Jacobs v State of Victoria

[2022] NSWSC 748

Supreme Court

New South Wales

Medium Neutral Citation:

Jacobs v State of Victoria [2022] NSWSC 748

Hearing dates:

7 June 2022

Date of orders:

7 June 2022

Decision date:

07 June 2022

Jurisdiction:

Common Law

Before:

R A Hulme J

Decision:

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

2. The costs of the motion are costs in the cause.

Catchwords:

CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action — plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted retrospectively

Legislation Cited:

Crimes Act 1900 (NSW), s 35

Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5

Category:

Procedural rulings

Parties:

Zachary Jacobs (Plaintiff)
State of Victoria (Defendant)

Representation:

Counsel:
Mr T Meakes (Plaintiff)
Ms J Cheung, Solicitor (Defendant)

Solicitors:
Beston McManis Lawyers
Minter Ellison

File Number(s):

2022/38230

Judgment

1. HIS HONOUR: The plaintiff commenced proceedings by way of statement of claim filed on 9 February 2022 by which he seeks damages for harm said to have been suffered as a result of sexual abuse by a teacher at a school he attended in about 2000.

2. The defendant is said to be liable because the school was an organisation of the Victorian Department of Education under the control and responsibility of the Minister. The defendant thereby had care, control, operation, and management of the school and owed a duty of care to the plaintiff

3. According to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff required leave to institute the proceedings. That is because at that time he was a person in custody as a result of having been convicted of a serious indictable offence, namely recklessly causing grievous bodily harm, contrary to s 35 of the Crimes Act 1900 (NSW).

4. According to s 5 of the Felons (Civil Proceedings) Act 1981 (NSW), the Court may grant leave if satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. It is uncontroversial that leave can be granted retrospectively.

5. The defendant neither consents to nor opposes leave being granted.

6. Having perused the statement of claim and the evidentiary statement by the plaintiff, as well as an affidavit by his solicitor, I am satisfied that the statutory requirements are met.

7. I make the following orders:

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

2.   The costs of the motion are costs in the cause.

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Decision last updated: 07 June 2022