Supreme Court New South Wales Medium Neutral Citation: TS v The State of New South Wales [2021] NSWSC 1649 Hearing dates: In Chambers Date of orders: 10 December 2021 Decision date: 10 December 2021 Jurisdiction: Common Law Before: Wilson J as Duty Judge Decision: The following orders are made in Chambers: 1. Leave is granted to the plaintiff under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) allowing her to institute Supreme Court of New South Wales civil proceedings 2021/00231701, with this order taking effect from 6 August 2021. 2. The plaintiff is directed to file and serve, by email to the Associate to Wilson J, by 12pm on 15 December 2021, draft short minutes of order reflecting order 1, for execution by the Court. Catchwords: DUTY JUDGE — procedure — application for leave to commence civil proceedings — where plaintiff in custody — "prima facie ground" — Felons (Civil Proceedings) Act 1981 (NSW), ss 4 and 5 Legislation Cited: Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) Felons (Civil Proceedings) Act 1981 (NSW) Cases Cited: Application of Malcolm Huntley Potier [2012] NSWCA 222 Jol v State of New South Wales (1998) 45 NSWLR 283; (1998) 104 A Crim R 516 Mr D v Ms P [2020] NSWCA 174 SW v State of New South Wales [2010] NSWSC 966 Category: Procedural rulings Parties: TS (Plaintiff) The State of New South Wales (Defendant) Representation: Counsel: T Buterin (Plaintiff) S Thornely (Defendant) Solicitors: Mills Oakley (Plaintiff) Makinson d'Apice Lawyers (Defendant) File Number(s): 2021/00231701 Publication restriction: None, but note that s 578A of the Crimes Act 1900 (NSW) prevents the publication of any material that might identify the plaintiff Judgment 1. HER HONOUR: This is an application for leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) ("the Felons Act") filed by the plaintiff, Ms TS. 2. Ms TS is a prisoner presently in custody having been convicted of, and now serving a sentence for, manslaughter. Manslaughter is an offence contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) and it carries a maximum penalty upon conviction of 25 years imprisonment. It is a "serious indictable offence" as defined by s 4 of the Crimes Act. 3. Because of her conviction for manslaughter s 4 of the Felons Act applies to the plaintiff and she requires the leave of the Court to initiate proceedings under the Civil Procedure Act 2005 (NSW). Section 4 is in these terms: 4 Leave to sue required 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. 1. In support of her application for the Court's leave, the plaintiff relies upon two affidavits of her solicitor, Luke Geary, sworn on 2 November 2021 and 4 November 2021; together with an affidavit of Detective Sergeant ("DS") Joshua Palmer sworn on 9 November 2021. 2. The defendant neither consents to nor opposes a grant of leave. 3. The Court has been assisted by the plaintiff's written submissions. The Evidence 1. The documentary evidence establishes that, by oversight, the plaintiff filed a Statement of Claim on 6 August 2021 without having sought the leave of the Court to do so. Her Claim seeks damages payable by the defendant for intentional torts she asserts were committed upon her by an employee of New South Wales Corrective Services in 2016 and 2017, at a time when she was an inmate of a correctional centre operated by the State. 2. The plaintiff alleges that the employee sexually assaulted her on a number of occasions. The conduct is said to constitute assault, battery, and false imprisonment, causing the plaintiff significant damage. The plaintiff sues the State as both directly and vicariously liable for the conduct of its employee. She seeks damages, aggravated damages, and exemplary damages. 3. In October 2018 the plaintiff made a statement to police concerning her allegations and fourteen criminal charges are pending against the employee with respect to the allegations. DS Palmer deposes that the employee is to stand trial in the District Court of New South Wales on 25 July 2021 for these and other offences. Determination 1. Section 5 of the Felons Act provides for the grant of leave to a felon to commence civil 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. 1. Thus, there are two statutory pre-requisites to a grant of leave: prima facie there is a ground for the proceedings; and the proceedings are not an abuse of process. Those two criteria present a relatively low threshold: SW v State of New South Wales [2010] NSWSC 966. See also Mr D v Ms P [2020] NSWCA 174. 2. A ground which is, on its face, arguable and thus not entirely hopeless, should satisfy both, since an arguable claim is not ordinarily an abuse of process. The test was considered in Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17], where Allsop ACJ and Basten JA said: "Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading.[…] As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not "hopeless" or "unarguable". Different expressions used from time-to-time do not indicate any difference in the standard to be applied." 1. It is neither necessary nor possible, for the Court to make an assessment of the merits of the plaintiff's claim; what is required is that the Court "form a broad impression" as to whether the claim is an arguable one. The plaintiff's detailed police statement of 10 October 2018, together with information as to the circumstance of the employment of the alleged abuser and the role he had within the Corrections system, lead me to conclude that the Claim is arguable. There is no basis upon which to conclude that it is an abuse of process. 2. Perhaps a little unusually, the Court's leave is sought retrospectively, since the Claim has already been filed. That does not, however, invalidate the claim. 3. The point was considered in Jol v State of New South Wales (1998) 45 NSWLR 283; (1998) 104 A Crim R 516, where Sheller JA, with the concurrence of Beazley JA and Sheppard AJA, said, at 290B: "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." 1. In the impressionistic way discussed in Malcolm Potiers I am satisfied that the Statement of Claim filed by the plaintiff on 6 August 2021 is not an abuse of process, and there is prima facie ground for the proceedings. It is appropriate to grant that leave, effective from 6 August 2021, regularising the irregularity of the filing of the Claim. 2. The orders the Court makes are: 1. Leave is granted to the plaintiff under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) allowing her to institute Supreme Court of New South Wales civil proceedings 2021/00231701, with this order taking effect from 6 August 2021. 2. The plaintiff is directed to file and serve, by email to the Associate to Wilson J, by 12pm on 15 December 2021, draft short minutes of order reflecting order 1, for execution by the Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2021