O’Donnell v State of New South Wales [2022] NSWSC 1235

Supreme Court New South Wales

Medium Neutral Citation: O'Donnell v State of New South Wales [2022] NSWSC 1235 Hearing dates: 5 September 2022 Date of orders: 5 September 2022 Decision date: 05 September 2022 Jurisdiction: Common Law Before: Chen J Decision: (1) Leave is granted to the plaintiff nunc pro tunc to commence the proceedings filed on 2 May 2022 pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). (2) No order as to the costs of the Notice of Motion such that each party is to bear its own costs. Catchwords: CIVIL PROCEDURE — commencement of proceedings — leave required to commence action by person in custody for a serious indictable offence — where proceedings commenced before leave sought — leave granted nunc pro tunc Legislation Cited: Crown Proceedings Act 1988 (NSW) Felons (Civil Proceedings) Act 1981 (NSW) 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 Category: Procedural rulings Parties: Brendan O'Donnell (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: T Meakes (Plaintiff) S Roberts (Defendant)

Solicitors: Beston Macken McManis Lawyers (Plaintiff) Makinson & d'Apice Lawyers (Defendant) File Number(s): 2022/125735

ex tempore JUDGMENT (REVISED)

Introduction 1. Brendon O'Donnell ('the plaintiff'), by Notice of Motion filed 17 August 2022, seeks an order, under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) ('the Act'), for leave to institute proceedings for damages for sexual abuse which he alleges was inflicted upon him whilst he was a student at the Heckenberg Public School in 2001. 2. The plaintiff has, in fact, already commenced proceedings: a statement of claim was filed in this Court on 2 May 2022. The proceedings are not a nullity but treated as an irregularity: it is thus permissible for leave to be granted nunc pro tunc, if the pre-conditions to the making of an order under s 4 of the Act are established: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290. 3. The State is sued under s 5 of the Crown Proceedings Act 1988 (NSW) and is accepted to be the appropriate defendant to the plaintiff's claim. 4. The defendant neither consents to the order sought nor opposes it.