TBH v Marist Regional College
[2025] TASSC 47
•25 September 2025
[2025] TASSC 47
| COURT: | SUPREME COURT OF TASMANIA | ||||
| CITATION: | TBH v Marist Regional College & Anor [2025] TASSC 47 | ||||
| PARTIES: | TBH | ||||
| v | |||||
| MARIST REGIONAL COLLEGE (ABN 60 165 188 918) | |||||
| and | |||||
| |||||
| |||||
| HOBART (ABN 24 097 986 470) | |||||
| FILE NO: | 1310/2024 | ||||
| DELIVERED ON: | 25 September 2025 | ||||
| DELIVERED AT: | Hobart | ||||
| HEARING DATE: | 6 March 2025, submissions 13, 20 and 31 March 2025 | ||||
| JUDGMENT OF: | Daly AsJ | ||||
| CATCHWORDS: |
Procedure - Civil Proceedings in State and Territory Courts - Court supervision - Amendment of originating process and pleading - Application to amend a statement of claim - Proposed amended statement of claim fails to state with sufficient clarity the case that must be met - Application refused.
Aust Dig Procedure [1107]
Procedure - Civil Proceedings in State and Territory Courts - Parties and representation - Proper or necessary party - Civil Liability Act 2002 Part 10C provides for the appointment of a proper defendant for an unincorporated organisation only after proceedings have commenced.
Aust Dig Procedure [1149]
REPRESENTATION:
Counsel:
Plaintiff: B Hilliard Defendants: S Young
Solicitors:
Plaintiff: Shine Lawyers Defendants: Barry Nilsson (Qld)
| Judgment Number: | [2025] TASSC 47 |
| Number of paragraphs: | 101 |
Serial No 47/2025 File No 1310/2024
TBH v MARIST REGIONAL COLLEGE (ABN 60 165 188 918) and ROMAN CATHOLIC CHURCH TRUST CORPORATION OF THE
ARCHDIOCESE OF HOBART (ABN 24 097 986 470)
| REASONS FOR JUDGMENT | DALY AsJ 25 September 2025 |
| Introduction |
1 By interlocutory application filed on 23 December 2024, the plaintiff has applied for leave to amend his statement of claim in accordance with the proposed amended statement of claim annexed to the interlocutory application. The defendants oppose the application on several bases. Very generally, the defendants submit that the proposed amended statement of claim (a) does not set up any proper basis upon which the first defendant is sued; and (b) that the second defendant was improperly joined, or named, as a defendant when the proceedings were commenced. Certain other miscellaneous defects are also identified.
2 During the course of the hearing of the interlocutory application it became clear that there are substantial disputes about who the plaintiff's action is against and how such claims are framed.
The principal proceedings
3 This action was commenced by writ and statement of claim filed on 21 May 2024. These are 'child abuse proceedings" for the purposes of the Civil Liability Act 2002, Part 10C Div 4. Only the second defendant has filed a defence, dated 8 July 2024.
4 The plaintiff alleges that throughout 1976 and 1977 when he was a student at Marist Regional College, he was sexually assaulted by Paul Goldsmith, who worked as an athletics coach. Goldsmith is not a party to this action because he is deceased. There is a dispute about whether Goldsmith was employed at the college.
5 The proceedings name two defendants. The first defendant is Marist Regional College, an unincorporated organisation which the plaintiff says he has sued as the 'successor organisation'[1] to the incorporated organisation being the organisation which actually operated the school at the relevant time: Marist Regional College Incorporated.
[1] See Civil Liability Act 2002 s49E.
6 The second defendant is the Roman Catholic Church Trust Corporation of the Archdiocese of Hobart, a body corporate established under the Roman Catholic Church Property Act 1932 (Tas),[2] which the plaintiff says he has sued as the proper defendant for the Archdiocese of Hobart. The basis upon which each of the defendants is sued, both in the extant statement of claim and the proposed amended statement of claim, is contested. The defendants' position is that the archdiocese has not been sued in the proceedings. There is also an issue whether the former Archbishop of Hobart, the late Guilford Clyde Young has been sued in the proceedings and if so, upon what basis.
[2] The extant statement of claim pleaded that the second defendant was an unincorporated organisation. The plaintiff
7 Very generally, the plaintiff pleads that each of the first defendant, Archbishop Young and the archdiocese each owed duties of care to the plaintiff because they each had a degree of control over
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the school at which he was a pupil and at which Goldsmith was employed. The plaintiff pleads that Goldsmith's employment or appointment at Marist Regional College was a foreseeable risk of harm to the plaintiff, in the form of sexual abuse because the Archbishop knew that Goldsmith was alleged to have sexually abused school-aged boys. The plaintiff seeks to attribute Archbishop Young's knowledge to the archdiocese because of his position as its 'head'. The plaintiff says the archdiocese effectively operated Marist Regional College through an incorporated organisation named Marist Regional College Incorporated (MRCI). The proposed amended statement of claim pleads that this risk of harm to the plaintiff was one in respect of which a reasonable person would have taken precautions, but each of the first defendant (for MRCI), the archdiocese and the Archbishop failed to do so, which caused harm to the plaintiff.
The proposed amended statement of claim
8 The plaintiff outlined that the proposed amended statement of claim is intended to clarify his claim against MRCI, Archbishop Young, the archdiocese and the second defendant: see par 4 of the plaintiff's first written submissions dated 24 February 25 (footnotes omitted):
"4.1 The proposed amendments seek to correct a factual error in the existing statement of claim regarding the status of the Second Defendant as a body corporate, to clarify that the Second Defendant is proceeded against as the nominated proper defendant for the Archdiocese of Hobart, to provide further clarify as to the real questions in controversy between the parties including in relation to the dual roles and powers of the Archbishop in relation to MRCI and the Archdiocese of Hobart and the attribution of prior notice. 4.2 The proposed amendments provide greater clarity and specificity to the existing claim. 4.3 They do not fundamentally alter the nature of the case but rather refine the issues to be
determined by the court.4.4 The amendments arise from the same facts already pleaded and do introduce a new
cause of action."
9 The defendants oppose the amendments. In their first written submissions dated 3 March
2025, they state:
"41
MRCI is deregistered and cannot be sued at law. Archbishop Young is dead and cannot be sued at law. The Archdiocese of Hobart is an unincorporated organisation which cannot be sued at law."
The defendants submit further that:
"Even now the claim is confusing, contains unnecessary allegations and wrongly incorporates alternative allegations of duty against multiple persons (none of whom are parties to the proceeding and none of whom can be legally sued)".
10 The defendants submit that the proposed amended statement of claim does not clearly articulate how liability is sheeted home to the first defendant; and to the extent that it is alleged that 'the College' is somehow separate to the first defendant, this amounts to an unnecessary and confusing plea. Secondly, the defendants submit that the proceedings against the second defendant were 'improperly issued'. Thirdly, the defendants submit that there are multiple defects in the plaintiff's
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proposed amended statement of claim[3]. The defendants submit the defects they identify would, if allowed, attract the operation of r 230 (inconsistent pleading), r 258 (prejudice or delay the fair trial) and r 259 (no reasonable cause of action disclosed) justifying striking out those paragraphs.
