Achurch v State of New South Wales [2022] NSWSC 315

Supreme Court New South Wales

Medium Neutral Citation: Achurch v State of New South Wales [2022] NSWSC 315 Hearing dates: On the papers Date of orders: 22 March 2022 Decision date: 22 March 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 2021/00309507, with this order taking effect from 1 November 2021. (2) Costs of the notice of motion filed 24 February 2022 are costs in the cause. Catchwords: PROCEDURE – application for leave to commence civil proceedings – where plaintiff in custody – Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5 Legislation Cited: Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) Felons (Civil Proceedings) Act 1981 (NSW) Cases Cited: Application of Malcom Huntley Potier [2012] NSWCA 222 Jol v State of New South Wales (1998) 45 NSWLR 283 Category: Procedural rulings Parties: Achurch (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: J Masur (Plaintiff) Solicitors: Kingsley Lawson Lawyers (Plaintiff) Minter Ellison (Defendant) File Number(s): 2021/00309507 Publication restriction: Nil

Judgment 1. 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. 2. He is a prisoner presently in custody having been convicted of, and now serving a sentence for robbery armed with a dangerous weapon. This is a serious indictable offence as defined by s 4 of the Crimes Act 1900 (NSW). 3. 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). 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 his application for the Court's leave, the plaintiff relies upon an affidavit of his solicitor, Varuni Santhakumar, sworn on 23 February 2022. 2. The defendant neither consents to nor opposes a grant of leave. 3. The Court was assisted by the plaintiff's written submissions prepared by counsel, Mr Masur.