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Abuse: Stay of cross claim & primary proceedings (NSW).


BRJ v The Corporate Trustees of The Diocese of Grafton [2022] NSWSC 1077 (on Caselaw).

Although stay of proceedings applications are not unusual, this matter concerned an application for the stay of a cross claim. The cross claim had been brought by the Diocese against a former Anglican priest.

The filing of an application to stay the cross claim by the former priest (by his tutor) resulted in a similar application by the Diocese to stay the primary action by the plaintiff against the Diocese.

The Court accepted that by reason of his cognitive impairment the former priest had no capacity to respond to the cross claim. Before service of the cross claim, he had not been confronted with the sequence of events alleged by the plaintiff to have occurred. He had never had any opportunity to give his account of events at any time prior to the Cross-claim being served upon him. By that time, he was not able to accurately give any account of his version of the facts and circumstances. ([113]).

In relation to the Diocese, the Court noted that is well-established that, in the context of applications to commence proceedings out of time, the inability to bring a cross-claim, which would have been available had the proceedings been commenced within time, is a form of prejudice to be taken into account in determining the application, so long as it amounts to “significant” prejudice, such that the loss of rights against third parties are “viable and realistic” and not merely “fanciful or theoretical”. ([126]).

In this case, however, the Court was not persuaded that the unavailability of the Cross-claim amounts to “significant prejudice” which should be given any weight in determining the Trustees Motion. That is because I cannot be sure that it was a “viable and realistic” and not merely “fanciful or theoretical” cross-claim, partly because, as it seems to me, any judgment against the cross-defendant would likely be worthless. ([129]).

Notwithstanding that conclusion in relation to the cross claim, the Court held that the Trustees do not have sufficient facts or information or knowledge that would permit them to participate in a contest against the plaintiff about whether a sexual assault, or sexual abuse of the kind alleged, occurred. Nor are they in a position, in the absence of any material in their possession to which reference has been made, of providing any explanation at all as to the circumstances surrounding the billeting of the plaintiff with Mr and Mrs Kitchingman when the abuse occurred. ([131]). They could not meet an allegation that they were vicariously liable for the criminal conduct of Mr Kitchingman, nor could they meet an allegation that there had been a systemic failure with respect to Mr Kitchingman’s home being used as a billet for the plaintiff – which is one of the two causes of action relied upon. ([132]).

[BillMaddensWordpress #2028]


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