Barsley v Trustees of the Roman Catholic Church trading as Diocese of Maitland-Newcastle

[2022] NSWSC 838

Supreme Court

New South Wales

Medium Neutral Citation:

Barsley v Trustees of the Roman Catholic Church trading as Diocese of Maitland-Newcastle [2022] NSWSC 838

Hearing dates:

20 June 2022

Date of orders:

20 June 2022

Decision date:

20 June 2022

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1) Leave granted to the plaintiff to institute proceedings against the defendants nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).

(2)   Costs be costs in the cause.

Catchwords:

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse – leave granted nunc pro tunc – costs

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5

Category:

Procedural rulings

Parties:

Christopher Barsley (Plaintiff)
Trustees of the Roman Catholic Church trading as Diocese of Maitland-Newcastle (First Defendant)
State of New South Wales (Second Defendant)

Representation:

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Makinson d’Apice Lawyers (First Defendant)
Wotton + Kearney (Second Defendant)

File Number(s):

2022/94035

Publication restriction:

Nil

EX TEMPORE Judgment (revised)

1. HIS HONOUR: In this matter, the plaintiff has commenced proceedings in this Court by way of statement of claim filed on 1 April of this year. In that claim he seeks damages arising from allegations of abuse, alleged to have been occasioned to him at a time when he was a child. The first defendant in the matter is the Trustees of the Roman Catholic Church tading as the Diocese of Maitland-Newcastle. The second defendant is the State of New South Wales. The claim against the first defendant arises out of an allegation of abuse suffered whilst in the Sacred Heart Primary School. The first defendant is alleged to be liable in relation to that abuse. The plaintiff also claims to have been abused whilst detained in a juvenile detention centre. The State of New South Wales, that is the second defendant, is asserted to be liable in relation to that claim.

2. At the time of institution of proceedings the plaintiff was in custody as a result of a conviction for a serious indictable offence, that being an offence relating to the supply of a prohibited drug. Accordingly, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Act”), he is required to have leave of the Court before such proceedings are instituted.

3. A notice of motion seeking orders for leave was filed on 3 June 2022. The application seeks leave to proceed as if leave had been sought at the time the proceedings were instituted by the statement of claim. It is established that leave can be granted nunc pro tunc which, in essence, means that leave can be granted as if it had been granted at the time of the institution of the proceedings. Section 5 of the Act provides:

5   Grant of leave

A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.

4. The plaintiff, in support of the motion relies on the affidavit of Ms Natalie Butcher, who is the contact solicitor for the plaintiff. That affidavit sets out in brief terms the bases on which the plaintiff makes his claim against the first and the second defendants. That affidavit also annexes a report from Associate Professor Michael Robertson which deals with the harm done to the plaintiff, which is said to form the basis of his claim. I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds to commence the proceedings.

5. With respect to the issue of costs, the plaintiff seeks an order that costs be costs in the cause. The first defendant does not oppose that order. The second defendant submits that the parties should bear their own costs. The second defendant submits that the plaintiff could and indeed, should have sought leave prior to the commencement of proceedings, at which time the defendants would not have been put to the trouble of appearing.

6. I accept there is some force in the submission made by the second defendant. The nature of the claim, the circumstances of the plaintiff and the difficulties that arise in firstly, understanding the impacts of events from some time ago and secondly, in obtaining legal representation and instructing lawyers are such that there are logistical difficulties typically encountered by plaintiffs in these circumstances.

7. In all of the circumstances, I am of the view that it is appropriate that the costs be in the cause, particularly in circumstances where it is, in my view, inappropriate to make orders that operate differentially as between the two different defendants, with the first defendant not opposing such an order.

8. I make the following orders:

1. Leave granted to the plaintiff to institute proceedings against the defendants nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW).

2. Costs be costs in the cause.

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Decision last updated: 23 June 2022