Coffey v Sydney Church of England Grammar School [2022] NSWSC 1293

Supreme Court New South Wales

Medium Neutral Citation: Coffey v Sydney Church of England Grammar School [2022] NSWSC 1293 Hearing dates: 23 September 2022 Date of orders: 23 September 2022 Decision date: 23 September 2022 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that the hearing of these proceedings fixed for 17 October 2022 be vacated. (2) Reserve all question of costs. Catchwords: CIVIL PROCEDURE — Hearings — Adjournment — Where further investigation may lead to discovery of relevant evidence — Where plaintiff unrepresented — Adjournment granted Legislation Cited: Not applicable Cases Cited: Not applicable Texts Cited: Not applicable Category: Procedural rulings Parties: Andrew Coffey (P) Sydney Church of England Grammar School (D) Representation: Counsel: Self-Represented (P) E Holmes (D)

Solicitors: Dentons (D) File Number(s): 2021/190223 Publication restriction: Not applicable

EX TEMPORE JUDGMENT 1. This is an application by Mr Andrew Coffey for an adjournment of the hearing fixed for 17 October 2022 of proceedings which he brings against the institution legally responsible for the Sydney Church of England Grammar School ("the School").

Background 1. A Statement of Claim was filed on Mr Coffey's behalf on 2 July 2021 by lawyers who were then representing him. 2. That Statement of Claim pleaded that, on an occasion in 1974, whilst he was a student at the defendant's school, the plaintiff was sexually abused and subjected to serious physical abuse by a teacher at the school, Mr Colin Fearon. 3. The pleading sets out the particulars of that abuse which are said to have taken place on one occasion in 1974, before the Easter break, when the plaintiff was taken by Mr Fearon to an office known to students as the Sergeant Major's office. There he was caned and sexually assaulted. 4. The balance of the Statement of Claim pleads that the defendant owed to the plaintiff a "non-delegable" duty of care to take reasonable care for the safety of the plaintiff whilst he was at the school, and that that duty of care was breached. 5. The Statement of Claim also pleads that because Mr Fearon was a teacher at the School, he "was the agent of the defendant insofar as it had the care, control, operation and management of the school and the abuse occurred in the course of the engagement of Fearon as a teacher at the school" together with other facts, the defendant is vicariously liable to the plaintiff for the abuse perpetrated by Mr Fearon. 6. The defendant's defence (which recognises the obvious fact that in 2021 it is being confronted with allegations about a single event in 1974, about 47 years earlier, admitted that both the plaintiff and Mr Fearon were each student and teacher at the School. In response to the allegation of sexual and serious physical abuse, the defendant pleads that it did not know and therefore did not admit the allegation contained in that paragraph. However, it draws attention to a legislative provision relevant at the time and pleads that the circumstances raised with respect to corporal punishment may well constitute "reasonable chastisement" and therefore not be unlawful. 7. The School admitted that it owed the non-delegable duty but denied some particulars of the context of the pleaded duty. It also denied that reasonable precautions ought to have been taken. Insofar as the pleading of vicarious liability was concerned, the School denies that it is vicariously liable and says in its pleading that if the incidents occurred as pleaded in the Statement of Claim then the teacher was acting outside the scope of his employment in a manner which was not authorised by the School and which was outside the capacity of the School to control. 8. Earlier this year, the solicitors who commenced proceedings on behalf of Mr Coffey ceased to act for him, and he has been acting for himself for some months.