PMD5 v State of New South Wales

Catchwords: CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under the Felons (Civil Proceedings) Act 1981 (NSW) –Whether the Felons (Civil Proceedings) Act 1981 (NSW) applies exclusively to persons in custody in NSW who have been convicted of or found to have committed a serious indictable offence in New South Wales
STATUTORY INTERPRETATION – Legal presumptions – Jurisdiction – Extraterritorial application – General law rule of construction – References to New South Wales implied under the Interpretation Act 1987 (NSW)

Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW) s 4
Interpretation Act 1987 (NSW) sch 4, ss 3(3), 12

Cases Cited: DRJ v Commissioner of Victim’s Rights (No.2) [2020] NSWCA 242; (2020) 103 NSWLR 692
Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] HCA 11; (1966) 115 CLR 10
Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society [1934] HCA 3; (1934) 50 CLR 581

Texts Cited: Not Applicable

Category: Procedural rulings

Parties: PMD5 (P)
State of New South Wales (D)

Representation: Solicitors:
Karp O’Neill Lawyers (P)
Minter Ellison (D)

File Number(s): 2025/117930

Publication restriction: Not Applicable

JUDGMENT

1. On 27 March 2025, the plaintiff, to whom the pseudonym PMD5 has been given, commenced proceedings by filing a Statement of Claim.

2. The Statement of Claim claimed damages from the State of NSW, as defendant, as a consequence of sexual abuse which the plaintiff alleged occurred to him between 1986 and 1999 at the hands of his father. The plaintiff claims that the defendant, being the organisation responsible for child welfare, owed to him a duty to take reasonable care to avoid causing him particular harm, which was known to the defendant.

3. As yet, no defence has been filed to that claim.

4. It is clear from the plaintiff’s Evidentiary Statement, which was also filed on 27 March 2025, that the abuse upon which the plaintiff relies occurred in the Greater Sydney Area.

Notice of Motion

5. On 31 March 2025, the plaintiff filed a Notice of Motion which included a claim for the following order:

“5. Pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 (NSW), the plaintiff be granted leave to commence proceedings in the Supreme Court of New South Wales with such orders made nunc pro tunc in the form of the sealed Statement of Claim annexed and marked ‘A’.

6. That the costs of this Motion be costs in the cause.”

6. In support of that Notice of Motion, the plaintiff filed an affidavit sworn by a solicitor, Ms Herbert, who had the day-to-day carriage of the matter.

Evidence

7. I am satisfied from the content of that affidavit that the proceedings are not an abuse of process, and I am satisfied that there is a prima facie ground for the proceedings. The defendant did not contest a conclusion to that effect.

8. Paragraph 10 of Ms Herbert’s affidavit says:

“The plaintiff instructs he is currently incarcerated in Victoria for rape and theft charges. The plaintiff’s Sentence and Remand Report dated 18 November 2024 is annexed and marked ‘Annexure B’.”

9. The Sentence and Remand Report (“the Report”) is described as a comprehensive prison history and is a record of Corrections Victoria. It is not easy to decipher. It appears that on 3 July 2020, the plaintiff was remanded in custody in Melbourne. On 6 July 2020, the plaintiff was sentenced to a total of 2 years imprisonment with a non-parole period of 12 months commencing on 10 July 2018 for two charges.

10. It next appears that the plaintiff was charged with an offence of rape, and one of theft, on 7 July 2020. He seems to have remained in custody until he was sentenced on 30 November 2021 to a total of 5 years and 4 months imprisonment with a non-parole period of 3 years with respect to the charge of rape and the charge of theft. There was also a further charge of theft for which, on the same day, the plaintiff was sentenced to a total of 7 days imprisonment to be served concurrently with the earlier sentence.

11. Although it is not clear what date the sentence was to commence, the Report suggests that a total of 514 days pre-sentence detention was to be allowed as a credit against that earlier sentence.

12. The Report shows that, on the date it was printed, 18 November 2024, the plaintiff remained in custody in Victoria.

Further Evidence

13. At the request of the Court, the plaintiff provided a further affidavit and submissions. The further affidavit, from Mr Jeremy Mondel, a solicitor employed in the firm retained by the plaintiff, sworn 4 June 2025, includes the following:

“4. On 9 November 2021, the plaintiff stood trial for charges of theft and rape in the County Court of Victoria and was convicted. …

5. On 23 November 2021, a sentencing hearing occurred in the County Court of Victoria in relation to the plaintiff’s offences of theft and rape. A sentencing judgment was handed down on 30 November 2021 in the matter … The plaintiff was sentenced to a cumulative period of five years and four months in custody. The plaintiff instructs that he is still serving his custodial sentence…”

14. A copy of the sentencing judgment was annexed.

15. It appears from that sentencing judgment that the plaintiff had stood trial on two occasions. On the first trial, he was acquitted by the jury of two charges of rape but had pleaded guilty to a charge of theft. On the second trial, he again had pleaded guilty to a charge of theft and not guilty to a charge of rape involving a different complainant. He was found guilty of that charge. The charge of rape carried a maximum term of imprisonment of 25 years and the charge of theft carried a maximum term of imprisonment of 10 years. It is apparent from the reasons for sentence that, on the charge of rape, the plaintiff was sentenced to imprisonment for a period of 5 years and 4 months. The sentences for the theft were of 7 days each and were completely cumulative.

