Love v The State of New South Wales

Read in support of the notice of motion is an affidavit of Katia Guido sworn 27 July 2026. That affidavit deposes to the fact that the plaintiff is presently serving sentences of imprisonment in a correctional centre in New South Wales for offences that comprise serious indictable offences as defined in the Felons (Civil Proceedings) Act 1981 (NSW).

Accordingly, under s 4 of that Act, the plaintiff may not institute any civil proceedings in any Court, except by leave of the Court granted on application. Section 5 of that Act provides that a court shall not, under s 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.

The construction and operation of the Act has been considered in a number of decisions of the court. In short, the purpose of the Act is to supervise proceedings to ensure they do not go forward to trial if they amount to an abuse of process, or if there is no prima facie ground for them. “Prima facie ground” in s 5, means no more than a basis that is arguable or not totally hopeless.

The affidavit of Ms Guido attaches the relevant criminal record of the plaintiff and a proposed draft statement of claim. The draft statement of claim alleges that whilst a minor detained in Cobham Youth Justice Centre in 2007 the applicant says he was physically and sexually assaulted by a youth worker. The cause of action is outlined in terms of negligence, and claims are made for damages, including exemplary and aggravated damages, interest and costs.

The plaintiff's cause of action is supported by a report of Associate Professor Michael Robertson, Consultant Psychiatrist, who assessed the plaintiff in November 2025. The report is dated April 2026. It outlines in detail the plaintiff's background, the alleged abuse, and the psychiatric sequelae of that abuse in a comprehensive and useful manner. Associate Professor Robertson also attaches relevant literature underpinning his consideration and assessment of the known sequelae of abuse of the type the plaintiff alleges.

Mr D Elliott of counsel has appeared on behalf of the plaintiff on the present application. He has provided the Court with succinct and helpful outline written submissions.

I do not have any evidence of service of the summons on the defendant, however I do not consider that to be a problem for the application is, technically, a matter between the applicant/plaintiff and the Court as to whether the elements of the Act have been met.

Having considered the material before the Court, and having regard to the principles to be applied on applications such as this, I am satisfied that the plaintiff should be granted leave to institute proceedings under the Act in the form set out in the proposed statement of claim appended to Ms Guido's affidavit.