Thresholds of the Felons Act: PMD5 v State of New South Wales

The Supreme Court of New South Wales has held that a plaintiff imprisoned outside NSW for crimes committed outside NSW does not require leave under the Felons (Civil Proceedings) Act 1981 (NSW) (Felons Act).

Background

The plaintiff, anonymised as PMD5, sought damages from the State of NSW for alleged sexual abuse perpetrated by his father between 1986 and 1999. The plaintiff alleged that the State, as the child welfare authority, owed a duty of care and failed to prevent foreseeable harm.

The plaintiff, incarcerated in Victoria following convictions for rape and theft, filed a Notice of Motion seeking leave under s 4 of the Felons Act to commence civil proceedings in NSW.

The issue

The question for determination was whether s 4 of the Felons Act requires a plaintiff, imprisoned outside NSW for serious indictable offences committed outside NSW, to obtain leave before initiating proceedings in NSW.

Held (Garling j)

Section 4 of the Felons Act prohibits a person ‘in custody as a result of having been convicted of … a serious indictable offence’ from commencing civil proceedings without leave of the court.

The plaintiff argued that the restriction applies to anyone in custody for a serious indictable offence, regardless of where the offence occurred or where the plaintiff is imprisoned.

Garling J disagreed, applying:

• common law presumptions limiting the territorial application of legislation; and
• s 12 of the Interpretation Act 1987 (NSW), which implies territorial limitations to references in legislation.

His Honour concluded that the Felons Act applies only to persons:

• convicted in NSW of serious indictable offences;
• who are in custody in NSW; and
• seeking to commence proceedings in a NSW court.

Significance

Institutional defendants should exercise caution before:

• advising plaintiff lawyers that leave under the Felons Act is required; or
• consenting to or opposing an application under s 4 of the Act.

Specifically, defendants should closely consider:

• the jurisdiction in which the plaintiff was convicted; and
• the location of the plaintiff’s incarceration at the time of filing proceedings.

Where a plaintiff is imprisoned outside NSW for offences committed outside NSW, the Felons Act will not apply, and no leave is required to commence proceedings in NSW.