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District Court 29 April 2026

Itani v State of New South Wales

[2026] NSWDC 109

Other

Citation: Itani v State of New South Wales [2026] NSWDC 109
Court: District Court of New South Wales
Date: 29 April 2026
Judge: Cole DCJ

Background

The plaintiff was a remand prisoner who alleged he was assaulted and sexually assaulted by a fellow inmate at the Metropolitan Remand Centre on 27 November 2018. He reported the incident to police in January 2019 and later retained solicitors. The plaintiff brought proceedings against the State of New South Wales under the Crown Proceedings Act 1988 (NSW), alleging negligence and seeking damages for injury, loss and damage.

An earlier statement of claim filed in February 2023 was struck out and dismissed by Judge Gibson in July 2023 (Itani v State of New South Wales [2023] NSWDC 285). That dismissal was on the basis that the plaintiff had failed to give the pre-commencement notice required by s 26BA of the Civil Liability Act 2002 (NSW). The plaintiff did not appeal that decision.

Following the 2023 dismissal, the plaintiff's solicitors sent a notice to the defendant in October 2023, purportedly under s 26BA, and a new statement of claim was filed on 10 September 2025. The defendant moved to dismiss the fresh proceedings on three grounds: non-compliance with the notice requirements, abuse of process, and expiry of the limitation period.

  • Whether the plaintiff had given valid notice of the claim as required by s 26BA of the Civil Liability Act 2002 (NSW) before commencing the second proceedings.
  • Whether, if no valid notice was given, the plaintiff had provided a full and satisfactory explanation under s 26BD such that dismissal should not follow.
  • Whether the proceedings were out of time under s 50C of the Limitation Act 1969 (NSW).
  • Whether the second set of proceedings constituted an abuse of process.

Decision

Notice under s 26BA: Cole DCJ found that the plaintiff had not given the notice required by s 26BA of the Civil Liability Act 2002 before commencing the current proceedings. The October 2023 letter was sent after the 2023 proceedings had already been dismissed, and the Court found it was not given within a reasonable period in the circumstances. This conclusion was reached against the backdrop of Judge Gibson's earlier finding that no valid notice had ever been given in connection with the 2023 claim.

Full and satisfactory explanation under s 26BD: Where a plaintiff has not given the required notice and the defendant applies for dismissal, the court must dismiss the proceedings unless satisfied of the matters in s 26BD(3)(a) and (b). The plaintiff failed to satisfy the Court on either matter. No full and satisfactory explanation for the failure to give timely notice was established, and the October 2023 notice was not given within a reasonable period. Dismissal was therefore mandatory under the statutory framework.

Limitation period: The Court separately found that the proceedings were out of time under s 50C(1) of the Limitation Act 1969. The plaintiff advanced no argument or evidence sufficient to overcome this obstacle, and leave to proceed out of time was refused.

Abuse of process: This was the one ground on which the defendant did not succeed. Cole DCJ found that the second proceedings were not an abuse of process. The facts before the Court in 2025 differed from those before Judge Gibson in 2023, because the plaintiff had taken steps after the 2023 judgment to give fresh notice and had then filed a new statement of claim. The issues raised by the notices of motion in the current proceedings were therefore not identical to those determined in 2023.

Orders Made

  • The statement of claim is struck out and dismissed.
  • Costs reserved (the Court indicated it would hear the parties as to costs).

Key Takeaways

  • The District Court confirmed that the pre-commencement notice regime in s 26BA of the Civil Liability Act 2002 requires notice to be given before proceedings are commenced, not after a prior set of proceedings has been dismissed. A notice sent following dismissal does not retrospectively cure earlier non-compliance.
  • Under s 26BD, once a court is not satisfied that a full and satisfactory explanation exists and that notice was given within a reasonable period, dismissal of the proceedings is mandatory, not discretionary.
  • Refiling a claim after earlier dismissal for non-compliance with notice requirements does not automatically constitute an abuse of process, provided the factual basis for the new proceedings is materially different from that considered in the earlier judgment.
  • A cause of action in personal injury arising from a known incident does not escape the limitation period simply because steps to quantify the claim (such as obtaining expert reports on whole person impairment) took place over several years after the incident.
  • Pre-commencement notice provisions such as ss 26BA and 26BD serve important functions, including enabling assessment of potentially fraudulent claims and facilitating early resolution, and are not to be treated as mere technicalities susceptible to case management override.

Legislation and Cases Referenced

Legislation:
- Civil Liability Act 2002 (NSW), ss 26A, 26B, 26BA, 26BB, 26BD, 26C
- Crown Proceedings Act 1988 (NSW), s 5
- Limitation Act 1969 (NSW), ss 18A, 50C, 50D

Cases:
- Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295
- Haigh v Haddad [2025] NSWCA 28
- Itani v State of New South Wales [2023] NSWDC 285
- Larry Dawson v State of New South Wales [2012] NSWDC 47
- Smith v Grant [2006] NSWCA 244