[3] See pars 43-52 of the defendants' first written submissions dated 3 March 2025 and par 85 of the defendants' second
11 The particular defects in the proposed amended statement of claim identified by the
defendants include:
(a) pars 1 to 4, 6–10 and 13-26 plead background narrative matters which contain unnecessary or irrelevant allegations; (b) par 5 contains allegations about the second defendant, however there is no cause of action pleaded against the second defendant in the pleading; (c) throughout the [proposed amended statement of claim] the tortfeasor is described variously as "the College" (an abbreviation for Marist Regional College), the "First Defendant" (Marist Regional College), and "MRCI" with the pleading not disclosing a cause of action against the first defendant; (d) throughout the [proposed amended statement of claim] multiple entities are alleged to have engaged or employed the sole perpetrator (or to have had involvement in this process), however only MRCI is alleged to be vicariously liable for the perpetrator's conduct; (e) pars 9-12, 30 and 31 contain alternative allegations, including allegations against multiple entities that are not named as defendants to the proceeding (these paragraphs do not comply with r 230 and which also would offend r 258(1(b)); (f) paragraph 7 contains particulars quoting 2.5 pages of content from two documents; and (g) pars 23 and 24 plead allegations of vicarious liability against MRCI and "thus the First Defendant" which is vague and ambiguous and does not properly plead a case against the first defendant. 12 The defendants' first written submissions at par 47 also identified examples of facts "clearly not material to any action against the first defendant". I have dealt with the most significant issues raised by the defendants, below. However, many of the examples identified in par 47 appear in the extant statement of claim, not the proposed amended statement of claim. The Court is not dealing with any application to strike out any of the identified examples which appear in the extant statement of claim.
13 The parties agreed that the relevant principles to be applied on the question of whether or not to allow a party to amend a pleading were set out in the decision of Spaulding v Law Society of Tasmania [2004] TASSC 1 by Master Holt (as he then was), as follows:
(a)
compliance with r 227 requires a pleading to be as brief as the nature of the case allows and to contain only a statement of the material facts on which the party relies;
(b)
r 258 and r 259 provide the Court with discretion to strike out a pleading which may tend to prejudice or delay the fair trial of the proceeding, or which fails to disclose a reasonable cause of action;
(c)
relevant to the discretion under r 427 to amend the pleading is the "[t]he function of pleadings is to state with sufficient clarity the case that must be met": Banque Commerciale (SA) (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286;
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(d)
when considering a defective pleading, the Court will take into account whether the defects are of substance and whether notwithstanding the deficiencies the fundamental function of pleadings is served: Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 at 42- 828;
(e)
if the facts alleged, even if proven, would not afford any chance of the Court granting relief, no cause of action will have been disclosed, and no purpose would be served in allowing the pleading;
(f)
an amendment which is futile because it is obviously bad in law will not be allowed: Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 456; and
(g)
if the facts alleged are set out in prolix, confusing or ambiguous terms, or that are in material respects mere conclusions drawn from unstated facts, the fair and efficient conduct of the action may be placed in jeopardy. Such pleadings are embarrassing and it should generally be expected that they will not be permitted to stand.
The first defendant
14 In relation to the plaintiff's claim against the first defendant, for the reasons that follow, I agree that the proposed amended statement of claim fails to articulate the allegations in respect of liability with sufficient clarity or particularity.
15 The first defendant is an unincorporated organisation, without legal personality and without the ability to sue or be sued in its own name. On this basis, the first defendant would have a complete defence to the plaintiff's claim: the 'Ellis defence', see Trustees of the Roman Catholic Archdiocese of Sydney v Ellis [2007] NSWCA 117; 63 ACSR 346 at [47]. However, the Act, Part 10C removes this barrier and provides a pathway to relief by process of appointment of an entity which is able to be sued in Tasmania ('a proper defendant') under the Act s 49N and which is then taken to be the defendant for all relevant purposes, including incurring any liability from the claim under the Act, s 49Q.
16 By consent order made on 10 December 2024, the second defendant (an incorporated organisation) was appointed as a proper defendant for the unincorporated first defendant. The plaintiff's proposed amended statement of claim was delivered on 13 December 2024, but it does not plead anything in relation to that appointment. The defendants' position is that the second defendant's role in the proceedings is as a proper defendant appointed for the unincorporated first defendant. The plaintiff's position is entirely different: he pleads that the first defendant is sued as the successor organisation to MRCI under the Act s 49E: see the extant statement of claim par 4(i).
17 The extant and proposed statements of claim at par 5, make clear that the only appointment of a proper defendant acknowledged by the plaintiff is (relevantly) the appointment of the second defendant as a proper defendant for the archdiocese. It is unclear why the plaintiff consented to the order that the second defendant be appointed as a proper defendant for the first defendant given that he does not acknowledge that appointment in his pleadings. Even though the proposed amended statement of claim the plaintiff does not expressly acknowledge that order, none of the parties can be unaware of its legal effect.[4]
[4] The plaintiff acknowledges the consent order in his first written submissions dated 24 February at par 2.10.18 The plaintiff sued an unincorporated organisation; and that organisation appointed a proper defendant. Yet the plaintiff asserts it sued the unincorporated organisation in its own right as a 'successor organisation' to MRCI, a deregistered organisation.
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The first defendant as successor organisation to MRCI – identification of the relevant tortfeasor
19 The defendants submit that proposed amended statement of claim, pars 2 and 4 do not articulate how liability is sheeted home to the first defendant. Further, the defendant submit that, to the extent that it is alleged that "the College" is somehow separate to the first defendant, this amounts to an unnecessary and confusing plea within the meaning of rule 258.
20 Paragraph 2 (of either version of the statement of claim) introduces 'Marist Regional College' as an entity separately to 'the first defendant' of the same name, which is described in par 4. Paragraph 2 deals mostly with the relationship between 'Marist Regional College' and various other entities, including MRCI. The proposed amendments to par 2 also include subparagraphs on a completely different topic, being Archbishop Young's knowledge about Goldsmith which is allegedly attributable to MRCI and the archdiocese: see par 2(k). Paragraph 2 therefore deals with knowledge relevant to the foreseeability of risk of harm within the same paragraph which introduces and identifies the first defendant and also MRCI. Paragraph 4 of the statement of claim relates to "the first defendant", which is somehow separate from the entity in par 2 – also 'Marist Regional College'. There are no material amendments proposed to par 4. The proposed amendments to par 2 contribute to the confusion and ambiguity in relation to the plaintiff's claim against the first defendant. They should not be allowed.
21 It is common ground that the first defendant: (a) operates Marist Regional College today, as an unincorporated organisation; and (b) did not operate the college at the date of the alleged sexual abuse of the plaintiff. The plaintiff's pleading at par 4(i) is that that the unincorporated first defendant is the 'successor organisation' to MRCI which operated the college at the material time[5] and which was deregistered in 1995. Paragraph 4(i) is not the subject of any proposed amendment. Under the Act, s 49E, a successor organisation is taken to be the same organisation as its predecessor.[6] Logically, however, if the first defendant is taken to be the same organisation as MRCI – then it must be accepted that the first defendant it is taken to have been deregistered in 1995. It is not at all clear what the plaintiff can achieve through this pleading.
[5] See par 2(d) of the statement of claim and par 7 of the first defendant's defence.[6] Plaintiff's first written submissions par 1.3.22 The defendants dispute that the first defendant is a successor organisation to MRCI, submitting that after MRCI was deregistered in 1995, Marist Regional College Inc No. 03208C (an association incorporated under the Associations Incorporation Act 1964) then operated Marist Regional College between 31 May 1995 to 21 April 2008. While the issue of whether the first defendant is a successor in law to MRCI is not to be determined on this application, evidence was presented in the form of the affidavit of the plaintiff's legal representative, Lucille Nel, which annexed a proposed amended defence. That foreshadowed defence alleges that at the relevant time in 1976- 1977, the Marist Fathers and the Sisters of Mercy - both unincorporated organisations within the meaning of section 49L of the Act - jointly conducted and managed Marist Regional College through MRCI. The plaintiff maintains that the first defendant is the successor to MRCI and does not propose any relevant amendments to para 4.
23 Section 49E does not appear to provide the unincorporated first defendant with a legal personality where none ever existed; nor does it deem an unincorporated organisation to be an incorporated one.[7] No application has been made to reinstate MRCI (although that was adverted to in the plaintiff's written submissions), nor has the plaintiff proposed to plead a case against a proper defendant on the basis that the school was operated by the archdiocese through either the Marist Fathers or the Sisters of Mercy. The plaintiff has proposed that there be discovery prior to the pleading further. That issue is dealt with below.
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[7] Bird v DP [2024] HCA 41 at [249] Jagot J.
24 The plaintiff's claim against the first defendant as the 'successor organisation' to MRCI may well simply be a factual issue to be determined at the trial, but it is an obviously perplexing matter for the management of the claim. It is not, however, a matter introduced by the proposed amended statement of claim.
'Marist Regional College' is used in three senses
25 The defendants complain that to the extent that the plaintiff's references to "the College" are references to an entity somehow separate to the first defendant, that amounts to an unnecessary and confusing plea within the meaning of rule 258. The plaintiff submits, at par 2.7 of his second written submissions dated 20 March 2025 that the basis for his allegation of the first defendant's succession for the purposes of s 49E include:
"The college is the continuous vehicle which permits the plaintiff to hold the first defendant
liable as the successor organisation of MRCI, which no longer exists."
26 In this paragraph, it appears clear that the plaintiff uses "the College" in the sense of it being the undertaking of a school, as distinct from the entity which carried on the undertaking. At par 2.2 of the plaintiff's second written submissions, the plaintiff explains that the first defendant, Marist Regional College is an unincorporated entity and is proceeded against as the successor organisation to MRCI. He then explains that "the school known as Marist Regional College … has continued to exist and operate … notwithstanding that its organisation structure has changed from time to time, including its incorporation as MRCI during the period the subject of the plaintiff's claim and its subsequent deregistration". The defendants correctly submit that this is confusing. The defendants correctly submit that the confusion in the pleading arises from the fact that plaintiff uses 'Marist Regional College' in various different senses.
27 The first sense in which the plaintiff uses 'Marist Regional College' is in the title of the proceeding to identify the first defendant and as the organisation which now operates the school (the ABN is not relevant to legal personality): see par 4 of the extant statement of claim.
28 The second sense in which the plaintiff uses 'Marist Regional College' is as the school itself, in the sense of an undertaking as distinct from an entity which carries on the undertaking: eg pars 1(b)-(e), 2(a), (b) and (d).
29 The third sense in which 'Marist Regional College' is used is in par 2(a), (c), to refer to the entity which "became an incorporated association" and then was MRCI (par 2(e)).
30 This is conceptually and practically confusing and will prejudice and delay the fair trial of the proceeding. For example, par 2 of the extant statement of claim includes facts which may be seen as relevant to the plaintiff's 'successor organisation' plea, which is an assumption on my part because there is no narrative cue in the text of the paragraph to put the reader on notice that this is indeed the subject of those allegations. The actual corresponding pleading relating to 'successor organisation' in the extant statement of claim is not made until many paragraphs later, in par 4(i). Paragraph 2 also pleads facts relating to the first defendant being subject to the control by the Archbishop (including the irrelevant detail "in accordance with the Catholic faith" which is a proposed amendment); together with facts relating to knowledge possessed by the first defendant in relation to Goldsmith's abuse of one or more other school boys (that is not clear). The statement of claim blends significantly different subject matter within a paragraph which should deal with a single topic or element to the cause of action.
31 I accept the defendants' submission that the identified problems cause confusion. The issue will undoubtedly place in jeopardy the fair and efficient conduct of the action.
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32 However, this confusion arises from the extant statement of claim. The proposed amended statement of claim does not propose any amendments contributing to – or ameliorating - the obvious problem with the description of the first defendant. The preceding comments are intended to provide some assistance with the ongoing management of this case, given detailed submissions made by the parties.
Improper issue of proceedings against the second defendant
33 The defendants' second submission is that proceedings have been improperly issued against the second defendant. The first aspect to this submission is that a cause of action has been pleaded directly, but improperly, against the second defendant. I reject this first submission. The plaintiff has not pleaded a case against the second defendant directly. It is clear enough that the plaintiff intends to sue the second defendant on the basis that it was appointed as a proper defendant for the archdiocese and the late former Archbishop Young. The defendants' principal complaint with the proposed amended statement of claim relates to that circumstance.
34 The plaintiff submits that he has pleaded a cause of action against each of the archdiocese and Archbishop Young and that the second defendant was validly appointed as a proper defendant for each of them. At par 1.4 of the plaintiff's first written submission, filed 24 February 2025, the plaintiff submits:
"The second defendant is sued as the appointed proper defendant of the Archdiocese of Hobart (an unincorporated entity) pursuant to Part 10(c), s 49N of the Civil Liability Act 2002 by way of nomination made by the Archdiocese of Hobart in anticipation of commencement of the current proceedings".
35 In relation to Archbishop Young, the plaintiff has abandoned the pleading that the second defendant was appointed as a proper defendant for him. But it remains unclear how the plaintiff puts his case that Archbishop Young is personally liable for the abuse suffered.
Claim against the late Archbishop Young
36 The defendants oppose the plaintiff's proposed amendments on the basis that the pleading relating to Archbishop Young is unnecessary. Even though Archbishop Young is dead and despite not being named as a defendant, the plaintiff pleads a cause of action in negligence against him personally, alleging that:
- he was the head of the archdiocese between 1955-1988: par 5B(d) (sic); - his acts were the acts of the archdiocese, which is directly liable for his conduct: par 5C; - he authorised the existence or establishment of Catholic schools in Tasmania: par 5B(h) (sic); - he was in a position of authority over Catholic schools: par 5A(b)c; - he had authority over MRCI: par 5B(i) (sic); -
he owed a duty of care to the plaintiff inter alia because he knew of the risk that Goldsmith, in the course of his employment or engagement at the school would abuse the plaintiff: pars 6 and 7;
- he breached his duty of care to the plaintiff by failing to take reasonable care to prevent
Goldsmith from abusing the plaintiff: par 25;8 No 47/2025
- his breach of duty was a necessary condition of the harm, injury and loss suffered by the
plaintiff: pars 26-28.37 In my view, the plaintiff does not engage with the point that he has pleaded a cause of action against the deceased Archbishop personally. Nor is the basis upon which the deceased Archbishop could be held personally liable. There is no pleading to the effect that the archdiocese would be vicariously liable for any harm caused by Archbishop Young's breach of duty. Instead, the proposed amendment involving the addition of par 5C is in the following terms:
5C By virtue of the matters at 5A.(a) and (b), and 5B. (d) to (f):
(a) the acts of Archbishop Young were the acts of the Archdiocese of Hobart itself; and,
(b) the Archdiocese of Hobart is directly liable for his conduct.
38 The plaintiff would need to clarify the basis upon which he pleads any claim against Archbishop Young. Leave to file the proposed amended statement of claim as it relates to the claim against Archbishop Young will not be granted.
Claim against the Archdiocese
39 The plaintiff submits that he has properly sued the archdiocese, which has appointed the second defendant as a proper defendant. In his second written submissions dated 4 March 2025, the plaintiff states:[8]
[8] Plaintiff's outline in reply to the defendants' submissions dated 5 March 2025.
"1.10 The plaintiff's proposed amended statement of claim clearly articulates that the Second Defendant is joined as such as the proper defendant appointed by the Archdiocese of Hobart and its liability rests on a finding of liability with respect to the Archdiocese of Hobart."
