Parkinson v State of New South Wales

[2022] NSWSC 747

Supreme Court

New South Wales

Medium Neutral Citation:

Parkinson v State of New South Wales [2022] NSWSC 747

Hearing dates:

7 June 2022

Date of orders:

7 June 2022

Decision date:

07 June 2022

Jurisdiction:

Common Law

Before:

R A Hulme J

Decision:

1. Leave granted retrospectively to the plaintiff to institute proceedings against the defendant 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 of the motion.

Catchwords:

CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action — plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted retrospectively

Legislation Cited:

Crimes Act 1900 (NSW), s 117

Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5

Category:

Procedural rulings

Parties:

James Parkinson (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr T Meakes (Plaintiff)
Ms E Loong, Solicitor (Defendant)

Solicitors:
Beston McManis Lawyers
Hicksons Lawyers

File Number(s):

2021/328190

Judgment

1. HIS HONOUR: The plaintiff commenced proceedings by way of statement of claim filed on 18 November 2021 by which he seeks damages for harm said to have been suffered as a result of sexual abuse by a teacher at a school he attended in about 1997.

2. The defendant is said to be liable because the school was an organisation of the New South Wales Department of Education under the control and responsibility of the Minister. The defendant thereby had care, control, operation, and management of the school, and owed a duty of care to the plaintiff.

3. According to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff required leave to institute the proceedings. That is because at that time he was a person in custody as a result of having been convicted of a serious indictable offence, namely larceny, contrary to s 117 of the Crimes Act 1900 (NSW).

4. According to s 5 of the Felons (Civil Proceedings) Act 1981 (NSW), the Court may grant leave if satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. It is uncontroversial that leave can be granted retrospectively.

5. The defendant neither consents to nor opposes leave being granted.

6. Having perused the statement of claim and the evidentiary statement by the plaintiff, as well as an affidavit by his solicitor, I am satisfied that the statutory requirements are met.

7. I make the following orders:

1. Leave granted retrospectively to the plaintiff to institute proceedings against the defendant 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 of the motion.

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Decision last updated: 07 June 2022