Barrie v State of New South Wales
[2024] NSWSC 671
•31 May 2024
Supreme Court
New South Wales
Medium Neutral Citation: Barrie v State of New South Wales [2024] NSWSC 671 Hearing dates: 31 May 2024 Date of orders: 31 May 2024 Decision date: 31 May 2024 Jurisdiction: Common Law Before: Weinstein J Decision: (1) Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981, leave is granted to the plaintiff to commence civil proceedings against the State of New South Wales in the Supreme Court of New South Wales with respect to the alleged child sexual abuse.
(2) The plaintiff is to file and serve a Statement of Claim on or before 28 June 2024.
(3) Costs be costs in the cause.
Catchwords: CIVIL PROCEDURE – commencement of proceedings – leave to commence pursuant to Felons (Civil Proceedings) Act 1981 – leave granted
Legislation Cited: Felons (Civil Proceedings) Act 1981
Cases Cited: Potier v Attorney General in and for the State of New South Wales [2015] NSWCA 129
Category: Procedural rulings Parties: Scott Barrie (Plaintiff)
State of New South Wales (Defendant)Representation: Counsel:
Solicitors:
J McEnaney (Plaintiff)
Trilby Misso Lawyers (Plaintiff)
File Number(s): 2024/141071 Publication restriction: Nil
JUDGMENT – duty – ex tempore revised
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The plaintiff has filed a Summons seeking leave to commence proceedings against the defendant for damages for personal injuries he allegedly suffered as a result of child sexual abuse which allegedly occurred at Stanmore Public School when he was 8 years of age, in about 1997, pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 (the Act). The plaintiff is currently incarcerated at Goulburn Correctional Centre and is in custody as a result of having been convicted of several serious indictable offences. He therefore requires leave of the court to institute civil proceedings. I observe that there is no limitation period for an action for damages that relates to personal injury to a person resulting from an act that constitutes child abuse of the person.
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Section 5 of the Act provides that a court shall not grant leave to person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. Thus the plaintiff has to satisfy me of those two matters.
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In Potier v Attorney General in and for the State of New South Wales [2015] NSWCA 129, Leeming JA said at [57]:-
“Commencement of civil proceedings in a court without leave is in contravention of s 4. Power is conferred under ss 4 and 5 to lift the prohibition by the grant of leave. Leave may only be granted by the court in which the proceedings are to be commenced. Section 5 constrains the power to grant leave to circumstances where the court is satisfied of two things: that the proceedings are not an abuse of process and that there are prima facie grounds for them.”
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The plaintiff relies upon an affidavit of his solicitor Peter Glynn Ivory sworn on 7 May 2024 which annexes the plaintiff’s criminal history and a report of Dr Antonella Ventura, psychiatrist, dated 14 June 2023. Dr Ventura obtained a history from the plaintiff which sets out his allegation that a teacher at Stanmore Public School sexually assaulted him when he was 8 years of age. She is of the view that the alleged child sexual abuse has caused the plaintiff to suffer significant psychiatric injury.
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Based on the material before me, I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for their commencement.
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In my opinion leave ought to be granted, and I make the following orders:-
Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981, leave is granted to the plaintiff to commence civil proceedings against the State of New South Wales in the Supreme Court of New South Wales with respect to the alleged child sexual abuse.
The plaintiff is to file and serve a Statement of Claim on or before 28 June 2024.
Costs be costs in the cause.
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Decision last updated: 03 June 2024
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