Tatchell v The Trustees of Edmund Rice Education Australia trading as St Dominic's College, Penrith

[2022] NSWSC 1105

Supreme Court

New South Wales

Medium Neutral Citation:

Tatchell v The Trustees of Edmund Rice Education Australia trading as St Dominic’s College, Penrith [2022] NSWSC 1105

Hearing dates:

16 August 2022

Date of orders:

16 August 2022

Decision date:

16 August 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Leave is granted to the plaintiff nunc pro tunc to commence the proceedings filed on 27 April 2022 pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 (NSW).

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – leave sought pursuant to Felons (Civil Proceedings) Act 1981 (NSW) – where proceedings commenced before leave sought – plaintiff alleged he was sexually abused as a pupil of a school run by the defendant – leave granted

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5, 7

Cases Cited:

Clark v New South Wales [2022] NSWSC 715

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

Category:

Procedural rulings

Parties:

Luke Tatchell (Plaintiff)
The Trustees of Edmund Rice Education Australia trading as St Dominic’s College, Penrith (Defendant)

Representation:

Counsel:
H. Chiu (Plaintiff)

File Number(s):

2022/119899

extempore Judgment (revised)

1. By statement filed on 27 April 2022, the plaintiff claims damages from the defendant, a religious order whose name I am told will need to be amended, for child sexual abuse he suffered as a student at school both at the hands of a teacher employed at the school and, perhaps more significantly, on the material before me, by a person who was in a position of authority over him at a school camp.

2. By notice of motion filed on 30 June 2022, the plaintiff seeks leave under the Felons (Civil Proceedings) Act1981 (NSW) nunc pro tunc to institute the proceedings. Although Ms Brindle, solicitor, is present in court on behalf of the defendant, and I permitted her a watching brief, under s 7 of the legislation the defendant is not entitled to be represented on the application for leave.

3. The purpose of the legislation is made clear, I think, by the language of s 5 which provides that a Court is not to grant leave unless satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

4. Mr Chiu of learned counsel, who appears for the plaintiff, has drawn my attention to the decision of Davies J in Clark v New South Wales [2022] NSWSC 715. His Honour refers to the well-known decision in Jol v State of New South Wales (1998) 45 NSWLR 283 (at 290) that proceedings commenced before the grant of leave are not a nullity. Rather, they are subject to an irregularity which may be cured nunc pro tunc.

5. Davies J also refers to the decision of the Court of Appeal Re Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17]. I will not set out the passage in this judgment, but I accept Mr Chiu's submissions that Allsop ACJ and Basten JA made clear that the statutory test refers to proceedings which on their face are not hopeless or unarguable. I agree with Mr Chiu's submission that their Honours state what can only be understood as a particularly undemanding test.

6. I am satisfied from the consideration of the allegations in the statement of claim, and from the account given and apparently accepted by Dr C Cocks, forensic psychiatrist, in his report of 22 February 2022, that the proceedings are not an abuse of process or lacking a prima facie ground. As I have said, on their face they are not hopeless or unarguable.

7. I should also say, there is no question that the plaintiff is a person to whom the Act applies.

8. In the circumstances, I make the following order:

1. Leave is granted to the plaintiff nunc pro tunc to commence the proceedings filed on 27 April 2022 pursuant to section 4 of the Felons (Civil Proceedings) Act1981 (NSW).

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Decision last updated: 18 August 2022