SW v State of New South Wales [2010] NSWSC 966

New South Wales Supreme Court

CITATION : SW v State of New South Wales [2010] NSWSC 966

HEARING DATE(S) : 25 November 2009, 26 November 2009, 27 November 2009

JUDGMENT DATE : 31 August 2010

JUDGMENT OF : Johnson J at 1

1. The Plaintiff is granted leave nunc pro tunc under ss.4 and 5 Felons (Civil Proceedings) Act 1981 to institute proceedings against the Defendant. DECISION : 2. The question posed for separate determination under rule 28.2 Uniform Civil Procedure Rules 2005 is as follows: "So far as the cause of action that the Plaintiff alleges is concerned, was the Plaintiff under a disability after attaining the age of 18 years, and, if so, did that disability last sufficiently long for these proceedings to have been brought within the applicable limitation period." In answer to that question, on the balance of probabilities, the Plaintiff was not under a disability after attaining the age of 18 years, but even if he was subject to some disability thereafter, the applicable limitation period expired at the latest in January 2003, so that the proceedings were not brought within the applicable limitation period. 3. The parties will be heard as to consequential orders, including costs, and with respect to the question of publication of names in the judgment where pseudonyms have been used.

CATCHWORDS : PRACTICE AND PROCEDURE - application for leave under Felons (Civil Proceedings) Act 1981 - plaintiff serving sentences of imprisonment for serious indictable offences - claim for damages against State of New South Wales - plaintiff sexually abused as a minor - claim of negligent failure by YACS in approving plaintiff's residence and employment with perpetrator - whether prima facie ground for action - faint reliance upon pleaded claim - principal reliance upon unpleaded claim arising from the evidence - leave granted - LIMITATION OF ACTIONS - sexual abuse of plaintiff between 1979 and 1983 - Statement of Claim filed in 2005 - determination of separate question - whether limitation period suspended by disability - mental condition and imprisonment - whether plaintiff incapable of or substantially impeded in management of his affairs in relation to cause of action against State of New South Wales - held limitation period expired before filing of Statement of Claim