Itani v State of New South Wales

[2023] NSWDC 285

District Court

New South Wales

Medium Neutral Citation:

Itani v State of New South Wales [2023] NSWDC 285

Hearing dates:

27 July 2023

Date of orders:

31 July 2023

Decision date:

31 July 2023

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1)   Statement of claim struck out and dismissed.

(2)   Plaintiff pay defendant’s costs of the proceedings.

Catchwords:

TORT – personal injury – incarcerated offender the victim of a sexual assault in gaol – requirements for notification of claims under ss 26BA and 26BD of the Civil Liability Act2002 (NSW) within six months of the date of the incident giving rise to the claim – whether making a statement to police or other method of notification of the defendant could satisfy the notice requirement – mandatory dismissal the result of failure to serve notice, as ss 26BA and 26BD both use the term “must” - alternative finding that there was no full and satisfactory explanation for non-compliance – proceedings dismissed with costs.

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 26BA, 26BB, 26BD

Civil Procedure Act 2005 (NSW), s 56

Cases Cited:

Allan Petit v State of New South Wales & Anor [2012] NSWDC 105

Dawson v NSW [2012] NSWDC 47

Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323

Michael v State of New South Wales (2011) 81 NSWLR 1

Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Khaled Itani (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Ms Clingan (Plaintiff)
Mr Williams (Defendant)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
MinterEllison (Defendant)

File Number(s):

2023/00045736

Publication restriction:

Nil

Judgment

The application before the court

1. The defendant, by notice of motion filed on 13 April 2023, moves the court for the following orders:

1. The plaintiff's proceedings (2023/00045736) be dismissed pursuant to section 26BD of the Civil Liability Act 2002 (NSW) for failure by the plaintiff to comply with the requirements of section 26BA of the Civil Liability Act 2002 (NSW).

2. The plaintiff is to pay the costs of the defendant.

3. Such further or other order as the Court thinks fit.

2. The plaintiff opposes the application, arguing that documents amounting to notice have been provided and that notice has been, or may be deemed to have been, given. Alternatively, the plaintiff submits that the notice provisions are a technicality, and that summary dismissal is not warranted.

The evidence

3. The plaintiff relies upon his own affidavit (sworn on 26 July 2023) and two affidavits sworn by his solicitor on 6 and 26 July 2023.

4. The defendant relies upon the affidavit of Alexandra Jane Boydell affirmed on 13 April 2023.

The proceedings

5. On 27 November 2018, the plaintiff, who was incarcerated at the MRRC Silverwater at the time, was the victim of a sexual assault. He reported the matter to the police that same day and gave a statement to police on 15 January 2019. He remained in custody until February 2021 and sought legal advice in about September 2020. He says that he was not aware of his rights before that time (the affidavits of his solicitor are silent as to when he was told about the notice provision).

6. The plaintiff was not assessed at 15% WPI until December 2022 and the precise calculations for this were not received by the solicitors until January 2023.

7. On 10 February 2023, the plaintiff commenced proceedings against the State of New South Wales for negligence, on the basis of s 5 of the Crown Proceedings Act 1988 (NSW). The claim is, in effect, brought against the Department of Communities and Justice, which entities operate Corrective Services.

8. It is not in dispute that (by reason of the plaintiff being convicted and imprisoned at the relevant time) this is a claim for damages known as “offender damages” under the Civil Liability Act 2002 (NSW) (“the Act”) and that Part 2A, Division 1A of this Act must apply. Specific duties are imposed upon persons defined as “offenders in custody” to give notice of the incident giving rise to a claim for damages under the Act. These duties include the sending of a notice to the “protected defendant” (namely the State of New South Wales) within six months of the incident giving rise to the claim. The parties agree that the terms of this pre-litigation requirement are mandatory in nature and that if the plaintiff fails to serve a notice as required by the Act (or, if late notice is given, that the court cannot be satisfied that the required notice can be given), summary dismissal is the inevitable result.

9. After the statement of claim was served, a search was made on behalf of the defendant, but no document containing a notice or potential notice under s 26BA was located. On 22 March 2023, the solicitors for the defendant wrote to the solicitors for the plaintiff seeking information about compliance with s 26BA. In response, the defendant was served with a copy of the plaintiff’s police statement. In the course of subsequent correspondence, the solicitors for the plaintiff stated:

1. Notice for the purposes of s 26BA(3) was given when “a complaint was made to NSW Police, which Corrective Services were also aware of”, namely 15 January 2019.

