The Council of Trinity Grammar School v Anderson [2019] NSWCA 292

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 Hearing dates: 27 June 2019; 11 July 2019 Date of orders: 09 December 2019 Decision date: 09 December 2019 Before: Bathurst CJ at [1]; Payne JA at [508]; Simpson AJA at [509] Decision: (1) Grant the applicant leave to appeal. (2) Order the applicant file a Notice of Appeal in the form of the proposed Further Amended Draft Notice of Appeal within 7 days. (3) Allow the appeal. (4) Set aside the orders of the primary judge. (5) Order the proceedings be permanently stayed. (6) Order that the respondent pay the applicant's costs of the appeal and the proceedings in the Court below and be entitled to an indemnity certificate under the Suitors Fund Act 1951 (NSW) if eligible. Catchwords: CIVIL PROCEDURE - Court of Appeal - Stay of proceedings - Application for permanent stay of proceedings concerning sexual assaults allegedly perpetrated by teacher against student between 1974 and 1976 - Alleged abuse did not occur on school grounds - Whether primary judge erred in the exercise of discretion to refuse a permanent stay of proceedings - Whether discretion should be re-exercised - Whether inquiries made by applicant to ascertain if material available were adequate - Whether applicant was responsible for its difficulty in dealing with proceedings by not investigating the claim earlier.

LIMITATION OF ACTIONS - Personal injury - Child abuse - Legislative removals of previous limitation periods - s 6A Limitation Act 1969 (NSW) - Sexual assaults alleged to have occurred between 1974 and 1976 - Whether proceedings should be permanently stayed. Legislation Cited: Evidence Act 1995 (NSW) Limitation Act 1969 (NSW) Suitors Fund Act 1951 (NSW) Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Armes v Nottinghamshire County Council [2017] UKSC 60 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197 Connellan v Murphy [2017] VSCA 116 Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720; [1935] HCA 48 Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 Jaycar Pty Limited v Lombardo [2011] NSWCA 284 Lane v Registrar of Supreme Court (NSW) (1981) 148 CLR 245; [1981] HCA 35 Medich v R (2015) 97 NSWLR 358; [2015] NSWCCA 281 Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 R v Davis (1995) 57 FCR 512 Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 S v Attorney General [2003] 3 NZLR 450; [2003] NZCA 149 State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Zelden v Sewell Henamast Pty Limited v Sewell [2011] NSWCA 56 Texts Cited: Nil Category: Principal judgment Parties: The Council of Trinity Grammar School (applicant) Robert Anderson (respondent) Representation: Counsel: N Hutley SC with E Holmes and A Oakes (applicant) J Maconachie QC with J Sharpe (respondent)