Gill v State of New South Wales
[2022] NSWSC 675
•25 May 2022
Supreme Court
New South Wales
Medium Neutral Citation: Gill v State of New South Wales [2022] NSWSC 675 Hearing dates: 25 May 2022 Date of orders: 25 May 2022 Decision date: 25 May 2022 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Leave is granted to the plaintiff under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) allowing him to institute Supreme Court of New South Wales civil proceeding number 2021/00328192, with this order taking effect from 18 November 2021.
(2) Each party to bear its own costs of the notice of motion filed on 9 May 2022.
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: Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW
Felons (Civil Proceedings) Act 1981 (NSW)
Cases Cited: Jol v State of New South Wales (1988) 48 NSWLR 283
Category: Procedural rulings Parties: Jordan Gill (Plaintiff)
State of New South Wales (Defendant)Representation: Counsel:
T Meakes (Plaintiff)
Solicitors:
Beston McManis Lawyers (Plaintiff)
Wotton and Kearney (Defendant excused from attending)
File Number(s): 2021/00328192 Publication restriction: Nil
REVISED EXTEMPORE Judgment
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This is an application for leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) filed by the plaintiff. He is a prisoner presently in custody, having been convicted of and now serving sentences for police pursuit and aggravated break and enter. The latter offence is a serious indictable offence as defined by s 4 of the Crimes Act 1900 (NSW).
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Because of this conviction, s 4 of the Felons Act applies to the plaintiff and he requires leave of the Court to initiate proceedings under the Civil Procedure Act 2005 (NSW). Section 4 is in these terms:
“Leave to sue requires for persons convicted of serious indictable offences 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.”
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In support of his application for the Court's leave, the plaintiff relies upon the affidavit of John McManis sworn 5 May 2022. The defendant neither consents to nor opposes a grant of leave.
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The affidavit material establishes that the plaintiff had on his behalf a statement of claim filed on 18 November 2021. At that stage it was not recognised that leave of the Court was required to take that step.
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The plaintiff seeks damages from the defendant for sexual abuse he says was committed by a teacher at Tumbi Umbi High School in approximately 2007. He seeks damages from the State of New South Wales for that sexual abuse based on allegations of direct negligence as well as vicarious liability for the acts of the teacher employed at the school at the time.
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Also filed in the proceedings is a statement of particulars dated 20 April 2022 which outlines the injuries alleged by the plaintiff, which include post-traumatic stress disorder and personality disorder and changes and ongoing mood difficulties, chronic anxiety and avoidance behaviour.
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Section 5 of the Felons Act provides for the grant of leave to a felon to commence civil proceedings if it is in these terms:
“The 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 ground for the proceedings."
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There are two statutory prerequisites to a grant of leave. The first is that there is a prima facie ground for the proceedings and, second, that the proceedings are not an abuse of process.
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Proceedings that are not entirely hopeless would satisfy both tests. It is neither necessary nor possible for the Court to make an assessment of the merits of the plaintiff's case at this early stage. What is required is that the Court form a broad impression as to whether the claim is an arguable one.
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Based on the allegations in the statement of claim, I am of the view the claim is arguable. Whilst in the normal course there would be something in the nature of a statement or perhaps even an expert report outlining the nature of the damages, I do not read the legislation as making such evidentiary material being available to the Court at this stage to be an essential matter. It seems to me there is no basis upon which I could conclude that the statement of claim and the proceedings brought by it could be an abuse of process.
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In this case leave is sought retrospectively but that is not fatal. That point was considered in Jol v State of New South Wales (1988) 48 NSWLR 283 where the Court of appeal took the view that the language of s 4, and the scope and object of the Act did not suggest any reason why the legislature should have intended that a civil action instituted without the leave of the Court by a person such as the plaintiff should be treated as a nullity, rather than just an irregularity.
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Given that position, I take the view it is appropriate to grant the leave sought, effective from 18 November 2021, regularising the irregularity of the filing of the claim without leave having been sought at that time.
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Mr Meakes, counsel who appears for the plaintiff today, has suggested that each party should bear its own costs of the motion. I note that there was no appearance by the defendant today because they were excused by me, so costs have been kept to an appropriate minimum, and in my view that costs order proposed by Mr Meakes is appropriate.
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The orders of the Court are thus:
Leave is granted to the plaintiff under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) allowing him to institute Supreme Court of New South Wales civil proceeding number 2021/00328192, with this order taking effect from 18 November 2021.
Each party to bear its own costs of the notice of motion filed on 9 May 2022.
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Decision last updated: 11 August 2023
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