Coffey v Sydney Church of England Grammar School
[2023] NSWSC 672
•02 June 2023
Supreme Court
New South Wales
Medium Neutral Citation: Coffey v Sydney Church of England Grammar School [2023] NSWSC 672 Hearing dates: 02 June 2023 Date of orders: 02 June 2023 Decision date: 02 June 2023 Jurisdiction: Common Law Before: Garling J Decision: See [23]
Catchwords: CIVIL PROCEDURE — hearings — adjournment — where previously unrepresented plaintiff has now the benefit of pro bono legal representation — where new legal team seek to conduct further investigations before trial — adjournment granted
Legislation Cited: Not Applicable
Cases Cited: Coffey v Sydney Church of England Grammar School [2022] NSWSC 1293
Texts Cited: Not Applicable
Category: Procedural rulings Parties: Andrew Coffey (P)
Sydney Church of England Grammar (D)Representation: Counsel:
Solicitors:
P O’Brien (P)
S Alcarraz (D)
O’Brien Solicitors (P)
Dentons Australia Pty Ltd (D)
File Number(s): 2021/190223 Publication restriction: Not Applicable
EX TEMPORE JUDGMENT
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This is an application by the plaintiff, Mr Andrew Coffey, to vacate the hearing of these proceedings which is presently fixed for 17 July 2023.
Background
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This matter commenced in 2021. For a considerable period starting in 2022, and up until recently, the plaintiff was representing himself. Earlier this year, whilst he was representing himself, the Court fixed the proceedings for hearing commencing on 17 July 2023, with an estimate of five days.
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The proceedings had previously been fixed for a hearing commencing on 17 October 2022. On 23 September 2022, I vacated that hearing date: see Coffey v Sydney Church of England Grammar School [2022] NSWSC 1293.
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The plaintiff brings the proceedings against the institution legally responsible for the Sydney Church of England Grammar School. The plaintiff alleges that in 1974 he was subjected to sexual and physical abuse by a teacher at the school. The defendant has always made it plain that its defence to the proceedings is that the abuse alleged by the plaintiff did not occur on the date and at the time alleged by the plaintiff, or in the period alleged by the plaintiff, or at all.
Referral for Pro Bono Representation
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After the matter was fixed for trial to commence on 17 July 2023, the Court was asked to refer the plaintiff for pro bono assistance from the NSW Bar Association. It did so.
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As a consequence of that referral, Mr Baran of counsel and Mr O'Brien, a solicitor, have agreed to act for the plaintiff, to advise him and to prepare his matter for hearing. It is obviously in the interests of the plaintiff and the defendant, and in the interests of the administration of justice generally, that the plaintiff has the benefit of lawyers to appear for him and present his case in what is a complex piece of litigation – in the sense that it requires proof of facts, the use of tendency evidence, and the application of legal principles which are not necessarily completely settled.
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Since the plaintiff’s pro bono legal team have appeared in this Court, they have needed time to understand the nature of the plaintiff's claim and to consider what steps need to be taken to prepare his claim for hearing. At his first court appearance before me after he was instructed by the plaintiff, Mr Baran of counsel made it plain to the Court that, if at all possible, the hearing date which existed would be maintained. He accepted that it was in everybody's interests, most particularly his client, to have the matter heard and disposed of at the earliest possible opportunity. However, Mr Baran said that whilst that was the best course for all parties, he was not prepared to go to trial unless the matter was properly investigated and appropriate evidence was obtained.
Current State of Preparation
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The matter has since been heard by way of directions hearings on several occasions and Mr Baran has reported on progress. This morning Mr O'Brien, the solicitor for the plaintiff, informed the Court of the present state of preparation.
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First, subpoenas issued to the NSW Police have been served and NSW Police have sought until at least until 9 June 2023 to produce documents given the nature of the subpoena which has been served. Once NSW Police returns the documents, it will be necessary for the plaintiff's lawyers to have the opportunity to read those documents to understand what, if anything, is to be obtained from them.
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Secondly, I am informed, having regard to enquiries that have been made, that the named perpetrator was apparently the subject of police investigation in New Zealand for offences of a similar kind in the 1960s, or perhaps the 1970s. The enquiries have also suggested that New Zealand unsuccessfully sought to extradite this individual from NSW in the 1980s.
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As a consequence, Mr O'Brien informs the Court that he anticipates that it will be necessary to seek leave of the Court to issue a subpoena under the relevant trans‑national legislation to New Zealand police authorities for the production of documents. As well, it will be necessary to investigate the circumstances surrounding the filed extradition application.
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Thirdly, Mr O'Brien has informed the Court that he is still seeking to identify possible witnesses who may be able to give evidence of, and surrounding all of the factual context to, the relevant caning incident at the school which is the incident giving rise to the alleged abuse. He has only in recent days received some evidence from a further potential witness which will either be categorised as direct evidence or else as evidence of a tendency kind.
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All of this demonstrates that there is still more which needs to be done in order to ensure that the plaintiff's case is ready for a hearing.
The Defendant’s Contentions
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Ms Alcarraz, who appears for the defendant, opposes the vacating of the hearing date. She submits that the subpoenas issued to the NSW Police which are presently outstanding are the same as those which have been previously issued, and that there are abundant documents that have previously been produced.
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I am unable to determine whether that is correct or not because I do not have the subpoenas before me but, even if it is correct, it will still be necessary for the recently instructed pro bono legal team to read through that extensive material to appreciate it and understand it.
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Ms Alcarraz submits that the proper approach by the Court is to stand the matter over for a short period and to require the plaintiff's solicitors to put on an affidavit setting out what they have done, the speed with which they have attended to it and what remains to be done.
Discernment
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I do not think that the course suggested by the defendant is necessary or appropriate.
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I keep in mind that the plaintiff's legal team is undertaking their work on a pro bono referral. I have not the slightest reason to doubt their diligence and sincerity. From the time at which he was instructed in this matter, Mr Baran of counsel made it plain to the Court that he wanted to keep the hearing date but would not do so at the price of an under-prepared case.
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Mr O'Brien this morning has made statements about the progress of preparation which I accept are perfectly reasonable and entirely understandable.
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In those circumstances, I am satisfied that there is no prospect of this matter being ready for a fair hearing on 17 July 2023 and, accordingly, I will vacate the present fixture of five days on 17 July 2023.
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It will, of course, be necessary to ensure that the matter receives the earliest possible hearing date, but I am not yet ready to give it another hearing date because I am not satisfied that the time that may be allowed will be sufficient.
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What I will do is I will stand the matter over for directions for about a month by which time the plaintiff's solicitors and Mr Baran should be in a position to know what is happening.
Orders
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I make the following orders:
Vacate the hearing presently fixed for 17 July 2023.
Stand the proceedings over for further directions to 7 July 2023.
Reserve all questions of costs.
The parties have liberty to apply.
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Decision last updated: 20 June 2023
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