Zreika v State of New South Wales

[2022] NSWSC 688

Supreme Court

New South Wales

Medium Neutral Citation:

Zreika v State of New South Wales [2022] NSWSC 688

Hearing dates:

21 March 2022

Date of orders:

21 March 2022

Decision date:

21 March 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Leave granted to the applicant to proceed pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).

(2) Parties to pay their own costs.

Catchwords:

CIVIL LAW – procedure – leave to commence proceedings – when plaintiff in custody at the time proceedings commenced – Felons Act – institutional abuse suffered as a child – no question of principle

Legislation Cited:

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

Category:

Procedural rulings

Parties:

Yousef Zreika (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Meeks (Plaintiff)
E Loong (Defendant)

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

File Number(s):

2022/26581

EX TEMPORE Judgment (rEVISED)

1. The plaintiff, Yousef Zreika, brings by notice of motion an application for leave to institute proceedings under the Felons (Civil Proceedings) Act 1981 (NSW). On 24 January 2022 he filed a statement of claim in which, in very truncated and summary form, he asserts that when he was 13 years of age, and a student at the Eaglevale High School, he was subject to abuse by a teacher. The particulars of that assertion are set out at [6] and following of the statement of claim.

2. He brings the action against the State of New South Wales and sets out, from [16] and following, the basis upon which he will assert that the State is vicariously liable for the actions of the teacher. The notice of motion is brought, as I say, under the Felons (Civil Proceedings) Act and it is said, from the virtual Bar table, that he has been convicted of fraud and is currently incarcerated. That is an offence carrying a maximum penalty of 10 years and the defendant has indicated that the State does not either consent to nor oppose the grant of leave, and accepts the assertion by Mr Meakes that the plaintiff does fall within the provisions of s 4 of the Act, which is to say that he is in custody as a result of having been convicted of a serious indictable offence.

3. Like the defendant, I am prepared to accept that assertion and so find that the Act applies to him. The statement of claim sets out the allegations that would be made if leave is granted and a court case is permitted to proceed, and I am satisfied based on the assertions in the statement of claim that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

4. Accordingly, I propose to make the orders sought in the notice of motion, namely, an order for leave to proceed under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).

5. Order 2 will be that the parties pay their own costs of the Notice of Motion.

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Decision last updated: 27 May 2022