Jacobs v State of New South Wales [2026] NSWSC 377

Legal principles

4. The key sections of the Act are ss 4 and 5. Section 4 provides:

4 Leave to sue required for persons convicted of serious indictable offences

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 any civil proceedings in any court except by the leave of that court granted on application.

5. The grant of leave is regulated by s 5 which provides:

5 Grant of leave

A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.

6. The applicable principles were considered by Wilson J in TS v The State of New South Wales [2021] NSWSC 1649 (TS). At [11]–[12], her Honour noted as follows:

“[11] 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.

[12] 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.’”

Consideration

7. The Plaintiff notes that because his claim seeks damages for historical child sexual abuse, the claim can be brought at any time and is not subject to a limitation period: Limitation Act 1969 (NSW) s 6A(1). Mr Wallace-Pannell deposes that whilst the Plaintiff has not been able to identify the alleged offender by name, he has provided a physical description of that individual, including that he had seen him at Miranda Public School on occasion.

8. The Plaintiff has been assessed for medico-legal purposes by a Dr Brendan Jansen, psychiatrist, on 11 February 2025 via audiovisual link. That assessment gave rise to the production of a report by Dr Jansen seven days later. The report is annexed to Mr Wallace-Pannell’s affidavit. The summary provided in the affidavit notes that the Plaintiff has provided a generally consistent history of the abuse. Dr Jansen expresses the opinion that the alleged abuse at Miranda Public School has contributed to the Plaintiff satisfying the diagnostic criteria for:

9. post-traumatic stress disorder;

10. polysubstance use disorder (in remission); and

11. unspecified psychotic disorder.

12. Dr Jansen has opined that the Plaintiff’s post-traumatic stress disorder was materially caused by the alleged incident, and the incident constituted criterion A for such stress in DSM-5.

13. Mr Wallace-Pannell deposes in paragraph 13 of his affidavit that, based upon his investigations of the Plaintiff’s claim, he has formed the opinion that such a claim has reasonable prospects of success based on provable facts and a reasonably arguable view of the law. He notes, on the basis of information and belief, that the Plaintiff has not previously pursued any claims for compensation arising from the index abuse, or has otherwise entered into any deed or agreement not to institute these proceedings.

14. Annexure TWP-4 of the aforesaid affidavit contains a draft Statement of Claim. The relief claimed is damages and exemplary damages. It notes, in paragraph 1, that the Plaintiff was born in 1996 and, in around 2008, when he was under the age of 18 years and was known as Jaih Tony Jacobs-Cantwell, he was a child and was a student attending Miranda Public School. In that capacity, he pleads, at paragraph 3, he was under the care, protection and control of the State of New South Wales and by its teachers, employees, servants and agents.

15. He states in paragraph 4 that, whilst he was a student at the school, he was physically and sexually abused by a male teacher whom he describes as “balding, wore glasses and had a beard”. There are particulars of abuse set forth in that paragraph. He claims that as a consequence of that sexual and physical abuse he has suffered harm, and claims in negligence and vicarious liability.

16. In his written submissions the Plaintiff submits that, in “an orthodox way”, his claim against the Defendant is that his abuse and injury were caused by a breach of the duty of care owed to him whilst at school. In relation to vicarious liability, reference is made to the High Court’s decision in Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37*.*

17. The Plaintiff contends that if he succeeds, he may be entitled to general damages of not less than $200,000, but potentially as high as $400,000, excluding interest. There may also be an additional claim for economic loss as well as treatment expenses, all of which, if successful, could potentially exceed the jurisdictional limit of the District Court.

18. Returning to s 5 of the Act and the principles in TS, it must be said, as Wilson J observed, that the two criteria in that section present a relatively low threshold. I am satisfied on the basis of the matters set forth in the affidavit of Mr Wallace-Pannell, including especially the opinion that he expresses in paragraph 13 addressed above, together with the psychiatric report prepared by Dr Jansen, the written submissions and the draft Statement of Claim, that the proposed proceedings are not an abuse of process and that there are prima facie grounds for the proceedings to be instituted.

Orders

16. Having reached that conclusion, I make the following orders:

17. Pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 (NSW), the Plaintiff is granted leave to commence his proceedings against the Defendant in the Supreme Court of New South Wales in the form of the document styled “Statement of Claim”, being Annexure TWP-4 of the affidavit of Thomas Wallace-Pannell affirmed 19 January 2026.

18. The costs of the Summons to be costs in the cause.

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