain leave pursuant to the provisions of ss 4 and 5 of the Felons Act.

5. It is well established that leave under the Felons Act may be granted nunc pro tunc, in accordance with the decision of Jol v State of New South Wales (1998) 45 NSWLR 283. Having said that, the preferred practice of the Court, especially given the abolition of the limitation period which would otherwise apply by the application of s 6A of the Limitation Act, is that proceedings for leave should be brought by summons prior to the commencement of the proceedings. However, Ms Charchar, solicitor, who appears for the State pursuant to leave sought and granted by me, takes no point about that, and I cannot conceive for myself of any forensic prejudice the defendant might have suffered by the filing of the statement of claim in advance of the motion seeking leave.

6. The plaintiff has given an account of the sexual abuse and the consequences suffered by him to Dr Ash Takyar whose detailed psychiatric report of 9 May 2023 is annexure D to the affidavit of Ciara White, solicitor, affirmed on 3 October 2025 and read in support of the application.

7. I am not empowered to grant leave unless I am satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for them. It is important to emphasise that it is not necessary for me to make any assessment of the merits of the plaintiff's case when considering the application of the provisions of s 5 of the Felons Act. Dr Takyar, having received a relevant history consistent with the factual averments contained in the statement of claim, has diagnosed that the plaintiff is suffering from the recognised psychiatric condition of Post-Traumatic Stress Disorder, and perhaps Major Depression, and that the alleged abuse is a necessary condition of those recognised psychiatric conditions. While there may well be strong argument about the matter when it finally comes on for hearing, it does seem to me that a prima facie case has been established by the evidence, in as much as I am satisfied that at the hearing there will be evidence from the plaintiff and Dr Takyar which, if accepted, is capable of establishing the cause of action relied upon.

8. There are likely to be legal issues concerning whether or not the scope of a non-delegable duty of care extends to legal liability for the intentional criminal acts of another in accordance with the decision of the High Court of Australia in New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4. The correctness of that decision was challenged in the more recent decision of Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 by way of a notice of contention. But, for procedural reasons, the High Court declined to consider the contention. It remains that courts in this State are bound by the earlier decision. However, given the possibility of a reconsideration of the principle at some time before the matter is finalised, I think it appropriate that any leave I grant should also extend to the averments going to the existence of a non-delegable duty.

9. In the circumstance that the State is not objecting nor consenting to the application for leave, I am satisfied that it is appropriate for me to grant leave in accordance with the provisions of s 4 of the Felons Act. I repeat, such a determination says nothing about the strength or weakness of the plaintiff's case nor the likely outcome of it in due course. For these reasons my orders are:

10. 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 this Court nunc pro tunc taking effect from 29 August 2025.

11. Costs of the motion are costs in the cause.

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