Application of Dixon Ly [2013] NSWSC 906

Supreme Court New South Wales

Medium Neutral Citation: Application of Dixon Ly [2013] NSWSC 906 Hearing dates: 27 June 2013 Decision date: 27 June 2013 Jurisdiction: Equity Division Before: Rein J Decision: Leave granted to the applicant pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) Catchwords: PRACTICE AND PROCEDURE - whether leave should be granted to the Applicant pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence civil proceedings in the Equity Division Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW) Cases Cited: Application of Malcolm Huntley Potier [2012] NSWCA 222 Ford v Simes [2009] NSWCA 351 SW v State of New South Wales [2010] NSWSC 966 Category: Interlocutory applications Parties: Mr Dixon Ly (Applicant) Representation: Counsel: Mr J. Spinak (Applicant) Solicitors: Gregory J Goold Solicitor (Applicant) File Number(s): 2013/161022

EX TEMPORE Judgment 1REIN J: In this matter, the plaintiff, Mr Dixon Ly, makes application for leave to commence civil proceedings in the Equity Division of this court pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) ("the Act"). The Act has the following relevant sections: 4. A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application. 5. A court shall not, under section 4, 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 prima facie ground for the proceedings. 2As can be seen, s 5 precludes this court from granting leave to institute proceedings, to a person who is incarcerated for a serious indictable offence, unless satisfied that the proceedings are not "an abuse of process" and that there is "a prima facie ground for the proceedings" 3The plaintiff has in fact been convicted of a serious indictable offence and therefore needs leave pursuant to s 4 to commence proceedings. Mr Spinak, of counsel, who appears for the plaintiff on this application, has drawn my attention to a number of authorities, which deal with the threshold requirements of s 5, particularly the prima facie ground. 4By way of background, it can be noted that in the Application of Malcolm Huntley Potier [2012] NSWCA 222, Allsop AcJ and Basten JA made reference to the purpose of the legislative scheme, which was: ... in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [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... 5In Potier the Court of Appeal having referred to Ford v Simes [2009] NSWCA 351 per Bergin CJ in Eq with whom Tobias and Handley AJA concurred, went on to say this: 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". and see SW v State of New South Wales [2010] NSWSC 966 (dealing with proceedings at first instance) it being obtained by Johnson J at [16] that the statutory gateway "ought not be an overly demanding one". 6In support of the plaintiff's application, there has been read today an affidavit Gregory Joseph Goold of 27 June 2013. Mr Goold not only sets out the background to the claim but he appropriately annexes a proposed draft Statement of Claim to be issued against the three defendants. The claim, in essence, is based upon alleged breach of fiduciary duties and the obtaining of property by the defendants including allegations of fraud against the first defendant, who was entrusted, according to the plaintiff, with the task of obtaining and realising assets of his for the benefit of his son and himself. The plaintiff alleges that the obligations imposed on the first defendant have been breached with the consequence that property, which on the plaintiff's case is his, or to be held on trust for his son, has been removed out of his or his son's control to the benefit of the first defendant and/or the other defendants. 7In the circumstances, I am comfortably satisfied that the case is neither an abuse of process nor one in which it can be said that the claim is hopeless and, therefore, I conclude that that leave should be granted pursuant to s 4, the threshold requirements of s 5 having been met.