Hraiche v State of New South Wales

[2024] NSWSC 200

Supreme Court

New South Wales

Medium Neutral Citation:

Hraiche v State of New South Wales [2024] NSWSC 200

Hearing dates:

4 March 2024

Date of orders:

4 March 2024

Decision date:

04 March 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Leave granted to commence the proceedings on 25 October 2023 nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).

(2) The plaintiff’s costs of this application are costs in the cause.

Catchwords:

CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success

Legislation Cited:

Civil Liability Act 2002 (NSW), Part 3

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

Cases Cited:

Jol v New South Wales (1998) 45 NSWLR 283

Category:

Procedural rulings

Parties:

Bourhan Hraichie (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
B Williams (Plaintiff)
No appearance (Defendant)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Wotton + Kearney (Defendant)

File Number(s):

2023/282910

EX TEMPORE JUDGMENT (revised)

1. This is an application for leave to be granted nunc pro tunc to commence proceedings under ss 4 and 5 of the Felons (Civil Proceedings) Act1981 (NSW) (the “Act”). The statement of claim was filed on 5 September 2023 without leave. The notice of motion seeking leave was filed on 9 February 2024, however, it is well established that leave under s 5 of the Act may be granted nunc pro tunc: Jol v New South Wales (1998) 45 NSWLR 283.

2. The application is supported by the affidavit of the plaintiff’s solicitor, Aadil Ahmed, sworn on 9 February 2024. It is apparent from that evidence that the plaintiff was, at the time the proceedings were commenced, serving a term of imprisonment at the Hunter Correctional Centre for a series of serious indictable offences, including aggravated break and enter and inflicting grievous bodily harm with intent to murder. He is not eligible to be released until 2046 and accordingly, requires leave under the Act to bring and maintain these proceedings.

3. The claim is one for child sexual and physical abuse allegedly suffered by him at three different juvenile institutions in the period between February 2011 and May 2014 when he was aged between 14 and 18 years. His case is that he was sexually abused by a correctional officer at Reiby Juvenile Justice Centre in 2011. He also alleges further sexual and also physical abuse by correctional officers while on remand as a juvenile at Baxter Juvenile Justice Centre and Cobham Juvenile Justice Centre in 2011 and 2014 respectively.

4. The averments upon which he relies are fully set out in the statement of claim. He frames his case in various ways. First, he relies upon an alleged breach of the non-delegable duty owed by a gaoler to a prisoner in respect of each cause of action, as well as vicarious liability for the tort of the employees of the State who allegedly inflicted the abuse claimed.

5. Quite apart from the physical injury involved each of the allegations, it is clear from the particulars of 5 September 2023 and the other evidence filed that the plaintiff relies very substantially on psychiatric injury under Part 3 of the Civil Liability Act2002 (NSW). His claim in that regard is supported by the expert evidence contained in the report of Dr Aman Suman, psychiatrist, of 31 July 2023, which I have considered for the purpose of the application. It is sufficient for me to say that the history recorded by Dr Suman as having been provided by the applicant accords substantially with the averments advanced in the statement of claim. Although the plaintiff’s psychiatric condition is a little complicated, according to Dr Suman’s analysis, the plaintiff’s antisocial personality disorder, polysubstance and alcohol use disorder and perhaps most importantly for present purposes, his post-traumatic disorder are directly related to the abuse relied upon.

6. Having regard to this material and bearing in mind that the process in which the Court is engaged as required under the Act involves an assessment in a summary fashion in a broad and impressionistic way of whether the test for leave specified in s 5 is satisfied, I am persuaded that if the plaintiff’s evidence is found to substantiate the averments in the statement of claim and the opinion of Dr Suman is accepted at final hearing, the plaintiff has prospects of success and I am satisfied to that extent that the proceedings are both supported by evidence, which suggests a prima facie case and that that case is not an abuse of process. In this regard, given the provisions of s 7, excluding the defendant from appearing or representation at the hearing, no question about the fairness of any trial arises for determination by reference to the expression “abuse of process”.

7. For these reasons, I will make the orders sought in the following terms:

1. Leave granted to commence the proceedings on 25 October 2023 nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).

2. The plaintiff’s costs of this application are costs in the cause.

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Decision last updated: 05 March 2024