Itani v State of New South Wales [2023] NSWDC 285

By Walter Zhuang

Background

The Plaintiff in this case was a victim of sexual assault whilst he was incarcerated in 2018. He reported the matter to the police on the same day as the sexual assault, and gave a statement to police two months later. He then sought legal advice in late 2020 and commenced proceedings against the State of New South Wales at the start of 2023.

As the Plaintiff was a convicted person at the time of the assault, Part 2A, Division 1A of the Civil Liability Act 2002 (NSW) (“the Act”) applied. That part requires Plaintiffs who are ‘offenders in custody’ to give notice to ‘protected defendants’ within six months of the incident.[1] In this case, the State of NSW was a protected defendant.[2] Failure to meet this requirement would result in summary dismissal, meaning that the Plaintiff’s claim could not proceed.

Arguments

The Defendant argued that the Plaintiff failed to give sufficient notice to the State under Section 26BA, meaning that Section 26BD could be applied to strike out the Plaintiff’s Statement of Claim.

The Plaintiff argued that their police statement which was made shortly after the incident constituted sufficient notice, despite it not being in the proper form.

Outcome

The Court found in favour of the Defendant and concluded that the Plaintiff did not give sufficient notice for the purpose of the section. Section 26BA(3)(c) explicitly requires the form of notice to be in writing and ‘state that the incident may give rise to a claim against the protected defendant’. It was this crucial absence which meant that the Plaintiff had not provided sufficient notice, as no potential action could be inferred from the police statement. The Plaintiff’s Statement of Claim was therefore struck out.

Practical Impact

Plaintiffs who are ‘offenders in custody’ at the time they suffer an injury or “incident” will need to provide written notice of an intention to bring a claim against the State as early as possible, but certainly within 6 months of the date of incident. As this case demonstrates, the test for adequate notice is strict.

[1] Civil Liability Act 2002 (NSW) s 26BA(1).

[2] Ibid s 26(A)(1) (definition of ‘protected defendant’ para (a)).