Bargashoun v State of New South Wales

Case [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.

  1. 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.

  2. 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

  1. 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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Details
AGLC
Bargashoun v State of New South Wales [2024] NSWSC 355
Case
[2024] NSWSC 355
Decision Date

CaseChat Overview and Summary

The case before the court involved Bargashoun, the plaintiff, and the State of New South Wales, the defendant. The plaintiff sought to commence proceedings against the defendant for alleged personal injuries sustained during his detention in a correctional facility. The primary legal issue before the court was whether the plaintiff had satisfied the requirements of the Civil Procedure Act 2005 (NSW) to obtain leave to commence proceedings against the state.

The court examined the procedural history of the case and determined that the plaintiff had not fulfilled the criteria set out in section 18 of the Civil Procedure Act. The court found that the plaintiff had failed to provide a statutory notice of claim as required by section 15 of the Act within the requisite timeframe, which was a critical procedural step before seeking leave to commence proceedings. Additionally, the court held that the plaintiff had not demonstrated exceptional circumstances that would justify dispensing with the statutory notice requirement. The court's decision was influenced by previous cases which established that strict compliance with the statutory notice requirement is mandatory unless there are exceptional circumstances that warrant an exemption.

As a result of the court's reasoning, the plaintiff's application for leave to commence proceedings against the state was dismissed. The court concluded that the failure to provide a statutory notice of claim and the absence of exceptional circumstances precluded the plaintiff from obtaining leave to proceed with the action. This decision underscores the importance of strict adherence to statutory requirements when initiating legal proceedings against the state.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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