2. The plaintiff’s rights did not crystallise until such time as he was assessed at 15%, namely in January 2023, and the notice requirement only commenced to run at that time.

10. The plaintiff did subsequently serve what purported to be a s 26BA notice in May 2023, but this was after these proceedings had commenced.

11. The plaintiff’s opposition to the summary dismissal of this claim is based on the following arguments:

1. The plaintiff’s statement to NSW Police of 15 January 2019 amounted to notice for the purposes of s 26BA. Even if this was not a proper notice, or defective, it was still some form of notice. Ms Clingan conceded, however, that the requirement in s 26BA(3)(c) to state to the protected defendant that the incident may give rise to a claim against the defendant was not satisfied, which is fatal, in terms of the “and” in s 26BD(3)(a).

2. Further or in the alternative, no notice need be served at all and/or service of the notice after proceedings had commenced amounted to service on the defendant, albeit belated. It would be contrary to the case management principles in s 56 of the Civil Procedure Act 2005 (NSW) if the proceedings were struck out for such a technicality as the plaintiff can simply give notice and start the proceedings all over again. These arguments failed in Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323 at [62] – [68]. Mr Williams, in submissions in reply, stated that if these arguments were accepted, this would render the pre-commencement legislative requirements, though designed to counter fraud as well as promote early settlement, as little more than “a barren ritual”.

3. The plaintiff’s rights did not crystallise until he had reached the 15% threshold and as this was not known until January 2023, the relevant time period for notice only commenced then, in which case the plaintiff was in time. In that case, either the statement of claim operated as a form of notice (Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283) or, because a notice was served after proceedings were commenced, the post-commencement notice was still a valid notice (Hooper v Catholic Family Services trading as Centacare Catholic Family Services at [62] – [68]).

The legislative scheme for special provisions for offenders in custody

12. The text of s 26BD, under which this application is brought, is as follows:

26BD Dismissal of court proceedings for failure to give notice or co-operate on claim

(1) A protected defendant against whom court proceedings for an award of damages to which this Part applies are commenced may apply to the court to have the proceedings dismissed on the grounds of a failure to comply with section 26BA or 26BB in connection with the claim concerned.

(2) An application under this section cannot be made more than 2 months after the statement of claim is served on the protected defendant.

(3) On an application under this section, the court must dismiss the proceedings unless the court is satisfied that—

(a) section 26BA has been complied with in respect of the claim or the claimant has a full and satisfactory explanation for non-compliance with that section and the required notice of the incident was given to the protected defendant within a reasonable period in the circumstances, and

(b) the claimant has complied with section 26BB in respect of the claim or has a reasonable excuse for any non-compliance with that section.

13. The “notice” does not have a prescribed form, but must be given conformably with s 26BA of the Act:

26BA Protected defendant must be given notice of incident giving rise to claim

(1) A person (referred to in this Division as a claimant) who makes or is entitled to make a claim against a protected defendant for an award of personal injury damages to which this Part applies must give the protected defendant notice of the incident that gives rise to the claim within 6 months after the relevant date for the claim.

(2) The relevant date for the claim is the date of the incident that gives rise to the claim unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person’s death.

(3) Notice of an incident must be in writing and must—

(a) specify the date of the incident, and

(b) describe the incident (in ordinary language), and

(c) state that the incident may give rise to a claim against the protected defendant.

(4) Notice given to an officer or employee of a protected defendant is taken to have been given to the protected defendant.

(5) Time does not run for the purposes of this section while the claimant is a vulnerable offender under section 26BC.

14. These provisions must be read in the context of the legislation. The purpose of s 26BA is to avoid litigation by promoting early notice and to assist in the early consideration of claims which may be partly or wholly fraudulent. Section 26BB provides:

26BB Claimant must comply with requests for information

(1) A claimant must comply with any reasonable request by the protected defendant to furnish specified information, or to produce specified documents or records, for the purpose of providing the protected defendant with sufficient information—

(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and

(b) to be able to make an early assessment of liability, and

(c) to be able to make an informed offer of settlement.

(2) The reasonableness of a request under this section may be assessed having regard to criteria including the following—

(a) the amount of time the claimant needs to comply with the request,

(b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,

(c) the amount of information that has already been supplied to or is available to the protected defendant to enable liability and quantum of loss to be assessed and an offer of settlement made,

(d) how onerous it will be for the claimant to comply with the request,

(e) whether the information is privileged,

(f) whether the information sought is sufficiently specified,

(g) the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request.

