In the matter of an application by Vivienne Louise Dye for leave to issue a proceeding

This matter concerned an application by Vivienne Louise Dye for leave to issue a proceeding against the respondent, the Commissioner of Police. The application was brought pursuant to s 104 of the *Civil Liability Act 2002* (NSW) (the Act), which requires a claimant to obtain leave from the court before commencing proceedings for a claim for personal injury damages. The application was heard by Bell J of the Supreme Court of New South Wales.

The primary legal issue before the court was whether Ms Dye had established a *prima facie* case that she had suffered personal injury as a result of the alleged negligence of the Commissioner of Police. Specifically, the court had to determine if there was sufficient evidence to suggest that the Commissioner owed Ms Dye a duty of care, that this duty had been breached, and that such breach had caused Ms Dye to suffer personal injury. The court was not required to determine the ultimate merits of the claim, but rather whether there was a sufficient evidentiary basis to permit the proceeding to continue.

Bell J applied the principles governing applications for leave under s 104 of the Act, which require the applicant to demonstrate a *prima facie* case. His Honour considered the material before the court, including affidavits and other evidence, to assess whether there was a real prospect of success at trial. The court noted that the threshold for establishing a *prima facie* case is not a high one, but it does require more than mere assertion; there must be some evidence to support each element of the cause of action.

Having considered the evidence, Bell J granted leave to Ms Dye to issue the proceeding.