Khurana v State of New South Wales

[2025] NSWSC 626

Supreme Court

New South Wales

Medium Neutral Citation:

Khurana v State of New South Wales [2025] NSWSC 626

Hearing dates:

On the papers

Date of orders:

16 June 2025

Decision date:

16 June 2025

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Notice of Motion filed 3 June 2025 is dismissed.

(2)   Each party to pay their own costs of the Notice of Motion.

Catchwords:

CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under Felons (Civil Proceedings) Act 1981 – Whether a plaintiff in custody requires leave to commence civil proceedings – Where section 4 of the Felons (Civil Proceedings) Act 1981 has been incorrectly applied to a plaintiff in custody

Legislation Cited:

Felons (Civil Proceedings) Act 1981 s 4

Cases Cited:

Milligan v State of New South Wales [2025] NSWSC 67

Namulauulu v State of New South Wales [2025] NSWSC 625

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Rajuel Simon Khurana (P)
State of New South Wales (D)

Representation:

Solicitors:
Melinda Griffiths Lawyers (P)
Minter Ellison (D)

File Number(s):

2025/80115

Publication restriction:

Not Applicable

JUDGMENT

1. On 28 February 2025, the plaintiff commenced proceedings seeking damages, aggravated damages and exemplary damages from the State of New South Wales.

2. The plaintiff claimed that whilst he attended and boarded at the Yanco Agricultural High School, between 2000 and 2002, he was sexually abused by a woodwork teacher whom he identifies in the Statement of Claim filed 28 February 2025.

3. On 3 June 2025, the plaintiff filed a Notice of Motion seeking the following relief:

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

2.   Costs to be costs in the cause.”

4. In support of that Notice of Motion, the plaintiff’s solicitor, Alexander Morrison, swore an affidavit on 3 June 2025. That affidavit demonstrated the following:

• as at 3 June 2025, the plaintiff was being held in custody;

• as at 28 February 2025, being the day upon which the proceedings were commenced, the plaintiff was being held in custody but that was not because he was serving any sentence for having committed any offence;

• on 22 August 2024, the plaintiff had been committed for sentence from the Downing Centre Local Court to the District Court of New South Wales. The charges upon which the plaintiff was committed for sentence included serious indictable offences;

• the committal was as a consequence of the plaintiff having pleaded guilty to those serious indictable offences.

5. Mr Morrison’s affidavit did not include reference to any material which indicated that the plaintiff had been sentenced for those serious indictable offences, nor that a conviction had been entered in respect of them.

6. As I have previously explained, in Milligan v State of New South Wales [2025] NSWSC 67 (”Milligan”), a plea of guilty to a serious indictable offence does not permit a conclusion that the plaintiff has been “found to have committed” any offence within the meaning of that phrase in s 4 of the Felons (Civil Proceedings) Act 1981 (“the Felons Act”).

7. This plaintiff is in the same position as the plaintiff in Milligan, and also in the matter of Namulauulu v State of New South Wales [2025] NSWSC 625, which has been published at the same time as this judgment.

8. Therefore, leave is not required under the Felons Act.

9. The consequence of this opinion is that the Notice of Motion will be dismissed.

Orders

10. I make the following order:

1. Notice of Motion filed 3 June 2025 is dismissed.

2. Each party to pay their own costs of the Notice of Motion.

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Decision last updated: 18 June 2025