Kennedy v State of New South Wales

[2023] NSWSC 735

Supreme Court

New South Wales

Medium Neutral Citation:

Kennedy v State of New South Wales [2023] NSWSC 735

Hearing dates:

28 June 2023

Date of orders:

28 June 2023

Decision date:

28 June 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. The plaintiff be granted leave to institute proceedings nunc pro tunc, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).

2. Costs to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff in custody for serious indictable offence – where proceedings commenced before leave was sought – where plaintiff claimed to have been sexually assaulted by school teacher – leave granted

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW) s 4

Cases Cited:

Jol v the State of New South Wales (1998) 45 NSWLR 283

Re Application of Malcolm Huntley Potier [2012] NSWCA 222

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
M McGirr (Plaintiff)
No appearance (Defendant)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Unrepresented (Defendant)

File Number(s):

2023/168353

Publication restriction:

Nil

Judgment

1. The plaintiff seeks leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of New South Wales. The proceedings were commenced by the filing of a statement of claim on 26 May 2023, and the notice of motion seeking leave was filed on 2 June 2023. It is supported by an affidavit of the plaintiff's solicitor, Alexander Hugh Stuart Morris. Mr Morrison annexes to that affidavit the plaintiff's custodial record, an unsigned evidentiary statement from the plaintiff, and a report by psychiatrist Dr Martin Allan, who examined the plaintiff in May 2023.

2. Because the notice of motion was filed after the statement of claim leave is now sought nunc pro tunc. In Jol v The State of New South Wales (1998) 45 NSWLR 283 Sheller JA made clear (at 290) that the institution of proceedings without leave having been granted does not constitute a nullity but rather an irregularity which may be corrected at a later time.

3. The plaintiff was born in September 1987. He attended the Kurri Kurri High School, and he alleges that when he was in year 9, aged 15 years, he was sexually assaulted by the deputy principal of the school, on one occasion. Although the evidentiary statement is unsigned at the present time, what is contained in it is largely consistent with what the plaintiff told Dr Allan when he examined him.

4. The sexual assault by the deputy principal appears to have had a very significantly adverse effect on the plaintiff who subsequently dropped out of school and commenced using drugs. Although he worked for a short period of time after leaving school, he soon, by reason of his involvement in drugs, became involved in criminality, and that led to his ultimately being charged and convicted of murder in 2013. He remains serving that sentence at the present time.

5. He sues the State of New South Wales claiming that it was directly negligent and also vicariously liable for the wrongful acts of the deputy principal.

6. Dr Allan diagnosed the plaintiff suffering from post-traumatic stress disorder, persistent depressive disorder and poly-substance misuse disorder. Dr Allan concluded that the cause of the plaintiff's illness was the sexual assault and, but for the sexual assault occurring, Dr Allan did not believe the plaintiff's life would have been derailed in the manner in which it was, and he would not have developed a depressive condition, nor the posttraumatic stress condition that he had. Dr Allan said that had the plaintiff not developed such significant trauma or depressive symptoms and been markedly ashamed, embarrassed and confused by what occurred, Dr Allan did not believe his drug use would have escalated in the fashion that the plaintiff described to him.

7. Dr Allan did not find any other matters in the plaintiff's early life, except some exposure to violence as a young person, as factors having contributed to his longstanding mental health difficulties and drug use.

8. To obtain leave under s 4 of the act it is necessary for the plaintiff to show that the proceedings are not an abuse of process and that there is a prima facie ground for bringing these proceedings. The test was considered in Re Application of Malcolm Huntley Potier [2012[ NSWCA 222 at 17 by Allsop ACJ and Basten JA as follows:

Taken literally, that limb of the test refers to a claim which at first sight and without investigation appears to be a "ground". Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading. The purpose of the legislative scheme was, in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 that a convicted felon could not sue at law or in equity. On the other hand, the purpose of the statute was to permit the court to ensure that neither it nor prospective defendants were subjected to proceedings which were an abuse of process or which lacked any real merit: Jol v State of New South Wales (1998) 45 NSWLR 283 at 286E (Sheller JA, Beazley JA and Sheppard AJA agreeing). As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not "hopeless" or "unarguable". Different expressions used from time-to-time do not indicate any difference in the standard to be applied.

9. I am satisfied from the evidentiary statement of the plaintiff and from the report of Dr Allan that the proceedings are not an abuse of process, and that there is a prima facie ground for these proceedings. Accordingly, I make the following orders:

1. The plaintiff be granted leave to institute proceedings nunc pro tunc, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).

2. Costs to be costs in the cause.

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Decision last updated: 28 June 2023