Hamzy v State of New South Wales

[2022] NSWSC 354

Supreme Court

New South Wales

Medium Neutral Citation:

Hamzy v State of New South Wales [2022] NSWSC 354

Hearing dates:

29 March 2022

Date of orders:

29 March 2022

Decision date:

30 March 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

1. Leave granted to the plaintiff to institute proceedings against the defendant nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW);

2. Costs of the application to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – leave sought subsequent to commencement of proceedings

Legislation Cited:

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

Cases Cited:

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

Category:

Principal judgment

Parties:

Mohammed Hamzy (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)
J Pan (Defendant)

Solicitors:
Beston McManis Lawyers (Plaintiff)
McCabes (Defendant)

File Number(s):

2021/310888

Judgment

1. Mohammed Hamzy (“the plaintiff”) has commenced proceedings in this Court by way of a statement of claim filed on 2 November 2021 (“the statement of claim”) seeking damages for injuries sustained when he was allegedly subject to physical and sexual abuse. The plaintiff alleges that this abuse was perpetrated by two youth officers when he was incarcerated at the Cobham Juvenile Justice Centre as a young person under 18 years of age. The plaintiff alleges that the relevant youth workers were the servants or agents of the Department of Juvenile Justice, a Department or statutory organisation of the government of the State of New South Wales. As such, the statement of claim names the State of New South Wales as the defendant in those proceedings.

2. At the time of the institution of proceedings, the plaintiff was in custody. Accordingly, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Act”), he is required to have leave of the Court before such proceedings are instituted. A notice of motion seeking orders to that effect was filed on 4 March 2022.

3. The plaintiff brings the application now seeking leave to proceed as if leave had been sought at the time that proceedings were instituted by way of the statement of claim. It is established that leave can be granted as if it had been granted at the time of the institution of proceedings nunc pro tunc, the meaning of which is helpfully 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. In an evidentiary statement dated 14 December 2021, the plaintiff alleged that, whilst an inmate in the Cobham Juvenile Justice Centre, he was violently sexually assaulted by an employee, which caused him injuries that he continues to suffer. The statement of claim contains allegations of negligence and vicarious liability on the part of the defendant, resulting in injuries and disabilities to the plaintiff.

6. The defendant does not contest that the orders should be made. 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. Leave granted to the plaintiff to institute proceedings against the defendant nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW);

2. Costs of the application to be costs in the cause.

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Decision last updated: 30 March 2022