Rich v Kitchingman & Anor [2007] NSWSC 1206

New South Wales Supreme Court

CITATION : Rich v Kitchingman & Anor [2007] NSWSC 1206

HEARING DATE(S) : 24/10/2007

JUDGMENT DATE : 29 October 2007

JUDGMENT OF : Hoeben J at 1

DECISION : I decline to grant the plaintiff's application that any limitation questions be dealt with at the same time as the final hearing; I reserve the question of the costs of this application.

CATCHWORDS : PRACTICE AND PROCEDURE - Application for extension of time application to be heard at some time as trial - plaintiff sexually assaulted as child - whether same issues would arise - whether plaintiff would be exposed to undue hardship by being cross-examined at two hearings - whether outcome of extension of time application might shorten or obviate need for final hearing.

LEGISLATION CITED : Limitation Act 1969 (NSW)

CASES CITED : State of NSW v Harlum [2007] NSWCA 120

Shane Rich - Plaintiff PARTIES : Allan Kitchingman - First Defendant Anglican Church Diocese of Sydney - Second Defendant

F Tuscano - Plaintiff COUNSEL : P Braham - First Defendant No Appearance - Second Defendant

Maurice Blackburn Cashman - Plaintiff SOLICITORS : Turnbull Hill Lawyers - First Defendant No Appearance - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOEBEN J

Monday 29 October 2007

20277/2006 – Shane RICH v Allan KITCHINGMAN & Anor

JUDGMENT 1 HIS HONOUR: Nature of Application By statement of claim filed 17 July 2006 the plaintiff commenced proceedings against the defendants alleging that he was subjected to sexual and physical assault during 1975 and 1976 as a result of the conduct of servants and agents of the second defendant, in particular the first defendant. The proceedings against the second defendant have been settled. The terms on which that matter were settled are unknown. 2 Although the first defendant had not at the time of this application filed a defence, he was legally represented. His counsel advised the court that a defence would be filed in the near future and it would raise amongst other things the provisions of the Limitation Act 1969 (NSW). Counsel for the plaintiff advised the court that he was aware of this and was not taken by surprise. The plaintiff proposed to rely upon s60G and s52 of the Limitation Act to overcome the proposed limitation defence. 3 Before me the plaintiff seeks an order that any application for an extension of time, to the extent that it is necessary, should be determined when the matter is finally heard and not by way of a separate preliminary hearing. This application is opposed by the first defendant.