Clynch v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn as Trustee for St Joseph's Primary Eden
[2022] NSWSC 736
•27 May 2022
Supreme Court
New South Wales
Medium Neutral Citation: Clynch v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn as Trustee for St Joseph’s Primary Eden [2022] NSWSC 736 Hearing dates: 27 May 2022 Date of orders: 27 May 2022 Decision date: 27 May 2022 Jurisdiction: Common Law Before: Lonergan Decision: (1) The plaintiff is granted leave nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) 1981 (NSW) to institute proceedings against the defendant in the form contained in the statement of claim filed on 3 November 2021.
(2) Each party is to bear its own costs of the notice of motion.
Catchwords: CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 NSW – leave to commence proceedings sought – claim for damages for sexual abuse by teacher – leave granted nunc pro tunc - costs
Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW)
Cases Cited: First v State of New South Wales [2021] NSWSC 226
Ford v Simes [2019] NSWCA 351
Jol v State of New South Wales (1998) 45 NSWLR 283; (1998) 104 A Crim R 516
SW v State of New South Wales [2010] NSWSC 966
Category: Procedural rulings Parties: Timothy Clynch (Plaintiff)
Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn as Trustee for St Joseph’s Primary Eden (Defendant)Representation: Counsel:
Solicitors:
T Meakes (Plaintiff)
Beston McManis Lawyers (Plaintiff)
Sparke Helmore Lawyers (Defendant)
File Number(s): 2021/00312175 Publication restriction: Nil
Judgment
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By notice of motion filed on 27 April 2022 the plaintiff Timothy Clynch seeks an order for leave to proceed under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) (“Felons Act”) in proceedings against the defendant the Trustees of the Roman Catholic Church for the Archdioces of Canberra and Goulburn as Trustee for St Joseph's Primary Eden.
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The plaintiff commenced proceedings against the defendant by filing a statement of claim on 3 November 2021. Read in support of the notice of motion is an affidavit of John McManis, solicitor, affirmed 23 March 2022.
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The plaintiff is presently serving a sentence of imprisonment for armed robbery. That offence would comprise a serious indictable offence as defined for the purposes of the Felons Act. This means that under s 4 of the Felons Act the plaintiff may not institute any civil proceedings in any Court except by leave of the Court granted on application.
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Section 5 of the Felons Act provides that a Court shall not under s 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 a prima facie ground for the proceedings.
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The construction and operation of the Act have been considered by a number of decisions of the Court and those decisions, in effect, and in particular Jol v State of New South Wales (1998) 45 NSWLR 283; (1998) 104 A Crim R 516 at [290] is that states this Court has a role in ensuring proceedings do not go forward to trial if they amount to an abuse of process or there is no prima facie ground for them.
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As stated in a number of decisions such as SW v State of New South Wales [2010] NSWSC 966 and Ford v Simes [2019] NSWCA 351, as a matter of policy this statutory gateway is not an overly demanding one and really what the Court needs to look at under s 5 is whether there is an arguable basis, or that the claim is not totally hopeless.
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The plaintiff brings the application now seeking leave to proceed. Since leave has not been sought at the time proceedings were filed, I can grant leave as if it had been granted at the time of the institution of the proceedings nunc pro tunc according to First v State of New South Wales [2021] NSWSC 226 at [3].
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The plaintiff's claim against the defendant is based upon events he says occurred in 2000 when he was in year two at St Joseph's School at Eden. Tendered in support of the application in addition to the statement of claim and the statement of particulars is a statement signed by the plaintiff dated 14 December 2021 which outlined the abuse and refers to the fact the plaintiff is suffering from post-traumatic stress disorder and is medicated. Whilst a short statement, it outlines a number of relevant matters, including that he is currently serving a ten year gaol term.
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Mr McManis's affidavit deposes to his own failure to seek the relevant leave at the time of the filing of the statement of claim.
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It is my view there is nothing in the legislation or in the relevant Case Law that prevents me providing leave after the proceedings have been commenced. Obviously the plaintiff's claim is based on vicarious liability, causes of action and trespass and battery and there is also a negligence claim directly against the defendant for failing to protect the plaintiff from this kind of abuse.
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Whilst there are no psychiatric or psychological reports accompanying the material, and whilst it would be helpful if there was, I do not read the Felons Act or the authorities as requiring any such evidence in order for the application to be successful.
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The defendant appears via its solicitor and neither consents nor opposes the application.
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There is nothing in the material that suggests that the proceedings are an abuse of process and based on the pleadings and the evidentiary statement of the plaintiff, there appears to be an arguable case and certainly a prima facie ground for the proceedings.
Orders
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Accordingly I make the orders sought in the notice of motion which I will adjust to the following format:
The plaintiff is granted leave nunc pro tunc pursuant to ss 4 and 5 of the Felons (Civil Proceedings) 1981 (NSW) to institute proceedings against the defendant in the form contained in the statement of claim filed on 3 November 2021.
Each party is to bear its own costs of the notice of motion.
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Decision last updated: 11 August 2023
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