Sterling v State of New South Wales [2018] NSWSC 1780 (21 September 2018)

Last Updated: 20 November 2018

Supreme Court New South Wales

Case Name:	Sterling v State of New South Wales
Medium Neutral Citation:	[2018] NSWSC 1780
Hearing Date(s):	21 September 2018
Date of Orders:	21 September 2018
Decision Date:	21 September 2018
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) The plaintiff is granted leave nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings against the defendant. (2) Costs of this application will be costs in the cause.
Catchwords:	PRACTICE AND PROCEDURE – leave to commence proceedings under Felons (Civil Proceedings) Act 1981 (NSW) – plaintiff seeks to sue for sexual abuse that is alleged to have occurred during a past period of juvenile detention – plaintiff no longer in custody – no utility in refusing leave – prima facie case – leave granted
Legislation Cited:	Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5
Cases Cited:	SW v State of NSW [2010] NSWSC 966
Category:	Consequential orders (other than Costs)
Parties:	Shane Sterling (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: K Balendra (Plaintiff) State of New South Wales (Ex Parte)
File Number(s):	2018/00109889

EX TEMPORE JUDGMENT

1. HIS HONOUR: Before the Court is an application for leave pursuant to s 5 of the Felons (Civil Proceedings) Act 1981 (NSW). Section 5 prohibits the Court from granting leave to a person to institute proceedings under s 4 of the Act unless the Court is satisfied that the proceedings are not an abuse of process and there is prima facie ground for the proceedings.
2. The proceedings sought to be brought by Mr Sterling relate to allegations by him of physical and sexual abuse experienced while a juvenile in detention and are proceedings against the relevant authority in relation to those allegations. Section 4 of the Act provides that 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 civil proceedings except by the leave of the Court, the leave provision having been referred to by the Court already.
3. These matters were the subject of some discussion by his Honour Justice Johnson in the matter of SW v State of NSW [2010] NSWSC 966. At paragraphs 15 and 16 his Honour sets out the proposition that the failure to grant leave does not render the commencement of proceedings a nullity, rather the failure is an irregularity which the Court can, in appropriate cases, cure by orders nunc pro tunc and cites authority for that proposition.
4. His Honour also discusses the view, with which with respect to his Honour, I agree, that the purpose of the Act is to enable the Court to supervise proceedings by incarcerated felons to ensure that they do not amount to an abuse of process or that there is a prima facie ground for them. Again, his Honour sets out authority. His Honour's judgment at paragraphs 15 and 16 is in the following terms:

“The commencement of the proceedings without a grant of leave does not render the proceedings a nullity. Rather, they suffer from an irregularity which the court can, in an appropriate case, cure by grant of leave nunc pro tunc: Vorhauer v NSW Minister for Health [2005] NSWSC 797 at [24].
It is necessary to keep in mind the relevant statutory context. The Plaintiff is required to seek leave under ss 4 and 5 because of his status as a person serving a sentence of imprisonment having been convicted of a serious indictable offence. The purpose of the Act is to enable the court to supervise proceedings by ensuring that they do not go forward to trial if they amount to an abuse of process or there is no prima facie ground for them: Jol v New South Wales at 290. As a matter of policy, the statutory gateway to be applied by the court ought not be an overly demanding one. In Ford v Simes [2009] NSWCA 351, Bergin CJ in Eq (Tobias JA and Handley AJA agreeing) observed at [30]–[31] that the expression ‘prima facie ground’ in s 5 (as it applied to an appeal) meant no more than a ground of appeal that is arguable or not totally hopeless. With respect to an application for leave to commence proceedings at first instance, using the language in Ford v Simes, it is necessary for the court to be satisfied that the Plaintiff has an arguable case, and a case which is not totally hopeless, so that he should be allowed to bring the proceedings.”

5. In the case of Mr Sterling, there is a nice question as to whether an order is necessary. The proceedings were commenced while the plaintiff or punitive plaintiff was in custody for a serious indictable offence, however, he is no longer in custody.
6. As a consequence, the plaintiff could now commence the proceedings and little purpose would be served other than delay and extra cost by refusing to grant leave. In any event, even if leave were necessary, it seems to me a matter where obviously leave should be granted.
7. As earlier discussed, the proceedings relate to allegations of physical and sexual abuse associated with an earlier period of juvenile incarceration and seek damages from the relevant defendant who is or may be vicariously liable for the conduct in question. The allegations in the Statement of Claim are verified and there is at least a prima facie case. The proceedings are not an abuse of process.
8. In those circumstances, the Court makes the following order in matter 109889/2018 Shane Sterling v the State of New South Wales:
   • (1) The plaintiff is granted leave nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute proceedings against the defendant.
   • (2) Costs of this application will be costs in the cause.

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