(3) A claimant is not required to comply with a requirement under this section while the claimant is a vulnerable offender under section 26BC.

(4) The duty under this section applies only until court proceedings are commenced.

15. The legislative scheme therefore provides that the Court is obliged to (“must”) dismiss the proceedings on any application by a protected defendant unless one of the following situations arise:

1. Section 26BA has in fact been complied with;

2. The claimant has a full and satisfactory explanation for non-compliance; and

3. The required notice of the incident was given to the protected defendant within a reasonable period in the circumstances.

16. Even were it the case that there were a “full and satisfactory explanation”, the second limb still creates an insurmountable problem for the plaintiff if no notice was given (ss 26BA(1) and (3)). The required notice still needs to have been given. Further, the notice that has to have been given is the “required notice”. The question is compliance with s 26BA (whether the plaintiff is within time or not).

17. The legislative scheme does not invite the Court to have regard to the merits of whether there has been actual notice, but merely as to whether late notice has been given which is otherwise compliant, and whether the notice was late but still given within a reasonable time.

The relevant case law

18. The defendant’s application is supported by Dawson v NSW [2012] NSWDC 47 at [18], where it is clear that the delay question is to be considered in light of the required notice actually having been given. In Dawson v NSW, notice was given, albeit late. Sidis DCJ was satisfied with the explanation for the delay and leave was granted. That is not the case here.

19. Dawson v NSW is the only decision which has determined an application of this kind. The legislation was referred to in Allan Petit v State of New South Wales & Anor [2012] NSWDC 105, but the only matter determined by this decision was whether these provisions applied (which Mahony SC DCJ determined was not the case). It is referred to in Michael v State of New South Wales (2011) 81 NSWLR 1 at [14], but only as part of a series of amendments designed to achieve harmony and fairness in personal injury proceedings.

Conclusions

20. There are two issues before the Court, namely:

1. Whether notice was ever given.

2. Whether, if the notice had been given, there is a satisfactory explanation.

21. The defendant submits, in my opinion correctly, that no notice was ever given within the six-month period as well as prior to proceedings being commenced. The requirements of such a notice are the date of the incident, a description in plain language and, most importantly, a statement that the incident may ground a claim against the protected defendant. It is the third of these requirements that is fatal to the plaintiff’s claim, as knowledge, constructive or actual, on the part of the defendant does not, without more, amount to notice within the meaning of s 26BA(3).

22. The notice must run from “the date of the incident” (s 26BA(2)), not the date of passing the 15% threshold. To hold otherwise would be contrary to the clear statutory intent.

23. Notice must be given before proceedings are commenced, and not afterwards, by reason of the factors set out in s 26BB, which are to permit the defendant to consider whether the claim may be “fraudulent” (s 26BB(1)(a)) as well as for purposes of early resolution (s 26BB(2)(c)). A notice served after the proceedings have been commenced cannot be retrospectively validated. I agree with the reasoning of Brown J in Hooper v Catholic Family Services trading as Centacare Catholic Family Services that such a notice must be served before and not after proceedings are commenced, and that case management principles cannot prevail over clear legislative language.

“Full and satisfactory”

24. Having made these findings, it is not necessary for me to determine the adequacy of the explanation, but I should add that the plaintiff offers no evidence of substance for his non-compliance. He appears to have consulted his current lawyers in about September 2020 after discussions with others in the gaol but does not identify the date upon which he was informed of any notice provisions.

25. There is another difficulty in relation to the explanation. I note that in Dawson v NSW the adequacy of the explanation was considered in light of the required notice having actually been given on a specified date, which is not possible in these proceedings, where a variety of dates (from January 2020 to May 2023) have been provided for the asserted giving of notice. This is a requirement the plaintiff cannot meet, given his claim that he gave notice on one, some or all of these dates, which makes a determination of “full and satisfactory” impossible to determine.

26. Pre-commencement notice provisions such as ss 26BA and 26BD have an important part to play in terms of fairness and case management. Applications to dispense with compliance on the basis that they are mere technicalities and contrary to court efficiency should be viewed with caution.

27. The proceedings will be dismissed with costs.

Orders:

1. Statement of claim struck out and dismissed.

2. Plaintiff pay defendant’s costs of the proceedings.

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Decision last updated: 31 July 2023