DBT v Sydney Catholic School Ltd as Trustee for the Sydney Catholic Schools Trust

[2022] NSWSC 890

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

DBT v Sydney Catholic School Ltd as Trustee for the Sydney Catholic Schools Trust & Anor [2022] NSWSC 890

Hearing dates:

14 June 2022

Date of orders:

14 June 2022

Decision date:

14 June 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW), DBT is granted leave to commence his civil proceedings in the Supreme Court of New South Wales.

(2) The costs of the notice of motion will be costs in the cause.

Catchwords:

CIVIL LAW – procedure – leave to commence proceedings – application refreshingly brought before proceedings commenced – plaintiff in custody at time of proceedings – Felons Act – alleged victim of child sexual abuse at school – no question of principle

Legislation Cited:

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

Category:

Procedural rulings

Parties:

DBT (Plaintiff)
Sydney Catholic School Ltd as Trustee for the Sydney Catholic Schools Trust (First Defendant)
Trustees of the Marist Brothers for the Province of Australia (Second Defendant)

Representation:

Counsel:
J Masur (Plaintiff)
R Pearson (First Defendant)
K Flanigan (Second Defendant)

Solicitors:
Shine Lawyers Ltd (Plaintiff)
Corrs Chambers Westgarth (First Defendant)
Carroll & O’Dea Lawyers (Second Defendant)

File Number(s):

2022/137222

Publication restriction:

Pursuant to suppression orders made on 20 October 2022 and s 7 of the Courts Suppression and Non-Publication Orders Act 2010, the judgment has been redacted so that the plaintiff is referred to as "DBT".

EX TEMPORE Judgment (REVISED)

1. This is an application for leave to institute proceedings pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) by DBT, a proposed plaintiff in proceedings against Sydney Catholic Schools Ltd and the Trustees of the Marist Brothers for the Province of Australia. Refreshingly, the application for leave is brought before the commencement of proceedings and is brought by way of summons supported by an affidavit of the plaintiff’s solicitor. This sets out in reasonable detail, albeit succinctly, the claim proposed to be made. Annexed to that affidavit is the proposed statement of claim, which is yet to be filed formally in the Court, there being a necessity for leave before the proceedings are instituted.

2. The Felons (Civil Proceedings) Act provides that a person who is in custody because of a conviction for a serious indictable offence may not institute civil proceedings, except with the leave of the Court. The affidavit of the plaintiff’s solicitor establishes that DBT has been convicted and sentenced for the crime of murder, which is a serious indictable offence, and that he is currently in custody serving that sentence. Accordingly, s 4 of the Act applies to him. Section 5 requires that leave shall not be granted under s 4 unless the Court is satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

3. The first and second defendants are represented and each take the same position, which is to say that they neither consent to nor oppose the application for leave, but also make it clear that nothing in that sensibly taken position should be seen as indicating any admission as to the allegations that DBT proposes to make against either of their clients or the teachers involved. The statement of claim in the affidavit in support sets out the allegations that will be made if leave is granted and, essentially, they involve the plaintiff being subjected to sexual abuse by a teacher or brother at the school which he attended in the late 1970s and early 1980s.

4. The particulars are set out in some detail. The bases of liability, duty of care and so forth are set out, as is the basis upon which it is said that the first and second defendants are vicariously liable for the acts of the alleged perpetrator. I am satisfied that there are prima facie grounds for the proceedings and that the proceedings are not on their face an abuse of process. Accordingly, I propose to make the orders sought.

5. The orders that I make are:

1. Pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW), DBT is granted leave to commence his civil proceedings in the Supreme Court of New South Wales.

2. The costs of the notice of motion will be costs in the cause.

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Amendments

20 October 2022 - Pursuant to suppression orders made on 20 October 2022 and s 7 of the Courts Suppression and Non-Publication Orders Act 2010, the judgment has been redacted so as to refer to the plaintiff as "DBT".

Decision last updated: 20 October 2022