Martin v The Trustees of the Vincentian Fathers

[2022] NSWSC 1120

Supreme Court

New South Wales

Medium Neutral Citation:

Martin v The Trustees of the Vincentian Fathers [2022] NSWSC 1120

Hearing dates:

23 August 2022

Decision date:

23 August 2022

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

Grant leave to the plaintiff to file the statement of claim to institute the proceedings.

Catchwords:

CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action — where plaintiff in custody — Felons (Civil Proceedings) Act 1981 (NSW) — where leave granted

Legislation Cited:

Crimes Act 1900 (NSW), s 154F

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

Category:

Procedural rulings

Parties:

Brock Martin (Plaintiff)
The Trustees of the Vincentian Fathers (First Defendant)
State of New South Wales (Second Defendant)

Representation:

Counsel:
J McManis (Plaintiff – mentioned for the First and Second Defendants)

Solicitors:
Beston Macken McManis (Plaintiff)
Wotton + Kearney (First Defendant)
Moray & Agnew (Second Defendant)

File Number(s):

2022/150762

JUDGMENT: EX TEMPORE

1. By notice of motion dated 24 May 2022, Brock Martin (the plaintiff) seeks an order for leave to proceed under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) (the Act) against The Trustees of the Vincentian Fathers (the first defendant) and the State of New South Wales (the second defendant).

2. I am informed by Mr McManis, who appears on behalf of the plaintiff and who mentions the appearance of the first and second defendants, that the first defendant neither consents nor opposes the orders sought and the second defendant consents to the orders sought.

3. The Act provides in s 4 that:

“A person who is custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.”

4. Section 5 of the Act provides that:

“A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.”

5. I am satisfied that the plaintiff is, and was at the time of filing the statement of claim, a person in custody. Furthermore, the evidence of Mr McManis establishes that the plaintiff was convicted of an offence under s 154F of the Crimes Act 1900 (NSW) for stealing a motor vehicle, which carries a maximum penalty of ten years’ imprisonment. A serious indictable offence is defined in s 4 of the Crimes Act as an indictable offence which carries a maximum penalty of imprisonment for five years or more. It follows that the offence of which the plaintiff has been convicted is a serious indictable offence. Accordingly, s 4 of the Act applies, and this Court’s leave is required for the civil proceedings to be instituted.

6. As referred to above, I am prohibited from granting leave unless I am satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

7. The evidence adduced in support of the application includes a statement of claim which sets out allegations that while the plaintiff was a student at St Stanislaus School in Bathurst in the State of the New South Wales he was sexually assaulted by a priest at that school. The statement of claim also alleges that he was sexually and physically abused by a youth worker known as “Mick” at the Cobham Juvenile Detention Centre. The evidence also includes an evidentiary statement of the plaintiff in which the plaintiff states on 12 April 2022 the circumstances of the abuse and the effect on him of that abuse.

8. At the relevant time, St Stanislaus School was run by the first defendant and the Cobham Juvenile Detention Centre was owned, operated and managed by the second defendant.

9. The allegations in the statement of claim, if made out, would amount to a tort against the plaintiff for which the respective defendants would be vicariously liable.

10. I am satisfied on the basis of the statement of claim and the evidentiary statement of the plaintiff that the proceedings are not an abuse of process and that there is prima facie a ground for the proceeding.

11. I am satisfied in the circumstances of the present case that it is appropriate to grant the leave of the Court for the plaintiff to institute civil proceedings against the first and second defendants. Accordingly, I grant leave for the statement of claim to be filed so as to institute those proceedings.

Order

12. For the reasons given above, I make the following order:

1. Grant leave to the plaintiff to file the statement of claim to institute the proceedings.

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Decision last updated: 25 August 2022