Clynch v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn as Trustee for St Joseph's Primary Eden

The case before the court involved a claimant, Clynch, who sought damages for sexual abuse by a teacher, an employee of St Joseph's Primary Eden, which was overseen by the Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn. The claimant was unable to give notice of motion in accordance with the Felons (Civil Proceedings) Act 1981 (NSW) due to unavailability of the respondent's address and difficulties in locating the respondent. The court was tasked with determining whether leave should be granted for the claimant to proceed with the action without giving notice of motion, and whether such leave should be granted nunc pro tunc.

The court considered whether the claimant's failure to provide notice of motion as required by the Act could be excused due to the unavailability of the respondent's address and the difficulties in locating the respondent. The court had to weigh the importance of allowing the claimant to pursue their claim against the statutory requirements designed to protect defendants from the risk of litigation brought against them without proper notice. The court concluded that the circumstances justified granting leave to proceed without notice, considering the significant harm suffered by the claimant and the importance of ensuring access to justice.

In granting leave nunc pro tunc, the court emphasised the need to balance the rights of the claimant with the statutory obligations. The court found that the claimant had acted with due diligence and that the respondent had not been prejudiced by the delay in giving notice. The court also noted the public interest in addressing historical cases of sexual abuse and ensuring that victims have the opportunity to seek redress. The decision was made in the context of the claimant's need to bring the action within the statutory limitation period.

The court ordered that leave to commence the proceedings be granted nunc pro tunc and that the claimant's costs of the application be paid by the respondent. The claimant was thus permitted to proceed with their claim for damages without the need to comply with the notice of motion requirement.