Skimmings v State of New South Wales

[2022] NSWSC 591

Supreme Court

New South Wales

Medium Neutral Citation:

Skimmings v State of New South Wales [2022] NSWSC 591

Hearing dates:

3 May 2022

Date of orders:

3 May 2022

Decision date:

03 May 2022

Jurisdiction:

Common Law

Before:

Dhanji 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 of the parties are to bear their own costs on the motion.

Catchwords:

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) –

leave to commence proceedings sought – claim for damages for sexual abuse by teacher – leave granted nunc pro tunc – costs

Legislation Cited:

Felons (Civil Proceedings) Act1981 (NSW)

Category:

Procedural rulings

Parties:

Jarrod Skimmings (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)

Solicitors:
Beston McManis Lawyers (Plaintiff)
Wotton + Kearney (Defendant)

File Number(s):

2022/26580

Publication restriction:

Nil

EXTEMPORE Judgment (REVISED)

1. HIS HONOUR: In this matter the plaintiff has commenced proceedings in this Court by way of a statement of claim filed 30 January this year. In that claim he seeks damages arising from an allegation of abuse, which is alleged to have been occasioned at a time when he attended a public school in the Tweed Heads area. The plaintiff alleges that the abuse was occasioned by a teacher, who was in the position of the plaintiff’s supervisor and it is asserted that he was, as a result, the agent of the defendant.

2. At the time of the institution of proceedings the plaintiff was in custody. He has since been found to have committed a serious indictable offence of assault occasioning actual bodily harm. Accordingly pursuant to s 4 of the Felons (Civil Proceedings) Act1981 (NSW) (“the Act”), he is required to have leave of the Court before such proceedings are instituted.

3. A notice of motion seeking orders for leave was filed on 31 March 2022. The application seeks leave to proceed as if leave had been sought at the time the proceedings were instituted by the statement of claim. It is established that leave can be granted nunc pro tunc, which in essence means that leave can be granted as if it had been granted at the time of the institution of the proceedings. 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.”

4. The plaintiff’s solicitor has affirmed an affidavit in which he states he has been instructed that in approximately 1993 or 1994, when the plaintiff was about 10 years old, while a student at Tweed Heads South Public School, he was sexually abused by a teacher at a school camp. The statement of claim contains allegations of negligence and asserts the defendant is also vicariously liable for the injuries occasioned to the plaintiff.

5. The defendant has advised the Court by email, through its legal representative, that it neither consents to nor opposes the grant of leave on the basis that the parties bear their own costs on the application.

6. I am satisfied that the proceedings are not an abuse of process and there are prima facie grounds to commence proceedings.

7. 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) Act1981 (NSW).

2. Each of the parties are to bear their own costs on the motion.

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Decision last updated: 16 May 2022