Gibson v State of New South Wales

[2022] NSWSC 737

Supreme Court

New South Wales

Medium Neutral Citation:

Gibson v State of New South Wales [2022] NSWSC 737

Hearing dates:

27 May 2022

Date of orders:

27 May 2022

Decision date:

27 May 2022

Jurisdiction:

Common Law

Before:

Lonergan 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 11 November 2021.

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

Catchwords:

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse by teacher – leave granted nunc pro tunc - costs

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)

Cases Cited:

Ford v Simes [2019] NSWCA 351

Jol v State of New South Wales (1998) 45 NSWLR 283; (1998) 104 A Crim R 516

SW v State of New South Wales [2010] NSWSC 966

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

Category:

Procedural rulings

Parties:

Paul Gibson (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)

Solicitors:
Beston McManis Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2021/00320760

Publication restriction:

Nil

Judgment

1. By notice of motion filed on 9 May 2022 the plaintiff, Paul Gibson, seeks an order for leave to proceed under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) (“Felons Act”) against the defendant the State of New South Wales.

2. The plaintiff commenced proceedings against the defendant by way of filing a statement of claim on 11 November 2021. Read in support of the motion is an affidavit of John McManis solicitor affirmed 29 March 2022. The plaintiff is, I am informed by counsel, presently serving a sentence of imprisonment for break and enter. This is a serious indictable offence as defined in the Felons Act, and accordingly under s 4 of that Act, the plaintiff may not institute civil proceedings in any Court except by the leave of the Court granted on application.

3. Section 5 of the Felons Act provides a Court shall not under s 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 grounds for the proceedings.

4. The construction and operation of the Act have been considered in a number of decision of the Court. Basically the Court needs to ensure that proceedings do not go forward to trial if they are an abuse of process or there is no prima facie grounds for them: Jol v State of New South Wales (1998) 45 NSWLR 283; (1998) 104 A Crim R 516.

5. Policy wise this statutory gateway to be applied by the Court should not be a demanding one: SW v State of New South Wales [2010] NSWSC 966 at [16].

6. As stated in Ford v Simes [2019] NSWCA 351, at [30] to [31] the expression “prima facie ground”, in s 5 meant no more than a basis that is arguable or not totally hopeless.

7. The plaintiff seeks leave to proceed as if leave had been sought at the time the proceedings were instituted and leave can be granted in this way by making an order nunc pro tunc; see Thurston v State of New South Wales [2021] NSWSC 226 at [3].

8. The plaintiff's claim is based on events said to have occurred at his primary school in Lake Illawarra in 1979 or 1980 when he was 7 or 8 years old. The statement of claim pleads an action against the State in the form of negligence and direct liability and also a claim for vicarious liability. The statement of claim and the statement of particulars filed allege that the plaintiff suffers from post- traumatic stress disorder, severe and recurrent depressive disorder and associated continuing disabilities, loss of income and loss of earning capacity.

9. Whilst it would be helpful for there to also have been on the file psychiatric or psychological reports in support of the application, it is not essential. I am content that the requirements of the legislation can be satisfied without it.

10. The defendant has appeared via its solicitor and neither consents to nor opposes the application made.    

11. Having considered the material before the Court, and having regard to the principles to be applied on applications of this nature, I am satisfied the plaintiff should be granted leave to institute the proceedings in accordance with ss 4 and 5 of the Act.

12. I am satisfied the proceedings are not an abuse of process and that there is prima facie grounds for the proceedings.

Orders

13. Accordingly, 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 11 November 2021.

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

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