Howlett v State of New South Wales

[2022] NSWSC 590

Supreme Court

New South Wales

Medium Neutral Citation:

Howlett v State of New South Wales [2022] NSWSC 590

Hearing dates:

3 May 2022

Date of orders:

3 May 2022

Decision date:

03 May 2022

Jurisdiction:

Common Law

Before:

Dhanji 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 of the parties are to bear their own costs on the 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) Act1981 (NSW)

Category:

Procedural rulings

Parties:

Justin Howlett (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)

Solicitors:
Beston McManis Lawyers (Plaintiff)
Wotton + Kearney (Defendant)

File Number(s):

2022/27825

Publication restriction:

Nil

EXTEMPORE Judgment (REVISED)

1. HIS HONOUR: The plaintiff has commenced proceedings in this Court by way of a statement of claim filed on 31 January 2022. In that statement of claim he seeks damages for harm said to have been suffered when he was sexually abused by a teacher at the school that he attended between 2004 and 2006. The particular school is South Sydney High School, which is a school within the auspices of the NSW Department of Education and under the control, therefore, of the defendant.

2. At the time of the institution of proceedings the plaintiff was in custody and he has since been convicted of an offence of break, enter and commit a serious indictable offence, which is a serious indictable offence. Accordingly, pursuant to s 4 of the Felons (Civil Proceedings) Act1981 (NSW) (“the Act”) he is required to have leave of the Court before such proceedings are instituted.

3. The notice of motion seeking such leave was filed on 1 April 2022. The plaintiff brings the application now seeking leave to proceed as if leave had been sought at the time that the proceedings were instituted by the statement of claim. It is established that leave can be granted nunc pro tunc, which simply means that leave is granted as if it had been granted at the time of the institution of proceedings.

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’s solicitor has affirmed an affidavit in which he states that the plaintiff has instructed him that in 2004, while he was a student at South Sydney High School at Maroubra, he was sexually abused by a teacher at that school. The affidavit further states that South Sydney High School is overseen by the Department of Education, a department of the defendant. The statement of claim contains allegations of negligence and additionally asserts vicarious liability on the part of the defendant with respect to the harm alleged to have been suffered by the plaintiff.

6. The defendant has advised by email, through its legal representative, that it neither consents to nor opposes the grant of leave on the basis the parties bear their own costs on the application.

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

8. 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) Act1981 (NSW).

2. Each of the parties are to bear their own costs on the motion.

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Decision last updated: 16 May 2022