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

In the matter of Elchaar versus Trustees of the Roman Catholic Church for the Diocese of Wollongong, the dispute revolves around the commencement of civil proceedings under the Felons (Civil Proceedings) Act 1981 (NSW) by the plaintiff, who had previously been convicted of a felony in the United Kingdom. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the plaintiff had complied with the statutory requirements to obtain leave to commence proceedings, and if not, whether such leave could be granted nunc pro tunc.

The court examined the provisions of the Felons (Civil Proceedings) Act 1981 (NSW), specifically section 4, which mandates that leave to commence proceedings must be obtained from the court. The plaintiff had failed to seek leave prior to filing the notice of motion, but argued that the failure was due to a misunderstanding of the legal requirements. The Trustees contended that the plaintiff's non-compliance with the statutory provisions should preclude the court from granting leave. The court considered the principles of justice and equity in determining whether to grant leave nunc pro tunc, which means as if done at the proper time.

After evaluating the arguments presented, the court determined that the plaintiff's failure to seek leave was not due to any fault or negligence on their part. The court found that the plaintiff had acted in good faith and had a reasonable basis for believing they were not required to seek leave. Consequently, the court exercised its discretion to grant leave nunc pro tunc, allowing the plaintiff to proceed with their civil claim. The Trustees' objection was dismissed, and the plaintiff was permitted to continue with their action against the Trustees of the Roman Catholic Church for the Diocese of Wollongong.