O’Farrell v State of New South Wales [2022] NSWSC 1237

Supreme Court New South Wales

Medium Neutral Citation: O'Farrell v State of New South Wales [2022] NSWSC 1237 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 4 December 2021 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 serving a sentence 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: Shannon O'Farrell (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: T Meakes (Plaintiff) S Cooper (Defendant)

Solicitors: Beston Macken McManis Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): 2021/00344746

EX TEMPORE JUDGMENT (REVISED)

Introduction 1. Shannon O'Farrell ('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 an incident of sexual abuse which he alleges was inflicted upon him whilst he was a year 7 student at the Dubbo High School in 1998. 2. The plaintiff has, in fact, already commenced proceedings: a statement of claim was filed in this Court on 4 December 2021. 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.