Zreika v State of New South Wales

[2025] NSWSC 106

Supreme Court

New South Wales

Medium Neutral Citation:

Zreika v State of New South Wales [2025] NSWSC 106

Hearing dates:

On the papers

Date of orders:

25 February 2025

Decision date:

25 February 2025

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Notice of Motion filed 28 November 2024 dismissed.

(2)   Plaintiff to pay his own costs of the Notice of Motion.

Catchwords:

CIVIL PROCEDURE – Commencement of proceedings without leave – Whether leave required under Felons (Civil Proceedings) Act 2000 – Whether a plaintiff in custody requires leave to commence civil proceedings – Where section 4 of the Felons (Civil Proceedings) Act 2000 has been incorrectly applied to a plaintiff in custody

Legislation Cited:

Crimes Act 1900 (NSW)

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

Interpretation Act 1987 (NSW) s 3(3), sch 4

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Nasser Zreika (P)
State of New South Wales (D)

Representation:

Solicitors:
Shine Lawyers (P)
Moray & Agnew (D)

File Number(s):

2024/186924

Publication restriction:

Not Applicable

JUDGMENT

1. Proceedings were commenced by Statement of Claim filed on 20 May 2024. The plaintiff claimed damages from the defendant for the consequences of sexual abuse which occurred at one school between 1984 and 1985, and at a second school between 1986 and 1988.

2. An Amended Statement of Claim was filed on 2 October 2024.

3. On 28 November 2024, the plaintiff filed a Notice of Motion seeking the following relief:

“1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of New South Wales (2024/00186924), such orders made nunc pro tunc and taking effect from 20 May 2024.

2.   An order that the costs of the Motion be costs in the cause.”

4. In support of the Notice of Motion, the plaintiff relied upon an affidavit of his solicitor, Mr Nicholas Kitchen, affirmed on 27 November 2024.

5. The entirety of the evidence with respect to whether the plaintiff fell within the terms of s 4 of the Felons (Civil Proceedings) Act 1981 (“the Felons Act”), was this:

“3.   At the time proceedings were commenced, the plaintiff was incarcerated at John Moroney Correctional Centre as a result of being charged with the following offences:

a.   Case H81264583 – found with intent to commit indictable offence previous conviction

b.   Case H80482031 – break and enter house etc steal value < = $60,000.”

6. Mr Kitchen does not provide any further details of what the offences are. It is not at all apparent what sections of the Crime Act 1900 have been breached, nor what the prescribed maximum term of imprisonment with respect to those offences may be. No criminal history records are provided, nor are there any copies of Court Attendance Notices, or an Indictment.

7. The relevant provision of the Felons Act is as follows:

“4.   A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.”

8. A serious indictable offence means an indictable offence that is punishable by imprisonment for life or for a term of five years or more: Interpretation Act 1987 s 3(3), sch 4: Dictionary.

9. In order to obtain leave pursuant to the Felons Act, a plaintiff must prove, by admissible evidence, that at the time when an application is made for leave to institute civil proceedings, the pre-conditions in s 4 of the Felons Act exists, namely:

a.   they are in custody;

b.   the reason that they are in custody is that they have been convicted of, or found to have committed an offence; and

c.   the offence is a serious indictable offence, i.e., one which carries a maximum penalty of at least 5 years.

10. As well, a plaintiff needs to satisfy the Court of the matters identified in s 5 of the Felons Act.

11. In this case, the evidence shows nothing more than that the plaintiff, as at the date proceedings were commenced, was in custody. The evidence does not demonstrate that the plaintiff had been convicted of, or found to have committed, an offence let alone that the offence was a serious indictable offence. There is no basis for the Court to grant leave to institute proceedings.

12. Accordingly, the order of the Court will be:

1. Notice of Motion filed 28 November 2024 dismissed.

2. Plaintiff to pay his own costs of the Notice of Motion.

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Decision last updated: 25 February 2025