Elchaar v Trustees of the Roman Catholic Church for the Diocese of Wollongong

[2025] NSWSC 1113

Supreme Court

New South Wales

Medium Neutral Citation:

Elchaar v Trustees of the Roman Catholic Church for the Diocese of Wollongong [2025] NSWSC 1113

Hearing dates:

24 September 2025

Date of orders:

24 September 2025

Decision date:

24 September 2025

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) Pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of New South Wales (Common Law Division), with such orders made nunc pro tunc and taking effect from 23 August 2024.

(2) An order that costs of the Motion be costs in the cause.

Catchwords:

CIVIL – Notice of Motion – s 4 Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings – leave granted nunc pro tunc

Legislation Cited:

Felons (Civil Proceedings) Act1981 (NSW), s 4

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Elias Elchaar (Plaintiff)
Trustees of the Roman Catholic Church for the Diocese of Wollongong (Defendant)

Representation:

Counsel:
No appearance

Solicitors:
Fern Lawyers Pty Limited (Plaintiff)
Makinson D’apice Lawyers (Defendant)

File Number(s):

2024/00312591

Publication restriction:

Nil

Revised Ex tempore JUDGMENT

1. By Notice of Motion (“the Motion”) filed 15 September 2025 the plaintiff, Elias Elchaar, moved the Court pursuant to s 4 of the Felons (Civil Proceedings) Act1981 (NSW) (“the Act”) for leave to commence and maintain his civil proceedings in this Court with orders made nunc pro tunc and taking effect from 23 August 2024. It is further sought in the Motion that an Order that costs of the Motion be costs in the cause.

2. The application is supported by an affidavit of Mitchell Hajje sworn on 15 September 2025. Mr Hajje is the solicitor on the record for the plaintiff. The affidavit of Mitchell Hajje attached the Amended Statement of Claim (“Amended SOC”) upon which the plaintiff intends to proceed if he is granted leave in accordance with the Motion. The affidavit attached a report of Dr Martin, a consultant psychiatrist.

3. The provisions of s 4 of the Act provides that a person who is in custody as a result of having been convicted of or found to have committed a serious indictable offence may not institute civil proceedings in any Court except by leave of that Court granted on application.

4. The plaintiff is currently incarcerated at the Clarence Correctional Centre for charges of dealing in proceeds of crime money/property equal to or exceeding $1 million and directing activities to aiding a criminal organisation. Those offences are serious indictable offences. I note for completeness that the plaintiff has in fact been sentenced to imprisonment for ten years and six months for his conviction and sentencing for those offences, which sentence commenced on 7 June 2021. Accordingly the provisions of s 4 of the Act operate in this case.

5. In order to grant leave in the proceedings, the Court must be satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. It appears to me that both of those conditions are satisfied in the present case, if one has regard to the following considerations:

1. the nature of the abuse and circumstances of the abuse alleged in the Amended SOC (at [3]);

2. the opinion of Dr Allan, in which the plaintiff is diagnosed with anti-social personality disorder, persistent depressive disorder, post-traumatic stress disorder and substance misuse disorder;

3. Dr Allan's opinion that the plaintiff having been sexually assaulted as alleged in the Amended SOC on three occasions contributed significantly to the development of those psychiatric conditions; and

4. there appears to be a correlation between those conditions and economic loss or potential economic loss.

6. In those circumstances there is a proper basis for the grant of leave sought. As would be evident from my description of the proceedings to date, the Amended SOC was commenced prior to these proceedings being brought. That is not such as would produce a circumstance in which the application was invalid but rather should be treated as an irregularity. It follows then that the Orders may be made by the Court nunc pro tunc as sought in the Motion.

7. In all the circumstances I grant the relief sought by the plaintiff in the Motion by the making of Orders 1 and 2 of that Motion.

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Decision last updated: 25 September 2025