Astill v State of New South Wales

Under the provisions of section 4 of the Act a person in custody serving a sentence for a serious indictable offence may not institute any civil proceedings in any court except by leave of the Court granted on the application. By the terms of s 5, the Court is enjoined from granting such leave unless satisfied that the proceeding are not an abuse of process and there is a prima facie ground for the proceedings.

By reference to the affidavit of Mr Isackson of counsel's instructing solicitor, Mr Mitchel Hajje, I am satisfied that the plaintiff is currently in custody in a correctional centre serving a sentence of full‑time imprisonment for a number of offences. The sentence is an aggregate sentence and at least one of the offences, being an offence of aggravated breaking and entering, is a serious indictable offence and accordingly the Act applies.

By reference to the material attached to Mr Hajje's affidavit, including the expert's report of Dr Martin Allen, consultant psychiatrist, I am satisfied that if the history given by the applicant to Dr Allen is given by him in evidence which is accepted at a trial, there is prima facie ground for the proceedings in terms of s 5 of the Act. Moreover, on the assumption that the history is correct, Dr Allen has diagnosed that the plaintiff has suffered a recognised psychiatric condition as a result of the abuse. If his opinion is accepted the Court will find that the abuse at least materially contributed to the condition of Post-Traumatic Stress Disorder which still affects the plaintiff. I am satisfied also, within the meaning of s 5 of the Act, that the proposed proceedings are not an abuse of process.

I did mention to Mr Isackson that given the absence of a limitation period for these matters, the need to proceed by making subsequent application nunc pr**o tunc is not obvious, always accepting that proceedings should be issued at the earliest reasonable time in relation to these historical child abuse cases.

In those circumstances it really behoves the solicitor involved, and I regard it as necessary for him or her, to provide an explanation to the Court as to why it was deemed necessary to file the Statement of Claim unaccompanied by an appropriate application for leave with supporting evidence. However, on this occasion I will overlook that omission and under s 4 of the Felons (Civil Proceedings) Act 1981*,* I grant the plaintiff leave nunc pro tunc commence these proceedings by his Statement of Claim filed on 11 February 2026 and order that the plaintiff's costs of the application are costs in the cause.