Allan v Lutheran Church of Australia NSW District

File Number(s): 2024/202601

Judgment

1. By Notice of Motion filed 17 September 2024, the Lutheran Church of Australia NSW District (the defendant) sought the following orders:

2. Pursuant to reg 14.28(1)(a) and/or (b) of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff's Statement of Claim filed 31 May 2024 be struck out.

3. Alternatively, the plaintiff be ordered, pursuant to reg 15.1(1) of the Uniform Civil Procedure Rules 2005 (NSW) to:

(a) identify the alleged risk of harm with sufficient precision; (b) particularise the material facts on which it is contended that the risk of harm was (within the meaning of s 58(1) of the Civil Liability Act 2002 (NSW)):

(i) foreseeable, including whether it is alleged the defendant had actual or constructive knowledge of the risk of harm and particulars of the alleged knowledge; and (ii) not insignificant; and

(c) identify and particularise the precautions it is alleged (within the meaning of s 58(1) and s 5B(2) of the Civil Liability Act 2002 (NSW)) a reasonable person in the position of the defendant would have taken to protect the plaintiff against the alleged risk of harm. (d) identify and particularise the duties assigned to the perpetrator, Randal Lieschke in his role as a boarding house master which provided him with authority, power, trust, control and the ability to achieve intimacy with the Plaintiff.

3. Plaintiff to pay the defendant's costs of and incidental to this Notice of Motion.

4. In support of that Motion, the defendant relies on two affidavits of Patrick Gordon Thompson affirmed respectively 17 September 2024 which became exhibit 1 on the Motion, and a further affidavit of Patrick Gordon Thompson affirmed 3 December 2024, which became exhibit 2 on the Motion.

5. By Notice of Motion filed 3 December 2024, the defendant sought the following orders:

6. The Defendant’s Notice of Motion filed on 17 September 2024 listed for hearing on 10 December 2024 be vacated.

7. Defendant to file and serve written submissions by 10 February 2025.

8. Plaintiff to file and serve written submissions by 24 February 2025.

9. Defendant’s Notice of Motion filed on 17 September 2024 to be listed for a half day hearing.

10. No order as to costs.

11. Such further order or orders as this Honourable Court sees fit to make.

12. By Notice of Motion filed 7 March 2025, Arthur Allan (the plaintiff) seeks the following orders:

13. The plaintiff be granted leave to file and serve an Amended Statement of Claim.

14. Any further orders that the Courts seems necessary.

15. In support of the Motion, the plaintiff relies on an affidavit of John Phillip McManis affirmed 7 March 2025 which became exhibit A on the Motion.

Background

6. By Statement of Claim filed 31 May 2024 the plaintiff sought damages, interest on damages, and costs for alleged injury, loss and damage he sustained as a consequence of abuse he sustained by an employee of the defendant in or around 2001.

7. The defendant’s Motion sought that such Statement of Claim be struck out as indicated above.

8. The plaintiff proposed to the defendant an Amended Statement of Claim (ASOC) which sought to address the concerns raised by the defendant, and hoped that those amendments if accepted by the defendant, would avoid any unnecessary costs associated with the filing of a Notice of Motion.

9. The ASOC was rejected by the defendant in its letter to the plaintiff’s solicitors dated 8 January 2025.

10. The defendant has filed submissions in support of their Motion, which address the ASOC that was rejected by the defendant. The plaintiff has updated the ASOC to address the criticisms made by the defendant in its submissions (although not conceding these to be necessary), in order to avoid the cost and expense of hearing the motion.

11. The updated ASOC is the subject of a separate Notice of Motion filed by the plaintiff seeking leave to file the updated ASOC.

12. The defendant refers to the UCPR regarding pleadings. These rules relevantly are set out in Division 3 of Part 14 from 14.6 to 14.21, although some of the included rules are specific to different claims.

13. Apart from rules as to form, the relevant rules include:

14. Pleadings “must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved” (rule 14.7).

15. A pleading must be as brief as the nature of the case allows (r 14.8).

16. A plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise (a similar requirement exists for the pleading of a defence) (r 14.14).

17. I accept that the pleading of the material facts will also be influenced by the availability of facts which are intended to establish the case. It is of course often the case that fact may not prove a case but be sufficient to create an inference which does. Further, as in this case, many or most of the material facts are uniquely within the knowledge of the defendant, as it is the operator of the system, which is alleged to be negligent, and the employer of the perpetrator who is alleged to be vicariously liable.

18. To my mind, the tests are clearly set out in PWJ1 v The State of New South Wales [2020] NSWSC 1235 (PWJ1), where his Honour Justice Garling states as follows:

“[97] I am of the opinion that leave to join the proposed defendants, and leave to file the proposed pleading Amended (5) Statement of Claim, which is the document by which the proposed defendants are to be joined, ought not be granted because:

(a) the proposed pleading does not include any articulation of the “risk of harm” to which s 5B of the CLA applies;

(b) the proposed pleading does not include any material which, when dealing with the common law duty relied upon, adequately pleads the elements required to be pleaded and proved for a claim of negligence to which ss 5B and 5C of the CLA apply;

(c) it includes allegations which are irrelevant to any of the facts pleaded, as described in [32], [40] and [42] above;

(d) it fails to identify with respect to the perpetrators at any of the Institutions, except Bexley, the existence of the statutory powers being exercised by the Institutions, and any statutory functions or powers being exercised by the individuals, including those affecting their duties and obligations. These statutory powers and functions are a necessary consideration in determining the extent of the obligation between the Institutions and the plaintiff and whether the Institutions ought be held vicariously liable to the plaintiffs;

