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​​​​​​​EX TEMPORE REVISED JUDGMENT

1. HIS HONOUR: The plaintiff, Roger James Jeffrey Kilby, filed a Statement of Claim on 30 April 2026 alleging that he was sexually abused by an officer whilst the plaintiff was admitted to the Acmena Juvenile Justice Centre in 2001. By Notice of Motion filed 23 June 2026, the plaintiff seeks leave nunc pro tunc pursuant to the Felons (Civil Proceedings) Act 1981 (NSW) (the Act) to commence those proceedings.

2. In support of the application, the plaintiff reads the affidavit of Mitchell Hajje sworn 23 June 2026. That affidavit details the plaintiff's instructions to Mr Hajje with respect to the facts giving rise to the proceedings. It also provides a medicolegal report by a psychiatrist, Dr Martin Allan, who assessed the plaintiff by video conference. The affidavit attaches the plaintiff's record of convictions. He is presently incarcerated, having been convicted of the charge of murder by Yehia J in this Court and sentenced on 14 July 2025 to a non-parole period of 12 years and 6 months' imprisonment, with an additional term of 5 years and 6 months. The total term of his incarceration is 18 years' imprisonment, and the first date upon which he is eligible to be released on parole is 11 September 2035.

3. Section 4 of the Act 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.

4. Section 5 of the Act 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.

5. As mentioned, the Statement of Claim was filed on 30 April 2026. That was before the application for leave to commence the proceedings was sought. It is clear, however, that such leave can be granted nunc pro tunc: see Jol v The State of New South Wales [1998] NSWLR 283; (1998) 104 A Crim R 516. The material before me satisfies me that the applicant has been convicted of the offence of murder as I have described it.

6. The Act does not contain any definition of what constitutes a “serious indictable offence”. Such an offence is defined in s 3(3) Schedule 4 of the Interpretation Act 1987 (NSW) as being an indictable offence that is punishable by a term of imprisonment for life or a term of five years or more. I am satisfied that the offence of murder, for which the applicant has been convicted, is such an offence, having a maximum penalty of life imprisonment.

7. The evidence in the psychiatric report details the disclosure by the plaintiff to the doctor of the occasion of the alleged abuse. It also details the psychiatric and psychological sequalae of that alleged abuse, and in the doctor's opinion, a causal link exists between the two. I have set out above the relevant sections of the Act. The test identified has been understood as requiring no more than that the claim has a ground or basis on which “on its face is not hopeless or unarguable”: see A**pplication of Malcolm Huntley Potier [2012] NSWCA 222 (Portier) at [17] (per Allsop ACJ and Basten JA).

8. That test requires reference to the legal principles invoked by the cause of action on which the claim is based, and reference to the factual allegations contained in the pleadings: see the discussion in SY1 v State of New South Wales [2024] NSWSC 327 at [8]-[9] (per Wright J). In Potier, the Court of Appeal said at [17] that in determining the test and whether it has been satisfied:

[T]he 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".

9. The matters set out in the Statement of Claim plead the relevant matters of the abuse and that it allegedly occurred whilst the plaintiff was in the Acmena Juvenile Justice Centre by officers of that centre. It pleads that the State of New South Wales owed a non-delegable duty to the plaintiff, or alternatively, was vicariously liable for the actions of the officers.

10. In my opinion, the facts, matters and circumstances also identified by Mr Isackson of Counsel in his detailed submissions, with reference to the Statement of Claim and the psychiatric report, clearly demonstrate that the plaintiff has established that the claim is arguable and enjoys a realistic prospect of success. It could not be said that it is hopeless or unarguable.

11. In all of the circumstances, therefore, I am satisfied the proceedings are not an abuse of process and there is a prima facie ground for them.

ORDERS

12. The orders of the Court, therefore, are:

13. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), the plaintiff is granted leave nunc pro tunc to commence and maintain his civil proceedings in the Supreme Court of New South Wales (Common Law Division).

14. The costs of the motion will be costs in the cause.

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