Kennedy v State of New South Wales

[2023] NSWSC 887

Supreme Court

New South Wales

Medium Neutral Citation:

Kennedy v State of New South Wales [2023] NSWSC 887

Hearing dates:

31 July 2023

Date of orders:

31 July 2023

Decision date:

31 July 2023

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

(1)  Grant leave nunc pro tunc to the plaintiff to commence proceedings against the defendant pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981.

(2)  Order that the costs of this application be the costs in the proceedings.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence

Legislation Cited:

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

Cases Cited:

Thurston v State of New South Wales [2021] NSWSC 226

Category:

Procedural rulings

Parties:

Jack Kennedy (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J C Lee (Plaintiff)

Solicitors:
New Path Legal (Plaintiff)

File Number(s):

2023/80387

Publication restriction:

Nil

Judgment

1. HIS HONOUR: By notice of motion filed on 30 June 2023, Jack Kennedy seeks leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 to maintain proceedings against the State of New South Wales in this Court. A statement of claim was filed without leave on 10 March 2023. It alleges that Mr Kennedy was sexually abused by Sailish Pillay while he was in juvenile detention at the Reiby Juvenile Justice Centre between 30 December 2014 and 26 June 2015.

2. Leave is required by s 4 of the Act because at the time of the institution of proceedings, Mr Kennedy was serving a sentence of imprisonment for a serious indictable offence, namely fire at a dwelling with a firearm with disregard for safety and aggravated break enter and steal with intent to steal. Mr Kennedy’s head sentence expires on 6 November 2026 and he will become eligible for release on parole on 26 August 2024.

3. Leave may be granted as if it had been at the time of the institution of proceedings nunc pro tunc, the meaning of which was explained by Hamill J in Thurston v State of New South Wales [2021] NSWSC 226 at [3].

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. Mr Kennedy’s notice of motion is supported by an affidavit of his solicitor, Joshua Paul McKay, affirmed on 27 June 2023. Having regard to the matters deposed to in that affidavit, I am satisfied that the matters alleged in the statement of claim would, if proved, establish a prima facie basis for damages against the defendant.

6. The State of New South Wales, uncontroversially, did not appear in response to Mr Kennedy’s application for the orders in question. I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

7. Orders

8. Accordingly, I make the following orders:

1. Grant leave nunc pro tunc to the plaintiff to commence proceedings against the defendant pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981.

2. Order that the costs of this application be the costs in the proceedings.

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Decision last updated: 31 July 2023