Achurch v State of New South Wales

[2022] NSWSC 315

Supreme Court

New South Wales

Medium Neutral Citation:

Achurch v State of New South Wales [2022] NSWSC 315

Hearing dates:

On the papers

Date of orders:

22 March 2022

Decision date:

22 March 2022

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Leave is granted to the plaintiff under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) allowing him to institute Supreme Court of New South Wales civil proceedings 2021/00309507, with this order taking effect from 1 November 2021.

(2) Costs of the notice of motion filed 24 February 2022 are costs in the cause.

Catchwords:

PROCEDURE – application for leave to commence civil proceedings – where plaintiff in custody – Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Crimes Act 1900 (NSW)

Felons (Civil Proceedings) Act 1981 (NSW)

Cases Cited:

Application of Malcom Huntley Potier [2012] NSWCA 222

Jol v State of New South Wales (1998) 45 NSWLR 283

Category:

Procedural rulings

Parties:

Achurch (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J Masur (Plaintiff)
Solicitors:
Kingsley Lawson Lawyers (Plaintiff)
Minter Ellison (Defendant)

File Number(s):

2021/00309507

Publication restriction:

Nil

Judgment

1. 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.

2. He is a prisoner presently in custody having been convicted of, and now serving a sentence for robbery armed with a dangerous weapon. This is a serious indictable offence as defined by s 4 of the Crimes Act 1900 (NSW).

3. Because of this conviction, s 4 of the Felons Act applies to the plaintiff and he requires leave of the Court to initiate proceedings under the Civil Procedure Act 2005 (NSW). Section 4 is in these terms:

4 Leave to sue required for persons convicted of serious indictable offences

A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

4. In support of his application for the Court’s leave, the plaintiff relies upon an affidavit of his solicitor, Varuni Santhakumar, sworn on 23 February 2022.

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

6. The Court was assisted by the plaintiff’s written submissions prepared by counsel, Mr Masur.

The evidence

7. The documentary evidence establishes that by oversight, the plaintiff filed a statement of claim on 1 November 2021, without having first sought the leave of the Court to do so. He seeks damages from the defendant for sexual abuse he says he was subjected to in around September 2007 by an unidentified officer at the Cobham Juvenile Justice Centre.

8. The plaintiff sues the State of New South Wales for breach of its non-delegable duty of care to him as well as alleging it is vicariously liable for the conduct of its employee. He seeks damages for assault and battery, sexual assault and false imprisonment and exemplary damages.

9. Appended to the affidavit of Ms Santhakumar is an unsigned statement of the plaintiff setting out his allegations of abuse and, in broad terms, the effect of that abuse on his health and employment capacity.

10. Two volumes of material were exhibited to Ms Santhakumar’s affidavit which indicates, amongst other things, that the plaintiff was admitted to Cobham at the relevant time.

11. A report of Associate Prof Michael Robertson, Psychiatrist, dated 24 June 2021 noted some inconsistencies between the history of abuse provided to him and the plaintiff’s statement, however concluded that the alleged abuse contributed to the plaintiff’s post-traumatic stress disorder and substance abuse disorder. An underlying personality disorder was also mentioned.

Determination

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

5 Grant of leave

A court shall not, under section 4, 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 prima facie ground for the proceedings.

13. There are two statutory pre-requisites to a grant of leave. The first is that there is a prima facie ground for the proceedings and second, that the proceedings are not an abuse of process.

14. Proceedings that are not entirely hopeless would satisfy both tests: Application of Malcom Huntley Potier [2012] NSWCA 222 at [17] (Allsop ACJ and Basten JA).

15. It is neither necessary nor possible for the Court to make an assessment of the merits of the plaintiff’s claim at this early stage. What is required is that the Court “form a broad impression” as to whether the claim is an arguable one.

16. Based on the allegations in the statement of claim, the material in the unsigned statement, the two volumes of exhibited material and the report of Assoc Prof Robertson, I am of the view that the claim is arguable. There is no basis upon which to conclude that it is an abuse of process.

17. Leave is sought retrospectively, but that is not fatal. This 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:

“Applying that test to the present case and taking account of the language of s 4 and the scope and object of the Act, I can see no reason why the legislature should have intended that a civil action instituted without the leave of the court by a person in custody on a conviction should be treated as a nullity rather than as an irregularity. The purpose of the Act as appears from s 5, is to enable the court to supervise such proceedings by ensuring that they do not go forward to trial if they amount to an abuse of process or there is no prima facie ground for them. That purpose is equally well served if leave must be obtained but may be obtained after the proceedings have been instituted.”

18. Given my conclusion in [16], it is appropriate to grant the leave sought, effective from 1 November 2021, regularising the irregularity of the filing of the claim, filed as it was without leave being sought at that time.

19. The plaintiff has in the written submissions sought an order that costs of the motion be costs in the cause. The motion was dealt with in Chambers, and the Felons Act requires leave of the Court be obtained so the motion was necessary regardless of when the application was made. In my view the costs order sought by the plaintiff is appropriate.

20. The orders of the Court are:

1. Leave is granted to the plaintiff under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) allowing him to institute Supreme Court of New South Wales civil proceedings 2021/00309507, with this order taking effect from 1 November 2021.

2. Costs of the notice of motion filed 24 February 2022 are costs in the cause.

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Decision last updated: 23 March 2022