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[2025] NSWSC 1441
General information, not legal advice.
Supreme Court of NSW
2025-12-02
Yehia J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Gale v State of New South Wales [2025] NSWSC 1441
Hearing dates: 2 December 2025
Date of orders: 2 December 2025
Decision date: 02 December 2025
Jurisdiction: Common Law
Before: Yehia J
Decision: (1) Leave granted retrospectively to the plaintiff to institute proceedings against the defendant pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).
(2) The costs of this application 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: Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5
Cases Cited: TS v The State of New South Wales [2021] NSWSC 1649
Category: Procedural rulings
Parties: Michael Gale (Plaintiff)
State of New South Wales (Defendant)
Representation: Solicitors:
Shine Lawyers Ltd (Plaintiff)
Minter Ellison (Defendant)
File Number(s): 2025/00395085
Publication restriction: Nil
HER HONOUR: The plaintiff moves on a Notice of Motion seeking leave to institute proceedings against the defendant pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) (the Felons Act). The Notice of Motion is supported by an affidavit of the plaintiff’s solicitor which annexes a number of relevant documents, including a report from consultant psychiatrist, Dr Tanya Ahmed.
The proceedings were commenced by a Statement of Claim filed on 14 October 2025. The plaintiff is currently incarcerated at South Coast Correctional Centre having been admitted into that correctional facility on 11 July 2024. He was sentenced on 26 June 2020 to a non-parole period of 8 years’ imprisonment, commencing on 8 May 2018 and expiring on 7 May 2026.
The plaintiff was born on 31 July 1965. Sometime between 1979 and 1983, the plaintiff was admitted to Keelong Juvenile Justice Centre. While detained there the plaintiff claims to have suffered physical and sexual abuse at the hands of the defendant and/or its employees, servants and/or agents.
The plaintiff was assessed by Dr Ahmed, who prepared a report dated 7 December 2024. The report provides evidence in support of the plaintiff’s claim and includes the nature of the abuse and an assessment of the diagnosis of the psychological injury and disorder suffered by the plaintiff.
The Statement of Claim, the particulars and the contents of the psychiatric report, set out the sad history of the plaintiff including the circumstances relating to the alleged incidents of abuse. The psychiatric sequela of the abuse is set out in Dr Ahmed’s comprehensive report.
According to s 4 of the Felons Act, the plaintiff requires leave to institute the proceedings.
Under s 5 of the Felons Act, the Court may grant leave if satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. It is uncontroversial that leave can be granted retrospectively.
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.’”
The defendant neither consents to nor opposes leave being granted.
Having perused the material in support of the Notice of Motion, I am comfortably satisfied that the claim is not an abuse of process and that there are prima facie grounds for the civil action.
I make the following orders:
Leave granted retrospectively to the plaintiff to institute proceedings against the defendant pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).
The costs of this application be costs in the cause.
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Gale
State of New South Wales [2025] NSWSC 1441