Milligan v State of New South Wales

[2025] NSWSC 67

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

On the papers

Date of orders:

13 February 2025

Decision date:

13 February 2025

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Notice of Motion filed 9 January 2025 is dismissed.

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

Catchwords:

CIVIL PROCEDURE – Commencement of proceedings without leave – Whether leave required under Felons (Civil Proceedings) Act 2000 – Whether a plea of guilty amounts to an offender being “found to have committed” the offence – Where an offender has entered a plea of guilty and seeks leave to commence civil proceedings – meaning of “serious indictable offence”

Legislation Cited:

Crimes Act 1900 ss 4, 112, 154(1)(b), 154A(1)(a), 192E, 339(b)(1)(a)

Felons (Civil Proceedings) Act 1981 ss 4, 5

Interpretation Act 1987 s 3(3), sch 4

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Aaron John Milligan (P)
State of New South Wales (D)

Representation:

Solicitors:
Slater & Gordon (P)
No appearance (D)

File Number(s):

2024/438311

Publication restriction:

Not Applicable

JUDGMENT

1. A Statement of Claim in these proceedings was filed on 25 November 2024. The plaintiff claimed damages as a consequence of sexual abuse whilst a juvenile between September 2001 and December 2001, during which time he was detained at the Orana Youth Justice Centre.

2. On 9 January 2025, the plaintiff filed a Notice of Motion seeking the following relief:

“1.   Leave be granted to institute proceedings nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 by way of Statement of Claim seeking damages for personal injury.

2.   The proceedings be referred to the Common Law Registrar of the Supreme Court for further directions.

3.   The costs of this Motion be costs in the cause.”

3. The orders sought in the Notice of Motion call up for consideration the provisions of ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (“the Felons Act”). Those provisions are:

“4   Leave to sue required for persons convicted of serious indictable offences

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.

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. In support of the Notice of Motion, the plaintiff relies upon the affidavit of Karen Rose Torres sworn dated 8 January 2025.

5. Relevantly, her affidavit includes the following:

“8.   At the time of filing proceedings, I received verbal instructions that the plaintiff was incarcerated at Junee Correctional Centre. My instructions were that the plaintiff was on remand and hence not convicted of any charges.

9.   Following service of the plaintiff’s pleadings on 25 November 2024, I received instructions that the plaintiff had in fact pleaded guilty to theft‑related charges and that a sentencing hearing was listed on 17 December 2024.”

6. Ms Torres annexed to her affidavit an exchange of emails between her and the solicitor acting for the plaintiff in his criminal proceedings on the topic of the plaintiff’s custodial status.

7. On 3 December 2024, Mr Peter Anderson, solicitor, sent an email in the following terms:

“Strictly speaking, Aaron hasn’t been convicted in relation to his current matter, although he has entered pleas of guilty following negotiations and will be convicted by virtue of being sentenced. The current matter involves several ‘serious indictable offences’ – this is defined under Crimes Act s 4 as any offence punishable by imprisonment for five years or more.

Aaron has pleaded guilty to the following ‘serious indictable offences’:

• Break, enter and steal – s 112 Crimes Act

• Dishonestly obtain advantage by deception – s 192E Crimes Act

• Take and drive conveyance without consent of owner – s 154A(1)(a) Crimes Act

• Drive conveyance without consent of owner – s 154(1)(b) Crimes Act

• Threaten to use weapon with intent to prevent lawful detention – s 339(b)(1)(a) Crimes Act”.

8. Although Mr Anderson referred in his email to the definition of “serious indictable offence” in s 4 of the Crime Act, the definition is not applicable to the Felons Act. It is a definition restricted to the phrase when used in the Crimes Act.

9. The phrase “serious indictable offence” in the Felons Act is to be interpreted by reference to the Dictionary which forms part of the Interpretation Act 1987: see s 3(3).

10. Applying that definition, the offences with which the plaintiff has been charged fall within the phrase “serious indictable offence”.

11. Part of the evidence put before the Court in the affidavit of Ms Torres was the record created by the Department of Corrective Services of convictions, sentences and appeals relating to the plaintiff which was dated 20 December 2024.

12. Insofar as that record is relevant to the current application, it shows that the plaintiff was taken into custody on 14 April 2023. He had earlier been released from custody on 20 January 2023, as a consequence of a parole order which had been made.

13. It appears that on 26 April 2023, the State Parole Authority revoked the parole order which had resulted in the plaintiff’s release from custody three months earlier and had ordered that he serve the balance of his sentence, which was for a period of 1 year 2 months and 21 days. The balance of his sentence commenced on 14 April 2023 and expired on 4 July 2024.

14. It appears that thereafter, the plaintiff remained in custody on remand, because of the charges described above at [7] which by then had apparently been preferred against him.

15. I note that the criminal charges appear to have been listed for sentence on 17 December 2024, but no material has been put before this Court as to what occurred on that occasion.

16. On the evidence tendered in support of the Motion, it is clear that as at 25 November 2024, being the date upon which the proceedings were commenced, the plaintiff, whilst he was in custody, was not being held as a result of having been convicted of any offence at all, let alone a serious indictable offence. So much appears from the correspondence of his solicitor and the record of the Department of Corrective Services.

17. It seems clear that the plaintiff had either entered a plea of guilty to the offences described, or else had indicated an intention to plead guilty although a formal arraignment and entry of the plea may not have occurred and would not have occurred before the date fixed for sentencing. Whatever be the position about his entry of the pleas of guilty, the evidence does not permit a conclusion that the plaintiff had been “found to have committed” any offence at all. A plea of guilty is an admission by a person to having committed an offence. It does not constitute a finding that such offence has been committed.

18. The reason there is such a distinction is that, depending on all of the circumstances, it remains within the discretion of a sentencing Judge to decline to accept a plea of guilty. It is unnecessary, in this judgment, to canvass the circumstances in which that might occur. One obvious circumstance is where a Court is not satisfied that, at the time the plea of guilty is made, the offender has the capacity to enter such a plea.

19. In all of the circumstances demonstrated by the material before the Court, I cannot be satisfied that the plaintiff is a person to whom s 4 of the Felons (Civil Proceedings) Act applies (the “Felons Act”).

20. I should note, although it has been unnecessary to determine this for the purpose of this judgment, that the phrase “a serious indictable offence” where it appears in s 4, is not defined in the Felons Act.

Conclusion

21. A plea of guilty to one or more offences which carry a penalty of a term of imprisonment for at least five years, in the absence of the entry of a conviction, and prior to the imposition of sentence, does not mean that the person has been “… convicted of, or found to have committed …” an offence for the purposes of s 4 of the Felons Act.

22. The plaintiff in these proceedings has not demonstrated that he needs leave under the Act to commence proceedings.

23. It is my opinion that the plaintiff did not fall within the requirements of the Felons Act as a person who requires leave before he commences civil proceedings. The consequence of this opinion is that the Notice of Motion filed 9 January 2025 will be dismissed.

Orders

24. I make the following orders:

1. Notice of Motion filed 9 January 2025 is dismissed.

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

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Decision last updated: 19 February 2025