(e) insofar as a non-delegable duty is pleaded and is to be relied upon, the proposed pleading fails to identify the role of each perpetrator and the nature of their employment or engagement, such that the employment or engagement was not just, the provision of an opportunity to commit the alleged offences, or engage in the alleged conduct, but rather is sufficient to enable a conclusion of vicarious liability to be reached;

(f) the pleading resorts to generalisations and formulaic words and phrases - paragraph 40 of the proposed pleading is a good example of this. Allegations of the particulars of the existence of a relationship between the defendant and the perpetrator, and with the plaintiff as well, are formulaic, do not refer to any particular facts and matters, but simply state conclusions in a formulaic way apparently derived from statements from judgments without being anchored in the particular facts of this case; and

(g) the claim of a causal link between the conduct of the defendant, pleaded as constituting a breach of duty, and the occurrence of the particular harm, which is undefined, pays no regard to the requirements of s 5D of the CLA.”

16. With regard to this decision, the defendant asserts that these are helpful guidelines to assist the pleader in the preparation of an effective Statement of Claim. Whether or nor it is compliant with the rules that is paramount. They further submit that Justice Garling urges the pleader to be specific in their pleadings and avoid “Mere rubrics and hollow incantations “are not a substitute for proper pleadings which pay attention to the principles discussed as well as the requirements of the CLA and the Uniform Civil Procedure Rules 2005”.

17. In many of the abuse related matters, the risk of harm, precautions to be taken and breaches will be very similar as the issues tend to be the same.

18. The plaintiff submits that the defendant’s submissions do not respond to its own Notice of Motion which seeks to strike out the existing Statement of Claim. The defendant’s submissions address the proposed ASOC which was rejected by the defendant on 8 January 2025. As a result of that rejection and in order to avoid the Motion, the plaintiff has further updated the ASOC on which it seeks leave to file pursuant to its Notice of Motion.

19. Relevant to the Motion is the following chronology of events:

Procedural History

| 31 May 2024 | Statement of Claim filed | | 25 July 2024 | Request for further and better particulars of Statement of Claim | | 2 September 2024 | Response to request for further and better particulars of the Statement of Claim | | 3 September 2024 | Lutheran Church respond to plaintiff’s letter dated 2 September 2024 | | 6 September 2024 | Statement of particulars UCPR 15.12 | | 17 September 2024 | Plaintiff files Notice of Motion to strike out the Statement of Claim | | 9 October 2024 | Plaintiff submits ASoC for approval |

20. The defendant maintains that the updated Amended Statement of Claim (UASOC) is demurrable, as the plaintiff’s claim remains as founded upon one instance of assault when the plaintiff was 15 years old and is alleged to have taken place in 2001 by Lieschke. Further they assert that the UASOC has not pleaded any further material facts.

21. Both parties have provided written submissions and addressed the court orally.

22. The parties are at odds with what ought be pleaded, and what is in fact a material fact, and required to be proven by evidence. The risk of harm, the significance of risk, actual or constructive knowledge, causation and vicarious liability are addressed by both parties in their written submissions.

23. The plaintiff submits that what has been submitted to the defendant contains adequate particularity to enable the defendant to understand that nature of the allegations made against it.

24. In Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 (Dare), the High Court stated as follows at page 664 of the Commonwealth Law Reports:

“Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon; Sri Mahant Govind Rao v. Sita Ram Kesho). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v. Irvings Pty. Ltd.), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v. Public Transport Commission (N.S.W.)).”

25. The defendant states the following at [13] and [14] of its written submissions:

“13 The defendant will have to consider whether the proceedings are or are not capable of being the subject of a fair trial, or are or are not so unfairly and unjustifiably oppressive so as to constitute an abuse of process. Such evaluation is made in the context of the case being made out by the plaintiff. In a case involving the alleged liability for the historic criminal conduct of third parties, the strictures that require the plaintiff to clearly articulate the case it seeks to make out against the defendant are perhaps of greater importance.

14 The pleadings will be the rubric against which the merits of any future application for stay will be measured. Indeed, any failure of the plaintiff to clearly articulate its case is likely to disadvantage him in defending such an application for a permanent stay.”

26. I accept that there is a difference between material facts and particulars, and the authorities referred to make that distinction, and that the Statement of Claim must contain statements of material facts.

27. The defendant asserts that there are in fact no material facts pleaded, but simply particulars raised that are not related to the breach, but are expressed more in a fashion of precautions, and that had those been taken, the plaintiff would not have been assaulted.

28. The plaintiff submits, and I accept, that they have attempted to meet the defendant’s complaints with regard to the manner in which the case has been pleaded. The UASOC contains material facts, complies with the relevant rules, complies with the test in Dare, and complies with the helpful list of guidelines provided by Garling J in PWJ1.

29. I am of the view that the UASOC attached to the affidavit of John McManis should be allowed, and the defendant’s Notice of Motion ought be dismissed with costs being costs in the cause.

ORDERS

1. The defendant’s Notice of Motion filed 17 September 2024 is dismissed.
2. Cost of that Motion to be costs in the cause.
3. The defendant’s Motion filed 3 December 2024 is dismissed with no order as to costs.
4. I make an order in accordance with par 1 of the plaintiff’s Notice of Motion filed 7 March 2025.
5. Costs of that Motion be costs in the cause.

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