Safi v State of New South Wales

[2022] NSWSC 246

Supreme Court

New South Wales

Medium Neutral Citation:

Safi v State of New South Wales [2022] NSWSC 246

Hearing dates:

10 March 2022

Date of orders:

10 March 2022

Decision date:

10 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. Each party to pay their own costs.

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:

Hanna Safi (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)
Mr S Roberts (Sol) (Defendant)

Solicitors:
Beston McManis Lawyers (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2021/327225

Judgment

1. Hanna Safi has commenced proceedings in this Court by way of a statement of claim filed on 17 November 2021 seeking damages for injuries sustained when he was allegedly subject to sexual abuse perpetrated by a teacher when he was a student at Belmore North Public School.

2. At the time of the institution of proceedings Mr Safi 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.

3. Mr Safi brings the application seeking leave as if it had been sought prior to the filing of his statement of claim. It is established that leave can be granted as if that had occurred at the time that the proceedings were instituted, nunc pro tunc. I thank Mr Roberts for his assistance in relation to that aspect. See also Hamill J’s observations 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. The allegations of sexual abuse and threats by the plaintiff’s teacher that are particularised in the statement of claim and the nature of the duty that is identified as having been breached do not give rise to a concern that there are not prima facie grounds for the proceedings or that they are an abuse of process. I note that the State of New South Wales does not contest that the orders should be made.

Orders

6. 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. Each party to pay their own costs.

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