Potoczko v State of New South Wales

This is an application filed by the plaintiff for leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“Felons Act”).

He is a prisoner presently in custody, having been convicted of and now serving a sentence for armed robbery. This is a serious indictable offence as defined by s 4 of the Crimes Act 1900 (NSW).

Because of his conviction, s 4 of the Felons Act applies to the plaintiff, and he requires leave of the Court to initiate proceedings under the Civil Procedure Act 2005 (NSW). Section 4 of the Felons Act is in these terms:

In support of his application for the Court's leave, the plaintiff relies upon an affidavit of his solicitor, John McManis affirmed on 16 June 2022.

The defendant neither consents to nor opposes a grant of leave and informed the Registrar accordingly at the Directions Hearing before her on 23 June 2022.

The documentary evidence establishes that by oversight the plaintiff's solicitor filed a statement of claim on behalf of the plaintiff on 27 April 2022, without having first sought the leave of the Court to do so.

The plaintiff seeks damages from the defendant for sexual abuse he says he was subjected to in 2009 or 2010 when he was incarcerated at the Frank Baxter Unit in Gosford, New South Wales.

He sues the State of New South Wales for a breach of its non-delegable duty of care to him, as well as alleging it is vicariously liable for the conduct of an employee, whom he identifies as a youth officer, who approached him in his room, at about 8 or 8:30pm, where he had been smoking, and forced him to perform various sexual acts, and threatened him and punched him. A physical description is given of the individual who sexually assaulted him and assaulted him.

Appended to the affidavit of Mr McManis is an unsigned statement of the plaintiff, setting out his allegations of abuse, and in broad terms, the effect that abuse has had on him and his health and his life. A Statement of Particulars has also been filed.

Section 5 of the Felons Act provides for the grant of leave to a felon to commence civil proceedings in these terms:

This means that there are two statutory prerequisites to a grant of leave. The first is that there is a prima facie ground for the proceedings, and the second, that the proceedings are not an abuse of process.

Proceedings that are not entirely hopeless would satisfy both these tests; see Application of Malcolm Potier [2012] NSWCA 222 at [17] per Allsop ACJ and Basten JA.

It is neither necessary nor possible for the Court to make an assessment of the merits of the plaintiff's claim at this early stage. What is required is that the Court form a broad impression as to whether the claim is an arguable one.

Based on the allegations in the statement of claim and the material in the unsigned statement, I am of the view that the claim is arguable. There is certainly no basis upon which to conclude that it is an abuse of process.

Leave is sought retrospectively, but that is not fatal. This point was considered in Jol v State of New South Wales (1998) 45 NSWLR 283; (1998) 104 A Crim R 516, where Sheller JA with the concurrence of Beazley JA and Sheppard AJA said, at [290B]:

It is appropriate to grant the leave sought, but it needs to be effective from the date the statement of claim was filed, namely, 27 April 2022, and that will regularise the irregularity of the filing of the claim, filed as it was without leave being sought at that time.

Accordingly, I make the following orders: