Evans v State of New South Wales

[2022] NSWSC 244

Supreme Court

New South Wales

Medium Neutral Citation:

Evans v State of New South Wales [2022] NSWSC 244

Hearing dates:

10 March 2022

Date of orders:

10 March 2022

Decision date:

10 March 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Leave granted to the plaintiff to institute proceedings against the defendant nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW);

(2)   Each party to pay their own costs.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – leave sought subsequent to commencement of proceedings

Legislation Cited:

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

Cases Cited:

Thurston v State of New South Wales [2021] NSWSC 226

Category:

Principal judgment

Parties:

Todd Evans (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)
E May (Sol) (Defendant)

Solicitors:
Beston McManis Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2021/87829

Judgment

1. Todd Evans has commenced proceedings in this Court by way of an amended statement of claim filed on 7 March 2022, seeking damages for psychological, psychiatric and physical injuries sustained when he was allegedly subject to sexual and physical abuse perpetrated by a foster parent while he was a ward of the state and in foster care, having been placed there by the New South Wales Department of Family and Community Services.

2. At the time of the institution of proceedings Mr Evans was in custody. Accordingly, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Act”), he is required to have leave of the Court before such proceedings are instituted.

3. Mr Evans brings the application now seeking leave as if leave had been sought at the time that proceedings were instituted. It is established that leave can be granted as if it had been granted at the time of the institution of proceedings nunc pro tunc, the meaning of which is helpfully explained by Hamill J in Thurston v State of New South Wales [2021] NSWSC 226, at [3].

4. Section 5 of the Act provides:

“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.”

5. The plaintiff, in an evidentiary statement dated 9 December 2021, recalled the first instance of alleged sexual abuse by his foster father when he was approximately 6 or 7 years old and related the pattern of such behaviour thereafter, as well as instances of non-sexual physical abuse when he was in his teenage years.

6. The State of New South Wales does not contest that the orders should be made. I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

Orders

7. Accordingly, I make the following orders:

1. Leave granted to the plaintiff to institute proceedings against the defendant nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW);

2. Each party to pay their own costs.

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