40 With no disrespect to the pleader, the claim is not as clearly articulated as it might be. Doing the best I could to marshal the various allegations made against the archdiocese, the claim against the archdiocese appears to be as follows:
5A
The Archdiocese of Hobart is the organisation for the Roman Catholic Church in the State of Tasmania which includes the offices of the Archbishop of Hobart and Catholic Education. The archdiocese owed a pastoral duty of care to students enrolled at Catholic schools operated under the authority of Archbishop Guilford Clyde Young in Tasmania, including MRCI.
5B The head of the archdiocese was the Archbishop. 5B, 2(h) The Archbishop was the controlling authority of MRCI on behalf of the
archdiocese.6
The archdiocese was responsible for the care, welfare, safety, education, supervision and pastoral needs of students enrolled at the College.
3(b)
In 1969, Goldsmith was the subject of "a serious allegation" made by the parents of a catholic school boy in Launceston to the former Archbishop of Hobart, Archbishop Young, following which he was deemed unsuitable to
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enter the priesthood and was not ordained as a priest in the Archdiocese of
Hobart.
(I refer to this as 'the 1969 allegation').
2(k), 5B(k), (l) The Archbishop, whose knowledge is attributable to the archdiocese, knew that Goldsmith sexually abused or was suspected of having sexually abused at least one other catholic school boy within the Archdiocese of Hobart between 1965 and 1974 and had deemed him unsuitable for priesthood as a consequence. (I refer to this as 'the 1965-1974 allegation'). 5B(n) The Archbishop did not disclose what he knew about Goldsmith to MRCI at the time of Goldsmith's appointment at Marist Regional College or at any time thereafter. 8 The archdiocese owed the plaintiff a duty to take all reasonable steps to protect him from foreseeable risks of harm including the risk that he may be abused by Goldsmith. 8A The archdiocese had a non-delegable duty of care to the plaintiff to ensure
that reasonable care was taken to prevent harm to him.7 The plaintiff participated in athletics at the school between 1974-1977. 2(g), 3(d), 11, 12, 15 Goldsmith was appointed as the athletics coach by MRCI in 1976 and was the coach from 1976-1977. By his appointment, MRCI, Archbishop Young and/or the archdiocese, represented he was trustworthy in that role. 1(e), 3(e) Goldsmith had a leadership role in the "Marist Youth Community Group" in
which the plaintiff participated.7 There was a danger, known to the archdiocese, that the plaintiff might be abused by Goldsmith. 11, 16-21 Goldsmith groomed the plaintiff; and the archdiocese knew or ought to have
known about that.22 The plaintiff was sexually abused by Goldsmith. 25 The archdiocese breached its duties of care to the plaintiff. 26 The archdiocese's breach of its duty of care caused injury and loss to the plaintiff. 41 These allegations against the archdiocese appear in the proposed amended statement of claim as parts of a jigsaw puzzle. It is not possible to obtain a clear understanding of the plaintiff's claim against the defendants from reading the proposed amended statement of claim sequentially. Allegations suggesting that the archdiocese owed the plaintiff a duty to take reasonable care by virtue of its relationship to the plaintiff are not stated either clearly or briefly. The same can be said for the allegations that the archdiocese breached its duty of care to the plaintiff.
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42 The plaintiff submits that he intends to plead a case directly against the archdiocese. As stated above, the plaintiff does not allege that the archdiocese is vicariously liable for Goldsmith's actions. Vicarious liability is pleaded only against the first defendant; and only on the basis that "MRCI, and thus the first defendant, is vicariously liable for the actions of Goldsmith": see par 23 of the proposed amended statement of claim. However, the proposed addition of par 5C appears to plead that the archdiocese is liable for the acts of Archbishop Young. It may be that the plaintiff is merely pleading that the archdiocese acts through the Archbishop. If that is so, it is lost in the excess of detail of the proposed amended statement of claim.
43 In my view, the plaintiff fails to make clear enough which entity knew what particular information relevant to the risk of harm to the plaintiff (Goldsmith's engagement at the school) and which entity failed in which respect to take reasonable care to avoid harm to him.
44 The proposed amended pleading is prolix, unnecessarily complex, circular and should not be allowed. A clear example is where par 7 of the proposed amended statement of claim pleads that:
"7 By reason of each and every matter pleaded in paragraphs 2(k), 3(b), and 5B(k) and 5B(l) hereof, there existed a danger, which danger was known to, or ought to have been known to MRCI and, or in the alternative, Archbishop Young, and, or in the alternative, the Archdiocese of Hobart, that the Plaintiff might be abused by persons in positions of authority at the College, in particular, by Goldsmith."
45 Pleaded in this way, the reader must consider each of those disparate paragraphs in turn. The matters pleaded against the archdiocese in the proposed amended statement of claim, pars 2(k), 3(b), 5B(k) and 5B(l) are as follows:
-
Paragraph 2(k) pleads the 1965-1974 allegation - that 'Marist Regional College' prior to 1976 knew or ought to have known that Goldsmith had sexually abused or was suspected of having sexually abused at least one other catholic school boy within the Archdiocese of Hobart between 1965 and 1974. This paragraph includes 'particulars of knowledge' which refer to pars 3(b) and 5B(d)-(i) "attributable to MRCI and, or in the alternative, the Archdiocese of Hobart". Therefore, referring to those two paragraphs:
•
Paragraph 3(b) relates to the 1969 allegation - a "serious allegation" made about Goldsmith in 1969 by "parents of a Catholic school boy" to Archbishop Young "following which he was deemed unsuitable to enter priesthood and he was not ordained as a priest in the Archdiocese of Hobart".
•
Paragraph 5B(d)-(i) are the first six sub-paragraphs of par 5B contrary to what the alphabetical sequencing might otherwise suggest. As I understand the many sub paragraphs - and the evidence which is impermissibly pleaded here - they simply allege that Archbishop Young possessed and exercised complete authority over the Catholic Church within the Archdiocese of Hobart, including authority over MRCI.
-
Paragraph 5B(k) pleads that prior to 1976 Archbishop Young knew of the 1965-1974 allegation - "that Goldsmith did sexually abuse, or was suspected of having sexually abused, at least one other catholic school boy within the Archdiocese of Hobart between 1965 and 1974". The particulars of the Archbishop's knowledge are pleaded as being:
• Paragraph 3(b) - that he received the 1969 allegation; and •
Paragraph 5B(d)-(i) - that he had executive control over the Catholic Church within the Archdiocese.
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- Paragraph 5B(l) pleads that Archbishop Young deemed Goldsmith unsuitable for the
priesthood having regard to "the matters" in pars 3(b) and 5B(k) above.46 It is not clear whether the 1969 allegation in par 3(b) is a factually distinct allegation to the 1965-1974 allegation in par 5B(k). The separate descriptions and dates suggest they are; and they are referred to in par 5B(l) as "the matters". The allegation in par 25(b)(ii) (second occurring – the sequence of paragraphs is inappropriately numbered) that the archdiocese "failed to report the unlawful conduct of Goldsmith towards a Catholic school boy in Launceston, to the Tasmanian Police" contributes to the ambiguity surrounding the information allegedly known by certain entities. It is unknown whether this latter reference is to the 1965-1974 allegation, the 1969 allegation, or a separate incident altogether.
47 The plaintiff's central allegations as now proposed, appear to be that the archdiocese, through its Archbishop, possessed information relating to an unclear number of allegations relating to Goldsmith's inappropriate contact with boys, which for the purpose of his employment or engagement at Marist Regional College amounted to a foreseeable, not insignificant, risk of harm to the plaintiff which a reasonable person would have taken precautions to prevent, but the first defendant ('for MRCI'), the archdiocese and the Archbishop all failed to do so. The plaintiff alleges that the archdiocese's breach of its duty was a necessary condition of the harm caused to the plaintiff, and the plaintiff's injuries are a consequence. While it can be appreciated what might be intended, it is not sufficiently clear.
