Andrews v State of Queensland

[2022] NSWSC 889

Supreme Court

New South Wales

Medium Neutral Citation:

Andrews v State of Queensland [2022] NSWSC 889

Hearing dates:

14 June 2022

Date of orders:

14 June 2022

Decision date:

14 June 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) The plaintiff is granted leave nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings against the defendant in the form contained in the statement of claim filed on 2 May 2022.

(2) Each party is to bear their own costs of the notice of motion.

Catchwords:

CIVIL LAW – procedure – leave to commence proceedings – plaintiff in custody at time of proceedings – Felons Act – alleged victim of child sexual abuse by teacher – no question of principle

Legislation Cited:

Crimes Act1900 (NSW), s 4

Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5

Category:

Procedural rulings

Parties:

Michael Andrews (Plaintiff)
State of Queensland (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)
N Bell (Defendant)

Solicitors:
Beston McManis Lawyers (Plaintiff)
Barry.Nillson. (Defendant)

File Number(s):

2022/125744

EX TEMPORE Judgment (REVISED)

1. Michael Andrews has commenced proceedings by way of statement of claim against the State of Queensland in this Court. The statement of claim was filed on 2 May 2022. It sets out the cause of action, being a cause of action in trespass to the person based upon alleged sexual abuse to which he was allegedly subjected as a school student in the early 2000s. He now seeks an order under the Felons (Civil Proceedings) Act 1981 (NSW) and brings a notice of motion seeking that order. The order is necessary because the Act provides that where a person has been convicted of, or found to have, committed a serious indictable offence they may not institute any civil proceedings except by leave of the Court. [1]

   1. Felons (Civil Proceedings) Act 1981 (NSW), s 4.

2. A grant of leave is not to be given unless the Court is satisfied that the proceedings are not an abuse of process and there are prima facie grounds for the proceedings. [2] Affidavits have been filed in support of the notice of motion and they establish that Mr Andrews is currently an inmate at Cooma Correctional Centre, having been sentenced in relation to an offence of reckless wounding. That is an offence carrying more than five years’ imprisonment and, by the definition in the Crimes Act1900 (NSW), [3] therefore, a serious indictable offence. So, I am satisfied the Felons (Civil Proceedings) Act applies to him.

   2. Ibid, s 5.

   3. See Crimes Act 1900 (NSW), s 4.

3. I am also positively satisfied, based on the allegations contained in the statement of claim and the associated statement of particulars, that the proceedings are not an abuse of process and also that there are prima facie grounds for the proceedings. Accordingly, it is appropriate to make orders retrospectively to allow him to commence the proceedings with leave pursuant to the Felons (Civil Proceedings) Act.

4. I make the following orders:

1. The plaintiff is granted leave nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings against the defendant in the form contained in the statement of claim filed on 2 May 2022.

2. Each party is to bear their own costs of the notice of motion.

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Endnotes

Decision last updated: 04 August 2022