Itani v State of New South Wales

District Court of NSW|2023-07-27

The application before the court

The defendant, by notice of motion filed on 13 April 2023, moves the court for the following orders: 1. The plaintiff's proceedings (2023/00045736) be dismissed pursuant to section 26BD of the Civil Liability Act 2002 (NSW) for failure by the plaintiff to comply with the requirements of section 26BA of the Civil Liability Act 2002 (NSW). 2. The plaintiff is to pay the costs of the defendant. 3. Such further or other order as the Court thinks fit.
The plaintiff opposes the application, arguing that documents amounting to notice have been provided and that notice has been, or may be deemed to have been, given. Alternatively, the plaintiff submits that the notice provisions are a technicality, and that summary dismissal is not warranted.

The evidence

The plaintiff relies upon his own affidavit (sworn on 26 July 2023) and two affidavits sworn by his solicitor on 6 and 26 July 2023.
The defendant relies upon the affidavit of Alexandra Jane Boydell affirmed on 13 April 2023.

The legislative scheme for special provisions for offenders in custody

The text of s 26BD, under which this application is brought, is as follows: 26BD Dismissal of court proceedings for failure to give notice or co-operate on claim (1) A protected defendant against whom court proceedings for an award of damages to which this Part applies are commenced may apply to the court to have the proceedings dismissed on the grounds of a failure to comply with section 26BA or 26BB in connection with the claim concerned. (2) An application under this section cannot be made more than 2 months after the statement of claim is served on the protected defendant. (3) On an application under this section, the court must dismiss the proceedings unless the court is satisfied that - (a) section 26BA has been complied with in respect of the claim or the claimant has a full and satisfactory explanation for non-compliance with that section and the required notice of the incident was given to the protected defendant within a reasonable period in the circumstances, and (b) the claimant has complied with section 26BB in respect of the claim or has a reasonable excuse for any non-compliance with that section.
The "notice" does not have a prescribed form, but must be given conformably with s 26BA of the Act: 26BA Protected defendant must be given notice of incident giving rise to claim (1) A person (referred to in this Division as a claimant) who makes or is entitled to make a claim against a protected defendant for an award of personal injury damages to which this Part applies must give the protected defendant notice of the incident that gives rise to the claim within 6 months after the relevant date for the claim. (2) The relevant date for the claim is the date of the incident that gives rise to the claim unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person's death. (3) Notice of an incident must be in writing and must - (a) specify the date of the incident, and (b) describe the incident (in ordinary language), and (c) state that the incident may give rise to a claim against the protected defendant. (4) Notice given to an officer or employee of a protected defendant is taken to have been given to the protected defendant. (5) Time does not run for the purposes of this section while the claimant is a vulnerable offender under section 26BC.
These provisions must be read in the context of the legislation. The purpose of s 26BA is to avoid litigation by promoting early notice and to assist in the early consideration of claims which may be partly or wholly fraudulent. Section 26BB provides: 26BB Claimant must comply with requests for information (1) A claimant must comply with any reasonable request by the protected defendant to furnish specified information, or to produce specified documents or records, for the purpose of providing the protected defendant with sufficient information - (a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and (b) to be able to make an early assessment of liability, and (c) to be able to make an informed offer of settlement. (2) The reasonableness of a request under this section may be assessed having regard to criteria including the following - (a) the amount of time the claimant needs to comply with the request, (b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim, (c) the amount of information that has already been supplied to or is available to the protected defendant to enable liability and quantum of loss to be assessed and an offer of settlement made, (d) how onerous it will be for the claimant to comply with the request, (e) whether the information is privileged, (f) whether the information sought is sufficiently specified, (g) the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request. (3) A claimant is not required to comply with a requirement under this section while the claimant is a vulnerable offender under section 26BC. (4) The duty under this section applies only until court proceedings are commenced.
The legislative scheme therefore provides that the Court is obliged to ("must") dismiss the proceedings on any application by a protected defendant unless one of the following situations arise: 1. Section 26BA has in fact been complied with; 2. The claimant has a full and satisfactory explanation for non-compliance; and 3. The required notice of the incident was given to the protected defendant within a reasonable period in the circumstances.
Even were it the case that there were a "full and satisfactory explanation", the second limb still creates an insurmountable problem for the plaintiff if no notice was given (ss 26BA(1) and (3)). The required notice still needs to have been given. Further, the notice that has to have been given is the "required notice". The question is compliance with s 26BA (whether the plaintiff is within time or not).
The legislative scheme does not invite the Court to have regard to the merits of whether there has been actual notice, but merely as to whether late notice has been given which is otherwise compliant, and whether the notice was late but still given within a reasonable time.

