Supreme Court New South Wales Medium Neutral Citation: Snow v State of New South Wales [2022] NSWSC 1027 Hearing dates: 1 August 2022 Date of orders: 1 August 2022 Decision date: 01 August 2022 Jurisdiction: Common Law Before: Davies J Decision: 1. Leave granted to commence proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). 2. No order as to costs with the intent that each party pay their own costs of the 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 alleges he was sexually abused by a teacher at a state primary school – leave granted Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW). Cases Cited: Jol v State of New South Wales (1998) 45 NSWLR 283 Re Application of Malcolm Huntley Potier [2012] NSWCA 222 Texts Cited: Nil Category: Procedural rulings Parties: Jake Snow (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: T Meakes (Plaintiff) M Bateman (Defendant) (by leave) Solicitors: Beston McManis Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2022/339900 Publication restriction: Nil Judgment 1. The plaintiff seeks leave under section 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 5 February 2022. In that way, leave is sought nunc pro tunc. 3. Leave nunc pro tunc and see Jol v State of New South Wales (1998) 45 NSWLR 283 where Shellar 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. 4. The plaintiff, who was born in March 1994, attended Singleton Primary School from 1999 to 2005. He alleges that when he was in Year 5 in 2004 he was part of a school trip to the Great Aussie Bush Camp. He claims that on a night at that camp he and some other boys engaged in some inappropriate behaviour for which they were to be disciplined. The teacher concerned asked him to clean up the mess that they had created, and then required the plaintiff to accompany the teacher to the shower block where the teacher sexually assaulted him in a number of different ways. 5. The plaintiff claims, as a result of the sexual assaults, that he has suffered injury including mental harm. A report from a Dr John Albert Roberts of 25 May 2022 indicates that the plaintiff has been diagnosed as suffering from post-traumatic stress disorder, substance use disorder, and a personality disorder, all said to have resulted from the sexual assault. 6. The plaintiff sues the State of New South Wales by reason of the fact that he was attending a State primary school. The State is sued both on the basis of being directly negligent, because of what it knew or ought to have known and the precautions it failed to take, and also on the basis that it is vicariously liable for the actions of the teacher. 7. To obtain leave under section 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 Re Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17] by Allsop ACJ and Basten JA: Taken literally, that limb of the test refers to a claim which at first sight and without investigation appears to be a 'ground'. 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 Limited [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 supporting affidavit of the solicitor for the plaintiff John McManis indicates that the plaintiff is currently incarcerated at Cooma Correctional Centre for an offence of police pursuit and reckless wounding. Reckless wounding is an offence which carries a maximum penalty of 10 years imprisonment and is, accordingly, a serious indictable offence. 2. I am satisfied from the material, including the plaintiff's evidentiary statement of 9 March 2022 and the report of Dr Roberts, that the proceedings are not an abuse of process and that there is a prima facie ground for those proceedings. Accordingly, I make the following orders: 1. Leave is granted to commence the proceedings nunc pro tunc pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 (NSW). 2. There will be no order as to costs to the intent that each party is to pay their own costs. ********** Amendments 03 August 2022 - Typographical error in para [4]. 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: 03 August 2022