Supreme Court New South Wales Medium Neutral Citation: OCM v the Trustees of the Christian Brothers [2018] NSWSC 657 Hearing dates: 11 May 2018 Date of orders: 11 May 2018 Decision date: 11 May 2018 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that the Notice of Motion filed 16 April 2018 be dismissed. (2) Order each party to pay their own costs of the Motion. (3) Pursuant to s 26 of the Civil Procedure Act 2005, I refer the whole of the proceedings to mediation. (4) Order that the mediation is to take place on or before 31 August 2018. (5) Grant liberty to either party to seek directions with respect to the motion. (6) List the matter for further directions before Garling J at 9.30am on 21 September 2018. Catchwords: CIVIL PROCEDURE – application by plaintiff to transfer proceedings to the District Court – damages quantum likely not to exceed jurisdictional limit of District Court – where identical issues in another case to be heard in Supreme Court – risk of inconsistent verdicts – undesirability of plaintiffs giving evidence twice – interests of justice – transfer application refused LIMITATION OF ACTIONS – tort – sexual abuse claim – whether corporal punishment falls within Limitation Act 1969 – whether claim is statute barred – issue to be decided upon full hearing Legislation Cited: Civil Procedure Act 2005 Limitation Act 1969 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: OCM (P) Trustees of the Christian Brothers (D1) The Trustee of the Christian Brothers as Executor of the Estate of the Late James Anthanasius McGlade (D2) Trustees of the Christian Brothers as Executor of the Estate of the Late Francis Barnabas Garvan (D3) Neil Richards (D4) Representation: Counsel: J Sharpe (P) K Smith (D1-D3) M Slattery (D4) Solicitors: Porters Lawyers (P) Makinson d'Apice Lawyers (D1-D3) Carroll & O'Dea Lawyers (D4) File Number(s): 2016/00316891 Publication restriction: Not applicable EX TEMPORE Judgment 1. By Notice of Motion filed 16 April 2018, the plaintiff seeks an order pursuant to s 146 of the Civil Procedure Act 2005 that these proceedings be transferred to the District Court. 2. The proceedings are constituted by a claim made in an Amended Statement of Claim filed 1 May 2018, in which it is alleged that, whilst the plaintiff was a student at St Edward's Primary School, East Gosford ("the School"), which was operated under the care, management and control of the congregation of the Christian Brothers, he was sexually abused by an identified teacher, who was a member of the Christian Brothers. 3. The first three defendants together admit that they were the owners of the requisite property and responsible for the care, control and management of the School. Whilst they do not know and do not admit that the claimed sexual assault took place, they do admit that they owed a non-delegable duty of care to exercise reasonable care for the safety of the plaintiff, but indicate that a breach of that duty on their part is denied. In particular, the first three defendants put in issue whether, on the assumption that the plaintiff establishes he was sexually assaulted, they are liable vicariously, or otherwise, for the criminal acts of the fourth defendant. 4. The fourth defendant has elected not to actively participate in the defence of these proceedings. 5. I should also add that the plaintiff also claims for physical abuse by way of excessive strapping. A question in issue is whether that conduct constitutes conduct of a kind which falls within s 6A of the Limitation Act 1969 and, if it does not, whether it is barred by the limitation period. 6. The proceedings have been listed for hearing for a period of eight days commencing on 12 November 2018, together with another case, where the plaintiff is identified as "BP1". That claim involving "BP1" arises out of the conduct of the same individual perpetrator at the same school in, broadly, the same time period and involves the same issues being raised by the first to third defendants with respect to their liability. 7. Because of the similarity of identified issues, the two cases, "BP1" and "OCM", were listed to be heard together. Obviously, to the extent that any evidence is to be called by the defendants, it will be the same in each case. As well, it can be assumed, each plaintiff will want to rely upon the evidence of each other plaintiff as to what happened. No doubt, to enable that to occur, appropriate tendency notices will be served in due course. 8. The principal basis for the application for transfer is that, having regard to the joint medical report dealing with the psychiatric state of the plaintiff, and having regard to the difficulties in obtaining documents to substantiate his working history to date, as counsel for the plaintiff submits, it will be unlikely that the plaintiff will be able to establish a claim for economic loss in a sum which would merit the case remaining in this Court. For the purposes of this application, but, of course, without seeking to limit any ultimate verdict or judgment in the proceedings, I accept that is so. It provides one reason why the Court would exercise its discretion to transfer the matter to the District Court. 9. However, on the other hand, there are a number of reasons why the Court would not order such a transfer. First, by having two separate hearings in two separate courts on what are, in substance, identical issues of liability, there is an uncomfortable risk that there might be two inconsistent decisions on that question. This risk is the more so, given that some of the legal issues which will arise in the defence of these proceedings are quite novel. 10. Secondly, the defendant will be put to the cost and expense of calling the same witnesses twice to deal with substantially the same issues and to give substantially the same evidence. 11. Thirdly, to the extent that the plaintiff wishes to call the plaintiff in the "BP1" matter to give evidence as to what occurred to him, that would oblige that plaintiff to give evidence twice, and if "BP1" were to do the same for the plaintiff, "OCM", that state of affairs would be perpetuated. 12. It is undesirable that individuals who have been, or claim to have been sexually abused, be forced to publicly give evidence twice as to what has happened to them. It is undesirable because significant research has shown that for such people to give evidence about what has happened to them is a traumatic experience, and one which may aggravate any existing condition. 13. Finally, the other matter to keep in mind is that these proceedings have a hearing date in November 2018, and there is no reason to think that if this proceeding was transferred to the District Court it would get a hearing date before that time. On the contrary, on the probabilities it would not come on for hearing until sometime after November. 14. It is necessary in considering an application for transfer to take into account what the Court regards as being in the interests of justice. In my view, having regard to the factors to which I have referred, I am unpersuaded that it is in the interests of justice for the order for transfer in these proceedings to be made. In my opinion, the factors that I have identified for the proceedings to remain in this Court, strongly outweigh the factors in favour of a transfer. Accordingly, I decline to transfer the matter to the District Court and the Motion seeking such orders is dismissed. Orders 1. I make the following orders: 1. Order that the Notice of Motion filed 16 April 2018 be dismissed. 2. Order each party to pay their own costs of the Motion. 3. Pursuant to s 26 of the Civil Procedure Act 2005, I refer the whole of the proceedings to mediation. 4. Order that the mediation is to take place on or before 31 August 2018. 5. Grant liberty to either party to seek directions with respect to the motion. 6. List the matter for further directions before Garling J at 9.30am on 21 September 2018. ********** 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: 14 May 2018