The relevant case law

The defendant's application is supported by Dawson v NSW [2012] NSWDC 47 at [18], where it is clear that the delay question is to be considered in light of the required notice actually having been given. In Dawson v NSW, notice was given, albeit late. Sidis DCJ was satisfied with the explanation for the delay and leave was granted. That is not the case here.
Dawson v NSW is the only decision which has determined an application of this kind. The legislation was referred to in Allan Petit v State of New South Wales & Anor [2012] NSWDC 105, but the only matter determined by this decision was whether these provisions applied (which Mahony SC DCJ determined was not the case). It is referred to in Michael v State of New South Wales (2011) 81 NSWLR 1 at [14], but only as part of a series of amendments designed to achieve harmony and fairness in personal injury proceedings.

Conclusions

There are two issues before the Court, namely: 1. Whether notice was ever given. 2. Whether, if the notice had been given, there is a satisfactory explanation.
The defendant submits, in my opinion correctly, that no notice was ever given within the six-month period as well as prior to proceedings being commenced. The requirements of such a notice are the date of the incident, a description in plain language and, most importantly, a statement that the incident may ground a claim against the protected defendant. It is the third of these requirements that is fatal to the plaintiff's claim, as knowledge, constructive or actual, on the part of the defendant does not, without more, amount to notice within the meaning of s 26BA(3).
The notice must run from "the date of the incident" (s 26BA(2)), not the date of passing the 15% threshold. To hold otherwise would be contrary to the clear statutory intent.
Notice must be given before proceedings are commenced, and not afterwards, by reason of the factors set out in s 26BB, which are to permit the defendant to consider whether the claim may be "fraudulent" (s 26BB(1)(a)) as well as for purposes of early resolution (s 26BB(2)(c)). A notice served after the proceedings have been commenced cannot be retrospectively validated. I agree with the reasoning of Brown J in Hooper v Catholic Family Services trading as Centacare Catholic Family Services that such a notice must be served before and not after proceedings are commenced, and that case management principles cannot prevail over clear legislative language.

"Full and satisfactory"

Having made these findings, it is not necessary for me to determine the adequacy of the explanation, but I should add that the plaintiff offers no evidence of substance for his non-compliance. He appears to have consulted his current lawyers in about September 2020 after discussions with others in the gaol but does not identify the date upon which he was informed of any notice provisions.
There is another difficulty in relation to the explanation. I note that in Dawson v NSW the adequacy of the explanation was considered in light of the required notice having actually been given on a specified date, which is not possible in these proceedings, where a variety of dates (from January 2020 to May 2023) have been provided for the asserted giving of notice. This is a requirement the plaintiff cannot meet, given his claim that he gave notice on one, some or all of these dates, which makes a determination of "full and satisfactory" impossible to determine.
Pre-commencement notice provisions such as ss 26BA and 26BD have an important part to play in terms of fairness and case management. Applications to dispense with compliance on the basis that they are mere technicalities and contrary to court efficiency should be viewed with caution.
The proceedings will be dismissed with costs.

Orders: 1. Statement of claim struck out and dismissed. 2. Plaintiff pay defendant's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2023

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