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[2026] NSWSC 552
Supreme Court of NSW
2026-05-14
Campbell J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Wright v State of New South Wales [2026] NSWSC 552
Hearing dates: 14 May 2026
Date of orders: 14 May 2026
Decision date: 14 May 2026
Jurisdiction: Common Law
Before: Campbell J
Decision: (1) Under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave nunc pro tunc to institute these proceedings by filing the Statement of Claim on 30 September 2025. (2) The plaintiffs’ costs are costs in the cause.
Catchwords: CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where leave required under the Felons (Civil Proceedings) Act 1981 (NSW) – expectation that affidavit will explain need to file statement of claim without accompanying application for leave
Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW), s 4
Limitation Act 1969 (NSW), s 6A
Cases Cited: Application of Malcolm Huntley Potier [2012] NSWCA 222
Category: Procedural rulings
Parties: Nathan Wright (Plaintiff)
State of New South Wales (Defendant)
Representation: Counsel:
J Polese (Plaintiff)
No appearance (Defendant)
Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
No appearance (Defendant)
File Number(s): 2025/375904
HIS HONOUR: By notice of motion filed on 9 March 2026, the plaintiff seeks leave nunc pro tunc under the provisions of section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Act”) to bring proceedings against the defendant named in the Statement of Claim, filed on 30 September 2025, for the consequences of child sexual abuse which he alleges he suffered in various situations, including in foster care and in juvenile detention, when the State or an officer of the State was responsible for his care.
By s 6A of the Limitation Act 1969 (NSW) (“the Limitation Act”), the limitation period in respect child sex abuse cases has been abrogated.
Under s 4 of the Act a person who is in custody as a result of having been convicted of a serious indictable offence, may not institute any civil proceeding in any court except by leave of the Court granted on that application.
Having regard to the evidence contained in the affidavits of his instructing solicitors, read by Mr Polese of counsel, I am satisfied that the plaintiff is serving a sentence of full‑time imprisonment for a number of serious indictable offences, and that the Act applies to him. Under s 5 the Court shall not grant leave unless satisfied that the proceedings are not an abuse of process and that there is prima facie grounds for the proceedings.
Mr Polese has reminded me of the familiar authority of A**pplication of Malcolm Huntley Potier [2012] NSWCA 222 at [16]-[17] and he has emphasised the following statement (at [17]):
“… 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.”
To my mind, it is sufficient if the evidence led on the application demonstrates that there is likely to be evidence available to be led at the trial of the action which, if accepted, would entitle the plaintiff to judgment in his favour.
I am satisfied that from his evidential statement and the history he gave to Dr Allen, consultant psychiatrist, which are broadly consistent, that if his evidence is accepted the Court will accept that the alleged child abuse occurred, and it is obvious from Dr Allen’s report that if his opinion is accepted the applicant not only suffered the physical consequences of the alleged abuse but also has on going significant psychiatric issues at least materially contributed to by that abuse. Therefore, I am satisfied in the circumstances that my discretion to grant leave should be exercised in favour of the applicant.
I did have occasion at the commencement of the argument to point out to Mr Polese, given the provisions of s 6A of the Limitation Act, and notwithstanding the duty of a solicitor acting for persons bringing historical child abuse claims to deal with the claims with celerity, where, as here, the Statement of Claim is filed without the requisite application for leave but rather a motion is filed later seeking leave nunc pro tunc, an explanation of the plaintiff’s solicitor should be included in the affidavit in support explaining why that course was necessary in the particular circumstances of the case at hand. Such an explanation was absent in the present evidence. However, rather than generate costs that should have been unnecessary and require the use of additional court time on some future date I have proceeded to deal with the matter today, rather than dismissing the motion or adjourning to abide the necessary explanation. This forbearance will not always be observed by the Court.
I make the following orders:
Under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave nunc pro tunc to institute these proceedings by filing the Statement of Claim on 30 September 2025.
The plaintiffs’ costs are costs in the cause.
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Wright
State of New South Wales