Georgiou v State of New South Wales

By summons filed on 15 September 2025, the plaintiff applies for leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (Felons Act) to commence civil proceedings against the State of New South Wales for the consequences of alleged child abuse consisting of sexual abuse which he says occurred while he was a pupil at a State public school in the Sydney metropolitan area. As is well-known, by dint of s 6A of the Limitation Act 1969 (NSW), the limitation period which would have otherwise applied to such matters has been abrogated. This is relevant because the allegation in the proposed statement of claim is that the abuse occurred between 1975 and 1978.

Notwithstanding the age of the claim, as it were, and the consideration that the plaintiff is, after the passage of time, unable to specifically identify the alleged abuser, I am required to consider the application for leave in accordance with the provisions of the Felons Act in the absence of the defendant, unless the defendant appears, applies for and is granted leave, which has not occurred in this case.

Under s 5 of the Felons Act, I am prevented from granting leave unless I am satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. In my mind, the concept of abuse of process as contemplated in s 5, given the absence of the defendant, does not, especially at this early stage, require me to conduct any inquiry into whether a defendant can have a fair trial of the type which may be necessary where a defendant moves the Court for a permanent stay or dismissal of the proceedings. It seems sufficient to me that I be satisfied that the proceedings are not vexatious in the sense that, on the material before me, I am satisfied that at a hearing of the matter there will be evidence available which, if accepted, is capable of making good the plaintiff's case.

I should say that there is no question that the Felons Act applies to the plaintiff as he is currently serving a sentence of imprisonment for murder, the non-parole period for which does not expire until 2030.

In exercising my discretion in accordance with s 4 of the Felons Act, it is not part of my duty to make any assessment of the actual merits of the case or attempt to predict the likely outcome of them. Those are matters to be determined appropriately after a fair trial has been had on consideration of all the evidence then available.

I am satisfied that if the evidence of the plaintiff is consistent with the averments in the statement of claim and the history given by him to Dr Justine Schelle, psychiatrist, it will be capable of satisfying a Court that the alleged abuse did in fact occur. From the report of Dr Schelle, which is annexed to the affidavit of Ms Kelly Keane, solicitor, affirmed on 12 September 2025, I am satisfied that, again, if the plaintiff's account is accepted after a final hearing, the abuse suffered by him as he alleges gave rise to, as a matter of legal causation, the recognised psychiatric condition of Post-Traumatic Stress Disorder, and that he suffers mild to moderate symptoms of that condition which has been untreated.

In the circumstances, I am affirmatively satisfied that the proceedings are not an abuse of process in the sense that I have discussed, and that there is prima facie ground for the proceedings supporting the statement of claim as pleaded. Part of the claim relates to the breach of a personal duty by the State as a school authority and vicarious liability for the tort of the perpetrator of the abuse. It also alleges that the State's non-delegable duties as a school authority has been breached by the infliction of the abuse.

I discussed with Mr Isackson of counsel whether that was maintainable in view of the decision of the High Court of Australia in New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 (Lepore), which the Court declined to reconsider for procedural reasons in Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349. He acknowledged that in Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72, the Chief Justice, Leeming JA and Ball JA affirmed, by dint of Lepore, the scope of a non-delegable duty does not extend to the intentional criminal conduct of third parties. However, it seems to me, as Mr Isackson submitted, that I should allow the proceeding to go forward containing those averments lest, in the meantime, there be a further application to the High Court to reconsider that aspect of Lepore and that further application enjoys success. It would be unfair to the plaintiff to deny him the opportunity to rely upon that concept should those contingencies come to pass.

For those reasons, I make the following orders: