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[2023] NSWSC 1533

G4P8 v State of New South Wales

See [9]

Catchwords

CIVIL PROCEDURE – commencement of proceedings – leave to commence pursuant to Felons (Civil Proceedings) Act 1981 – leave granted – orders for suppression of plaintiff’s identity made

Cases cited

  • Potier v The Attorney General for the State of New South Wales[2015] NSWCA 129

Legislation cited

  • Felons (Civil Proceedings) Act 1981
  • Court Suppression and Non-publication Orders Act 2010

Judgment

  1. [1]

    The plaintiff filed a notice of motion on 29 November 2023 seeking orders pursuant to s 4 of the Felons (Civil Proceedings) Act 1981, and orders pursuant to the Court Suppression and Non-publication Orders Act 2010.

  2. [2]

    A statement of claim was filed in this Court on 13 November 2023, but because the plaintiff is in custody having committed a serious indictable offence, he requires leave to continue with the proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act 1981.

  3. [3]

    Section 5 of that Act provides that a Court shall not grant leave to a person to institute proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. Thus the plaintiff has to satisfy me of two matters as Leeming JA said in Potier v The Attorney General for the State of New South Wales [2015] NSWCA 129 at [57]:

  4. [4]

    Mr Williamson, who appears for the plaintiff in these proceedings and mentions the matter on behalf of Ms Whittle of Norton Rose Fulbright who appears for the defendant, read an affidavit of Ms Melinda Griffiths, affirmed on 29 November 2023.

  5. [5]

    I observe that that affidavit satisfies me of the two matters set out in Potier, that is that the proceedings are not an abuse of process and that there are prima facie grounds for them.

  6. [6]

    The defendant neither consents nor opposes the application for leave pursuant to the Felons (Civil Proceedings) Act 1981, and I therefore propose to grant that leave.

  7. [7]

    As to the order pursuant to the Court Suppression and Non publication Act 2010, the plaintiff seeks that his identity be suppressed on the grounds set out in s 8(c) of that Act, i.e., that the order is required for the safety of the plaintiff. I do not propose to repeat in this judgment the evidence upon which Mr Williamson relies. I am also satisfied that the orders should be in place for the period nominated by the plaintiff and should apply across the country.

  8. [8]

    I accept that that is made out and that, balanced against the primary objective of the administration of justice being open justice, it is appropriate to make the orders that are sought by the plaintiff in these proceedings.

  9. [9]

    I make the following orders:

    1. (1)

      Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981, the plaintiff is granted leave, nunc pro tunc, to commence and maintain proceedings against the State of New South Wales, as set out in the statement of claim which was filed on 13 November 2023.

    2. (2)

      Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, the identity of the plaintiff is to be suppressed on the grounds that the order is required for the safety of the plaintiff. Pursuant to ss 10 and 11 of the Court Suppression and Non-publication Orders Act 2010 the orders are to apply throughout the Commonwealth of Australia for the life of the plaintiff.

    3. (3)

      I make the following further orders pursuant to the Court Suppression and Non-publication Orders Act 2010:

    4. (4)

      Costs be cost in the cause.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.