Goodbun v State of New South Wales

HIS HONOUR: The plaintiff, by summons filed in this Court on 2 June 2023, seeks an order pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) that the plaintiff be granted leave to commence his civil proceedings in this Court.

The plaintiff is in custody having been convicted of a serious indictable offence. In 2016, he was convicted of murder and other serious offences which, unsurprisingly, constitute a serious indictable offence within the relevant definition.

The result of those circumstances is that pursuant to s 4 of the Felons (Civil Proceedings) Act, he is required to have leave of the Court before instituting proceedings seeking damages for harm occasioned to him.

Section 5 of the Felons (Civil Proceedings) Act provides as follows:

The plaintiff’s solicitor has filed an affidavit in which he states he has instructions that the plaintiff was a victim of serious abuse whilst a student at the Toronto West Public School. It is unnecessary to canvass the detail of the plaintiff’s instructions to his solicitors in relation to the events of which he complains and which would form the basis of his claim against the defendant.

I note that evidentiary statements of the plaintiff have been annexed to the solicitor’s affidavit. There is, additionally, a medical report which relates to the harm allegedly suffered by the plaintiff as a result of acts for which the plaintiff says the defendant is responsible.

There is no issue, certainly at this stage, that the defendant is an appropriate defendant in the context of the events which were alleged to have taken place in the context of the public schooling environment.

The ’plaintiff’s solicitor in his affidavit states that, based on his investigations into the plaintiff’s claim, he has formed the opinion that the claim has reasonable prospects of success based on proof of facts and a reasonably arguable view of the law.

The plaintiff’s solicitor notes that the particular claim falls within the relevant exemption of the Limitation Act 1969 (NSW) such that it is not statute barred.

The defendant has appeared before me this morning and has indicated that it neither consents nor opposes the grants of leave. It was submitted on the defendant’s part that each party should bear its own costs on the application. In response, the plaintiff submits that the present step was, in the circumstances, a necessary step in the litigation. I accept the plaintiff’s submission in that regard. I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings. In those circumstances, costs should be in the cause.

Accordingly, I make the following orders: