OCM v The Trustees of the Christian Brothers
[2017] NSWSC 854
•22 June 2017
|
New South Wales |
Case Name: | OCM v The Trustees of the Christian Brothers |
Medium Neutral Citation: | [2017] NSWSC 854 |
Hearing Date(s): | 22 June 2017 |
Date of Orders: | 22 June 2017 |
Decision Date: | 22 June 2017 |
Jurisdiction: | Common Law |
Before: | Garling J |
Decision: | (a) Order that the plaintiff is to serve on each other party an evidentiary statement setting out all of the evidence which he intends to give at any trial, on or before 4pm, 15 September 2017. |
Catchwords: | CIVIL PROCEDURE – overriding purpose – orders to facilitate overriding purpose |
Legislation Cited: | Civil Procedure Act 2005 |
Cases Cited: | Not applicable |
Texts Cited: | Not Applicable |
Category: | Procedural and other rulings |
Parties: | OCM (P) (2016/316891 |
Representation: | Counsel: |
File Number(s): | 2016/316891 |
Publication Restriction: | Not Applicable |
EX TEMPORE JUDGMENT
This is a claim by the plaintiff known as OCM for damages arising out of sexual abuse, which is alleged to have occurred in 1977 and 1978.
The proceedings were commenced on 24 October 2016. As yet the plaintiff has not complied with the most recent order of the Court that he serve an evidentiary statement by 28 April 2017. There were previous orders that he do so.
There are some significant complications with respect to the plaintiff's position in this case. The first relates to the fact that he presently resides in Mexico, where he seems to have been, or at least in that region of the world, since February 2017. The second is that his present psychiatric state does not allow easily, or effectively, for the obtaining of instructions by his solicitors. Thirdly, the fact that he resides in Mexico makes the undertaking of an expert medical examination difficult, whether arranged as a single examination or else as a joint one.
Section 56 of the Civil Procedure Act 2005 places on all parties to litigation in New South Wales, a duty to assist the Court to further the overriding purpose of that Act and rules of Court in their application in civil proceedings, namely, to do all things necessary to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
The complexities in these proceedings, of and relating to the plaintiff, to which I have earlier referred, do not excuse the plaintiff from attending to his obligations in accordance with s 56 of the Civil Procedure Act. If this case is to proceed and proceed in a way which reflects that overriding purpose, it is of the utmost importance that the plaintiff take all reasonable steps to comply with the orders of the Court, which I am now about to make.
Whilst this claim is still a relatively recent claim, it does refer to events which occurred, at least, 35 years ago and it is of the utmost importance to both the plaintiff and the defendants and, ultimately, the administration of justice, that if there is to be a fair trial of these proceedings, that such trial take place as soon as is reasonably practicable. This can only happen if the plaintiff makes a concerted effort to fulfil his obligation, and to give instructions to enable the litigation to be conducted justly and quickly.
Accordingly, I will make orders which have the effect of obliging the plaintiff to take a number of relatively straightforward steps, each of which are essential to enable this matter to proceed. I emphasise the importance of compliance with these orders:
(a)I order that the plaintiff is to serve on each other party an evidentiary statement setting out all of the evidence which he intends to give at any trial, on or before 4pm, 15 September 2017.
(b)I order the plaintiff to serve on each other party any expert evidence upon which he proposes to rely on or before 4pm, 28 September 2017.
(c)I note that the parties are agreed that Dr Jonathan Phillips, consultant psychiatrist, will be retained jointly to prepare an expert psychiatric report of and concerning the plaintiff.
(d)I order that the plaintiff attend such examination as may be arranged with Dr Jonathan Phillips, for the purposes of enabling Dr Phillips to prepare a joint report.
(e)I stand the proceedings over for directions before me at 9.30am on Friday, 29 September 2017.
(f)I vacate order 1 of the orders of the Court of 31 January 2017 and in lieu I make the following orders:
(g)I order until further order, pursuant to section 7 of the Court Suppression and Non-Publication Orders Act 2010 that the name and identity of the plaintiff be suppressed, except as may be necessary for the proper conduct of these proceedings, upon the grounds that the order is necessary to prevent prejudice to the proper administration of justice.
(h)I order until further order that the plaintiff in these proceedings be known as "OCM", that he be described in all pleadings and other documents filed, or served in the proceedings as "OCM" and except as may be necessary for the proper conduct of the proceedings, he only be referred to as "OCM".
(i)I order that the name of the proceedings be changed so that the proceedings be referred to as "OCM v Trustees of the Christian Brothers".
(j)I order that the name of the third defendant on the statement of claim be amended so that it is as is follows: "Trustees of the Christian Brothers as executor of the estate of the late Francis Barnabas Garvan".
(k)I dispense with the requirement for service of any amended statement of claim recording such change.
(l)I further note that the proceedings have been properly discontinued against the tenth defendant.
(m)I give leave nunc pro tunc to file a Notice of Discontinuance dated 27 March 2017.
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