Supreme Court New South Wales Medium Neutral Citation: Matthews v State of New South Wales [2022] NSWSC 718 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 representative of 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 3 March 2022. 3. Each party is to bear their own costs of the Notice of Motion Catchwords: CIVIL PROCEDURE – commencement of proceedings – leave to commence action – by person serving a sentence for a serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused when held on remand at juvenile justice centre – leave granted Legislation Cited: Crimes Act 1900 (NSW) ss 4, 33, 35 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: Sean Matthews (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): 2022/61652 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. 2. The proceedings were commenced by the filing of a statement of claim on 3 March 2022. In that way the leave is sought nunc pro tunc. Leave nunc pro tunc may be granted: see Jol v State of New South Wales (1998) 45 NSWLR 283, where Sheller JA made clear (at 290) that the institution of proceedings without leave having been granted does not constitute a nullity, but rather an irregularity which may be corrected at a later time. 3. The plaintiff claims that he was committed in 2006 as a young person to the Cobham Remand Centre at Werrington. He alleges that on his admission to the centre he was sexually abused by a youth officer at the centre. He claims to have suffered injury, including mental harm, as a result of the sexual abuse. 4. He sues the State of New South Wales by reason of the fact that the Cobham Remand Centre was run and operated by the Department of Juvenile Justice New South Wales. The claim made against the State is for the direct negligence of the State through those who ran the remand centre and also vicarious liability for the offence which took place there. The detail of what occurred is set out in an evidentiary statement of the plaintiff dated 21 April 2022. 5. To obtain leave under s 4 of the Act it is necessary for the plaintiff to show that the proceedings are not an abuse of process and that there is a prima facie ground for bringing those proceedings. The test was considered in Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17] by Allsop ACJ and Basten JA, who 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 is no evidence in the affidavit in support of the notice of motion about the offence for which the plaintiff is currently incarcerated. I am informed from the Bar table that he was convicted and is serving a sentence for assault occasioning grievous bodily harm. I have taken that to be a reference either to an offence contrary to s 33 or s 35 of the Crimes Act 1900 (NSW). In either case, the offences under those sections are serious indictable offences within the definition of s 4 of the Crimes Act. 2. I am satisfied from the material that the proceedings are not an abuse of process and that there is a prima facie ground for those proceedings. 3. Accordingly, I make the following order: Leave is granted to commence the proceedings 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