Background
Christopher Wright, who was incarcerated and appeared without counsel, sued the Trustees of the Patrician Brothers and Sydney Catholic Schools Ltd as trustee for the Sydney Catholic Schools Trust. He alleged that, while attending Patrician Brothers Catholic School in Fairfield around 1989, he was sexually abused by the Deputy Principal and a religious brother and also suffered serious physical abuse. He claimed the defendants breached a non-delegable duty to take reasonable care to prevent foreseeable injury. The defendants denied the allegations.
Wright had pleaded guilty in April 2024 to offences including fraud offences that qualified as serious indictable offences. He commenced the civil proceeding in October 2024 without first obtaining leave under the Felons (Civil Proceedings) Act 1981 (NSW). After the defendants filed defences and an unsuccessful mediation occurred, a registrar advised him that leave was required. The defendants neither consented to nor opposed his application.
The Court’s Holding
Richardson J granted Wright leave under ss 4 and 5 of the Felons (Civil Proceedings) Act, effective nunc pro tunc. The retrospective order authorized the proceeding in the form of the amended statement of claim filed on 31 October 2024, despite Wright’s failure to obtain leave before commencing it.
After reviewing the pleaded allegations, the Court was satisfied that the proceeding was not an abuse of process and had a prima facie basis. In reaching that conclusion, the Court referred to recent High Court authority concerning non-delegable duties of care, particularly because one allegation concerned a religious brother whom the defendants said had been provided or made available to the school as a teacher. Each party was ordered to bear its own costs of the leave application.
Key Takeaways
- A person convicted of a serious indictable offence who requires leave under the Felons (Civil Proceedings) Act should seek it before or when commencing civil proceedings.
- The Court may grant leave nunc pro tunc, giving it retrospective effect where proceedings were commenced without prior leave.
- For this procedural application, the Court found a prima facie basis for the claim and no abuse of process; it did not determine whether the alleged abuse occurred or whether the defendants were liable.
Why It Matters
The ruling shows that failure to obtain the required statutory leave at the outset need not invalidate an incarcerated plaintiff’s proceeding permanently. Where the claim has a prima facie basis, is not abusive, and the circumstances support relief, the Court may regularize the proceeding retrospectively.
The decision is procedural only. Wright’s institutional-abuse and negligence allegations remain contested and must still be proved in the underlying litigation.