Geerlings v O'Keefe

[2015] NSWSC 1657

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Geerlings v O’Keefe [2015] NSWSC 1657
Hearing dates:	4 November 2015
Date of orders:	04 November 2015
Decision date:	09 November 2015
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Pursuant to UCPR 7.10(2)(b), the Court appoints the Very Reverend Dr Gerald Gleeson, Vicar General of the Catholic Archdiocese of Sydney, to represent the estate of the late Cardinal James Darcy Freeman for the purposes of these proceedings.
Catchwords:	PROCEDURE – notice of motion – order sought to appoint a representative to the deceased person’s estate – Rule 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) – appointment consented to – order made
Legislation Cited:	Civil Procedure Act 2005 (NSW) Imperial Acts Application Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Darrington v Caldbeck (1990) 20 NSWLR 212
Category:	Procedural and other rulings
Parties:	Paul Frederick Geerlings (Plaintiff) Father John O’Keefe (First Defendant) The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (Second Defendant) Bishop David Cremin (Third Defendant) Cardinal George Pell (Fourth Defendant) Sister Doris Mary Nebauer (Fifth Defendant) Trustees of the Sisters of Saint Joseph of the Sacred Heart (Sixth Defendant) Trustees of the Sisters of Saint Joseph of the Sacred Heart NSW (Seventh Defendant) The Estate of the Late Cardinal James Darcy Freeman (Eighth Defendant)
Representation:	Counsel: Mr Chiu for Dr Gleeson, applicant on motion and mentioning for the Plaintiff and First, Fifth, Sixth and Seventh Defendants   Solicitors: Corrs Chambers Westgarth (applicant on motion)
File Number(s):	2013/292503
Publication restriction:	None

Judgment

1. In September 2013, Mr Geerlings brought these proceedings, claiming that as a child his former parish priest, Father O’Keefe, had sexually assaulted him in various ways, over a period of 18 months to 2 years. Mr Geerlings also claims, amongst other things, that Cardinal James Freeman, the eighth defendant, was negligent and also vicariously liable for Father O’Keefe’s assaults.

2. By motion filed in October 2015, Dr Gerard Gleeson, Vicar General of the Catholic Archdiocese of Sydney, sought orders under r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) in terms agreed with the other active parties, appointing him to represent the Cardinal’s estate in these proceedings. He consents to that appointment. The motion was supported by affidavits sworn by Dr Gleeson and Mr Wright, his solicitor, on 1 October.

3. Rule 7.10 applies to proceedings such as this, where it appears to the Court that a deceased person’s estate has an interest in the proceedings, but is not represented. In such a case the Court:

“(a)   may order that the proceedings continue in the absence of a representative of the deceased person’s estate, or

(b)   may appoint a representative of the deceased person’s estate for the purposes of the proceedings, but only with the consent of the person to be appointed.”

4. I made the orders agreed at the hearing on 4 November. These are the reasons for that conclusion

5. Cardinal Freeman was the Archbishop of Sydney from 1971 to 1983. He died in 1991. One of his executors predeceased him and the other, Mr Robert Freeman, died in 1997. Section 13 of the Imperial Acts Application Act1969 (NSW), deals with the chain of representation, in circumstances where the executor of a will dies, leaving an executor of his own will. In Darrington v Caldbeck (1999) 20 NSWLR 212, Young J, as he then was, dealt with the conduct of litigation in circumstances where such a chain was broken.

6. Mr Wright described the steps which have been pursued to investigate the circumstances of Mr Robert Freeman’s death and whether there was a living executor of his estate. Possible executors identified were one or more of six of his children. Further investigations located some of those children, but an executor has not been identified.

7. It appears that Catholic Church Insurances Limited has reserved its position on indemnifying the Cardinal’s estate in these proceedings. Dr Gleeson explained in his affidavit, however, that the Archdiocese has fully indemnified the estate:

“…in respect of the costs of defending the proceedings, any out of court settlement which may be agreed as between the Estate and the other parties in these proceedings, and in respect of any damages or costs that may be awarded against the Estate by the Court in these proceedings, to the extent that these damages or costs are not met by insurance.”

8. Dr Gleeson said that the Archdiocese’s intent was that “regardless of CCI's ultimate position, any pecuniary judgment or order against the Estate in these proceedings is satisfied, and so that the Estate is left with no residual risk or liability arising from these proceedings.”

9. The Archdiocese had thus authorised Dr Gleeson to act as the estate’s representative for the purpose of defending the proceedings, if appointed by the Court and to “to ensure that any damages or costs that may be awarded against the Estate by the Court in these proceedings are met.”

10. On the evidence, making the orders sought was unarguably consistent with the requirements of s 56 of the Civil Procedure Act 2005 (NSW), which requires the Court to exercise its powers to give effect to the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings.

11. It was for those reasons that I made the following orders, in the terms agreed:

“Pursuant to UCPR 7.10(2)(b), the Court appoints the Very Reverend Dr Gerald Gleeson, Vicar General of the Catholic Archdiocese of Sydney, to represent the estate of the late Cardinal James Darcy Freeman for the purposes of these proceedings.”

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Amendments

09 November 2015 - typographical errors on coversheet

09 November 2015 - typographical error in paragraph [6] - "Cardinal Freeman" changed to "Mr Robert Freeman"

Decision last updated: 09 November 2015