Al Kanaan v State of New South Wales

[2023] NSWSC 119

Supreme Court

New South Wales

Medium Neutral Citation:

Al Kanaan v State of New South Wales [2023] NSWSC 119

Hearing dates:

21 February 2023

Date of orders:

21 February 2023

Decision date:

21 February 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave to commence proceedings in the Supreme Court of NSW with such orders made nunc pro tunc.

2. Costs to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff serving a sentence for a serious indictable offence – where proceedings commenced before leave was obtained – where plaintiff alleged he was sexually assaulted at Juvenile Justice Centre leave granted

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)

Cases Cited:

Jol v State of New South Wales (1998) 45 NSWLR 283

Re Application of Malcolm Huntley Potier [2012] NSWCA 222

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Falah Hassan Al Kanaan (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
B Williams (Plaintiff)
I Stojanovic (Defendant)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2022/379698

Publication restriction:

Nil

Judgment

1. The plaintiff seeks leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the State of New South Wales. The proceedings were commenced by the filing of a statement of claim on 16 December 2022, in fact, a very short time before the filing of the present notice of motion on the same day. In that way leave is now sought nunc pro tunc.

2. In Jol v State of New South Wales (1998) 45 NSWLR 283, Sheller JA made clear (at 290) that the institution of proceedings without leave having been granted does not constitute a nullity but rather an irregularity which may be corrected at a later time.

3. The plaintiff was born on 26 June 1985 in Iraq. He moved with his family to Australia in 1996. There were a number of problems in the plaintiff's family, not the least of which was that the plaintiff's father who had fought in the 1991 Gulf War had serious alcoholic problems which led to abuse towards the plaintiff's mother, the plaintiff and his siblings. That ultimately led to the plaintiff leaving home and living on the streets. The end result of that was that the plaintiff came into contact with the Juvenile Justice system, and spent time at Cobham Juvenile Justice Centre. The plaintiff claims that he was sexually assaulted by one of the Juvenile Justice officers at that centre in April 2002. At the time he was aged 16 years.

4. There is a lengthy evidentiary statement from the plaintiff setting out not only his background, but the details of the sexual assaults that took place in April 2002 and thereafter.

5. The applicant claims that the result of the sexual assaults was serious mental harm to him. He has been diagnosed with Post-Traumatic Stress Disorder and Schizophrenia by Dr Ash Takyar, a consultant psychiatrist who examined the plaintiff in August 2022.

6. The plaintiff sues the State of New South Wales by reason of the fact that the State was responsible for operating the Cobham Juvenile Justice Centre. The State is sued both directly for negligence and vicariously as a result of the actions of the officer concerned.

7. The plaintiff has been incarcerated for a large number of offences since becoming an adult. The plaintiff is currently serving a sentence for murder.

8. To obtain leave under s 4 of the Act, it is necessary for the plaintiff to show that the proceedings are not an abuse of process and that there is a prima facie ground for bringing those proceedings. The test was considered in Re Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17] by Allsopp ACJ and Basten JA:

Taken literally, that limb of the test refers to a claim which at first sight and without investigation appears to be a "ground". Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading. The purpose of the legislative scheme was, in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 that a convicted felon could not sue at law or in equity. On the other hand, the purpose of the statute was to permit the court to ensure that neither it nor prospective defendants were subjected to proceedings which were an abuse of process or which lacked any real merit: Jol v State of New South Wales (1998) 45 NSWLR 283 at 286E (Sheller JA, Beazley JA and Sheppard AJA agreeing). As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not "hopeless" or "unarguable". Different expressions used from time-to-time do not indicate any difference in the standard to be applied.

9. I am satisfied from the evidentiary statement of the plaintiff and from the report of Dr Takyar that the proceedings are not an abuse of process and that there is a prima facie ground for those proceedings.

10. Accordingly, I make the following orders:

1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave to commence proceedings in the Supreme Court of NSW with such orders made nunc pro tunc.

2. Costs to be costs in the cause.

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