Principal Issue

16. The principal issue for consideration is whether, having regard to the terms of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Felons Act”), it is applicable in circumstances where a plaintiff who has a claim which is jurisdictionally appropriate to be brought in this Court, because the cause of action arose in NSW and the plaintiff suffered damage in NSW, ought be required to obtain leave to commence proceedings under the Felons Act if he has committed no serious indictable offence in NSW but has been convicted outside NSW, and is not in custody in NSW at the time proceedings are commenced, but is in custody outside NSW.

Legislation

17. It is convenient to set out the provisions of s 4 of the Felons Act:

“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.”

18. The term “serious indictable offence” is not defined in the Felons Act. However, sch 4 of the Interpretation Act 1987 (NSW) contains a definition of that phrase as being “an indictable offence punishable by imprisonment for life or for a term of 5 year or more”. That dictionary definition is applicable to all Acts and instruments – s 3(3) of the Interpretation Act.

19. Section 12 of the Interpretation Act provides for legislation to impliedly refer to NSW. It is in the following terms:

“12 References to New South Wales to be implied

(1) In any Act or instrument—

(a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and

(b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.

(2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words ‘New South Wales’ or ‘of New South Wales’ merely because those words form part of the body’s name or title.”

Plaintiff’s Submissions

20. The plaintiff submits that the Felons Act applies to a person if they have been found to have committed an offence anywhere, including outside NSW, which falls within the definition of serious indictable offences in the Interpretation Act and are, when proceedings are commenced, imprisoned outside NSW, and hence he is required to seek leave to commence these proceedings. He asks that leave be deemed to have been given on the day prior to the proceedings being filed.

21. The plaintiff submits that, upon the proper interpretation of the Felons Act, the Court should interpret s 4 as including individuals imprisoned outside NSW for crimes committed outside NSW.

Discernment

22. It is within the legislative power of the Parliament of NSW to legislate an act such as the Felons Act so that it applied to people incarcerated outside NSW and who committed serious crimes outside NSW, but who wished to commence proceedings in a court in NSW: DRJ v Commissioner of Victims Rights (No.2) [2020] NSWCA 242; (2020) 103 NSWLR 692 at [20] per Bell P, Leeming JA at [128].

23. In my view, the issue is not whether it was within the power of the Parliament to pass legislation with some extra-territorial effect, but rather whether upon its correct interpretation, the Felons Act should be read and interpreted as having extra-territorial effect, in the way claimed by the plaintiff.

24. The general law rule of construction, which has long been applied, is one which limits the territorial operation of statutes to within the State. Taylor J said in Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] HCA 11; (1966) 115 CLR 10 at 30-31, it is a principle of statutory interpretation that:

“the persons, property, and events in respect of which Parliament has legislated are presumed to be limited to those in the territory over which it has jurisdiction …”

25. Dixon J in Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society [1934] HCA 3; (1934) 50 CLR 581 at 600-601, said:

“It appears to me that it is necessary in such a case to rely upon the ordinary rules of the common law for a rule of interpretation which will supply the restriction subject to which the words will be read. The case is one for applying what I believe to be the well settled rule of construction. The rule is that an enactment describing acts, matters or things in general words, so that, if restrained by no consideration lying outside its expressed meaning, its intended application would be universal, is to be read as confined to what, according to the rules of international law administered or recognised in our Courts, it is within the province of our law to affect or control. The rule is one of construction only, and it may have little or no place where some other restriction is supplied by context or subject matter. .”

26. Section 12 of the Interpretation Act is also relevant, as the terms which are set out above show.

27. If the terms of s 4 are to be read, as the plaintiff submits, as not being territorially restricted to NSW, one interpretation would be that if a person who is in custody in NSW, having been convicted of a serious indictable offence, then that person is prohibited from instituting any civil proceedings in any court outside NSW except by leave of that Court. Put differently, the terms of s 4, so interpreted, would constrain litigation in such a court, in circumstances where that territory had not necessarily passed similar legislation. It would be a surprising consequence of being imprisoned in NSW, that a person could not pursue their legal rights in a territory outside NSW where that territory placed no restriction on the person pursuing those rights.

28. Part of the reason for such a conclusion is that it may be suggested that the legislation was punishing a person convicted of an offence in NSW in addition to any sentence which may be imposed upon them. Prohibiting the commencement of proceedings outside of NSW, whilst the convicted felon is in custody in NSW, may have a significant substantive effect. A limitation period might expire thereby depriving the NSW felon from pursuing their right in a different territory. The Court of that different territory may not regard itself as constrained to act in a way determined by the NSW Parliament when its own parliament has chosen not to legislate such a restriction.

29. Such an interpretation is fraught with difficulty.

30. But here there is the converse interpretation contended for by the plaintiff. His contention is that, if the Felons Act is properly interpreted, the NSW Parliament has imposed a restriction on a person convicted of a crime, regarded as a serious indictable offence if committed in NSW, which may constitute a punishment in addition to the sentence imposed on that individual by the territory in which they committed their crime.

31. The matter is not free from doubt. In my view, applying both the common law rule of interpretation and the provisions of s 12 of the Interpretation Act, s 4 of the Felons Act is to be interpreted as applying to a person in custody in NSW who has been convicted of or found to have committed a serious indictable offence in NSW. As well, on that interpretation, it refers only to a Court in NSW which requires, and can make, a grant of leave to commence proceedings.

32. The consequence of that conclusion is that the Notice of Motion brought by the plaintiff is unnecessary and ought be dismissed.

Orders

33. I make the following orders:

34. Notice of Motion filed 31 March 2025 is dismissed.

35. Each party to pay their own costs of the Notice of Motion.

**********