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Catchwords: CIVIL PROCEDURE – commencement of proceedings – leave to commence action under the Felons (Civil Proceedings) Act 1981 (NSW) – proposed proceedings for historical child sexual abuse – no question of principle

Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5, 7
Limitation Act 1969 (NSW), s 6A

Cases Cited: AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2; 100 ALJR 170
Bird v DP (a pseudonym) (2024) 283 CLR 45; [2024] HCA 41
Jol v State of New South Wales (1998) 45 NSWLR 283
TS v The State of New South Wales [2021] NSWSC 1649

Category: Procedural rulings

Parties: Raymond Mendez (Plaintiff/Applicant)
Trustees of the Roman Catholic Church for the Diocese of Parramatta (Defendant/Respondent)

Representation: Counsel:
CP O’Neill (Plaintiff/Applicant)
J Waugh (Solicitor) (Defendant/Respondent)
Solicitors:
Don Cameron & Associates (Plaintiff/Applicant)
Makinson d’Apice (Defendant/Respondent)

File Number(s): 2026/00126272

JUDGMENT ex Tempore (revised)

1. By Notice of Motion filed on 25 May 2026, the Plaintiff in these proceedings, Raymond Mendez, seeks an order that he be granted leave nunc pro tunc to commence proceedings against the Trustees of the Roman Catholic Church for the Diocese of Parramatta pursuant to the Felons (Civil Proceedings) Act 1981 (NSW) (the Act). Mr Mendez is presently incarcerated after being convicted of supplying a large commercial quantity of a prohibited drug under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). The Defendant, to which I granted leave to appear pursuant to s 7 of the Act, neither opposes nor consents to the application.

2. In support of the application, Mr O’Neill of Counsel, who appeared for the Plaintiff, read an affidavit of Mr Tobias Julian Tancred, the solicitor acting for Mr Mendez, sworn on 25 May 2026. Although an earlier affidavit of Mr Tancred, sworn on 18 May 2026, was included in the court file, that affidavit was not read.

Legal principles

3. The key sections of the Act are ss 4 and 5. Section 4 provides:

4 Leave to sue required for persons convicted of serious indictable offences

A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

4. The grant of leave is regulated by s 5 which provides:

5 Grant of leave

A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.

5. The applicable principles which inform my deliberation were considered by Wilson J in TS v The State of New South Wales [2021] NSWSC 1649 (TS). At [11]–[12], her Honour noted as follows:

“[11] Thus, there are two statutory pre-requisites to a grant of leave: prima facie there is a ground for the proceedings; and the proceedings are not an abuse of process. Those two criteria present a relatively low threshold: SW v State of New South Wales [2010] NSWSC 966. See also Mr D v Ms P [2020] NSWCA 174.

[12] A ground which is, on its face, arguable and thus not entirely hopeless, should satisfy both, since an arguable claim is not ordinarily an abuse of process. The test was considered in Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17], where Allsop ACJ and Basten JA said:

‘Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading.[…] As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not “hopeless” or “unarguable”. Different expressions used from time-to-time do not indicate any difference in the standard to be applied.’”

The claim

6. Mr Mendez commenced these proceedings when he filed a Statement of Claim on 27 March 2026, though he now relies upon an Amended Statement of Claim (the ASOC) filed on 24 April 2026. Mr Mendez seeks damages for sexual abuse which he alleges was inflicted on him while attending Holy Spirit Primary School in St Clair. Mr Mendez alleges that he was abused on at least five occasions by a priest at the school, the first occasion occurring when Mr Mendez was approximately eight years of age.

7. Although the proceedings were commenced without leave, that is an irregularity, not a nullity. Leave may be granted nunc pro tunc if the preconditions to making an order under s 4 of the Act are established: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290 (Sheller JA, Beazley and Sheppard AJA agreeing). Further, this claim, which seeks damages for historical sexual abuse, is not subject to a limitation period: Limitation Act 1969 (NSW) s 6A(1).

8. The ASOC in these proceedings relies upon the same factual allegations as those in prior proceedings commenced on 24 July 2023 (the 2023 Proceedings). The 2023 Proceedings, which had been set down for a hearing to commence on 27 October 2025, were discontinued on 24 September 2025. That discontinuance was prompted by concerns over Mr Mendez’s prospects of success following Bird v DP (a pseudonym) (2024) 283 CLR 45; [2024] HCA 41.

9. These proceedings were commenced following AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2; 100 ALJR 170. That decision has likely also led to the primary difference between the pleadings in this matter as opposed to those in the 2023 Proceedings.

10. The evidence in Mr Tancred’s 25 May 2026 affidavit is extremely succinct. Indeed, it is entirely contained in paragraph 2, which states:

“I am instructed by the Plaintiff that when he was a student at the Holy Spirit Primary School, he was sexually assaulted by the Priest of Holy Spirit Parish.”

11. That would have been a relatively slender basis for the Court, even on the low threshold imposed by the Act, to be satisfied that a grant of leave was appropriate. However, this morning, Mr O’Neill handed up a copy of a medico-legal report of Dr Jeff Bertucen, a consultant psychiatrist, dated 24 October 2022. Dr Bertucen undertook an audiovisual consultation with Mr Mendez on 21 October 2022, prior to Mr Mendez’s incarceration.

12. That report provides background, including Mr Mendez’s birth in the Philippines and his enrolment in Holy Spirit Primary School at the age of seven. It records his assertion that a priest, Father Rooney, sexually abused Mr Mendez from year 3. Those are the same allegations made in these proceedings.

13. It also details further allegations of sexual abuse, when Mr Mendez was a teenager of about 14 or 15 years old, at the hands of another priest, though those later allegations are not the subject of this claim.

14. Dr Bertucen concludes that Mr Mendez has suffered post-traumatic stress disorder (chronic type). In his opinion, there is a “compelling connection” between the alleged abuse and Mr Mendez’s later self-medication with substances.

15. The report contains greater evidence than that contained in the single paragraph of Mr Tancred’s affidavit. It is usual in applications of this kind for the Court to receive an expert report, often from a psychiatrist. When such applications are brought by summons, they are often also accompanied by a proposed statement of claim and affidavit evidence.

16. Here, the originating process has already been filed and the material furnished in Court has filled a considerable lacuna. As I have said, the criteria in s 5 of the Act present a relatively low threshold. The ASOC, evidence in Dr Bertucen’s medico-legal report and Mr O’Neill’s written submissions satisfy me that the proceedings are neither an abuse of process nor lacking a prima facie ground. They could not be described as hopeless or unarguable. Accordingly, I will grant the leave nunc pro tunc which Mr Mendez seeks.

17. The Notice of Motion sought an order that costs be the Plaintiff’s costs in the cause. Mr O’Neill, appropriately in my view, has abandoned that application for costs.

Orders

18. I make the following orders:

19. Pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), the Plaintiff is granted leave nunc pro tunc to commence his proceedings against the Defendant in the Supreme Court of New South Wales in the form of the Amended Statement of Claim filed on 24 April 2026.

20. No order as to costs.

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