Supreme Court New South Wales Medium Neutral Citation: Coffey v Sydney Church of England Grammar School [2024] NSWSC 123 Hearing dates: 16 February 2024 Date of orders: 16 February 2024 Decision date: 16 February 2024 Jurisdiction: Common Law Before: Garling J Decision: See [10] Catchwords: CIVIL PROCEDURE – Stay of proceedings – Inherent power – Where self-represented plaintiff is not capable by reason of psychological condition of conducting litigation. Legislation Cited: Civil Procedure Act 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Principal judgment Parties: Andrew Coffey (P) Sydney Church of England Grammar School (D) Representation: Counsel: In person (P) R Cheney SC (D) Solicitors: Dentons Australia Pty Ltd (D) File Number(s): 2021/190223 Publication restriction: Not applicable EX TEMPORE JUDGMENT 1. In these proceedings Mr Andrew Coffey, the plaintiff, sues the Sydney Church of England Grammar School claiming damages for historic sexual abuse, which he claims occurred whilst he was a student at the school. The proceedings were commenced in 2021 and have had a complex history. 2. When the plaintiff commenced the proceedings, a solicitor was acting for him. After an unsuccessful mediation, the plaintiff's solicitor ceased to act and he then appeared for himself. The Court made orders directing Mr Coffey to the pro bono scheme for legal assistance facilitated by the New South Wales Bar Association and a firm of solicitors and counsel were, as a consequence of that referral, appointed to appear for him. 3. At the time of that referral, the proceedings were listed for a final hearing on 17 July 2023 with an estimate of five days. Mr Coffey's then lawyers made significant efforts to be ready for that hearing but were unable to satisfy themselves that the matter would be able to proceed to a hearing at that time and accordingly the Court vacated that trial date. Shortly afterwards it fixed a further trial date for 15 April 2024, with an estimate of five days. 4. During the last few months of 2023, the solicitors and counsel for Mr Coffey ceased to act for him and he has been conducting the litigation by himself since. In late January 2024, Mr Coffey found himself in a position where he was unable to comply with the orders which the Court had made for preparation for trial in a timely way. He notified the Court that due to an exacerbation of his mental health condition, he did not feel able to conduct the trial listed for 15 April 2024. 5. On 9 February 2024, the defendant filed a Notice of Motion in which it sought orders vacating the hearing listed to commence on 15 April 2024 and orders with respect to a stay of proceedings. That Motion was made returnable before me today on 16 February 2024. No evidence has been read in support of that Motion. 6. Mr Coffey, who assured the Court that he was well enough to conduct today's directions hearing, has provided to the Court a bundle of expert reports, which I have marked exhibit A dated 16 February 2024. It seems to me to be clear from that material that Mr Coffey is not presently capable by reason of his psychological state, to conduct this litigation and, at least based on the expert evidence, there is no realistic prospect of that state resolving at any identifiable time or by any identifiable future date. 7. It is abundantly clear from the expert material, and Mr Coffey's communications with the Court, that the litigation is creating ongoing stress, anxiety and trauma for Mr Coffey. To have that continuing for some unidentifiable time in the future is not in Mr Coffey's personal interests, nor is it in the defendant's interest to continue incurring legal costs. Neither is it in the interests of the administration of justice as they apply in the circumstances of claims of this kind, namely claims for damages for historical sexual abuse, where parties should be required to actively prosecute their claims or defend claims brought against them, where the circumstances are of the kind that presently exist. 8. In those circumstances I have determined that the proper course is not to make any decision with respect to the Notice of Motion brought by the defendant dated 9 February 2024 but rather for the Court, by reason of the broad range of powers invested in it, and in light of all the expert evidence and surrounding circumstances, to make the following orders which, in effect, stay the proceedings, including a stay of the Notice of Motion without it being resolved, until further order. 9. In the event that one or other party comes to a decision where they think a further order would be appropriate, I will make directions which would permit an application for leave to be made to set aside the stay and seek further orders, and I will provide that such an application will need to be made on adequate notice. 10. The formal orders that I make are: 1. Vacate the hearing presently listed to commence on 15 April 2024. 2. Vacate orders 1 and 2 of the Court made on 10 November 2023. 3. Vacate all orders made on 8 September 2023. 4. Pursuant to s 67 of the Civil Procedure Act 2005, order, unless otherwise ordered, that these proceedings 2021/00190223 be stayed. 5. Order that if either party wishes to activate the proceedings, then any such step is to be done by the filing of a Notice of Motion seeking leave to set aside the order for a stay accompanied by all affidavits upon which any applicant wishes to rely. 6. Direct that such application be made with at least 21 days' notice to any party affected by such an application. 7. Direct that all affidavits to be relied upon for the purpose of the Motion filed 9 February 2024 be returned to the defendant. 8. Reserve all questions of costs of these proceedings. ********** I Certify that this and the preceding 3 pages are a true copy of the reasons for judgment herein of the Honourable Justice Peter Garling Date: 16 February 2024 Associate: 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: 19 February 2024