Dervish v Christadelphian Heritage College Sydney Ltd

[2024] NSWSC 333

Supreme Court

New South Wales

Medium Neutral Citation:

Dervish v Christadelphian Heritage College Sydney Ltd [2024] NSWSC 333

Hearing dates:

19 March 2024

Date of orders:

19 March 2024

Decision date:

19 March 2024

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) The plaintiff be granted leave to institute proceedings nunc pro tunc, pursuant to s 4 of the Felons Civil Proceedings Act 1981 (NSW).

(2) Costs to be costs in the cause.

Catchwords:

CIVIL PROCEDUURE – application for leave under s 4 Felons (Civil Proceedings) Act 1981 – leave granted nunc pro tunc

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)

Category:

Procedural rulings

Parties:

Ozer Dervish (Plaintiff)
Christadelphian Heritage College Sydney Limited (Defendant)

Representation:

Counsel:
M McGirr (Plaintiff)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
Thompson Cooper Lawyers (Defendant)

File Number(s):

2023/459692

Publication restriction:

Nil

JUDGMENT

1. By a Statement of Claim filed on 19 December 2023, the plaintiff, Ozer Dervish, brought proceedings against the defendant, Christadelphian Heritage College Sydney Limited.

2. The plaintiff pleaded, in substance, historical sexual assault whilst a pupil at the school operated by the defendant.

3. By a Notice of Motion dated 15 February 2024, the plaintiff sought leave to institute proceedings nunc pro tunc pursuant to s 4 of Felons (Civil Proceedings) Act 1981 (NSW) (“the Act”).

4. The plaintiff relied, in support of that application, on his evidentiary statement in which he recounts both the alleged offending as well as the effect of the abuse upon him. Furthermore, the applicant relies upon a report of Dr Martin Allen in which he diagnoses of the applicant's present psychiatric condition as well as the relationship between that condition and the alleged historical sexual assault.

5. Those respective pieces of evidence are contained in or with the affidavit of Alexander Morrison, who is the solicitor having carriage of the matter for the plaintiff.

6. In my view, the provisions of s 4 of the Act are satisfied in this case. At the time of the filing, the Statement of Claim to which I have referred, the applicant was in custody as a result of having been convicted of a serious indictable offence, namely take/detain person in company with intention to obtain advantage.

7. As is recognised by the Notice of Motion, the applicant seeks leave in those circumstances to commence the proceedings by Statement of Claim. He does so in circumstances where he brings evidence before the Court as to the satisfaction of s 5 of the Act.

8. Having considered the evidentiary statement of the plaintiff and the assessments made by Dr Martin, I am satisfied that the proceedings are not an abuse of process and there is a prima facie ground for the proceedings.

9. The plaintiff was diagnosed as having antisocial personality disorder, post-traumatic stress disorder and chronic polysubstance misuse. The consultant psychiatrist draws a relevant connection between that psychiatric state and the sexual abuse allegedly experienced by the plaintiff. That relevant connection is said to be substantial.

10. In all the circumstances then, I consider that the plaintiff has made good the application, and in the result, I make the orders, namely prayers for relief 1 and 2 in the Notice of Motion.

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Decision last updated: 28 March 2024