PAO v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; BJH v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; SBM v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; IDF v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; PMA v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors [2011] NSWSC 1216

Supreme Court New South Wales

Medium Neutral Citation: PAO v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; BJH v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; SBM v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; IDF v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; PMA v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors [2011] NSWSC 1216 Hearing dates: 22 August 2011 Decision date: 19 October 2011 Before: Hoeben J Decision: The appeal is allowed. The orders of Harrison AsJ of 4 May 2011 are set aside. In lieu thereof, the proceedings against the Applicant/Second Defendant in each matter is dismissed pursuant to Rule 13.4 Uniform Civil Procedure Rules 2005. Catchwords: APPEAL - nature of appeal from Associate Justice to a single Judge - not a retrial - discretion exercised on wrong basis

PRACTICE AND PROCEDURE - applications by a defendant to strike out parts of statement of claim pursuant to UCPR 13.4(1) and 14.28(1) - whether Plaintiffs had arguable claim against Defendant - no evidence to establish Plaintiffs' case against Defendant - such evidence unlikely to be available in the future - whether principle in Wickstead and Ors v Browne (1992) 30 NSWLR 1 applicable Legislation Cited: Roman Catholic Church Trust Property Act 1936 (NSW) Supreme Court Act 1970 Civil Procedure Act 2005 Cases Cited: PAO v Grealy [2011] NSWSC 355 Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565 Wickstead and Ors v Browne (1992) 30 NSWLR 1 Hartigan v International Krishna Consciousness [1999] NSWSC 139 Deputy Commissioner of Taxation v Sakovits [2010] NSWSC 1322 Kady v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [1997] NSWCA 170 Connor v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2006] NSWCCPD 124 Warren v Coombes (1979) 142 CLR 531 Do Carmo v Ford Excavations Pty Limited (1981) 1 NSWLR 409 General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125 Texts Cited: --- Category: Principal judgment Parties: PAO (Plaintiff) (2010/13389) Representation: Mr AJ Bartley; Ms L Whalan (Plaintiffs) Mr RG McHugh SC; Ms S Callan (Second Defendant) Porters Lawyers (Plaintiffs) Corrs Chambers Westgarth (Second Defendant) File Number(s): 2010/13389; 2010/13435; 2010/13571; 2010/364831; 2010/365147 Publication restriction: ---