Supreme Court New South Wales Medium Neutral Citation: Kennedy v State of New South Wales [2022] NSWSC 619 Hearing dates: 9 May 2022 Date of orders: 9 May 2022 Decision date: 09 May 2022 Jurisdiction: Common Law Before: Johnson J Decision: 1. The Plaintiff is granted leave nunc pro tunc pursuant to ss.4 and 5 Felons (Civil Proceedings) Act 1981 to institute proceedings against the Defendant in the form contained in the Statement of Claim filed on 8 February 2022. 2. Each party is to bear their own costs of the Notice of Motion. Catchwords: CIVIL PROCEDURE – application for leave under Felons (Civil Proceedings) Act 1981 – claim for damages following alleged physical and sexual assault by officer in juvenile detention – leave granted Legislation Cited: Felons (Civil Proceedings) Act 1981 Uniform Civil Procedure Rules Cases Cited: Application of Malcolm Huntley Potier [2012] NSWCA 222 Ford v Simes [2009] NSWCA 351 Jol v State of New South Wales (1998) 45 NSWLR 283 SW v State of New South Wales [2010] NSWSC 966 Thurston v State of New South Wales [2021] NSWSC 226 Texts Cited: --- Category: Procedural rulings Parties: Daniel Kennedy (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Mr T Meakes (Plaintiff) Ms A Charchar, solicitor (Defendant) Solicitors: Beston McManis Lawyers (Plaintiff) Makinson d'Apice Lawyers (Defendant) File Number(s): 2022/36732 Publication restriction: --- Judgment 1. JOHNSON J: By Notice of Motion filed on 29 March 2022, the Plaintiff, Daniel Kennedy, seeks an order for leave to proceed under ss.4 and 5 Felons (Civil Proceedings) Act 1981 in proceedings against the Defendant, State of New South Wales. 2. The Plaintiff commenced proceedings against the Defendant, or at least sought to do so, by the filing of a Statement of Claim on 8 February 2022. 3. Read in support of the Notice of Motion is an affidavit of John McManis, solicitor, dated 24 March 2022. 4. The Plaintiff is presently serving sentences of imprisonment in a Correctional Centre in New South Wales. The Court has been informed that he is serving sentences for offences which are serious indictable offences, as defined for the purpose of the Felons (Civil Proceedings) Act 1981. Accordingly, under s.4 of that Act, the Plaintiff may not institute any civil proceedings in any Court except by the leave of the Court, granted on application. Section 5 of that Act provides as follows: "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. The construction and operation of that Act has been considered in a number of decisions of the Court. Put shortly, the purpose of the Act is to enable the Court to supervise 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: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290. 2. As a matter of policy, it has been said that the statutory gateway to be applied by the Court ought not be an overly demanding one: SW v State of New South Wales [2010] NSWSC 966 at [16]. In Ford v Simes [2009] NSWCA 351, it was said (at [30]-[31]) that the expression "prima facie ground" in s.5 meant no more than a basis that was arguable or not totally hopeless. 3. In Application of Malcolm Huntley Potier [2012] NSWCA 222, Allsop ACJ and Basten JA said of s.5 at [17]: "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. The purpose of the legislative scheme was, in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 that a convicted felon could not sue at law or in equity. On the other hand, the purpose of the statute was to permit the court to ensure that neither it nor prospective defendants were subjected to proceedings which were an abuse of process or which lacked any real merit: Jol v State of New South Wales (1998) 45 NSWLR 283 at 286E (Sheller JA, Beazley JA and Sheppard AJA agreeing). 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. The Plaintiff brings the application now, seeking leave to proceed as if leave had been sought at the time that proceedings were instituted by way of the filing of the Statement of Claim. Leave can be granted as if it had been granted at the time of the institution of proceedings nunc pro tunc: Thurston v State of New South Wales [2021] NSWSC 226 at [3]. 2. The Plaintiff's claim against the Defendant is based upon events said to have occurred in a juvenile detention centre in about 2015 or 2016. According to the Statement of Claim, and the Plaintiff's evidentiary statement dated 13 February 2022 (both of which are annexed to the affidavit of Mr McManis), the Plaintiff, who was born in March 1999, was detained in a youth detention centre at that time. He was 16 or 17 years of age. 3. It is alleged that the Plaintiff was sexually abused by an officer working at the youth detention centre. It is not necessary for the purpose of this judgment to outline the details of the allegations beyond that. 4. The Plaintiff's claim against the Defendant is based upon the principle of vicarious liability for causes of action in trespass to the person and battery. In addition, there is a claim against the Defendant in negligence for failing to protect the Plaintiff from alleged acts of this type being committed, in this case, by a person who is said to have been an employee of the Defendant at the relevant facility. 5. There is no psychiatric or psychological report accompanying the material in support of the present application. It is desirable that material of that type be available for the Court to consider on an application such as this. It is clear, however, that there is a claim based upon the infliction of psychiatric injury to the Plaintiff. So much is clear from paragraphs 20 and 28 of the Statement of Claim. 6. Paragraph 30 of the Statement of Claim refers to the Plaintiff's Part 15.12 Uniform Civil Procedure Rules ("UCPR") particulars, which, however, are not before the Court. It is sufficiently clear, however, from the allegations in the Statement of Claim, and the evidentiary statement of the Plaintiff, that there is a claim of psychiatric injury brought, based upon these alleged events. The Plaintiff's evidentiary statement talks upon the impact of these events upon his life since 2015 and 2016. 7. I do not regard the absence of any psychiatric or psychological material, or indeed the particulars under Part 15 Rule 12 UCPR, as being an impediment to the present application. 8. Counsel has appeared on behalf of the Plaintiff on the present application. The Defendant has appeared and neither consents to nor opposes the application made by the Plaintiff. In any event, of course, it remains a matter for the Court to determine whether leave should be granted. 9. Having considered the material before the Court, and having regard to the principles to be applied on an application such as this, I am satisfied that the Plaintiff should be granted leave to institute proceedings in accordance with ss.4 and 5 of the Act. I am satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings. 10. Accordingly, I make the following orders: 1. The Plaintiff is granted leave nunc pro tunc pursuant to ss.4 and 5 Felons (Civil Proceedings) Act 1981 to institute proceedings against the Defendant in the form contained in the Statement of Claim filed on 8 February 2022. 2. Each party is to bear their own costs of the Notice of Motion. ********** 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: 24 May 2022