Citation: Itani v State of New South Wales [2023] NSWDC 285
Court: District Court of New South Wales
Date: 31 July 2023
Judge(s): Gibson DCJ
Background
The plaintiff was an incarcerated offender at MRRC Silverwater who was sexually assaulted in November 2018. He reported the assault to police the same day and provided a formal statement in January 2019. He remained in custody until February 2021 and sought legal advice in approximately September 2020.
The plaintiff commenced proceedings against the State of New South Wales in February 2023, framing his claim in negligence against the Department of Communities and Justice. Because he was a convicted and imprisoned offender at the time of the incident, his claim fell within the "offender damages" regime under Part 2A, Division 1A of the Civil Liability Act 2002 (NSW).
The defendant applied to have the proceedings dismissed, arguing that the plaintiff had failed to serve the mandatory pre-litigation notice required by section 26BA of the Act within six months of the incident. The plaintiff resisted dismissal on several grounds, including that his police statement constituted valid notice, that the relevant time period did not begin until he crossed the 15% whole person impairment threshold in January 2023, and that post-commencement notice could be retrospectively validated.
Legal Issues
- Whether the plaintiff's January 2019 police statement satisfied the written notice requirements of section 26BA(3) of the Civil Liability Act 2002 (NSW)
- Whether the six-month notice period ran from the date of the incident or from the date the plaintiff reached the 15% whole person impairment threshold
- Whether notice served after the commencement of proceedings could be valid or retrospectively validated
- Whether the court had discretion to decline dismissal on case management grounds, treating the notice requirement as a mere technicality
- Whether the plaintiff had a "full and satisfactory explanation" for non-compliance with section 26BA
Decision
The court rejected the argument that the police statement constituted valid notice under section 26BA. To satisfy that provision, a notice must be in writing, specify the date of the incident, describe the incident in ordinary language, and expressly state that the incident may give rise to a claim against the protected defendant. The plaintiff's solicitor conceded that the police statement did not meet the requirement in section 26BA(3)(c) to state that the incident may give rise to a claim. That concession was fatal to the plaintiff's primary argument.
Gibson DCJ held that the six-month notice period runs from the date of the incident itself, not from the date a claimant crosses the 15% whole person impairment threshold. The court reasoned that this interpretation reflected the clear statutory language of section 26BA(2), and that to hold otherwise would be contrary to the plain legislative intent. The court also rejected the argument that the statement of claim or any post-commencement document could operate as notice, finding that the pre-commencement notice requirements serve specific purposes, including enabling early fraud assessment and promoting settlement, which cannot be achieved after litigation has commenced.
The court declined to treat the notice obligation as a mere technicality that could be overcome by case management considerations under section 56 of the Civil Procedure Act 2005 (NSW). Both sections 26BA and 26BD use mandatory language ("must"), and dismissal is the required outcome where the notice provisions have not been complied with. The court agreed with the reasoning in Hooper v Catholic Family Services that clear legislative language prevails over general case management principles.
As an alternative finding, Gibson DCJ held that even if the mandatory dismissal analysis were wrong, the plaintiff had no full and satisfactory explanation for non-compliance. The plaintiff offered no evidence identifying when he was informed of the notice provisions, and the dates put forward for the alleged giving of notice varied so widely (from January 2020 to May 2023) that it was impossible to assess whether any notice had been given at all, let alone whether the explanation for non-compliance was satisfactory.
Orders Made
- Statement of claim struck out and dismissed.
- Plaintiff to pay the defendant's costs of the proceedings.
Key Takeaways
- Under sections 26BA and 26BD of the Civil Liability Act 2002 (NSW), an incarcerated offender making a personal injury claim must serve written notice on the protected defendant within six months of the date of the incident, and failure to do so requires mandatory dismissal of proceedings.
- A police statement, even if it describes an incident in detail, does not satisfy section 26BA(3) unless it expressly states that the incident may give rise to a claim against the protected defendant. General awareness of an incident on the part of the defendant does not substitute for proper notice.
- The six-month period for notice runs from the date of the incident itself, not from the date a claimant reaches the 15% whole person impairment threshold required for damages eligibility.
- Notice served after court proceedings have been commenced cannot retrospectively satisfy the pre-commencement notice requirements, and that deficiency cannot be cured by reference to general case management principles.
- Where a plaintiff fails to identify clearly when any notice was given, and advances multiple inconsistent dates for alleged notice, a court cannot be satisfied that there is a "full and satisfactory explanation" for non-compliance within the meaning of section 26BD(3)(a).
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), ss 26BA, 26BB, 26BD
- Civil Procedure Act 2005 (NSW), s 56
- Crown Proceedings Act 1988 (NSW), s 5
Cases
- Allan Petit v State of New South Wales & Anor [2012] NSWDC 105
- Dawson v NSW [2012] NSWDC 47
- Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323
- Michael v State of New South Wales (2011) 81 NSWLR 1
- Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283