Robinson v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle

[2023] NSWSC 740

Supreme Court

New South Wales

Medium Neutral Citation:

Robinson v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2023] NSWSC 740

Hearing dates:

30 June 2023

Date of orders:

30 June 2023

Decision date:

30 June 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of New South Wales (Case No. 2023/118210), with such orders made nunc pro tunc.

2. No order as to costs with the intent that each party bear their own costs of the notice of motion.

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff was in custody for serious indictable offences when proceedings commenced – where proceedings commenced before leave was sought – where plaintiff alleged he was sexually assaulted by priest at the school he attended – leave granted

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW) s 4

Cases Cited:

Jol v the State of New South Wales (1998) 45 NSWLR 283

Re Application of Malcolm Huntley Potier [2012] NSWCA 222

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Daniel Robinson (Plaintiff)
The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (Defendant)

Representation:

Counsel:
J Isackson (Plaintiff)
No appearance (Defendant)

Solicitors:
Kingsley Lawson Lawyers (Plaintiff)
Barry Nilsson Lawyers (Defendant)

File Number(s):

2023/118210

Publication restriction:

Nil

Judgment

1. The plaintiff seeks leave under section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle.

2. The proceedings were commenced by the filing of a statement of claim on 13 April 2023 without leave having been obtained under the Act. The notice of motion seeking leave nunc pro tunc was filed on 10 May 2023. Thereafter, an amended statement of claim was filed on 13 June 2023 correcting the proper name of the defendant.

3. In Jol v State of New South Wales (1998) 45 NSWLR 283 Sheller JA made clear (at 290) that the institution of proceedings without leave having been made granted does not constitute a nullity but rather an irregularity which may be corrected at a later time.

4. The plaintiff was born in November 1983. He attended St Joseph's Catholic Primary School at Belmont. That school appears to have been associated with a parish church and Father Brock was the priest at the church. The plaintiff alleges that from 1989 to 1991 when he was aged probably between seven and nine years, he was repeatedly sexually assaulted by the priest during the time of his attendance at the primary school.

5. He now sues the Trustees of the Diocese alleging negligence directly against them for failing to take appropriate precautions to ensure that he and people in his position were not sexually assaulted by priests or other employees, or agents of the defendant. He also makes a claim for the vicarious liability against the trustee in respect of sexual abuse that he suffered at the hands of the priest.

6. He was examined by Associate Professor Michael Robinson on 4 May 2021, and Professor Robinson has provided a report dated 14 May 2021. Professor Robinson diagnosed the plaintiff as suffering from chronic Post Traumatic Stress Disorder, periods of major depression and substance use disorder. He also considered that the plaintiff suffered from a personality disorder with prominent borderline and antisocial traits.

7. Although he found that the plaintiff had some underlying vulnerabilities to psychiatric disorder, Professor Robinson said that it was not inevitable that the plaintiff would have demonstrated the severity of the psycho pathological disturbances, co-morbid drug use, and their catastrophic consequences, if not for the subject sexual abuse.

8. The plaintiff has signed an evidentiary statement which not only details the abuse that he claims to have suffered but also sets out the sequelae from that abuse. He said that when he left school at about the age 18 or 19 he began to experience real issues with his mental health and he commenced using drugs including injecting heroin. He subsequently committed criminal offences and has been in and out of custody from 2006 up to the present time.

9. At the time the statement of claim was filed the plaintiff was in custody on charges of possessing an unauthorised prohibited firearm, possession or use of a prohibited weapon without permit, possession of ammunition without a license or a permit, and use of a prohibited weapon contrary to a firearms prohibition order. These are serious indictable offences.

10. Although the plaintiff was released to parole on 30 April 2023, he needs leave to commence and maintain these proceedings by reason of having been incarcerated at the time they commenced.

11. To obtain leave under section 4 of the Act it is necessary for the plaintiff to show that the proceedings are not an abuse of process and there is prima facie ground for bringing the proceedings. The test was considered in Re Application of Malcolm Huntley Poitier [2012] NSWCA 222 at [17] in the joint judgment of Allsop ACJ and Basten JA as follows:

Taken literally, that limb of the test refers to a claim which at first sight and without investigation appears to be a "ground". Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading. The purpose of the legislative scheme was, in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 that a convicted felon could not sue at law or in equity. On the other hand, the purpose of the statute was to permit the court to ensure that neither it nor prospective defendants were subjected to proceedings which were an abuse of process or which lacked any real merit: Jol v State of New South Wales (1998) 45 NSWLR 283 at 286E (Sheller JA, Beazley JA and Sheppard AJA agreeing). As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not "hopeless" or "unarguable". Different expressions used from time-to-time do not indicate any difference in the standard to be applied.

12. I am satisfied from the material including the plaintiff's evidentiary statement and the report of Associate Professor Robinson that the proceedings are not an abuse of process and that there is a prima facie ground for those proceedings.

13. Accordingly, I make the following orders:

1. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), the plaintiff is granted leave to commence and maintain his civil proceedings in the Supreme Court of New South Wales (Case No. 2023/118210), with such orders made nunc pro tunc.

2. No order as to costs with the intent that each party bear their own costs of the notice of motion.

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Decision last updated: 30 June 2023