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[2026] NSWSC 1159
Supreme Court of NSW
2026-09-22
Lonergan 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: Zarounas v State of New South Wales [2026] NSWSC 1159
Hearing dates: 22 September 2026
Date of orders: 22 September 2026
Decision date: 22 September 2026
Jurisdiction: Common Law
Before: Lonergan J
Decision: (1) The plaintiff is granted leave nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute and maintain proceedings against the defendant in the form contained in the statement of claim filed on 28 May 2026, those orders to take effect on and from 28 May 2026
(2) The costs of the notice of motion filed 11 August 2026 are costs in the cause.
Catchwords: CIVIL PROCEDURE – application for leave under Felons (Civil Proceedings) Act 1981 (NSW) – claim for damages for alleged sexual assault by school teacher – leave granted
Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW)
Category: Procedural rulings
Parties: Andrew Zarounas (Plaintiff)
State of New South Wales (Defendant)
Representation: Counsel:
K Doherty (Plaintiff)
Solicitors:
Fern Lawyers (Plaintiff)
Makinson D’Apice Lawyers (Defendant)
File Number(s): 2026/00220089
Publication restriction: Nil
By notice of motion filed on 11 August 2026, the plaintiff, Andrew Zarounas, also known as Andrew Macklin, seeks an order for leave to proceed under s 4 and 5 of the (NSW) (“the Act”) in proceedings against the defendant State of New South Wales.
The plaintiff commenced proceedings against the defendant, or at least sought to do so, by filing a statement of claim on 28 May 2026. In support of the notice of motion there is an affidavit filed of Mitchell Hajje, solicitor, sworn 7 August 2026.
The plaintiff is currently serving sentences of imprisonment in a correctional centre in New South Wales. Documents tendered further to the affidavit of Mr Hajje in the form of a current NSW Department of Corrective Services Correctional facilities record shows that on 16 December 2025 the plaintiff was sentenced for a number of offences which are serious indictable offences as defined for the purposes of the Act.
Accordingly, under s4 of that Act the plaintiff may not institute any civil proceedings in any Court except by the leave of the Court granted on application.
Section 5 of that Act provides as follows:
“A court shall not under s 4 grant leave for 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 that Act has been considered in a number of decisions of the Court. Put shortly, the Act is to enable the Court to supervise proceedings by ensuring that they do not go forward to trial if they amount to an abuse of process, or there is no prima facie ground for them. Generally speaking, prima facie ground in s 5 means no more than a basis that is arguable or not totally hopeless.
The plaintiff brings the application now seeking leave to proceed as if leave had been sought at the time the proceedings were instituted by the filing of the statement of claim. Leave can be granted as if it had been granted at the time of the institution of the proceedings. The latin term “nunc pro tunc” denotes leave of that nature, and that is the timing of that leave is sought by the notice of motion.
The plaintiff's claim against the defendant is based upon an event alleged to have occurred when he was a school child at the Sussex Inlet Public School. He alleges a particular named teacher sexually abused him on a number of occasions when he was a very little boy in Years 1 or 2 at that school. It is alleged that abuse occurred in around 2000 to 2001. Those allegations are set out in the statement of claim filed on 28 May 2026. The claim is made for breach of non-delegable duty of care, as well as vicarious liability and seeks compensatory damages, exemplary damages, interest and costs.
The affidavit material read in support of the application provides an outline of the plaintiff's criminal history and bail report but was dated October 2025. For that reason it did not yet include the necessary conviction evidence, although the affidavit referred to the understanding that the plaintiff was currently in custody on serious indictable offences.
Ms Doherty appearing as counsel for the plaintiff swiftly and ably assisted the Court by obtaining a more recent confirmatory document. That meant I could be satisfied of the plaintiff's current conviction status and could be satisfied as a matter of fact borne out by the evidence that Ms Doherty obtained that the plaintiff in fact had been sentenced for a serious indictable offence.
The affidavit included a report of Dr Martin Allan, consultant psychiatrist. He examined the plaintiff in April 2026. He took a thorough history of the plaintiff's childhood, experience of the alleged abuse and resultant psychiatric and other sequelae. He has diagnosed the plaintiff as suffering from complex PTSD, conduct disorder, poly-substance abuse, and antisocial personality disorder. Dr Allan concluded that the index abuse materially contributed to the mental illnesses and conditions.
The solicitor appearing for the defendant neither consents to, nor opposes the application made by the plaintiff. In any event of course it is a matter for the Court to determine whether leave should be granted. Although the application was not accompanied by a signed statement of the plaintiff, there is sufficient in the allegations in the statement of claim, and the psychiatrist's report, that would satisfy me that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.
Accordingly, having considered that material and having regard to the principles to be applied on an application such as this, I make the following orders:
The plaintiff is granted leave nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute and maintain proceedings against the defendant in the form contained in the statement of claim filed on 28 May 2026, those orders to take effect on and from 28 May 2026
The costs of the notice of motion filed 11 August 2026 are costs in the cause.
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Zarounas
State of New South Wales