Taipa v Trustees of the Roman Catholic Church for the Diocese of Broken Bay

[2022] NSWSC 692

Supreme Court

New South Wales

Medium Neutral Citation:

Taipa v Trustees of the Roman Catholic Church for the Diocese of Broken Bay [2022] NSWSC 692

Hearing dates:

18 May 2022

Date of orders:

18 May 2022

Decision date:

18 May 2022

Jurisdiction:

Common Law

Before:

Hamill 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 (2021/00286580) with such orders made nunc pro tunc and taking effect from 8 October 2021.

(2) The parties are to bear their own costs of and incidental to today’s notice of motion.

Catchwords:

CIVIL LAW – procedure – leave to commence proceedings – plaintiff in custody at the time proceedings commenced – Felons Act – institutional abuse suffered as a child – whether parties should bear their own costs when leave sought retrospectively

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)

Cases Cited:

Thurston v State of New South Wales [2021] NSWSC 226

Category:

Procedural rulings

Parties:

Dion Robert Taiapa (Plaintiff)
Trustees of the Roman Catholic Church for the Diocese of Broken Bay (First Defendant)
Trustees of the Marist Brothers (Second Defendant)

Representation:

Counsel:
J Masur (Plaintiff)
O Saxton (First Defendant)
C Aus (Second Defendant)

Solicitors:
North Star Law (Plaintiff)
Wotton + Kearney (First Defendant)
Barry.Nilsson. (Second Defendant)

File Number(s):

2021/00286580

EX TEMPORE Judgment (REVISED)

1. Dion Robert Taiapa commenced proceedings by way of statement of claim on 8 October 2021. He now seeks an order granting him leave to commence those proceedings under the Felons (Civil Proceedings) Act 1981 (NSW). He seeks that order on the basis that leave will apply retrospectively, that is, as judges and lawyers insist on saying, nunc pro tunc, which means for those (like myself) not versed in Latin “now as then”. [1]

   1. Thurston v State of New South Wales [2021] NSWSC 226 at [3].

2. Mr Taiapa relies on (1) an affidavit of his solicitor, which includes (2) the originating process, (3) his own evidentiary statement and (4) a psychologist’s report. Based on that material, and without any contest on the part of those representing the defendants, I am satisfied that leave should be granted.

3. My reasons, in very short form, are these. First, Mr Taiapa is currently serving a sentence of imprisonment in Queensland for drug related offences. Based on his solicitor’s affidavit, I am satisfied that the offence for which he is incarcerated is a “serious indictable offence” for the purpose of s 4 of the Felons (Civil Proceedings) Act. Accordingly, he requires leave under that section of the Act to commence proceedings. Second, based on his statement, the psychologist’s report and the allegations made in the statement of claim, I am satisfied that the proceedings are not an abuse of process, and I am also satisfied that there are prima facie grounds for the proceedings.

4. Accordingly, I propose to make order 1 in the notice of motion.

5. There was a brief dispute between the parties in relation to order 2, which was in these terms: “An order that costs of the motion be costs in the cause.” The first defendant submitted that it was inappropriate for his client to be placed at risk of paying costs of this notice of motion and today’s brief hearing, because the application for leave ought properly to have been made at the time that the proceedings were instituted, rather than attending some months later and seeking leave retrospectively.

6. The power of the Court to make such orders retrospectively is well established, and it is not uncommon for matters to come to the court seeking retrospective leave after proceedings have been commenced. I discussed that in Thurston v The State of New South Wales [2021] NSWSC 226 at [2]-[3]. Nevertheless, a plaintiff should be encouraged to make their application for leave at the time the proceedings are instituted. So, rather than ordering that costs be costs in the cause, I will order that the parties bear their own costs of today’s motion.

7. 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 - that is, proceedings 2021/00286580 - with such orders made nunc pro tunc and taking effect from 8 October 2021;

2. The parties are to bear their own costs of and incidental to the notice of motion.

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Endnote