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. The relevant provisions of the Act 1. Section 4 of the Act relevantly provides: "A person who is in custody as a result of having been convicted of…a serious indictable offence may not institute any civil proceedings in any court except by leave of that court granted on application." 1. Section 5 of the Act then prescribes that the Court is not to "grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings". The test identified by this section has been understood as requiring no more than that the claim "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": Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17] (Allsop ACJ and Basten JA) ("Potier"); Ford v Simes [2009] NSWCA 351 at [31] (Bergin CJ in Eq). 2. The statutory test is an undemanding one: "…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'": Potier at [17]. The claim: assessment 1. The plaintiff is a person who has been convicted of a serious indictable offence. He is currently in custody at Long Bay Correctional Centre, NSW for that offence. It was accepted that this was the situation at the time that the statement of claim was filed. Leave to institute proceedings against the State was therefore required under s 4 of the Act. 2. The substance of the plaintiff's claim is that, in 2001 whilst enrolled as a student at the Heckenberg Public School, he was sexually abused by his school teacher on three separate occasions. His case is that he suffered psychiatric injury in consequence, and claims damages from the defendant, alleging that the injuries and loss suffered were due to the breach of the non-delegable duty that the School owed to him, or otherwise, that it is vicariously liable for the conduct of his school teacher. 3. The plaintiff has, in support of the orders sought, tendered an evidentiary statement dated 17 May 2022. That statement sets out the plaintiff's evidence relating to the three incidents that I have described: see pars 1-6. 4. The plaintiff did not tender any medical evidence, but there is some evidence in the plaintiff's evidentiary statement which establishes, in an appropriately preliminary way, some evidence of damage: see pars 7-11. 5. I am satisfied, based upon what is alleged in the statement of claim, and the evidence to which reference has been made, that the proceedings are not an abuse of process or lacking a prima facie ground; they could not be described as hopeless or unarguable. It follows that I am satisfied that this is an appropriate case for the grant of leave. Orders 1. I make the following orders: 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. ********** 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: 14 September 2022