Potoczko v State of New South Wales

In this matter, the plaintiff, Potoczko, sought to commence proceedings against the State of New South Wales for damages arising from sexual abuse suffered at the hands of a prison officer while she was an inmate. The defendant contested the claim on the basis that the plaintiff was required to seek leave under the Felons (Civil Proceedings) Act 1981 (NSW) before initiating the proceedings. The court was tasked with determining whether the plaintiff was required to seek leave to commence proceedings against the State and, if so, whether such leave should be granted.

The court considered whether the provisions of the Felons (Civil Proceedings) Act applied to the plaintiff's claim. The act stipulates that a person convicted of a felony cannot commence proceedings without leave of the court. The court found that the plaintiff's claim fell within the ambit of the act due to her prior conviction for a felony. However, the court also considered the plaintiff's arguments that the act's provisions should not apply due to the extraordinary circumstances of her case, namely the nature of the alleged abuse. The court determined that while the plaintiff's circumstances were indeed extraordinary, the act's provisions applied nonetheless.

Ultimately, the court granted the plaintiff leave to commence proceedings. The court found that the plaintiff's circumstances were sufficiently exceptional to warrant an exception to the general rule. The court emphasised the importance of ensuring that victims of sexual abuse are able to seek redress, even where they have a prior criminal history. The court further found that the public interest in ensuring that victims of sexual abuse are able to seek redress outweighed any potential prejudice to the defendant.

The court ordered that the plaintiff be granted leave to commence proceedings against the defendant for damages arising from the alleged sexual abuse. The court noted that this decision was not a determination on the merits of the plaintiff's claim, but rather a determination on the issue of leave to commence proceedings. The plaintiff was further ordered to provide the defendant with a copy of the statement of claim within 14 days of the court's decision.