Tarik Assad v State of New South Wales [2025] NSWDC 528 | Case summary | Zoe

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Tarik Assad v State of New South Wales [2025] NSWDC 528 | Case summary | Zoe

No issue arises for determination on the notice of motion concerning compliance with s 26BB. The Defendant’s motion moves on assertion only that the Plaintiff failed to comply with the provisions of s 26BA.
In simplest terms, the Defendant argues:
that the Plaintiff has not complied with the notice obligation placed on him by s 26BA in that the Plaintiff has not provided notice satisfying the requirements of s 26BA(3); and
that the Plaintiff has not provided a full and satisfactory explanation for his non‑compliance in that first sense as requisite notice was not given, the statutory requirement being that notice must be given within 6 months after the relevant date for the claim: s 26BA(1).
The subject assault is alleged to have occurred on 10 July 2022. It is agreed that the Plaintiff was a vulnerable offender against whom time did not run for the bringing of his claim until 29 August 2022, on which date he was transferred from John Moroney Correctional Facility to a correctional facility at Bathurst. The Defendant relies on the affidavit of Brian Moroney, solicitor, made 15 August 2025. The Plaintiff relies on his own affidavit made 5 November 2025 and the affidavit of his solicitor, Mr Gasoski, made 6 November 2025.
Section 26BA(3) provides that notice of an incident must be in writing and must specify the date of the incident, describe the incident in ordinary language and state that the incident may give rise to a claim against the protected defendant. The incident alleged by the Plaintiff is that on 10 July 2022, an inmate named Faileaso threw hot water at him through the hatch in his cell door which hit him in the face, causing him to lose sight in his right eye. The John Moroney Centre incident report assault document, made and signed by a corrections officer on 10 July 2022, does describe that incident, the Plaintiff’s injuries, the name of the assailant and a description of the incident in ordinary language and that the Plaintiff wanted police action regarding the incident.
In my opinion, if the 10 July 2022 report included that the Plaintiff may make a claim, it would have satisfied the requirements of s 26BA. The form did not provide for that. The information in the form was plainly provided to the officer by the Plaintiff. I am not critical of the Department for the form not providing that. Were it to do so, it would give little purpose to an individual prisoner exercising their election whether or not to bring proceedings in relation to an incident. My purpose is simply to state that, in my opinion, the incident report form of 10 July 2022 is otherwise complete in all respects of description of the incident as is required by a notice under s 26BA.
On 29 November 2023, Shine Lawyers wrote to the Defendant informing of the incident and describing it, as well as enclosing the incident report form to which I have referred. The correspondence included “we advise that the incident may give rise to a claim” against the Defendant, and that the notice of the incident and injuries was provided pursuant to s 26BA. Section 26BA(3) does not require a definite statement that proceedings will be commenced but only that the incident “may” give rise to a claim. This is what I have intended to address above.
In my opinion, the Shine Lawyers correspondence of 29 November 2023 satisfies the requirements of s 26BA(3). I reject the Defendant argument that the letter, by referring to involvement of an officer opening the hatch to the cell, made it somehow not a description of the incident satisfying s 26BA(3). That was purely a temporal reference explaining why the hatch was open. The requirements of s 26BA(3), particularly by use of the words “in ordinary language”, do not prescribe a description to be made as if particulars in a pleading. The Defendant did not argue otherwise.
It is a requirement of the statutory regime that notice be given before proceedings are commenced. Were there not more in this matter, I find that notice is given.
The remaining issue concerns full and satisfactory explanation for failure to give the notice within 6 months: s 26BD(3)(a). The Plaintiff says that he was not aware of the requirements to give notice in writing or that he had a period to do so of only 6 months from 29 August 2022. He was not required for cross examination on his affidavit.
He deposes that he told corrections officers and Justice Health staff, including indeed the correction officer attending him whilst he was in hospital on 10 July, that, because of the injury to his eye, that he wanted to sue. He says that he told staff of the Defendant on multiple occasions that he wanted to sue. His state of mind was that, following the assault, the Defendant’s staff were not allowing him to contact a law firm to start a compensation claim. Not much turns on that state of mind. He deposes at paragraph 8 of his affidavit, “I did not realise that there was a prescribed written form for giving notice of my intention to sue nor did I realise I had to do so within six months.” Indeed, there is no prescribed form, but that changes nothing.
The Plaintiff has been active in pursuing claims concerning a different matter of sexual assault he alleges he experienced. On 26 September 2022, through the assistance of a cellmate, and whilst incarcerated, he spoke to a female at Shine Lawyers in relation to his sexual assault claim. He deposes at paragraph 13:

