Lazar v State of New South Wales

[2022] NSWSC 588

Supreme Court

New South Wales

Medium Neutral Citation:

Lazar v State of New South Wales [2022] NSWSC 588

Hearing dates:

3 May 2022

Date of orders:

3 May 2022

Decision date:

03 May 2022

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

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

(2)   Each of the parties are to bear their own costs on the motion.

Catchwords:

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) –

leave to commence proceedings sought – claim for damages for sexual abuse by teacher – leave granted nunc pro tunc – costs

Legislation Cited:

Felons (Civil Proceedings) Act1981 (NSW)

Category:

Procedural rulings

Parties:

Ron Lazar (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)

Solicitors:
Beston McManis Lawyers (Plaintiff)
Wotton + Kearney (Defendant)

File Number(s):

2022/27825

Publication restriction:

Nil

EXTEMPORE Judgment (REVISED)

1. HIS HONOUR: The plaintiff has commenced proceedings in this Court by way of statement of claim filed on 31 January 2022. In that statement of claim he seeks damages for abuse occasioned by a teacher at the school attended by the plaintiff. That was a public school and therefore under the control of the defendant. At the time of the institution of proceedings the plaintiff was in custody. Accordingly pursuant to s 4 of the Felons (Civil Proceedings) Act1981 (NSW) (“the Act”) he is required to have leave of the Court before such proceedings are instituted.

2. A notice of motion seeking such leave was filed on 31 March 2022. The plaintiff brings the application now seeking leave to proceed as if leave had been sought at the time the proceedings were instituted by the statement of claim. It is established that leave can be granted nunc pro tunc, which means that if leave it is granted it is taken to be as if it had been granted at the time of the institution of the proceedings.

3. 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.”

4. The plaintiff’s solicitor has filed an affidavit in which he states that he has instructions that in approximately 1992, while the plaintiff was a student at Bossley Park High School, he was sexually abused by a teacher at that school. Bossley Park High School is overseen by the Department of Education, which is a department of the defendant.

5. The plaintiff has been convicted of the offence of reckless wounding, which is a serious indictable offence and therefore requires leave. The defendant has advised by an email sent by its legal representative that it neither consents to nor opposes the grant of leave on the basis that the parties bear their own costs of the application.

6. I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

7. Accordingly, I make the following orders:

1. Leave granted to the plaintiff to institute proceedings against the defendant nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act1981 (NSW).

2. Each of the parties are to bear their own costs on the motion.

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Decision last updated: 16 May 2022