In the recent matter of Potter v Trustees of the De La Salle Brothers [2025] NSWSC 105, the plaintiff, Mr David Potter, commenced court proceedings seeking damages against the defendant, the Trustees of the De La Salle Brothers, for injuries he alleges he suffered whilst a student at De La Salle College Revesby. The plaintiff later included a second defendant, Sydney Catholic Schools Ltd.
On 24 January 2025, the plaintiff filed a Notice of Motion by which he sought the following orders:
- Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of New South Wales (Common Law Division) with such orders made nunc pro tunc and taking effect from 20 December 2023.
- An order that costs of the Motion be costs in the cause.
In support of that Motion, the plaintiff relied upon two affidavits of his solicitor, Mitchell Hajje. The first affidavit was sworn on 24 January 2025. The second affidavit was sworn on February 2025.
In the first affidavit, Mr Hajje deposed:
The plaintiff is currently incarcerated a Mid-North Coast Correctional Centre on remand for charges of import commercial quantity of border controlled drug, being an indictable offence.
In his second affidavit, Mr Hajje deposed as follows:
3. The plaintiff was charged on 7 June 2021, in relation to import of commercial quantity of border-controlled drug. …
4. The plaintiff has been incarcerated on remand since that time.
5. The plaintiff is currently incarcerated at Mid-North Coast Correctional Centre on remand for charges of import commercial quantity of border-controlled drug, being an indictable offence.
6. The plaintiff’s six week trial has been set down for August, to be confirmed.
7. At the time that proceedings were commenced in the Supreme Court on 20 December 2023, the plaintiff was incarcerated.
Annexed to the affidavit is a copy of the Criminal History Report of the plaintiff, current as at 8 March 2023. It is apparent from that Report that on 8 July 2013, in the District Court of New South Wales, the plaintiff was sentenced upon a plea of guilty to supplying a prohibited drug in excess of the large commercial quantity. For that offence, he was sentenced to a term of imprisonment of 10 years and 6 months commencing on 31 May 2012 and concluding on 30 November 2022. His non‑parole period was 6 years and 6 months. It is to be observed that this sentence expired about 12 months before the current proceedings were commenced.
In its consideration, the Court provided at [12] – [15] as follows:
The evidence of Mr Hajje, together with the Report (current as at March 2023), does not prove that the plaintiff was in custody as a result of having been convicted of, or found to have committed, any offence at all. The evidence pellucidly shows that whilst the plaintiff has been charged with an offence, he is on remand awaiting his trial.
The fact that a plaintiff is on remand in custody is not sufficient, of itself, to require that he have leave to institute proceedings.
The evidence does not support the matters necessary to found a grant of leave under the Felons (Civil Proceedings) Act 1981.
This judgment demonstrates, yet again, that solicitors acting for plaintiffs need to pay careful attention to the terms of the Felons (Civil Proceedings) Act including demonstrating, by admissible evidence, that the Court ought grant leave, because the necessary pre-conditions set out in s 4 and s 5 of the Act have been satisfied.
Ultimately, on 25 February 2025, the New South Wales Supreme Court ordered as follows:
(1) Notice of Motion filed 24 January 2025 dismissed.
(2) The plaintiff to pay his own costs of the Notice of Motion.
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