Mr Gasoski’s affidavit reports that a search of the records of Shine Lawyers confirms that, at the meeting, the prison assault incident was raised, and that there is no record of advice, verbal or otherwise, having been given to the Plaintiff concerning the requirement of written notice or of the limitation period of six months. Indeed, a draft letter addressed to the Plaintiff dated 18 November 2022 was found on file. While the letter was supposedly intended to be sent, it was in fact never sent.
It is agreed that independent documents show that, following his release from custody on 16 February 2023, the Plaintiff promptly pursued a Victim’s Compensation claim and, in May 2023, sought GIPA production of documents concerning the subject incident. He also attended medical care for his eye in which he lost sight because of the incident. Annexure I to his affidavit is an email dated September 2023 to the Defendant informing that the Plaintiff intended to sue. In that email, the Plaintiff expressed, “I wish to sue this prison for duty off (sic) care and wish to compensate for me life I am left to live because of this prison’s duty off care (sic).” Further on, it says, “I wish to start legal action against (sic) the prison,” and so on.
It seems to me improbable that if, contrary to the Plaintiff’s unchallenged affidavit evidence, he was aware of requirements for notice and of guillotine requirements against his bringing a personal injury action for damages, he would not have pursued that claim through Shine Lawyers. In other words, that inference is raised on his evidence and not challenged, as he was not required for cross examination. The Plaintiff has given a full explanation by saying that he was not told and therefore was not aware of those requirements of written notice and that it be given within six months.
In Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643, the High Court, when dealing with the Motor Accidents Legislation, which is not in identical terms, determined in the majority that the onus of establishing that the plaintiff did not have a full and satisfactory explanation for the delay lay on the moving party in an application. In this instance of Mr Assad, that of course means it was the Defendant’s onus to establish that Mr Assad does not have a full and satisfactory explanation. Of assistance are passages which appear in the judgement of Chief Justice Gleeson at p 647, para 11, referring to an earlier statement by Lord Mansfield that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. Justice Gleeson commented:

Justice McHugh spoke similarly on p 653, para 33. The effect of Russo is that, particularly in a case such as this, where the plaintiff has not been called for cross examination, the Court is not to speculate on some basis of what the plaintiff knew or did not know beyond that which is in evidence.
The evidence, I repeat, unchallenged in cross examination, is that he was not aware of those requirements for the bringing of a claim. I would add to this that he having spoken orally to prison and Justice Health staff and they not responding to him of these requirements of notice and six month limitation period would only have fortified to himself, if fortification was required, that he was proceeding normally.
I mean no criticism of the staff. They were probably not aware of the six month limitation period themselves. My point is simply that I do not speculate against his evidence that he just did not know. Likewise, when the complainant dealt with Shine Lawyers, albeit in relation to the sexual assault claim, and raised this claim, and then subsequently was not informed by them of the requirements of written notice within 6 months, his not knowing of such requirements is reasonable and acceptable.
The Defendant argues that this is not a case where the Plaintiff has been misled by those advising him that in fact his claim was being processed. To the extent to which I have just addressed the facts in this case, I do not accept that submission. However, the submission was properly made that this case is different on the facts to Dawson v The State of New South Wales [2012] NSWDC 47, where the prisoner who was injured whilst on a work duty was led to believe that his claim was to be pursued in workers’ compensation. In that case, at para 15, Siddis DCJ observed that his solicitor had told him that he had three years to bring the claim.
Dawson is not of great assistance. Each of these cases must be considered on its own facts. In my view, the Plaintiff was active in orally informing officers of the Defendant that he intended to sue and he has deposed to his bearing that intention and not having been informed of and therefore not being aware of the requirements of notice in writing or of the six month limitation period. In those circumstances, I accept that his explanation satisfies the requirements of s 26BD(3) as being a full and satisfactory explanation for noncompliance with the section.
For completeness, I will just deal with one other thing. In my opinion, the Defendant’s correspondence with the Plaintiff’s solicitors on 14 December 2023 informed the Plaintiff, and the Plaintiff was entitled to rely on that information, that the Shine correspondence of 29 November 2023 was notice and that the Defendant’s only objection was as to full and satisfactory explanation. I have found, in any event, as a fact, that the Shine correspondence of 29 November 2023 was notice and therefore nothing turns on the point I just made.
In my view, on Commonwealth v Verwayen (1990) 170 CLR 394 principles, if there were a prejudice to the Plaintiff in this notice of motion, and I am not aware that there is such a prejudice, arising from the Defendant having provided that communication on 14 December 2023, the Defendant would have been estopped from relying on that change of course.