Bargashoun v State of New South Wales

[2024] NSWSC 355

Supreme Court

New South Wales

Medium Neutral Citation:

Bargashoun v State of New South Wales [2024] NSWSC 355

Hearing dates:

On the papers

Date of orders:

05 April 2024

Decision date:

05 April 2024

Jurisdiction:

Common Law

Before:

Harrison CJ at CL

Decision:

(1)  Grant leave nunc pro tunc to the plaintiff to commence proceedings against the defendant pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981.

(2)  Order that the costs of this application be the costs in the proceedings.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW) ss 4, 5

Cases Cited:

Thurston v State of New South Wales [2021] NSWSC 226

Category:

Procedural rulings

Parties:

Richard Bargashoun (Plaintiff)
State of New South Wales (Defendant)

Representation:

Solicitors:
Shine Lawyers (Plaintiff)
Wotton Kearney (Defendant)

File Number(s):

2023/199964

Publication restriction:

Nil

Judgment

1. HIS HONOUR: By notice of motion filed on 15 March 2024, Richard Bargashoun seeks leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 to maintain proceedings against the State of New South Wales in this Court. A statement of claim was filed without leave on 22 June 2023. It alleges that Mr Bargashoun was sexually abused while he was in juvenile detention at the Mt Penang and Reiby Juvenile Justice Centres between 1992 and 1994.

2. Leave is required by s 4 of the Act because at the time of the institution of proceedings, Mr Bargashoun was serving a sentence of imprisonment for a serious indictable offence.

3. Leave may be granted as if it had been at the time of the institution of proceedings nunc pro tunc, the meaning of which was explained by Hamill J in Thurston v State of New South Wales [2021] NSWSC 226 at [3].

4. Section 5 of the Act provides:

5 Grant of leave

A court shall not, under section 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.

5. I am satisfied that the matters alleged in the statement of claim would, if proved, establish a prima facie basis for damages against the defendant.

6. The State of New South Wales, uncontroversially, did not oppose Mr Bargashoun’s application for the orders in question. I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

Orders

7. Accordingly, I make the following orders:

1. Grant leave nunc pro tunc to the plaintiff to commence proceedings against the defendant pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981.

2. Order that the costs of this application be the costs in the proceedings.

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Decision last updated: 10 May 2024