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[2022] NSWSC 715

Clark v State of New South Wales

1. Leave granted to 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 2 November 2021. 3.Each party is to bear their own costs of the Notice of Motion

Catchwords

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – plaintiff serving sentence for serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused as a pupil of a school run by the Department of Education – 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 § 4, 193C
  • Felons (Civil Proceedings) Act 1981 (NSW) § 4, 5

Judgment

  1. [1]

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

  2. [2]

    The proceedings were actually commenced by the filing of a statement of claim on 2 November 2021. For that reason leave is sought nunc pro tunc. Leave nunc pro tunc may be granted because the commencement of such proceedings without leave is an irregularity and not a nullity: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290.

  3. [3]

    The plaintiff is now aged thirty years. He sues the State of New South Wales on the basis of allegations that he was sexually assaulted by a school teacher at the Thomas Acres Public School in about 2002 when he was aged ten or eleven years. The details of the sexual abuse are set out in an evidentiary statement which has been tendered on the application.

  4. [4]

    The statement of claim alleges both direct and vicarious liability on the part of the State of New South Wales, in as much as the school was operated through the Department of Education.

  5. [5]

    Although there was no evidence in the affidavit in support of the motion of the offence for which the plaintiff was convicted and is currently serving a sentence, I have been informed from the Bar table that the plaintiff has been imprisoned by reason of some 19.7 grams of an illicit drug being found in his possession, and also an offence of dealing with the proceeds of crime. I have assumed that, either by reason of the possession of that quantity of the illicit drugs the plaintiff was charged with dealing in those drugs, or that the proceeds of crime offence was an offence against s 193C of the Crimes Act 1900 (NSW). In either case the offence would be a serious indictable offence as defined in s 4 of the Crimes Act.

  6. [6]

    Section 5 of the Felons Act requires the Court to be satisfied, before leave is granted, that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings.

  7. [7]

    In Application of Malcolm Huntley Potier [2012] NSWCA 222, Allsop ACJ and Basten JA said of s 5 at [17]:

  8. [8]

    I am satisfied from the evidentiary statement of Mr Clark that there is a prima facie basis shown for the bringing of the proceedings and I am satisfied that the proceedings are not an abuse of process.

  9. [9]

    Accordingly, I make the following order:

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