TS v The State of New South Wales

1. [1]

   HER HONOUR: This is an application for leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Felons Act”) filed by the plaintiff, Ms TS.

2. [2]

   Ms TS is a prisoner presently in custody having been convicted of, and now serving a sentence for, manslaughter. Manslaughter is an offence contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) and it carries a maximum penalty upon conviction of 25 years imprisonment. It is a “serious indictable offence” as defined by s 4 of the Crimes Act.

3. [3]

   Because of her conviction for manslaughter s 4 of the Felons Act applies to the plaintiff and she requires the leave of the Court to initiate proceedings under the Civil Procedure Act 2005 (NSW). Section 4 is in these terms:

4. [4]

   In support of her application for the Court’s leave, the plaintiff relies upon two affidavits of her solicitor, Luke Geary, sworn on 2 November 2021 and 4 November 2021; together with an affidavit of Detective Sergeant (“DS”) Joshua Palmer sworn on 9 November 2021.

5. [5]

   The defendant neither consents to nor opposes a grant of leave.

6. [6]

   The Court has been assisted by the plaintiff’s written submissions.

The Evidence

1. [7]

   The documentary evidence establishes that, by oversight, the plaintiff filed a Statement of Claim on 6 August 2021 without having sought the leave of the Court to do so. Her Claim seeks damages payable by the defendant for intentional torts she asserts were committed upon her by an employee of New South Wales Corrective Services in 2016 and 2017, at a time when she was an inmate of a correctional centre operated by the State.

2. [8]

   The plaintiff alleges that the employee sexually assaulted her on a number of occasions. The conduct is said to constitute assault, battery, and false imprisonment, causing the plaintiff significant damage. The plaintiff sues the State as both directly and vicariously liable for the conduct of its employee. She seeks damages, aggravated damages, and exemplary damages.

3. [9]

   In October 2018 the plaintiff made a statement to police concerning her allegations and fourteen criminal charges are pending against the employee with respect to the allegations. DS Palmer deposes that the employee is to stand trial in the District Court of New South Wales on 25 July 2021 for these and other offences.

Determination

1. [10]

   Section 5 of the Felons Act provides for the grant of leave to a felon to commence civil proceedings. It is in these terms:

2. [11]

   Thus, there are two statutory pre-requisites to a grant of leave: prima facie there is a ground for the proceedings; and the proceedings are not an abuse of process. Those two criteria present a relatively low threshold: SW v State of New South Wales [2010] NSWSC 966. See also Mr D v Ms P [2020] NSWCA 174.

3. [12]

   A ground which is, on its face, arguable and thus not entirely hopeless, should satisfy both, since an arguable claim is not ordinarily an abuse of process. The test was considered in Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17], where Allsop ACJ and Basten JA said:

4. [13]

   It is neither necessary nor possible, for the Court to make an assessment of the merits of the plaintiff’s claim; what is required is that the Court “form a broad impression” as to whether the claim is an arguable one. The plaintiff’s detailed police statement of 10 October 2018, together with information as to the circumstance of the employment of the alleged abuser and the role he had within the Corrections system, lead me to conclude that the Claim is arguable. There is no basis upon which to conclude that it is an abuse of process.

5. [14]

   Perhaps a little unusually, the Court’s leave is sought retrospectively, since the Claim has already been filed. That does not, however, invalidate the claim.

6. [15]

   The point was considered in Jol v State of New South Wales (1998) 45 NSWLR 283; (1998) 104 A Crim R 516, where Sheller JA, with the concurrence of Beazley JA and Sheppard AJA, said, at 290B:

7. [16]

   In the impressionistic way discussed in Malcolm Potiers I am satisfied that the Statement of Claim filed by the plaintiff on 6 August 2021 is not an abuse of process, and there is prima facie ground for the proceedings. It is appropriate to grant that leave, effective from 6 August 2021, regularising the irregularity of the filing of the Claim.

8. [17]

   The orders the Court makes are:

   1. (1)

      Leave is granted to the plaintiff under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) allowing her to institute Supreme Court of New South Wales civil proceedings 2021/00231701, with this order taking effect from 6 August 2021.

   2. (2)

      The plaintiff is directed to file and serve, by email to the Associate to Wilson J, by 12pm on 15 December 2021, draft short minutes of order reflecting order 1, for execution by the Court.