Kearnes v State of New South Wales

[2022] NSWSC 50

Supreme Court

New South Wales

Medium Neutral Citation:

Kearnes v State of New South Wales [2022] NSWSC 50

Hearing dates:

3 February 2022

Decision date:

03 February 2022

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) In accordance with s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), grant leave to the plaintiff nunc pro tunc to commence the proceedings.

(2)   Order that the costs of the plaintiff’s application for leave be costs in the cause.

Catchwords:

CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action — where plaintiff in custody — Felons (Civil Proceedings) Act 1981

Legislation Cited:

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

Category:

Procedural rulings

Parties:

Peter Kearnes (Plaintiff)
State of New South Wales (Defendant)

Representation:

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
NSW Crown Solicitors Office (Defendant)

File Number(s):

2021/273488

Judgment: EX TEMPORE

Introduction

1. The plaintiff, Peter Kearnes, filed a statement of claim on 24 September 2021 against the State of New South Wales. At that time Mr Kearnes was a person who was in custody as a result of having been convicted of a serious indictable offence. Accordingly, he required this Court's leave to institute a civil proceedings. This requirement derives from s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) which provides:

“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.”

2. Subsequently, on 21 December 2021, the plaintiff filed a notice of motion seeking an order in accordance with s 4 of the Felons (Civil Proceedings) Act that he be granted leave nunc pro tunc to commence the proceedings. Section 5 of the Act provides for a grant of leave in the following terms:

“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.”

3. Ms Griffiths, who appears on behalf of the plaintiff, has sworn an affidavit to which is annexed a report of Professor Ian Coyle. In his detailed report, Professor Coyle set out the results of his clinical interview with Mr Kearnes and the opinions he has formed as to Mr Kearnes’ reliability in terms of the history he has given. Professor Coyle considered that the history given by the plaintiff as to what happened to him during his childhood was plausible. The history included several serious acts of criminal conduct alleged to have been perpetrated against him, including serious child sex abuse. If the plaintiff’s account is accepted, it would appear that he has an arguable claim against the State of New South Wales as he was, during his childhood, a ward of the State and, therefore, subject to the care and control of the Minister who owed him duties of care and fiduciary duties.

4. I am satisfied on the basis of Professor Coyle’s report that the proceedings are not an abuse of process and, further, that there is a prima facie ground for the proceedings which would appear to be reasonably arguable.

5. In all the circumstances, I am satisfied that the orders sought ought be made. Accordingly, I make the following orders:

1. In accordance with s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), grant leave to the plaintiff nunc pro tunc to commence the proceedings.

2. Order that the costs of the plaintiff’s application for leave be costs in the cause.

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Decision last updated: 03 February 2022