Goodbun v State of New South Wales

[2023] NSWSC 904

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Goodbun v State of New South Wales [2023] NSWSC 904

Hearing dates:

21 July 2023

Date of orders:

21 July 2023

Decision date:

21 July 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

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

(2)   Costs to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for abuse in institutions – costs

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)

Category:

Procedural rulings

Parties:

Keith Owen Goodbun (Plaintiff)
State of New South Wales (Defendant)

Representation:

Solicitors:
Shine Lawyers Pty Ltd (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2023/179021

Publication restriction:

Nil

EXTEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: The plaintiff, by summons filed in this Court on 2 June 2023, seeks an order pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) that the plaintiff be granted leave to commence his civil proceedings in this Court.

2. The plaintiff is in custody having been convicted of a serious indictable offence. In 2016, he was convicted of murder and other serious offences which, unsurprisingly, constitute a serious indictable offence within the relevant definition.

3. The result of those circumstances is that pursuant to s 4 of the Felons (Civil Proceedings) Act, he is required to have leave of the Court before instituting proceedings seeking damages for harm occasioned to him.

4. Section 5 of the Felons (Civil Proceedings) Act provides as follows:

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’s solicitor has filed an affidavit in which he states he has instructions that the plaintiff was a victim of serious abuse whilst a student at the Toronto West Public School. It is unnecessary to canvass the detail of the plaintiff’s instructions to his solicitors in relation to the events of which he complains and which would form the basis of his claim against the defendant.

6. I note that evidentiary statements of the plaintiff have been annexed to the solicitor’s affidavit. There is, additionally, a medical report which relates to the harm allegedly suffered by the plaintiff as a result of acts for which the plaintiff says the defendant is responsible.

7. There is no issue, certainly at this stage, that the defendant is an appropriate defendant in the context of the events which were alleged to have taken place in the context of the public schooling environment.

8. The ’plaintiff’s solicitor in his affidavit states that, based on his investigations into the plaintiff’s claim, he has formed the opinion that the claim has reasonable prospects of success based on proof of facts and a reasonably arguable view of the law.

9. The plaintiff’s solicitor notes that the particular claim falls within the relevant exemption of the Limitation Act 1969 (NSW) such that it is not statute barred.

10. The defendant has appeared before me this morning and has indicated that it neither consents nor opposes the grants of leave. It was submitted on the defendant’s part that each party should bear its own costs on the application. In response, the plaintiff submits that the present step was, in the circumstances, a necessary step in the litigation. I accept the plaintiff’s submission in that regard. I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings. In those circumstances, costs should be in the cause.

11. Accordingly, I make the following orders:

1. Leave is granted to the plaintiff to institute proceedings against the defendant pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act1981 (NSW).

2. Costs to be costs in the cause.

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Amendments

22 August 2023 - Correction made to catchwords

Decision last updated: 22 August 2023