DBT v Sydney Catholic School Ltd as Trustee for the Sydney Catholic Schools Trust & Anor

This is an application for leave to institute proceedings pursuant to ss 4 and 5 of the Felons (Civil Proceedings) Act 1981 (NSW) by DBT, a proposed plaintiff in proceedings against Sydney Catholic Schools Ltd and the Trustees of the Marist Brothers for the Province of Australia. Refreshingly, the application for leave is brought before the commencement of proceedings and is brought by way of summons supported by an affidavit of the plaintiff’s solicitor. This sets out in reasonable detail, albeit succinctly, the claim proposed to be made. Annexed to that affidavit is the proposed statement of claim, which is yet to be filed formally in the Court, there being a necessity for leave before the proceedings are instituted.

The Felons (Civil Proceedings) Act provides that a person who is in custody because of a conviction for a serious indictable offence may not institute civil proceedings, except with the leave of the Court. The affidavit of the plaintiff’s solicitor establishes that DBT has been convicted and sentenced for the crime of murder, which is a serious indictable offence, and that he is currently in custody serving that sentence. Accordingly, s 4 of the Act applies to him. Section 5 requires that leave shall not be granted under s 4 unless the Court is satisfied that the proceedings are not an abuse of process and that there are prima facie grounds for the proceedings.

The first and second defendants are represented and each take the same position, which is to say that they neither consent to nor oppose the application for leave, but also make it clear that nothing in that sensibly taken position should be seen as indicating any admission as to the allegations that DBT proposes to make against either of their clients or the teachers involved. The statement of claim in the affidavit in support sets out the allegations that will be made if leave is granted and, essentially, they involve the plaintiff being subjected to sexual abuse by a teacher or brother at the school which he attended in the late 1970s and early 1980s.

The particulars are set out in some detail. The bases of liability, duty of care and so forth are set out, as is the basis upon which it is said that the first and second defendants are vicariously liable for the acts of the alleged perpetrator. I am satisfied that there are prima facie grounds for the proceedings and that the proceedings are not on their face an abuse of process. Accordingly, I propose to make the orders sought.

The orders that I make are: