Supreme Court New South Wales Medium Neutral Citation: O'Keefe v Trustees of the Vincentian Fathers [2023] NSWSC 1074 Hearing dates: 5 September 2023 Date of orders: 5 September 2023 Decision date: 05 September 2023 Jurisdiction: Common Law Before: Campbell J Decision: (1) The plaintiff is granted leave nunc pro tunc to institute these proceedings under section 4 of the Felons (Civil Proceedings) Act 1981 (NSW). (2) Each party bear their own costs Catchwords: CIVIL PROCEDURE — plaintiff sought leave to commence proceedings as a person in custody convicted of a serious indictable offence — leave sought nunc pro tunc — allegation that the plaintiff was sexually abused whilst in secondary school — alleged sexual abuse by priests — leave granted Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW) s 4 Category: Procedural rulings Parties: Sean O'Keefe (Plaintiff) Trustees of the Vincentian Fathers (Defendant) Representation: Counsel: M McGirr (Plaintiff) M Sin (Defendant) Solicitors: Melinda Griffiths Lawyers (Plaintiff) Wotton & Kearney (Defendant) File Number(s): 2022/323015 ex tempore JUDGMENT (revised) 1. By notice of motion filed 10 February 2023 the plaintiff, Sean O'Keefe, seeks leave pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence proceedings against the Trustees of the Vincentian Fathers for child sex abuse to which he was subjected while a student at St Stanislaus College in Bathurst. 2. He requires leave under the legislation because when the proceedings were commenced on his behalf by statement of claim filed on 28 October 2022 he was, and still is, serving a full-time sentence of imprisonment for the most serious offence of murder. I understand from his affidavit that an appeal has been lodged with the Court of Criminal Appeal. In any event, there is no question that he is covered by the legislation. Equally, there is no question that I am empowered to grant the leave sought, if the conditions specified in the legislation are otherwise satisfied, nunc pro tunc. 3. Under section 5 of the Act, I am not empowered to grant the leave sought unless I am satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. I will observe, given the prominence of abuse of process arguments in this area of discourse currently, that the phrase, "abuse of process", where it appears in section 5 of the Act does not require me at this stage of the proceedings to ask myself whether or not the defendant can have a fair trial. In my own view, abuse of process in this context effectively means that the proceedings are not vexatious, "abuse of process" being a very wide expression covering a number of topics which might affect the integrity of legal proceedings. 4. I am satisfied from the affidavit of Mr Morrison, solicitor, sworn 10 August 2023 and its attachments, being the evidentiary statement of the plaintiff and the supporting expert report of Professor Ian Coyle, that the proceedings are not an abuse of process, that they are brought for a legitimate purpose, and that, if the facts represented in the evidential statement and in Professor Coyle's report are established at a trial, there is a prima facie case for damages for principally psychological injury relating resulting from child sex abuse. I do not overlook the physical assault involved in such abuse. 5. The plaintiff's allegations in the statement of claim relate to, as I have said, his experience as a student at St Stanislaus' boarding school in Bathurst in 1996. He alleges that he was sexually abused on more than one occasion by a specific priest to whom he gave the nickname "Father Filf". There is also reference to abuse by a "Father Finn". I need not go into the details of allegations of the abuse because it is unnecessary for present purposes. 6. His claim is that the defendant owed him a duty of care and that it breached that duty. He also alleges that the school authorities knew or ought to have known that the priests concerned were paedophiles, and he pleads a series of particulars of breach including that the school failed to take reasonable steps to determine the risk of sexual and other abuse. There is also an allegation that the school was vicariously liable for the acts of the priests and that their appointment in various capacities occasioned the abuse. 7. The report of Professor Coyle is dated 13 June 2022. He is a highly qualified psychologist with extensive clinical and forensic experience since 1976. The plaintiff has given a full history to Professor Coyle of recurrent distressing memories, nightmares and panic attacks. Professor Coyle has diagnosed Post Traumatic Stress Disorder with comorbidities of Antisocial Personality Disorder and Substance Use Disorder. It is Dr Professor Coyle's opinion that the PTSD was likely to be treatment resistant and that it was "overwhelmingly causally related to the abuse [the plaintiff] suffered under the Catholic church". It is not necessary for me to go into other aspects of the case. 8. I have said to Mr McGirr of counsel that it seemed to me that consideration needs to be given to whether any claim needs to be supported by the opinion of a legally qualified medical practitioner specialising as a psychiatrist, however, I am satisfied from Professor Coyle's report that there will be evidence available at the trial of a psychiatric injury causally related to the alleged cause of action. 9. In the circumstances I am satisfied that the conditions of section 5 have been made out and that it is otherwise appropriate, in the exercise of my discretion, to make the orders sought. 10. I have given Ms M Sin, solicitor, leave to appear under section 7 of the Act, and I understand that the reason for her appearance is that the parties have agreed that there should be no order as to costs. To be clear, the defendant neither consents nor objects to the relief sought in prayer 1 of the motion. 11. I make the following orders: 1. The plaintiff is granted leave nunc pro tunc to institute these proceedings under section 4 of the Felons (Civil Proceedings) Act 1981 (NSW). 2. Each party bear their own costs ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2023