Skimmings v State of New South Wales

HIS HONOUR: In this matter the plaintiff has commenced proceedings in this Court by way of a statement of claim filed 30 January this year. In that claim he seeks damages arising from an allegation of abuse, which is alleged to have been occasioned at a time when he attended a public school in the Tweed Heads area. The plaintiff alleges that the abuse was occasioned by a teacher, who was in the position of the plaintiff’s supervisor and it is asserted that he was, as a result, the agent of the defendant.

At the time of the institution of proceedings the plaintiff was in custody. He has since been found to have committed a serious indictable offence of assault occasioning actual bodily harm. Accordingly pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Act”), he is required to have leave of the Court before such proceedings are instituted.

A notice of motion seeking orders for leave was filed on 31 March 2022. The application seeks leave to proceed as if leave had been sought at the time the proceedings were instituted by the statement of claim. It is established that leave can be granted nunc pro tunc, which in essence means that leave can be granted as if it had been granted at the time of the institution of the proceedings. Section 5 of the Act provides:

The plaintiff’s solicitor has affirmed an affidavit in which he states he has been instructed that in approximately 1993 or 1994, when the plaintiff was about 10 years old, while a student at Tweed Heads South Public School, he was sexually abused by a teacher at a school camp. The statement of claim contains allegations of negligence and asserts the defendant is also vicariously liable for the injuries occasioned to the plaintiff.

The defendant has advised the Court by email, through its legal representative, that it neither consents to nor opposes the grant of leave on the basis that the parties bear their own costs on the application.

I am satisfied that the proceedings are not an abuse of process and there are prima facie grounds to commence proceedings.

I make the following orders: