Supreme Court New South Wales Medium Neutral Citation: Clark v State of New South Wales [2022] NSWSC 715 Hearing dates: 1 June 2022 Date of orders: 1 June 2022 Decision date: 01 June 2022 Jurisdiction: Common Law Before: Davies J Decision: 1. Leave granted to defendant to appear. 2. The Plaintiff is granted leave nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 to institute proceedings against the Defendant in the form contained in the Statement of Claim filed 2 November 2021. 3.Each party is to bear their own costs of the Notice of Motion Catchwords: CIVIL PROCEDURE – commencement of proceedings – leave to commence action – plaintiff serving sentence for serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused as a pupil of a school run by the Department of Education – leave granted Legislation Cited: Crimes Act 1900 ss 4, 193C Felons (Civil Proceedings) Act 1981 (NSW) ss 4, 5 Cases Cited: Application of Malcolm Huntley Potier [2012] NSWCA 222 Jol v State of New South Wales (1998) 45 NSWLR 283 Texts Cited: Nil Category: Procedural rulings Parties: Aaron Clark (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: T Meakes (Plaintiff) S Roberts (Defendant) Solicitors: Beston McManis Lawyers (Plaintiff) Makinson d'Apice Lawyers (Defendant) File Number(s): 2021/310890 Publication restriction: Nil Judgment 1. The plaintiff seeks leave under the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of New South Wales. 2. The proceedings were actually commenced by the filing of a statement of claim on 2 November 2021. For that reason leave is sought nunc pro tunc. Leave nunc pro tunc may be granted because the commencement of such proceedings without leave is an irregularity and not a nullity: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290. 3. The plaintiff is now aged thirty years. He sues the State of New South Wales on the basis of allegations that he was sexually assaulted by a school teacher at the Thomas Acres Public School in about 2002 when he was aged ten or eleven years. The details of the sexual abuse are set out in an evidentiary statement which has been tendered on the application. 4. The statement of claim alleges both direct and vicarious liability on the part of the State of New South Wales, in as much as the school was operated through the Department of Education. 5. Although there was no evidence in the affidavit in support of the motion of the offence for which the plaintiff was convicted and is currently serving a sentence, I have been informed from the Bar table that the plaintiff has been imprisoned by reason of some 19.7 grams of an illicit drug being found in his possession, and also an offence of dealing with the proceeds of crime. I have assumed that, either by reason of the possession of that quantity of the illicit drugs the plaintiff was charged with dealing in those drugs, or that the proceeds of crime offence was an offence against s 193C of the Crimes Act 1900 (NSW). In either case the offence would be a serious indictable offence as defined in s 4 of the Crimes Act. 6. Section 5 of the Felons Act requires the Court to be satisfied, before leave is granted, that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. 7. 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] 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 286. 1. I am satisfied from the evidentiary statement of Mr Clark that there is a prima facie basis shown for the bringing of the proceedings and I am satisfied that the proceedings are not an abuse of process. 2. Accordingly, I make the following order: 1. Leave is granted to the plaintiff nunc pro tunc to commence the proceedings filed on 2 November 2021 pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). ********** 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: 02 June 2022