Redshaw v State of New South Wales

[2022] NSWSC 245

Supreme Court

New South Wales

Medium Neutral Citation:

Redshaw v State of New South Wales [2022] NSWSC 245

Hearing dates:

10 March 2022

Date of orders:

10 March 2022

Decision date:

10 March 2022

Jurisdiction:

Common Law

Before:

Ierace 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 party to pay their own costs.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – leave sought subsequent to commencement of proceedings

Legislation Cited:

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

Category:

Principal judgment

Parties:

Allan Redshaw (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)
W Blacker (Sol) (Defendant)

Solicitors:
Beston McManis Lawyers (Plaintiff)
Wendy Blacker Lawyers (Defendant)

File Number(s):

2021/115282

Judgment

1. Allan Redshaw has commenced proceedings in this Court by way of an amended statement of claim filed on 8 February 2022 seeking damages for psychological, psychiatric and physical injuries sustained when he was allegedly subject to physical abuse perpetrated by a teacher while he was a student at Scone Public School and subsequently subjected to sexual abuse perpetrated by a Deputy Headmaster at Scone High School. In a defence filed on 3 December 2021, the defendant admitted that both schools are New South Wales Government schools for the purposes of the Education Act 1990 (NSW), and that they come under the auspices of, and are operated by, the New South Wales Department of Education, which is a department within the government of the State of New South Wales.

2. At the time of the institution of proceedings Mr Redshaw was in custody. Accordingly, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Act”), he is required to have leave of the Court before such proceedings are instituted.

3. Mr Redshaw brings the application now seeking leave as if leave had been sought at the time that proceedings were instituted. Leave can be granted as if it had been granted at the time of the institution of proceedings nunc pro tunc.

4. 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.”

5. The alleged abuse by each of the perpetrators that is particularised in the amended statement of claim would, if proved, establish a prima facie basis for damages of the type that is sought.

6. The State of New South Wales does not contest that the orders should be made. I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

Orders

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) Act 1981 (NSW);

2. Each party to pay their own costs.

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Decision last updated: 11 March 2022