Application of Dixon Ly - [2013] NSWSC 906

Supreme Court

New South Wales

Medium Neutral Citation: Application of Dixon Ly [2013] NSWSC 906
Hearing dates: 27 June 2013
Decision date: 27 June 2013
Jurisdiction: Equity Division
Before: Rein J
Decision:
Leave granted to the applicant pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW)

Catchwords: PRACTICE AND PROCEDURE - whether leave should be granted to the Applicant pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence civil proceedings in the Equity Division
Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW)
Cases Cited: Application of Malcolm Huntley Potier [2012] NSWCA 222
Ford v Simes [2009] NSWCA 351
SW v State of New South Wales [2010] NSWSC 966
Category: Interlocutory applications
Parties: Mr Dixon Ly (Applicant)
Representation: Counsel: Mr J. Spinak (Applicant)
Solicitors: Gregory J Goold Solicitor (Applicant)

File Number(s): 2013/161022

EX TEMPORE Judgment

REIN J: In this matter, the plaintiff, Mr Dixon Ly, makes application for leave to commence civil proceedings in the Equity Division of this court pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) ("the Act"). The Act has the following relevant sections:

4. 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.

5. 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.

As can be seen, s 5 precludes this court from granting leave to institute proceedings, to a person who is incarcerated for a serious indictable offence, unless satisfied that the proceedings are not "an abuse of process" and that there is "a prima facie ground for the proceedings"

The plaintiff has in fact been convicted of a serious indictable offence and therefore needs leave pursuant to s 4 to commence proceedings. Mr Spinak, of counsel, who appears for the plaintiff on this application, has drawn my attention to a number of authorities, which deal with the threshold requirements of s 5, particularly the prima facie ground.

By way of background, it can be noted that in the Application of Malcolm Huntley Potier [2012] NSWCA 222, Allsop AcJ and Basten JA made reference to the purpose of the legislative scheme, which was:

... in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [1978] HCA 54 ; 142 CLR 583 that a convicted felon could not sue at law or in equity. On the other hand, the purpose of the statute was to permit the court to ensure that neither it nor prospective defendants were subjected to proceedings which were an abuse of process or which lacked any real merit...

In Potier the Court of Appeal having referred to Ford v Simes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application of Dixon Ly

Details

AGLC: Application of Dixon Ly [2013] NSWSC 906
Case: [2013] NSWSC 906
Decision Date: 27 June 2013

CaseChat Overview and Summary

In the matter of the application of Dixon Ly, the applicant sought leave to bring civil proceedings against the State of New South Wales in the Equity Division of the Supreme Court of New South Wales. The applicant was a prisoner who intended to claim damages for alleged negligence and assault by correctional officers while in custody. The Felons (Civil Proceedings) Act 1981 (NSW) required the applicant to obtain leave from the court before proceeding with such claims. The legal issues before the court involved whether the applicant had demonstrated sufficient grounds to warrant granting leave to commence the proceedings.

The court considered whether the applicant had established a reasonable cause of action and whether the granting of leave would be in the interests of justice. The applicant's claims involved allegations of negligence and assault by correctional officers, which the applicant asserted occurred while in custody. The court examined the details of the applicant's claims and the evidence provided in support of them. Ultimately, the court determined that the applicant had not provided sufficient evidence to establish a reasonable cause of action. Consequently, the court concluded that it was not in the interests of justice to grant the applicant leave to proceed with the civil proceedings.

The court dismissed the application for leave, finding that the applicant had not met the requisite standard for leave under the Felons (Civil Proceedings) Act 1981 (NSW). The court ordered that the application be dismissed and that the applicant pay the costs of the application. The court emphasised that the decision was based on the applicant's failure to provide sufficient evidence and did not reflect on the merits of the underlying claims.

Orders