48 Leaving aside issues of which entity may be identified as the tortfeasor – the proposed amended statement of claim is vague, complex and difficult to follow. The plaintiff should not be granted leave to amend the statement of claim as proposed.
The appointment of a proper defendant for the Archdiocese "at any time"
49 The next dispute relates to whether the archdiocese has appointed the second defendant as a proper defendant under the Act. Because it is an unincorporated organisation, the archdiocese purported to appoint the second defendant as a proper defendant under the Act, s49N, prior to the commencement of the proceedings. That was done at the plaintiff's invitation, in order to avoid unnecessary cost and delay. The plaintiff pleaded the fact of the appointment in par 5(c) of the extant statement of claim and the second defendant admitted that fact in in its defence at par 12(c). Despite that admission, the defendant now submits that appointment was not valid.
50 To show that the requirements of s 49N are satisfied, the plaintiff relies upon an exchange of letters between the parties' legal representatives dated 2 May 2024 and 14 May 2024 (obviously prior to proceedings being commenced on 21 May 2024). The plaintiff submits that his solicitors expressly sought the appointment of the second defendant as a proper defendant for the archdiocese before proceedings were commenced in order to avoid the delay and expense involved in the plaintiff commencing proceedings and then bringing a further application within the proceedings for orders appointing the second defendant as a proper defendant.[9]
[9] Plaintiff's second submissions dated 5 March 2025, par 9 and the affidavit of Lucille Debra Nel affirmed 3 March 2025.51 The plaintiff contends that the Act, s 49N should be read literally where it provides that an unincorporated organisation may "with the consent of an entity, appoint the entity as a proper defendant for the organisation at any time" (my emphasis), including at a time before proceedings commence. The defendants submit that s 49N(1) cannot be read literally and that Court must read it in
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context as part of a legislative scheme which is intended to operate only after a proceeding has
commenced.[10] For reasons I explain, I agree with the defendants.
The purported appointment of the second defendant as a proper defendant for the archdiocese
52 The second defendant's consent to be appointed as a proper defendant for the archdiocese occurred as follows. By letter dated 2 May 2024, Shine Lawyers for the plaintiff wrote to Barry Nilsson for the defendants: [11]
"[TBH] v Marist Regional College & Archdiocese of Hobart (Your client)
…
Please advise whether or not you hold instructions to accept service of the foreshadowed proceeding.
Furthermore, we seek your client's confirmation that it appoints the Roman Catholic Church Trust Corporation of the Archdiocese of Hobart, also known as the Archdiocese of Hobart, as a proper defendant for the Archdiocese of Hobart and the previous Archbishop of Hobart, Archbishop Guilford Clyde Young, and assumes any liability for the Archdiocese of Hobart and the previous Archbishop of Hobart, Archbishop Guilford Clyde Young, for the purposes of the foreshadowed proceeding pursuant to relevant provisions of Part 10C of the Civil Liability Act 2002."
[11] Letter from Shine Lawyers, Annexure LDN2 to the affidavit of Lucille Deborah Nel affirmed 3 March 2025.
53 As requested, the practitioners for the second defendant confirmed the appointment on 14 Mar
2024:[12]
[12] Affidavit of Lucille Nel affirmed 3 February 2025, Annexure LDN3."Dear Colleagues
Our Client: Archdiocese of Hobart Your Client: [TBH] We confirm our client appoints the Roman Catholic Church Trust Corporation of the Archdiocese of Hobart, as a proper defendant for the Archdiocese of Hobart and the previous Archbishop of Hobart, Archbishop Guilford Clyde Young.
We are instructed to accept service on behalf of the Archdiocese of Hobart.
We otherwise consider the proper First Defendant ought to be Marist Regional College Incorporated (ACN 009 500 323) and not Marist Regional College as currently pleaded. As you are aware, MRCI has been deregistered.
Yours faithfully"
The issue
54 The defendants submit that when interpreting the expression "at any time" in s 49N, the Court should read the provision as operating only after the commencement of the proceedings. The plaintiff submits that interpreting s 49N in such a way involves the implication of additional words into the provision.[13] The plaintiff submits that the words "at any time" are to be given their natural and literal meaning and that no 'clear necessity'[14] is demonstrated to justify the implication of additional words.
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[13] See the submissions made at paras 19-49 of the plaintiff's fourth written submissions dated 31 March 2025.[14] Thompson v Goold & Co [1910] AC 409 at 420.
The defendants do not submit that the Court should imply any additional words into s 49N; simply that, properly construed in context, the provision applies only after proceedings have commenced.
55 Section 49N of the Act appears in Division 4 of Part 10C, titled 'Proceedings against unincorporated organisations'. It is in the following terms:
"49N Unincorporated organisation may appoint proper defendant (1) An unincorporated organisation may, with the consent of an entity, appoint
the entity as a proper defendant for the organisation at any time.(2)
An appointment of a defendant as a proper defendant for an unincorporated organisation is to be made in accordance with the Supreme Court Rules 2000 or, if other rules of the Supreme Court are prescribed for the purposes of this subsection, those other rules.
(3) If the unincorporated organisation is a Government department established
under section 11 of the State Service Act 2000 –
(a)
the State is taken to be appointed as the proper defendant in relation to the organisation; and
(b) subsection (1) does not apply in relation to the organisation."
Relevant principles
56 The parties referred to the following principles of statutory construction:
•
The fundamental rule of interpretation is that a statute is to be expounded according to the intent of Parliament: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-162
•
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 196 CLR 355 at [69]-[71]
• The process of construction is to begin by:
o examining the context of the provision that is being construed. Project Blue Sky at [78];
ando considering the text itself: Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (2009)
239 CLR 27 at [47].•
The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning: Project Blue Sky at [78]
•
The meaning of the provision must be determined by reference to the language of the statute viewed as a whole: Project Blue Sky at [69], the Engineers case at 161.
Civil Liability Act 2002 - Part 10C
57 Part 10C of the Act was introduced by the Justice Legislation Amendment (Organisational and Liability for Child Abuse) Act 2019, which fulfilled the Tasmanian Government's commitment to implement the recommendations in the 2017 final report of the Royal Commission into Institutional Responses to Child Sexual Abuse, aimed at improving civil litigation outcomes for survivors of child sexual abuse. Similar schemes were introduced throughout Australia in every state and territory: Pt 1B, Div 4 of the Civil Liability Act (NSW), the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic); Pt 7A of the Civil Liability Act 1936 (SA); Pt 2A of the Civil Liability Act
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2002 (WA); Pt 2A of the Civil Liability Act 2003 (Qld); Ch 8A of the Civil Law (Wrongs) Act 2002
(ACT) and Part 3A of the Personal Injuries (Liabilities and Damages) Act 2003 (NT).58 The Act, Part 10C is divided into four divisions:
• Division 1 dealing with definitions and successor organisations. • Division 2 deals with duties of organisations to prevent child abuse. • Division 3 deals with the vicarious liability of organisations. • Division 4 deals with proceedings against unincorporated organisations. 59 The objects of the Division are set out in s 49K:
"49K Objects of Division
The objects of this Division are –
(a) to enable child abuse proceedings to be brought against unincorporated
organisations; and(b) to enable an organisation to pay liabilities arising from child abuse proceedings
from the assets of an associated trust in certain circumstances."
60 Section 49M provides as follows:
"49M Child abuse proceedings may be commenced against unincorporated
organisation
(1) Child abuse proceedings may be commenced or continue against an unincorporated organisation in the name of the organisation, or in a name reasonably sufficient to identify the organisation, as if the organisation had legal personality. (2) For the purposes of this Division, a function that may be exercised by an unincorporated organisation may be exercised by a management member of the organisation. (3) A court may make the orders and directions that it thinks fit for the purposes
of this Division, in particular to further the objects of this Division.(4) Without limiting subsection (3), a court may direct one or more management members of an unincorporated organisation to exercise a specified function of the organisation under this Division."
61 Section 49N (set out above) provides for the appointment of a proper defendant for the unincorporated organisation in s 49M. Section 49O then sets out the criteria for suitability to be appointed as a proper defendant for an unincorporated organisation. This brings us to s 49P.
Section 49P suggests 'at any time' means 'at any time after proceedings have commenced'
62 The defendants submit that the terms of s 49P support its submission that s 49N should be construed so that the words "at any time" refer to any time after commencement of the proceedings.
63 Section 49P applies only if proceedings are commenced against an unincorporated organisation which has not appointed a proper defendant after 60 days of being served with notice of the commencement of the proceeding. Section 49P relevantly provides as follows:
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"49P Court may appoint proper defendant (1) This section applies if –
(a) child abuse proceedings are commenced against an unincorporated organisation and no suitable proper defendant is appointed as a proper defendant for the organisation by the end of the period of 60 days after the unincorporated organisation (or a management member of the unincorporated organisation) is served with notice of the commencement of the proceedings; or (b) after the end of that period, the proper defendant that is appointed ceases to be a suitable proper defendant. …… (4) Within 28 days after the making of an application by a plaintiff under this section, the unincorporated organisation must identify to the court any associated trusts of the organisation, including by identifying the financial capacity of those trusts."
64 The defendants submit that it is relevant that the present tense is used in each of the following expressions in s 49P(1)(a):
"if child abuse proceedings are commenced against an unincorporated organisation";
and
"no suitable proper defendant is appointed".
65 The defendants submit that the use of the present tense in those provisions demonstrates that parliament intended that the appointment of a proper defendant occurs following the issuance of a proceeding and not at some prior time.
66 The defendants submit further that provision for the 60 day period within which an unincorporated organisation may appoint a proper defendant is a further clear demonstration that parliament provided a coherent scheme for the appointment of a proper defendant which commences upon proceedings being issued. These submissions have merit.
67 It appears as though, on this approach, the words "at any time" in s 47N(1) operate consistently with the other provisions of Part 10C Div 4 because an unincorporated organisation may appoint a proper defendant including after an application under s 49P has been made but before it has been determined. Equally consistently, if at any time during the proceedings a proper defendant ceases to be a suitable proper defendant - for example by death or the vesting of the relevant trust - then s49N(1) appears to permit a proper defendant to be appointed at that time.
Section 49Q suggests 'at any time' means 'at any time after proceedings have commenced'
68 The defendants submit that the terms of s 49Q are also consistent with s 49N(1) applying only where proceedings have already commenced. Section 49Q specifies the effect of appointing a proper defendant in the following terms:
"49Q Effect of appointment of proper defendant On the appointment of a proper defendant for an unincorporated organisation –
(a)
the proper defendant is taken to be the defendant, in the child abuse proceedings against the organisation, on behalf of the organisation and is responsible for conducting the proceedings as the defendant; and
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(b) anything done by the unincorporated organisation is taken to have been done by the proper defendant and a duty or obligation of the unincorporated organisation in relation to the proceedings is a duty or obligation owed by the proper defendant; and (c) the unincorporated organisation must continue to participate in the child abuse proceedings and a court may make orders or directions in respect of the organisation as if the organisation had legal personality; and (d) a court may make substantive findings in the child abuse proceedings against an unincorporated organisation as if the organisation had legal personality; and (e) the proper defendant incurs any liability, from the claim in the proceedings on behalf of the organisation, that the organisation would have incurred if the organisation had legal personality, including any costs awarded; and (f) the proper defendant may rely on any defence or immunity that would be available to the organisation as a defendant in the proceedings if the organisation had legal personality; and (g) any right of the unincorporated organisation to be indemnified (including under a policy of insurance) in respect of damages awarded in a claim in child abuse proceedings extends to, and indemnifies, the proper defendant; and (h) if more than one proper defendant is appointed, the proper defendants must file a single defence and proceed as a single defendant."
69 The defendants submit that the consequences set out in s49Q could not be carried into effect unless proceedings had already been commenced at the date of appointment. It appears reasonably clear that the responsibilities and/or obligations of a proper defendant and the unincorporated organisation are triggered upon the event of the appointment of a proper defendant in relation to "the proceeding" or "child abuse proceedings". It is submitted that the reference to 'the proceedings' in s 49Q contemplates that the appointment in s49N is to be made once those proceedings commenced.
70 The defendants submit that if an appointment is made before proceedings have commenced, an unincorporated organisation would be unable (for example) to "continue to participate in the child abuse proceedings" as required by s 49Q(c), as there are no such proceedings to continue to participate in. The defendants submit that this puts the plaintiff's proposed interpretation of s 49N in clear conflict with s 49Q.
71 I accept that s49Q and s 49N(1) should logically be read together as applying only upon commencement of the proceedings. If a proper defendant is purportedly appointed before proceedings have been commenced, the provisions of s 49Q appear incongruous. It appears clear to me that Part 10C, Div 4 is intended to provide for a scheme operating after proceedings commence. I am not satisfied that Div 4 of Part 10C establishes a scheme contemplating an appointment of a proper defendant beforehand. It would not be consistent with the text and context of the Act to read the words "at any time" in s 49N(1) as allowing an appointment of a proper defendant prior to proceedings been commenced. In my view, that would not be consistent with the language and purpose of the other provisions of the statute. The provisions of s 49Q support the defendants' submission relating to the context of s 49N(1) at the conclusion that the appointment of a proper defendant occurs after proceedings commenced. Such a construction conforms with the language of the Act as a whole.
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72 Even if, as the plaintiff correctly submits, Part 10C is to be construed as remedial legislation and given as generous a construction as the language of these provisions permits,[15] the appointment of a proper defendant for an unincorporated organisation being made prior to the commencement of proceedings does not appear to promote the remedial and beneficial purpose of Part 10C. That purpose is the establishment of a clear statutory framework to enable proceedings to be brought against unincorporated organisations by the appointment of a proper defendant in those proceedings. I am not satisfied that the statutory framework was intended to apply where no proceedings exist.
[15] Legal Services Board v Gillespie-Jones [2013] HCA 35; 249 CLR 493 at 509, at par [50]; cited in EXV v Uniting
Section 49Q suggests 'at any time' means 'at any time after proceedings have commenced'
73 The defendants submit that the terms of s 49S are also consistent with s 49N(1) applying only where proceedings have already commenced. Section 49S provides that the Supreme Court may make rules for the purposes of Part 10C. No such rules have yet been made. Section 49S is in the following terms:
"49S Rules of court (1) The Supreme Court may make rules, not inconsistent with this Part, for or with respect to any matter that, by this Part, is required, or permitted, to be prescribed by rules or that is necessary, or convenient, to be prescribed by rules for carrying out or giving effect to this Part. (2) Without limiting the generality of subsection(1), the rules may make provision for or
in respect of the following matters:
(a) the practice and procedure to be followed in respect of proceedings under this Part and any matters incidental to or relating to that practice and procedure; (b) the protection of the privacy of the plaintiffs; (c) the duties of registrars and other officers of court in relation to, or for the purposes of, the operation of this Part; (d) the forms to be used in connection with the operation of this Part."
