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

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

Because the plaintiff was serving a sentence for an offence accepted as a serious indictable offence, he required leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). On the solicitor's affidavit, the plaintiff's statement, the psychologist's report and the statement of claim, the Court was satisfied the proceedings were not an abuse of process and had prima facie grounds. Leave was therefore granted nunc pro tunc from 8 October 2021. Given the retrospective application for leave should have been made when proceedings were instituted, the parties were ordered to bear their own costs of the motion rather than costs being costs in the cause.

Jurisdiction
Australia
Judgment Date
18 May 2022
Procedural Posture
Civil Proceedings; Notice of Motion for Leave to Commence and Maintain Proceedings Under S 4 of the Felons (civil Proceedings) Act 1981 (nsw) / Procedural Ruling; Ex Tempore Judgment (revised)
Outcome
Leave granted retrospectively; parties to bear their own costs of the notice of motion.
Legal Topics
['leave to Commence Proceedings' 'felons (civil Proceedings) Act 1981 (nsw)' 'retrospective Leave' 'nunc Pro Tunc Orders' 'costs of Notice of Motion' 'institutional Abuse Suffered as a Child']
['civil Law' 'civil Procedure'] ['leave to Commence Proceedings' 'felons (civil Proceedings) Act 1981 (nsw)' 'retrospective Leave' 'nunc Pro Tunc Orders' 'costs of Notice of Motion' 'institutional Abuse Suffered as a Child']

Case Brief

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Procedural Posture

Civil Proceedings; Notice of Motion for Leave to Commence and Maintain Proceedings Under S 4 of the Felons (civil Proceedings) Act 1981 (nsw) / Procedural Ruling; Ex Tempore Judgment (revised)

Legal Issues

  1. 1 ['Whether the plaintiff, who was serving a sentence of imprisonment in Queensland for drug related offences, required leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings.' 'Whether leave should be granted retrospectively, nunc pro tunc, to take effect from 8 October 2021.' 'Whether the costs of the notice of motion should be costs in the cause or borne by the parties themselves.']

Ratio Decidendi

Because the plaintiff was serving a sentence for an offence accepted as a serious indictable offence, he required leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). On the solicitor's affidavit, the plaintiff's statement, the psychologist's report and the statement of claim, the Court was satisfied the proceedings were not an abuse of process and had prima facie grounds. Leave was therefore granted nunc pro tunc from 8 October 2021. Given the retrospective application for leave should have been made when proceedings were instituted, the parties were ordered to bear their own costs of the motion rather than costs being costs in the cause.

Court Disposition

Leave granted retrospectively; parties to bear their own costs of the notice of motion.

Orders

  • ['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.' 'The parties are...