Supreme Court New South Wales Medium Neutral Citation: Pham v State of New South Wales [2022] NSWSC 717 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 17 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 – where plaintiff serving a sentence for a serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused as a pupil attending a Department of Education school – leave granted Legislation Cited: Crimes Act 1900 (NSW) ss 4, 95, 96, 98 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: Luan Pham (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: T Meakes (Plaintiff) J Yao (Defendant) Solicitors: Beston McManis Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): 2021/327224 Publication restriction: Nil Judgment 1. The plaintiff seeks leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of New South Wales, claiming damages for mental harm as a result of the plaintiff allegedly being sexually assaulted by a teacher at a Punchbowl Primary School which was run by the New South Wales Department of Education. 2. The proceedings were commenced on 17 November 2021. The notice of motion seeking leave was filed on 27 April 2022. In those circumstances, leave is sought nunc pro tunc for the commencement of the proceedings. Leave nunc pro tunc may be granted. As Sheller JA made clear in Jol v State of New South Wales (1998) 45 NSWLR 283 at 290, the commencement of proceedings without leave having been granted should not be treated as a nullity but simply as an irregularity. 3. The plaintiff was born in 1990 and attended Punchbowl Primary School from 1995 to 2001. He alleges that in 2001, when he was aged eleven years and in Year 6, he was sexually abused by a teacher at the school on a number of occasions. 4. He claims damages against the State of New South Wales, asserting both direct and vicarious negligence against the State for the acts of the teacher who abused him. He claims in the statement of particulars filed with the statement of claim to have suffered a number of psychiatric conditions as a result, including post-traumatic stress disorder, substance use disorder and personality disorders. 5. Section 5 of the Act requires the Court to be satisfied that proceedings are not an abuse of process and that there is a prima facie ground for the proceedings before leave is granted. What must be shown was set out by Allsop ACJ and Basten JA in Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17], where they 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. 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. There was no evidence in the affidavit in support of the notice of motion of the offence for which the plaintiff is currently incarcerated. I was informed from the Bar table that he was convicted of aggravated robbery occasioning actual bodily harm. That would appear to be an offence under either s 95, 96 or 98 of the Crimes Act 1900 (NSW). In any such case, the offence is a serious indictable offence within the definition of s 4 of the Crimes Act. 2. I am satisfied from the evidentiary statement of the plaintiff and from the pleading of the statement of claim that the proceedings are not an abuse of process, and that there is a prima facie ground for the bringing of the proceedings. 3. Accordingly, I make the following order: Leave is granted to commence the proceedings filed 3 March 2022 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