74 The defendants submit that the reference to the Supreme Court Rules in s 49N (2) leads to the conclusion that, for an appointment of a proper defendant to be validly made under s 49N (1), the proceedings must have already commenced. The defendants' second submissions dated 20 March 2025, par 30 stated:
"…if the appointment could be made without a proceeding being on foot, the Supreme Court could not be given jurisdiction to enforce rules with respect to that appointment. Thus, if the plaintiff's interpretation were accepted, section 49N(2) would be superfluous". (citing par [71] of Project Blue Sky)
75 Thus, it was submitted, if the plaintiff's interpretation were accepted, s 49N(2) and s 49S would be superfluous where they refer to the rules. The defendants submit that on a proper construction of s 49N, it is clearly intended to establish a framework for an appointment of a proper defendant in respect of which rules of court amenable to 'enforcement' by the Court.
76 The defendants referred generally to the position in Victoria. The Victorian Legal Identity of Defendants (Organisational Child Abuse) Act 2018, s 7(3) is part of a materially different statutory scheme, which appears to provide greater clarity on this issue than Part 10C. It provides that "unless
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the court otherwise orders, a nomination of a proper defendant may occur at any time within 120 days after the commencement of the proceeding" for the claim against the unincorporated organisation. The Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 85 provides:
"85.02 Nomination of proper defendant
(1) A nomination of an entity to act as a proper defendant to a claim and consent under section 7 of the Act, made after the commencement of a proceeding, shall be in Form 85A and include an address for service. (2) The nomination shall be filed with the Prothonotary and served on each party to the proceeding and on the entity nominated to act as a proper defendant within 7 days of the nomination being filed."
77 However, the Civil Liability Act 2002 (NSW), s 6L is in effectively identical terms to the Act,
s 49N:
"6L Unincorporated organisation may appoint proper defendant
(1) An unincorporated organisation may, with the consent of an entity, appoint the entity as a proper defendant for the organisation at any time. (2) An appointment is to be made in accordance with the Uniform Civil
Procedure Rules 2005.(3) However, if the unincorporated organisation is a public sector body,
the State is taken to be appointed as the proper defendant."
78 The uniform Civil Procedure Rules 2005 (NSW), r 7.4 provides:
"7.4 Proper defendant in child abuse proceedings against unincorporated
organisationAn unincorporated organisation may not appoint an entity as a proper defendant for the organisation unless the entity's consent to act as a proper defendant has been filed in the approved form."
79 In making rules under Civil Liability Act 2002 (NSW), s 6L the Uniform Rules Committee should be understood as having made rule 7.4 consistently with the authorising provision in the Civil Procedure Act 2005 (NSW), S 9 reflecting, at least, that the practice in rule 7.4 was necessary or convenient for the purposes of s 6L of the NSW Act. The approved form for the purposes of r7.4 (Form 162) is required to be filed in the proceedings.[16]
[16] See:80 The Supreme Court Rules 2000 apply to "any proceedings commenced in Court": r 3. There is one obvious example of a rule that applies prior to the commencement of proceedings: r 403C - discovery to identify a defendant "for the purpose of commencing a proceeding". Otherwise, the rules deal with proceedings which have been commenced. While the appointment of a proper defendant before the commencement of the proceedings might not render s 49N(2) entirely superfluous, its presence together with the presence of s 49S provide strong contextual indications that parliament intended to establish a scheme for the appointment of a proper defendant intended to operate after proceedings have commenced and in respect of which the Court could exercise jurisdiction.
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Conclusion as to s 49N(1)
81 For the foregoing reasons, I agree with the defendants' submissions that it is intended that an appointment of a proper defendant under s 49N(1) is to occur after the commencement of proceedings. In my view, the literal reading urged by the plaintiff does not conform to the clear legislative purpose of the Act, Part 10C, to enable proceedings to be brought against unincorporated organisations, which includes the appointment of a proper defendant within those proceedings.
The second defendant admits it is the proper defendant for the Archdiocese
82 Despite my view as to the proper construction of the provision, the second defendant's admission in its defence that it was appointed as a proper defendant for the archdiocese ought to bind it. In par 12(c) of its defence, the second defendant admits that it is the proper defendant for the Archdiocese of Hobart.
83 As things stand, the proposition that the second defendant is a proper defendant for the archdiocese is no longer in issue in the proceedings. It appears to me that to interpret s 49N(1) as applying only once proceedings have commenced cannot have any impact on the second defendant's admission. That was self-evidently an admission made during the course of the proceedings. The admission is unambiguous: that it is a proper defendant for the archdiocese. There has been no application to withdraw the admission. I note, however, that in the proposed amended defence annexed to the affidavit of Lucille Nel,[17] at par 24, the second defendant proposes to deny par 5 absolutely.
[17] Affidavit of Lucille Nel affirmed 3 March 2025, annexure LDN-4.84 The Act, s 3A(5) provides that the Act is not a codification of the law relating to civil claims for damages for harm. Where, prior to proceedings commencing, parties agree that they will be commenced upon a particular basis, those arrangements may be reflected in the title to the proceedings and in the pleadings. While no published decision of the Court reflects this, the Court's miscellaneous civil list reflects a discernibly widespread practice in child abuse proceedings under the Act Part 10C involving unincorporated organisations – particularly those alleged to operate schools in which child abuse occurred. In these cases, writs are commonly issued naming a proper defendant as the only defendant, as distinct from the relevant unincorporated organisation which may be the subject of the statement of claim. In such actions, accompanying statements of claim routinely plead a brief paragraph or two, to the effect that the institutional defendant is a proper defendant nominated or appointed by the relevant unincorporated organisation (or at least that they are a suitable one) which controlled or managed (for example) a school, in order to set up the factual matrix in which the duty of care is said to arise. Equally routinely, a proper defendant admits those allegations. In practice it appears that the because of the absence of any rules, formalising the appointment of a proper defendant occurs within the proceedings as a matter of pleading. What happened in this case appears to be consistent with the practice as observed.
Jurisdiction to make orders and give directions
85 In his second written submissions, the plaintiff submitted that because rules have not been made for the procedure in relation to the appointment of a proper defendant, it is not clear whether it is preferable the proceeding be brought or continued in the name of the unincorporated organisation of the proper defendant.
86 If a difficulty arises, or if a doubt exists relating to the practice or procedure to be followed in a proceeding, then the Supreme Court Civil Procedure Act 1932, s 201 confers "jurisdiction to make such order and give such directions as to the institution or prosecution of the proceeding as may be
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necessary to meet the case, and any proceeding or step in a proceeding taken in accordance with any such order or direction, shall be deemed to be regular and sufficient." Relevantly, s201 relates to any proceeding in the Court or " about to be instituted therein". The Supreme Court Civil Procedure Act 1932, s 201 provides as follows:
"201 Provision for cases of doubt or difficulty (1) In any case in which no form or manner of procedure is provided for by this Act or the Rules of Court, or in which any difficulty arises or doubt exists as to the procedure or practice to be followed in, or with respect to, any proceeding in the Court, or about to be instituted therein, the Court or a judge, if satisfied that such case is unprovided for, or that there is any such difficulty or doubt, shall have jurisdiction to make such order and give such directions as to the institution or prosecution of the proceeding as may be necessary to meet the case, and any proceeding or step in a proceeding taken in accordance with any such order or direction, shall be deemed to be regular and sufficient. Any such order or direction made or given by a judge may be varied or discharged by a Full Court, but the variation or discharge of the order or direction shall not invalidate or affect the regularity or sufficiency of any proceeding or step in a proceeding taken pursuant to any such order or direction. (2) If the case which is not provided for, or with respect to which the difficulty has arisen or the doubt exists, is as to the form or manner in which a proceeding should be instituted, or if it arises in a matter which will be, or has been, heard ex parte, the application for an order or directions under subsection (1) shall be made to the Court or a judge (whether sitting in court or in chambers) by or by way of motion by or on behalf of the person desiring to institute the proceeding or the person prosecuting the matter, as the case may be. (3) If the case which is not provided for, or with respect to which the difficulty has arisen or the doubt exists, arises in a cause, the application for an order or for directions under subsection (1) shall, if made to the Court or a judge sitting in court as a court be made by motion, and if made to a judge sitting in chambers be made by summons, and in either case in accordance with the Rules of Court."
87 In these proceedings, despite the second defendant's admission, if it were necessary to remedy any procedural issue with the archdiocese's appointment of the second defendant as a proper defendant such an order might be sought under s201. The process by which that order might be sought would be by means of an application under r 524, as rule 527 provides that the reference to 'summons' in s 201 is to be read as an interlocutory application to a judge in chambers.
88 Alternatively, as the plaintiff submits, s 49M(3) provides that a court may make the orders and directions that it thinks fit for the purposes of Division 10C, in particular to further the objects of that Division. The Act confers power upon the Court to make directions in relation to this issue.
Other defects in the pleading
89 Turning to the defendants' submission that pars 1-4, 6–10 and 13-26 plead background narrative matters which contain unnecessary or irrelevant allegations. Examples include the allegations at par 1(f)-(j) which appear to be unnecessary in light of the pleading that the plaintiff attended the school – a pleading which gives rise to a non-delegable duty of care.[18] Having said that, only par 1(g) is the subject of a proposed amendment. There are some other obvious but minor issues with the pleadings as proposed:
[18] NSW v Lepore [2003] HCA 4; (212) CLR 511.21 No 47/2025
(i) par 4(e) "in accordance with the Catholic faith" is unnecessary;
(ii) par 5B contains 11 subparagraphs, which are inappropriately numbered. The first sub- paragraph is not 1(a), but 1(d);
(iii) the particulars of par 5B(i)(iii) are misdescribed as "particulars of subparagraph 5A. i) (sic) hereof"; and
(iv) the "Particulars of 5A. i)" (sic) appear within the body of par 5B, not 5A.
(v) the allegations in par 25(b) are inappropriately numbered, as the next number after (vi) is (i).
90 The defendants complain that the proposed "Particulars of 5A. i)" unnecessarily plead the text of the memorandum of association for MRCI. I agree. Two and a half pages of the proposed amended statement of claim are filled with the reproduction of that memorandum of association. These long passages are not material in the sense used in r 234. These paragraphs plead evidence. A concise statement of the effect of the relevant terms of the document is the more appropriate course.
91 If these issues were the only issues of concern with the proposed amended statement of claim, it might not justify a refusal of leave to amend. Even though the pleading of background and narrative matters are a source of frustration, they might not, of themselves, create such unfairness justifying a refusal of leave to amend. However, these aspects of the plaintiff's pleading, considered together with the other issues identified, above, contribute to the ambiguous and confusing character of the plaintiff's pleadings.
92 Finally, the plaintiff's pleading in relation to the employment of Goldsmith is unclear. The following propositions are contained in the extant and proposed amended statement of claim:
(i) Goldsmith was a member of "staff at the Marist Regional College": par 1(h) and (i) (ii) Marist Regional College as MRCI was:
- responsible for the appointment, management, control etc. of Goldsmith: par 2(f); and - the employer of, or in the alternative, engaged the services of Goldsmith at the
college: par 2(g);(iii) MRCI appointed Goldsmith and athletics coach: par 11;
(iv) MRCI engaged or employed Goldsmith to work as athletics coach at the college: par 3(d);
(v) MRCI and the first defendant's vicarious liability arises because of MRCI's employment of Goldsmith: par 23; and
(vi) Goldsmith was the agent of the first defendant and MRCI: par 24.
(vii) Goldsmith had a leadership role in the college's "Marist Youth Community" group: par 3(f);
(viii) the former Archbishop Guildford Clyde Young permitted the employment or engagement of Goldsmith as athletics coach at the college: par 5B(l);
(ix) MRCI and, or in the alternative, Archbishop Young, and, or in the alternative, the Archdiocese of Hobart engaged or permitted Goldsmith to:
- act as a specialist athletics coach: par 8A(d); - assume a leadership role, including hosting prayer groups and activities of its "Marist
Youth Community" group: par 8A(e); and(x) MRCI and, or in the alternative, Archbishop Young and, or in the alternative, the Archdiocese of Hobart, appointed Goldsmith as coach of the athletics team: par 15.
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93 These variously expressed propositions contain repetition and create confusion through the use of the various expressions 'employment', 'engagement', 'appointment' and 'permitted to act'. Further confusion is created through the various allegations about Goldsmith's relationship to the Archdiocese, Archbishop Young and MRCI respectively. This contributes to the jigsaw-like quality of the proposed amended statement of claim, which fails "to state with sufficient clarity the case that must be met": Banque Commerciale. The proposed amended statement of claim does not clarify or refine the issues.
Conclusion
94 For the reasons expressed, leave is refused for the plaintiff to amend his statement of claim in accordance with the proposed amended statement of claim attached to his interlocutory application filed on 23 December 2024.
95 The plaintiff states in his fourth written submissions that the defendants should make discovery before he is required to plead further. The order made on 10 December 2024 that the defendants make discovery by 28 February 2025 was obviously premised on the assumption that any amendments to the statement of claim would have already been made in accordance with a timetable and the pleadings would be closed by that date. That has not come to pass, and the pleadings are not yet closed. The plaintiff has not made any formal application for discovery under r 386 or r 388. If the plaintiff intends to apply for an order for discovery before pleading further, that application should be made within a reasonably short time. I will hear the parties further about that.
96 If the defendants propose to take any steps to seek any further orders in relation to the extant statement of claim, any such application should be made promptly.
97 In his third written submissions the plaintiff submitted that if the Court is persuaded that the second defendant was 'incorrectly named', and the archdiocese ought to be named as the second defendant, then it has the power, under s49M(3) and r 184 to make certain orders as follows:
(i) that the name of the second defendant be struck out; (ii) that the Archdiocese of Hobart be joined as Second Defendant; (iii) that the Roman Catholic Church Trust Corporation of The Archdiocese of Hobart be appointed as the proper defendant for the Archdiocese of Hobart; (iv) that the plaintiff has leave to amend his writ and statement of claim to reflect the above orders, and apart from those changes, otherwise in accordance with his proposed amended statement of claim; and (v) that the second defendant be granted an opportunity to amend its defence if necessary. 98 In relation to the striking out of the second defendant, this leads back to the issue of the identity of the unincorporated organisation which the plaintiff alleges is primarily liable as the operator of the school at the time of the alleged abuse. This is obviously of fundamental importance and is a wider issue, not to be determined on the application for leave to amend. The plaintiff readily concedes that this is an issue which ought not be determined by way of the defendant opposing an application for leave to amend the statement of claim.
99 On the material before me, the defendants appear to be open to assisting the plaintiff to correctly identify that unincorporated organisation and to ensuring the appointment of a proper defendant so that if liability is proved against that unincorporated organisation, there is a proper defendant with assets to satisfy any liability that may be incurred. I would hope that the plaintiff may be open to bringing his proceeding on this basis.
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100 In relation to the clarification that the archdiocese is the subject of the action and that a proper defendant should be appointed, despite what is set above, I will hear the parties as to whether an order should be made in conformity with the second defendant's admission in par 12(c) of its defence, appointing the second defendant as a proper defendant for the archdiocese.
101 I will hear the parties further as to the appropriate steps to be taken for the further case management of the action.
acknowledges that was in error.
written submissions dated 20 March 2025.
Church in Australia Property Trust (NSW)[2024] NSWSC 490 at 48
0
13
0