Al Kanaan v State of New South Wales

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.

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.

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.

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.

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.

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.

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

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:

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.

Accordingly, I make the following orders: