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[2022] NSWSC 718

Matthews v State of New South Wales

1. Leave granted to representative of defendant to appear. 2. The Plaintiff is granted leave nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 to institute proceedings against the Defendant in the form contained in the Statement of Claim filed 3 March 2022. 3. Each party is to bear their own costs of the Notice of Motion

Catchwords

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – by person serving a sentence for a serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused when held on remand at juvenile justice centre – leave granted

Cases cited

  • Application of Malcolm Huntley Potier[2012] NSWCA 222
  • Jol v State of New South Wales(1998) 45 NSWLR 283

Legislation cited

  • Crimes Act 1900 (NSW) § 4, 33, 35
  • Felons (Civil Proceedings) Act 1981 (NSW) § 4, 5

Judgment

  1. [1]

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

  2. [2]

    The proceedings were commenced by the filing of a statement of claim on 3 March 2022. In that way the leave is sought nunc pro tunc. Leave nunc pro tunc may be granted: see Jol v State of New South Wales (1998) 45 NSWLR 283, where Sheller 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.

  3. [3]

    The plaintiff claims that he was committed in 2006 as a young person to the Cobham Remand Centre at Werrington. He alleges that on his admission to the centre he was sexually abused by a youth officer at the centre. He claims to have suffered injury, including mental harm, as a result of the sexual abuse.

  4. [4]

    He sues the State of New South Wales by reason of the fact that the Cobham Remand Centre was run and operated by the Department of Juvenile Justice New South Wales. The claim made against the State is for the direct negligence of the State through those who ran the remand centre and also vicarious liability for the offence which took place there. The detail of what occurred is set out in an evidentiary statement of the plaintiff dated 21 April 2022.

  5. [5]

    To obtain leave under s 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 Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17] by Allsop ACJ and Basten JA, who said:

  6. [6]

    There is no evidence in the affidavit in support of the notice of motion about the offence for which the plaintiff is currently incarcerated. I am informed from the Bar table that he was convicted and is serving a sentence for assault occasioning grievous bodily harm. I have taken that to be a reference either to an offence contrary to s 33 or s 35 of the Crimes Act 1900 (NSW). In either case, the offences under those sections are serious indictable offences within the definition of s 4 of the Crimes Act.

  7. [7]

    I am satisfied from the material that the proceedings are not an abuse of process and that there is a prima facie ground for those proceedings.

  8. [8]

    Accordingly, I make the following order:

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