Namulauulu v State of New South Wales

[2025] NSWSC 625

Supreme Court

New South Wales

Medium Neutral Citation:

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

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 16 May 2025 is dismissed.

(2)   Each party 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 ss 4, 5

Cases Cited:

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

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Lofu Namulauulu (P)
State of New South Wales (D)

Representation:

Solicitors:
Melinda Griffiths Lawyers (P)
McCabes Lawyers (D)

File Number(s):

2024/478337

Publication restriction:

Not Applicable

JUDGMENT

1. On 24 December 2024, the plaintiff commenced proceedings in this Court by the filing of a Statement of Claim. The plaintiff claimed damages as a consequence of physical, sexual and psychological abuse which he alleges occurred to him whilst he was a juvenile at each of the Reiby Juvenile Justice Centre and the Cobham Juvenile Justice Centre, on three occasions in 2010 and 2014.

2. On 16 May 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.”

3. Mr Alexander Morrison, the solicitor for the plaintiff, swore an affidavit on 15 May 2025 in support of that Motion. In that affidavit, he noted that the plaintiff was incarcerated as at 15 May 2025.

4. Mr Morrison annexed records from the Department of Corrective Services of the Convictions, Sentences and Appeals of his client. The printout of those records current as at 19 March 2025, demonstrate that the plaintiff had been in custody continuously from 20 May 2022 and was still in custody at the time of the record being produced in March 2025.

5. The Corrective Services records show that the last sentence being served by the plaintiff expired on 27 December 2022. It was noted that that sentence, which was the Balance of a Parole period of 7 months and 10 days, had commenced on 18 May 2022, at a time when the plaintiff was in police custody.

6. The Corrective Services record contained no other reference to any reason why the plaintiff was in custody as at 24 December 2024. This is unsurprising because the document records convictions and sentences but not charges in respect of which there has not been any finality by way of the imposition of a term of imprisonment.

7. Mr Morrison noted in his affidavit that he had received instructions directly from the plaintiff during March and April 2025, to the effect that :

“… he had pleaded guilty to certain offences on or around November 2024, but was unsure of the exact charges.”

8. Mr Morrison deposes to the fact that on 14 May 2025, he received an extract of a Crown bundle relating to criminal matters involving the plaintiff. Documents within that bundle showed that on 19 November 2024 and 21 November 2024:

“… the Plaintiff had signed Agreed Statement of Facts which do find the Plaintiff to have committed serious indictable offences which include ‘threaten to use offensive weapon with intent to commit an indictable offence’ and ‘take with intent to obtain advantage’.”

9. Mr Morrison annexes the extracts from which he drew that detail. As best as can be seen from the annexure, the documents are part of a “Crown Sentence Summary”. Plainly the plaintiff has been charged with a significant number of serious indictable offences. In respect of three of those offences, the plaintiff was committed for sentence to the District Court on 18 October 2023. On the same day, in respect of other offences, he was committed for trial in the District Court. With respect to a third group of charges, having been arraigned in the District Court on 17 November 2023, the accused entered a plea of not guilty. It appears that on 26 July 2024, he was again arraigned on the same Indictment and subsequently pleaded guilty to all charges. The matter was listed for a disputed facts hearing in the District Court on 18 November 2024, for a period of 5 days.

10. The two Statements of Fact which have been agreed between the plaintiff and the Crown cover some, but not all, of the charges with which the plaintiff is confronted.

11. I infer, based upon the fact that, in respect of some of the charges, the plaintiff has been committed for trial, and based upon the note in the Crown documents that he pleaded guilty upon a re-arraignment to all charges, that the plaintiff has entered a plea of guilty to the charges. Whether that is to the entirety of the charges is unclear.

12. Nevertheless, the material does not include any reference to the holding of any disputed facts hearing, whether there has been any resolution of that hearing prior to 24 December 2024, and whether any conviction has been entered, or any finding made against the plaintiff that he had committed a serious indictable offence as at that date.

Statute

13. The provisions of ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (“the Felons Act”) are relevant. 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.”

14. It is clear, on the material before the Court that, as at 24 December 2024, the plaintiff was in custody. It is also clear that he was not in custody as a result of having been convicted of any offence at all, let alone a serious indictable offence.

15. As I have indicated earlier, it seems that the plaintiff entered a plea of guilty to a series of offences, although there had been no conviction entered, nor had there been any sentence imposed.

16. In Milligan v State of New South Wales [2025] NSWSC 67, at [17], I said this:

“[17]   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.”

17. At [18], I said this:

“[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.”

18. I noted that one possible circumstance in which that could occur was that, at the time the plea of guilty was made, the offender did not have the capacity to enter such a plea. There are other bases as well.

19. In all of the circumstances demonstrated by the material before the Court, I cannot be satisfied that, as at 24 December 2024, the plaintiff was a person who had been convicted or else found to have committed, a serious indictable offence. In those circumstances, he is not a person to whom s 4 of the Felons Act applies. There is no basis for this Court to grant leave for him to commence proceedings.

20. Accordingly, the Motion must be dismissed.

Orders

21. I make the following orders:

1. Notice of Motion filed 16 May 2025 is dismissed.

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

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Decision last updated: 18 June 2025