Drollet v Trustees of the Marist Bros.

This is an application for leave to be granted nunc pro tunc to commence proceedings under ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) (the “Act”). The statement of claim was filed on 22 December 2023 without leave. The notice of motion seeking the necessary leave was not filed until 8 February 2024, but it is well established that leave under the Act may be granted nunc pro tunc: Jol v New South Wales (1998) 45 NSWLR 283.

The applicant proceeds upon the affidavit of his solicitor, Mr Jonathan Georgaklis affirmed on 8 February 2024. From that evidence I record that the plaintiff was and is serving a sentence of imprisonment at the Macquarie Correctional Centre in relation to drug importation charges. His earliest date for release is in 2029.

The plaintiff’s claim is one for child sexual and physical abuse suffered by him at a Catholic School at Randwick in Sydney when he was a student in the period February 1992 and December 1994 between the ages of 12 and 14 years. His claim is that he was sexually abused by the then Deputy Headmaster during that period.

The averments upon which he relies are fully set out in the statement of claim. He relies upon breach of the school’s non-delegable duty of care owed to him as a student and upon vicarious liability for the tort of, in particular, the alleged perpetrator of the abuse.

It is clear from the statement of claim that apart from the physical injury inherent in the abuse alleged, that the plaintiff also relies upon a psychiatric injury under Part 3 of the Civil Liability Act 2002 (NSW). His claim in that regard is supported by the expert report of Dr Martin Allan, consultant psychiatrist, dated 14 March 2022. I have closely considered Dr Allan’s report for the purpose of this application.

It is sufficient for me to say that the history recorded by Dr Allan, as given to him by the plaintiff, substantially accords with the averments set out in the statement of claim. As is not uncommon in these cases, it appears that the plaintiff’s psychiatric condition is somewhat complicated, however, Dr Allan is of the opinion that the plaintiff’s persistent depressive disorder, chronic post traumatic stress disorder and substance abuse disorder, which he has diagnosed, are directly related to the sexual and physical abuse relied upon.

Having regard to this material and bearing in mind that the process in which the Court is involved is to be decided in a summary and broadly impressionistic way in accordance with the Court of Appeal’s decision in the Application of Malcolm Huntley Potier [2012] NSWCA 222, I am satisfied that if the plaintiff’s evidence is accepted at the hearing and also Dr Allan’s opinion is accepted, the plaintiff has prospects of success. To that extent, therefore, I am satisfied that the proceedings are not an abuse of process within the meaning of the Act and that there is a prima facie case disclosed by the material relied upon.

For those reasons, I make the following orders: