BBL3 v State of New South Wales

Decision date: 02 December 2025

Jurisdiction: Common Law

Before: Yehia J

Decision: (1) Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of New South Wales with such orders made nunc pro tunc and taking effect from 19 December 2023.
(2) Costs of the motion be costs in the cause.

Catchwords: CIVIL PROCEDURE – Commencement of proceedings – leave to commence action – plaintiff in custody serving a sentence for the commission of a serious indictable offence – leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings – leave granted retrospectively

Legislation Cited: Crimes Act 1900 (NSW), s 114
Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5
Limitations Act 1969 (NSW) s 6A(2)

Cases Cited: TS v The State of New South Wales [2021] NSWSC 1649

Category: Procedural rulings

Parties: BBL3 (Plaintiff)
State of New South Wales (Defendant)

Representation: Solicitors:
Chamberlains Law Firm (Plaintiff)

File Number(s): 2023/00459617

Publication restriction: Nil

Judgment (Ex tempore - revised)

1. The plaintiff seeks leave, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“Felons Act”) to commence and maintain his civil proceedings, with such orders made nunc pro tunc and taking effect from 19 December 2023. In support of the Notice of Motion, the plaintiff reads the affidavit of his solicitor, Tom Hakkinen, dated 14 November 2025, annexing relevant documents including a copy of a report of Dr Balaratnasingam, consultant psychiatrist.

2. The Court has been assisted by the comprehensive outline of submissions filed on behalf of the plaintiff. Much of the background relevant to this application is extracted from those written submissions.

3. The plaintiff claims damages for psychiatric and psychological injuries he alleges resulted from acts of sexual abuse by a teacher whilst he was a student at Beacon Hill Primary School between the years of 2000 and 2001. The claim against the defendant in respect of the plaintiff’s abuse arises in breach of its common law duty of care and in vicarious liability.

4. At the time of the institution of proceedings, the plaintiff was incarcerated as a result of having been charged and now convicted of serious indictable offences. On 6 May 2024, he was sentenced to serve a term of three years’ imprisonment. One of the offences for which he was sentenced is an offence contrary to s 114 of the Crimes Act 1900 (NSW) which attracts a maximum penalty of seven years’ imprisonment.

5. By oversight, the plaintiff’s claim was filed without leave and therefore leave is sought retrospectively.

6. The plaintiff was assessed by Dr Balaratnasingam on 11 December 2023.

7. Dr Balaratnasingam opines that the subject abuse contributed to the plaintiff satisfying the diagnostic criteria for substance use disorder (in remission); post-traumatic stress disorder (largely in remission); and persistent depressive disorder (in remission).

8. The doctor opines that the index abuse has materially contributed to those diagnoses, despite there being other contributing causal factors.

9. The plaintiff’s evidentiary statement sets out the nature of the alleged abuse which occurred on more than one occasion between 2000 and 2001. The plaintiff sets out the effect of that abuse upon him. It is not necessary to set out the details of that abuse in this ex tempore judgment suffice to say I have read all of the material relied upon in support of the application for leave.

10. Pursuant to s 4 of the Felons Act*,* the plaintiff requires leave to institute the proceedings. Section 5 of the Felons Act provides that the Court may only grant leave if “satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings”. It is uncontroversial that leave can be granted retrospectively.

11. The defendant neither consents to nor opposes leave being granted.

12. The relevant principles regarding the grant of leave pursuant to ss 4 and 5 of the Felons Act were considered by Wilson J in TS v The State of New South Wales [2021] NSWSC 1649 at [11]-[12]:

“Thus, there are two statutory pre-requisites to a grant of leave: prima facie there is a ground for the proceedings; and the proceedings are not an abuse of process. Those two criteria present a relatively low threshold: SW v State of New South Wales [2010] NSWSC 966. See also Mr D v Ms P [2020] NSWCA 174.

A ground which is, on its face, arguable and thus not entirely hopeless, should satisfy both, since an arguable claim is not ordinarily an abuse of process. The test was considered in Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17], where Allsop ACJ and Basten JA said:

‘Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading.[…] 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”. Different expressions used from time-to-time do not indicate any difference in the standard to be applied.’”

13. As the plaintiff’s claim relates to “historical sexual abuse”, s 6A(2) of the Limitations Act 1969 (NSW) permits the claim to be brought at any time, unconstrained by the limitation provision.

14. Having perused the material in support of this application I am satisfied that the statutory requirements are met. While the plaintiff’s prospects of success are not certain, his claim has reasonable prospects of success based on provable facts and a reasonably arguable view of the law. I am satisfied that the claim is not an abuse of process and that there are prima facie grounds for the civil action. Accordingly, I will retrospectively grant leave under s 4 of the Felons Act.

15. I make the following orders:

16. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of New South Wales with such orders made nunc pro tunc and taking effect from 19 December 2023.

17. Costs of the motion be costs in the cause.

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