Snow v State of New South Wales

The plaintiff seeks leave under section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of New South Wales.

The proceedings were commenced by the filing of a statement of claim on 5 February 2022. In that way, leave is sought nunc pro tunc.

Leave nunc pro tunc and see Jol v State of New South Wales (1998) 45 NSWLR 283 where Shellar JA made clear (at 290) that the institution of proceedings without leave having been granted does not constitute a nullity but rather an irregularity which may be corrected at a later time.

The plaintiff, who was born in March 1994, attended Singleton Primary School from 1999 to 2005. He alleges that when he was in Year 5 in 2004 he was part of a school trip to the Great Aussie Bush Camp. He claims that on a night at that camp he and some other boys engaged in some inappropriate behaviour for which they were to be disciplined. The teacher concerned asked him to clean up the mess that they had created, and then required the plaintiff to accompany the teacher to the shower block where the teacher sexually assaulted him in a number of different ways.

The plaintiff claims, as a result of the sexual assaults, that he has suffered injury including mental harm. A report from a Dr John Albert Roberts of 25 May 2022 indicates that the plaintiff has been diagnosed as suffering from post-traumatic stress disorder, substance use disorder, and a personality disorder, all said to have resulted from the sexual assault.

The plaintiff sues the State of New South Wales by reason of the fact that he was attending a State primary school. The State is sued both on the basis of being directly negligent, because of what it knew or ought to have known and the precautions it failed to take, and also on the basis that it is vicariously liable for the actions of the teacher.

To obtain leave under section 4 of the Act, it is necessary for the plaintiff to show that the proceedings are not an abuse of process and that there is a prima facie ground for bringing those proceedings. The test was considered in Re Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17] by Allsop ACJ and Basten JA:

The supporting affidavit of the solicitor for the plaintiff John McManis indicates that the plaintiff is currently incarcerated at Cooma Correctional Centre for an offence of police pursuit and reckless wounding. Reckless wounding is an offence which carries a maximum penalty of 10 years imprisonment and is, accordingly, a serious indictable offence.

I am satisfied from the material, including the plaintiff's evidentiary statement of 9 March 2022 and the report of Dr Roberts, that the proceedings are not an abuse of process and that there is a prima facie ground for those proceedings. Accordingly, I make the following orders: