MJH v Catholic Diocese of Maitland-Newcastle

Cases Cited: Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75
Ergashova v Aslan [2025] NSWCA 207
Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595
Stollznow v Calvert [1980] 2 NSWLR 749
Witten v Lombard Australia Ltd [1968] 2 NSWR 529

Category: Procedural rulings

Parties: MJH (Plaintiff)
Catholic Diocese of Maitland-Newcastle (Defendant)

Representation: Counsel:
No appearance (Plaintiff)
C Robertson (Defendant)
Solicitors:
In Person (Plaintiff)
Makinson & d’Apice (Defendant)

File Number(s): 2024/00338528

JUDGMENT – EX TEMPORE

1. Before the Court is a show cause hearing in relation to the matter of MJH v Catholic‑Diocese of Maitland‑Newcastle (2024/00338528).

2. The proceedings were commenced by a Statement of Claim filed on 12 September 2024 by the plaintiff alleging that whilst the plaintiff was a student at a school in the 1980s when he was in year 5 that he was sexually assaulted by a teacher. If established, the conduct alleged would amount to a battery at common law because it is asserted that it occurred when the plaintiff was in year 5 being about ten years of age, when he could not consent, as a matter of law, to the conduct. The plaintiff sues alleging vicarious liability in the defendant for the conduct of the teacher and for liability directly in the tort of negligence.

3. The Statement of Claim filed on 12 September 2024 has a number of anomalies including that the first plaintiff is described as “MJH, trading as, care of Shine Lawyers”, and, secondly, that it is said that the proceedings are brought against the defendant pursuant to the Crown Proceedings Act 1998 (NSW) which, of course, does not make legal sense and would be more suitable if proceedings were brought against the State of New South Wales.

4. A Statement of Particulars was filed on 16 September 2024 on behalf of the plaintiff alleging the sexual and physical assaults referred to and asserting that the plaintiff suffered, as a result, psychiatric injury, post‑traumatic stress disorder, substance misuse disorder, conduct disorder and anti‑social personality disorder, with a large number of continuing disabilities.

5. By a Defence filed on 15 April 2025, the defendant, in substance, denies the allegations both as to the assaults and that it has liability either directly or vicariously to the plaintiff. The matter was conducted on behalf of the plaintiff by Shine Lawyers until 29 October 2025.

6. On 1 May 2025, the Judicial Registrar listed the matter for final hearing on 19 November 2025 with an estimate of four days.

7. There had been an order made on that occasion for the plaintiff to serve witness statements by 13 June 2025. The matter came again before the Judicial Registrar on 29 October 2025 when the Judicial Registrar made a number of orders as follows:

“(1) Leave is granted to the plaintiff’s solicitor to cease to act by filing and serving a Notice of Ceasing to Act by 5/11/2025.

(2) Plaintiff’s solicitor to provide the plaintiff with a copy of today’s orders by 5/11/25.

(3) List Judge Directions on 11/11/2025 at 9:30 AM.

(4) If no appearance for the plaintiff on 11/11/2025 the proceedings may be dismissed under UCPR 12.7 for lack of despatch and/or UCPR 13.6 for inactivity and non attendance.

(5) Costs reserved.”

8. Accordingly:

9. The plaintiff’s solicitors, Shine Lawyers, were granted leave to cease to act for the plaintiff and they were directed to file a Notice of Ceasing to Act by 5 November 2025. That document was filed and is on the Court file.

10. The plaintiff’s solicitor was to provide the plaintiff with a copy of the orders made by 5 November 2025. Exhibit 1 on the application was an email from Ms Saunders, who was acting for the plaintiff, to the solicitor acting for the defendant, sent on 5 November 2025 at 11.02am confirming that the plaintiff’s solicitors had complied with the second order made by the Judicial Registrar to provide the plaintiff with a copy of the orders by 5 November 2025.

11. The matter was listed for directions before the List Judge today at 9.30am.

12. The Judicial Registrar, in order 4, indicated that if no appearance was made by the plaintiff today (the matter was called and there was no appearance by or on behalf of the plaintiff), the proceedings may be dismissed under the Uniform Civil Procedure Rules 2005 (NSW) including for lack of due dispatch.

13. The defendant makes an application for the proceedings to be dismissed pursuant to the Uniform Civil Procedure Rules Part 12.7 for lack of due dispatch. In support of the application, the defendant:

(a) Read the affidavits of Janet Abboud dated 20 and 27 October 2025; and (b) Tendered the affidavit of Jessica Louise Saunders dated 29 October 2025.

11. The affidavit of Ms Saunders, being Exhibit 2 on the application, annexes substantial information, emails and text messages which, in substance, show various failures by the plaintiff and also texts from the plaintiff, in substance, indicating that he did not wish to move forward with the matter as it was “too hard on my mental health”. See the text sent on 16 October 2025. That is re‑enforced by a file note of Ms Saunders, the plaintiff’s former solicitor, recording a telephone conversation with the plaintiff’s sister, JW, indicating that she was calling on behalf of the plaintiff “who no longer wished to proceed with the claim”. It continues: “She has spoken with him today and it is impacting his mental health too much. He doesn’t want to continue with it.”

12. To Ms Saunders’ credit, she continued to seek confirmatory instructions from the plaintiff and failed to receive any indication contrary to earlier indications from the plaintiff’s solicitors and his text message on 16 October 2025.

13. The Court has been assisted in considering the matter by written submissions from Ms Robertson of counsel, who appears for the defendant. In paragraph 16, it is submitted that the proceedings should be dismissed because the plaintiff has not prosecuted the proceedings with due dispatch. A number of failures are referred to including:

(a) The service of an amended pleading, as was foreshadowed on behalf of the plaintiff, dealing with various matters including the anomalies I have previously mentioned in the existing Statement of Claim; (b) The service of the plaintiff’s witness statement. As indicated above, on 1 May 2025, the Judicial Registrar ordered the plaintiff to serve his witness statements by 13 June 2025. Having regard to the facts in the matter and the desirability in alleged institutional abuse cases for the plaintiff’s evidence, where possible, to be reduced to writing in chief, I interpret that order to include a statement from the plaintiff; (c) The provision of further and better particulars which have been requested on behalf of the defendant. See Annexure A to the affidavit of Ms Saunders dated 29 October 2025, which is Exhibit 2 on the application; and (d) Rescheduling of the parties’ expert conclave and a letter of instructions to the expert which was cancelled by Ms Saunders due to the plaintiff indicating that he did not wish to proceed and provide instructions. See, in particular, paragraph 27 of Ms Saunders’ affidavit.

14. There are, therefore, a number of steps which have not been taken by the plaintiff or on his behalf.

15. As I stated above, the Judicial Registrar ordered a final hearing to be listed, commencing on 19 November 2025, for four days. It is, therefore, important if the matter is to proceed that steps are taken in a timely fashion to protect the interests of all parties, consistent with s 56 of the Civil Procedure Act 2005 (NSW) and also ss 57 to 59 and the principles stated therein.

16. Part 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) provides as follows:

**“**12.7 Dismissal of proceedings etc for want of due despatch

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

Note.

See rule 42.20 as to the effect of dismissal with respect to costs.”

17. I refer to Ms Robertson’s submissions in which she sets out a number of cases relating to that Part. There have also been recent decisions in relation to Part 12.7.

18. In Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75, Kirk JA considered Part 12.7 in the context of an appeal and referred, with approval, to the comments of Walsh JA in Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534 relating to the need for a balance to be struck between the plaintiff and the defendant and the requirement for a court to decide whether or not, on balance, justice demands that the action should be dismissed. Walsh JA said that everything must depend upon all the circumstances disclosed in each case and it is, of course, proper to consider whether any explanation or excuse has been offered for the delay and whether that is credible or satisfactory if one is offered, and issues of prejudice. In paragraph 56, Kirk JA refers to various cases which have referred to the comments of Walsh JA with approval, in particular, the classic case of Stollznow v Calver**t [1980] 2 NSWLR 749 at [751] and the decision of the Court of Appeal in Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595 at [40]. Kirk JA noted that “the discretion should not be undertaken by reference to fixed formulae which limit the discretion to do what is just between the parties”. His Honour indicated that “a factor potentially relevant is the claimant’s prospects of success” and the matters identified at ss 56 to 60 of the Civil Procedure Act 2005 (NSW).

19. I note here that on the material before me, I am unable to determine the plaintiff’s prospects of success, the allegations being essentially denied. Of course, I take into account the factors in ss 56 to 60 of the Civil Procedure Act.

20. Recently, the Court of Appeal in Ergashova v Aslan [2025] NSWCA 207 considered Part 12.7 further: see paragraphs 43 to 45 of the joint decision of Mitchelmore JA and Price AJA. Their Honours indicated that the discretion to dismiss proceedings under Part 12.7 of the UCPR was broad and should not be confined by rigid formulae, and quoted the judgment of Walsh JA in Witten, to which I have referred with approval. Macfarlan JA, in Ghosh, was referred to where his Honour observed that the relevant delay in this context is not confined to that which is caused by lack of activity but it extends to a delay arising out of a want of constructive activity.

21. The decision I need to make is a discretionary decision, as was confirmed in paragraph 45 of their Honours’ judgment but, of course, it is a discretion which much be exercised judicially.

22. The factors which, in my view, need to be taken into account in exercising the discretion are as follows:

(a) The matter commenced last year and serious allegations are made by the plaintiff against the defendant; (b) On 1 May 2025, the Judicial Registrar ordered the final hearing to commence on 19 November 2025 which is only a short time away; (c) Serious allegations, in particular, are made in relation to a former teacher at the relevant school; (d) The material before me indicates that the plaintiff does not wish to proceed with the matter due to the effect of it on him. Thus there is a clear indication, which is not common in these types of matters, that the plaintiff does not wish to take the matter forward; (e) There have been a number of breaches which I have referred to above in relation to orders made by the Court, thus leaving a pleading with defects, the plaintiff not having served his witness statement by 13 June 2025 or at any time, on the evidence, and particulars requested by the defendant which appeared to be, overall, reasonable, not being answered.

23. The Court takes all of those matters into account and all the circumstances of the case. In particular, the Court takes into account the limited judicial resources available and the hearing coming up and the need for the defendant to have particulars both in answer to the letter for particulars and in the plaintiff’s statement in order to understand in better terms the allegations made against the defendant.

24. As stated above, the plaintiff’s particulars, filed soon after the Statement of Claim was filed, allege serious mental health conditions with the plaintiff. It may be that the plaintiff, as seems to be confirmed by his texts and other instructions through his sister, simply cannot face the hearing. In saying that, I do not make any conclusions in relation to whether the facts asserted by the plaintiff in the Statement of Claim have merit. Sometimes people simply cannot face the stress of hearings, having regard to factors in their life and medical conditions which may or may not arise from allegations they make.

25. Taking into account all of the matters I have referred to, in my view, the proceedings should be dismissed for want of due dispatch. However, in my view, the plaintiff should have the opportunity to make an application to set aside such an order if made reasonably promptly.

26. For the above reasons, the Court orders as follows:

27. Pursuant to Part 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed for want of due dispatch.

28. The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.

29. The plaintiff has liberty to apply within 21 days’ to set aside orders 1 and 2.

30. The hearing commencing 19 November 2025 is vacated.

31. The defendant’s solicitor is to request the plaintiff’s former solicitor by 5pm on 12 November 2025 to inform the plaintiff of the above orders.

32. The exhibits are to be retained with the file.

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