Stone v State of New South Wales

[2022] NSWSC 676

Supreme Court

New South Wales

Medium Neutral Citation:

Stone v State of New South Wales [2022] NSWSC 676

Hearing dates:

25 May 2022

Date of orders:

25 May 2022

Decision date:

25 May 2022

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Leave is granted to the plaintiff under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) allowing him to institute Supreme Court of New South Wales civil proceedings 2021/00344745, with this order taking effect from 4 December 2021.

(2) Each party to bear its own costs of the notice of motion filed on 10 May 2022.

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:

Civil Procedure Act 2005 (NSW)

Crimes Act 1900 (NSW)

Felons (Civil Proceedings) Act 1981 (NSW)

Cases Cited:

Jol v State of New South Wales (1988) 48 NSWLR 283

Category:

Procedural rulings

Parties:

Jackson Stone (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)
Solicitors:
Beston McManis Lawyers (Plaintiff)
Wotton and Kearney (Defendant excused from attending)

File Number(s):

2021/00344745

Publication restriction:

Nil

REVISED EXTEMPORE Judgment

1. This is an application for leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) filed by the plaintiff. He is a prisoner presently in custody, having been convicted of and now serving a sentence for, amongst other things, knowingly direct a criminal group. This latter offence is a serious indictable offence as defined by s 4 of the Crimes Act 1900 (NSW).

2. Because of this conviction, s 4 of the Felons Act applies to the plaintiff and he requires leave of the Court to initiate proceedings under the Civil Procedure Act 2005 (NSW).

3. Section 4 of the Felons Act is in these terms:

“Leave to sue requires 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.”

4. In support of his application for the Court's leave, the plaintiff relies on an affidavit of his solicitor John McManis affirmed 10 May 2022. The defendant neither consents to nor opposes a grant of leave.

5. The documentary evidence establishes that by oversight, the plaintiff filed a statement of claim on 4 December 2021 without having first sought the leave of the Court to do so.

6. He seeks damages from the State of New South Wales on the basis that he says he was subjected to sexual abuse at school in 2015. He pleads liability on the part of the State, both directly and on the basis of vicarious liability, for the actions of the teacher in question.

7. Also tendered on the notice of motion is a statement signed by the plaintiff in which he outlines the abuse the subject of the claim and its effects upon him. The statement is signed and dated 26 March 2022.

8. Section 5 of the Felons Act provides for the grant of leave to a felon to commence proceedings. It is in these terms:

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.

9. There are two statutory prerequisites to the grant of leave. The first is that there is a prima facie ground for the proceedings and, second, that the proceedings are not an abuse of process.

10. Proceedings that are not entirely hopeless would satisfy both tests. It is neither necessary nor possible for the Court to make an assessment of the merits of the plaintiff's claim at this early stage. What is required is for the Court to form a broad impression as to whether the claim is an arguable one.

11. Based on the allegations in the statement of claim and the material in the signed statement, I am of the view that the claim is arguable. There is no basis to conclude that the proceedings are an abuse of process.

12. Leave is sought retrospectively but that is not fatal. This point was considered in Jol v State of New South Wales (1988) 48 NSWLR 283:

“Applying that test to the present case and taking account of the language of s 4 and the scope and object of the Act, I can see no reason why the legislature should have intended that a civil action instituted without the leave of the court by a person in custody on a conviction of felony should be treated as a nullity rather than as an irregularity. The purpose of the Act, as appears from s 5, is to enable the court to supervise such proceedings by ensuring that they do not go forward to trial if they amount to an abuse of process or there is no prima facie ground for them. That purpose is equally well served if leave must be obtained but may be obtained after the proceedings have been instituted.”

13. Given my conclusions, it is appropriate to grant the leave sought, effective from 4 December 2021, regularising the irregularity of the filing of the claim, filed as it was without leave being sought at that time.

14. Counsel, Mr Meakes, suggests that the appropriate costs order should be each party to bear its own costs. I note that the defendant did not appear today and it is apparent that costs in preparation of the application and the appearances today have been kept to a minimum. I am of the view that the costs order proposed by Mr Meakes is appropriate.

15. The orders of the Court are:

1. Leave is granted to the plaintiff under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) allowing him to institute Supreme Court of New South Wales civil proceedings 2021/00344745, with this order taking effect from 4 December 2021.

2. Each party to bear its own costs of the notice of motion filed on 10 May 2022.

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Decision last updated: 11 August 2023