Corey Delevante v State of New South Wales

The plaintiff moves on a Notice of Motion seeking leave to institute proceedings against the defendant pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) (“Felons Act”). The plaintiff commenced these proceedings without first obtaining a grant of leave and accordingly requests that leave be granted nunc pro tunc to cure that irregularity and to take effect from 11 March 2026.

The plaintiff reads the affidavit of his solicitor Kelly Keane, in support of the application. I am satisfied that the defendant’s representatives are aware of the application. I note that the defendant in such proceedings do not have a right of appearance: s 7 Felons Act. However, given the issue raised by the defendant’s representative that they did not see the notice of Motion until Friday of last week, the Court requested that the defendant’s representatives be contacted to inform the Court whether they sought leave to appear today. That contact was made. The defendant’s legal representatives indicated that they did not seek leave to appear today. I am satisfied I can proceed with the application.

The plaintiff alleges that he was the victim of sexual abuse whilst attending kindergarten at a public school. The particulars are set out in a Statement of Claim that was filed on 11 March 2026.

The plaintiff was assessed by Associate Professor Robertson, a psychiatrist, on 15 July 2025. Associate Professor Robertson states that the plaintiff’s childhood trajectory was severely and adversely affected by an incident of sexual abuse perpetrated by classroom teacher when the plaintiff was aged 5 or 6. It is opined that there appears to be significant post-traumatic derangement in the plaintiff’s personality development with the evolution of a significant conduct disorder which was likely the clinical manifestation of the psychopathological processes that would later evolve into a personality disorder and chronic PTSD.

Associate Professor Robertson diagnosed the plaintiff with the following conditions: persistent depressive disorder; substance use disorder characterised by methamphetamine abuse; and personality disorder with cluster B traits.

Under s 5 of the Felons Act, the Court may grant leave if satisfied that the proceedings are not an abuse of process and there is a prima facie ground for the proceedings. It is uncontroversial that leave can be granted retrospectively.

The relevant principles regarding the grant of leave pursuant to ss 4 and 5 of the Felons Act were considered by Wilson J in TS v The State of New South Wales [2021] NSWSC 1649 at [11]-[12]:

I am satisfied on the evidence that the proceedings are not an abuse of process and there is a prima facie a ground for the proceedings. I have come to that conclusion for the following reasons: Firstly, the solicitor on the record has deposed to investigating the plaintiff’s claim and forming the opinion that his claim has reasonable prospects of success based on provable facts and a reasonably arguable view of the law.

Secondly, the plaintiff has given a history of alleged abuse, the subject of these proceedings, to Associate Professor Robertson. That history was generally consistent with the instructions provided by the plaintiff to his solicitor.

Thirdly, there is a plausible chain of causation linking the psychiatric conditions with which the plaintiff has been diagnosed and the alleged abuse.

Fourthly, the plaintiff has identified with precision the person who allegedly abused him and identified an approximate date of the abuse, namely, in or about 2001, when the plaintiff was in kindergarten.

Accordingly, I make the following orders: