Ch v Bermingham - [2013] NSWSC 1218

Supreme Court

New South Wales

Medium Neutral Citation: CH v Bermingham [2013] NSWSC 1218
Hearing dates: 21 March 2013
Decision date: 30 August 2013
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Notice of motion filed by the plaintiff on 7 December 2012 is dismissed.
(2) Notice of motion filed by the first defendant on 22 February 2013 is dismissed.
(3) Notice of motion filed by the second to sixth defendants on 20 March 2013 is dismissed.
(4) No order as to costs.
(5) The matter is listed at 9am on Friday 13 September 2013 in the Common Law Registrar's List.

Catchwords: PRACTICE AND PROCEDURE - plaintiff pleaded she was under disability - whether limitation defence should be separately determined - whether any substantial factual overlap - credibility findings necessary - undesirability of inconsistent findings - whether damages should be separately determined - all issues to be determined in one hearing - motions dismissed
Legislation Cited: Limitation Act 1969
Uniform Civil Procedure Rules 2005
Civil Procedure Act 2005
Cases Cited: Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225
Thiering v Daly [2011] NSWSC 1345
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514
Category: Interlocutory applications
Parties: CH (P)
Margaret Bermingham (D1)
The Trustees of the Roman Catholic Church for the Diocese of Lismore, Catholic Education Office (D2)
Sister Barbara Bolster and the Trustees of the Sisters of Mercy (D3)
Sister Margaret Hogan (D4)
Geoffrey Hylton Jarrett (D5)
John Steven Satterthwaite (D6)
Representation: Counsel:
D S Weinberger (P)
J A Ringrose (D1)
G Bateman (D2-6)
Solicitors:
Karp O'Neill Solicitors & Barristers (P)
MBT Lawyers (D1)
Makinson & d'Apice Lawyers (D2-6)

File Number(s): 2011/411947

Judgment

Before the Court are three notices of motion seeking orders to the effect that certain issues be determined separately, pursuant to r 28.2 of the Uniform Civil Procedure Rules ("the Rules").

The plaintiff moves the Court for orders that the issue of quantum of damages be determined separately from the issues of limitation and liability. The first defendant moves for orders that there should first be a hearing to determine whether the proceedings are statute barred pursuant to the Limitation Act 1969, and thereafter, if necessary, a hearing with regard to liability and damages.

The second to sixth defendants adopt the position of the first defendant.

In light of the nature of the alleged incident that underpins the claim and the fact that this judgment will appear on the internet, I consider that the plaintiff should be referred to by a pseudonym.

Background

In order to understand how the present controversy arises, it is necessary to set out some of the pleadings and procedural background.

The proceedings were brought by way of a statement of claim that was amended on 1 August 2012. In it the plaintiff alleges that the first defendant was at the relevant times generally employed as a teacher by either the second, third, fourth, fifth or sixth defendants (for the purposes of the present application,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ch v Bermingham

Details

AGLC: CH v Bermingham [2013] NSWSC 1218
Case: [2013] NSWSC 1218
Decision Date: 30 August 2013

CaseChat Overview and Summary

In the case of Ch v Bermingham, the plaintiff sought to challenge the defendant's defence of limitation. The plaintiff alleged that she had been under a disability, which prevented her from bringing the claim within the relevant limitation period. The matter was before the court on motions, where the plaintiff argued that the issues of disability, limitation, and damages should be decided separately. The defendant, on the other hand, submitted that all matters should be resolved in a single hearing.

The legal issues before the court included whether the plaintiff's plea of disability should be determined separately from the limitation defence, whether there was substantial factual overlap between the issues, and whether it was desirable to avoid inconsistent findings of fact and credibility. The court also considered whether damages should be determined separately and whether all matters should be resolved in one hearing.

The court found that there was significant factual overlap between the issues of disability, limitation, and damages, which meant that it was appropriate to determine all matters in one hearing. The court also noted the desirability of avoiding inconsistent findings of fact and credibility, which would arise if the issues were determined separately. Furthermore, the court found that damages should be determined in the same hearing as the other issues, as this would promote efficiency and avoid unnecessary costs. Accordingly, the motions were dismissed, and the parties were directed to proceed with a single hearing to determine all matters in dispute.

The final orders of the court were that the plaintiff's motions for separate determination of the issues of disability, limitation, and damages were dismissed. The parties were directed to proceed with a single hearing to determine all matters in dispute, including the issues of disability, limitation, and damages.

Orders