MXS2 v Georges River Grammar School - [2023] NSWSC 529

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: MXS2 v Georges River Grammar School [2023] NSWSC 529
Hearing dates: 28 April 2023
Date of orders: 18 May 2023
Decision date: 18 May 2023
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
That the proceedings be permanently stayed.

Catchwords:
CIVIL PROCEDURE — Application for permanent stay of proceedings concerning alleged assault and sexual abuse of plaintiff by former teacher — no applicable limitation period — relevant principles — consequences of delay — where no complaint made about alleged perpetrator before his death — where relevant documents unavailable — where other relevant witness has died — whether discretion should be exercised — Civil Procedure Act 2005 (NSW), s 67 — Uniform Civil Procedure Rules 2005 (NSW), r 2.1 — proceedings stayed
LIMITATION OF ACTIONS — Torts — child abuse — whether proceedings should be permanently stayed — Limitation Act 1969 (NSW), s 6A

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 67
Evidence Act 1995 (NSW), s 140
Limitation Act 1969 (NSW), s 6A
Uniform Civil Procedure Rules 2005 (NSW), rr 2.1 42.1

Cases Cited:
Anderson v The Council of Trinity Grammar School [2018] NSWSC 1633
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Brigenshaw v Brigenshaw (1938) 60 CLR 336; [1938] HCA 34
BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431
Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37
R v Presser [1958] VR 45
R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7
Smith v The Council of Trinity Grammar School [2021] NSWSC 1592
Smith v The Council of Trinity Grammar School [2022] NSWCA 93
State of New South Wales v Plaintiff A [2012] NSWCA 248
The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292
The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78

Category: Procedural rulings
Parties: MXS2 (Plaintiff)
Georges River Grammar School (Defendant)
Representation:
Counsel:
Mr J Turnbull SC (Plaintiff)
Mr T Meakes (Plaintiff)
Mr D Villa SC (Defendant)
Mr J Sleight (Defendant)
Solicitors:
Beston McManis Lawyers (Plaintiff)
Thompson Cooper Lawyers (Defendant)

File Number(s): 2022/152475

JUDGMENT

By further amended statement of claim MXS2 seeks damages, including aggravated damages, for assault and sexual abuse by his year six teacher, Mr Zuliani, in 1997, while he was a primary school student at St Paul’s Choir School, which was then operated by St Paul’s Choir School Ltd. There is no issue about the duty of care he was then owed; that Mr Zuliani was employed at the school at the time of the alleged abuse; or that St…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 529
Decision Date: 18 May 2023

CaseChat Overview and Summary

In the case of MXS2 v Georges River Grammar School, the plaintiff, represented by MXS2, brought an action against the defendant, Georges River Grammar School, alleging assault and sexual abuse by a former teacher. The case was heard in the Supreme Court of New South Wales, where the primary issue was whether the proceedings should be permanently stayed due to the application of the Limitation Act 1969 (NSW). The plaintiff argued that the limitation period did not apply due to the nature of the alleged offences, while the defendant argued that the proceedings should be stayed due to significant delays and the unavailability of relevant evidence.

The court was required to determine whether the discretion under section 67 of the Civil Procedure Act 2005 (NSW) should be exercised to stay the proceedings permanently. The key issues considered were the absence of a complaint about the alleged perpetrator before his death, the unavailability of relevant documents, and the death of another relevant witness. The court needed to balance the plaintiff's right to seek redress against the prejudice caused by the delay and the unavailability of evidence.

The court held that the proceedings should be permanently stayed. It found that the significant delay in bringing the action and the unavailability of relevant evidence, including the death of the alleged perpetrator and another key witness, constituted substantial prejudice to the defendant. The court considered that the plaintiff had failed to demonstrate any exceptional circumstances that would justify overriding the general rule that delay in bringing proceedings is a substantial factor in deciding whether to exercise the discretion to stay proceedings. The court also noted that the principles governing the exercise of discretion in civil matters, as outlined in the Uniform Civil Procedure Rules 2005 (NSW), r 2.1, supported the decision to stay the proceedings.

As a result of the court's decision, the plaintiff's action was permanently stayed, and the proceedings were dismissed. The court emphasised the importance of timely action and the availability of evidence in civil litigation, particularly in cases involving serious allegations of abuse.

Orders