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[2026] NSWSC 812
Supreme Court of NSW
2026-06-29
Cavanagh J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Rankin v Trustees of the Christian Brothers [2026] NSWSC 812
Hearing dates: 29 June 2026
Date of orders: 29 June 2026
Decision date: 29 June 2026
Jurisdiction: Common Law
Before: Cavanagh J
Decision: (1) Pursuant to r 18.2 of the Uniform Civil Procedure Rules 2005 (NSW), the time for service of the notice of motion be abridged.
(2) Grant leave to file in Court on the undertaking of the plaintiff to pay the filing fee, the notice of motion and supporting affidavit of Jason Parkinson dated 29 June 2026.
(3) By consent, grant leave to the plaintiff to discontinue proceedings against the first defendant and order that the proceedings are hereby discontinued as against first defendant (on the basis that the first defendant is no longer a proper defendant pursuant to s 6M of the Civil Liability Act 2002 (NSW)).
(4) Grant the plaintiff leave to file and serve an amended statement of claim by 1 July 2026.
(5) If able to, on or before 7 July 2026, the Congregation of the Christian Brothers is to nominate and file a notice of appointment of suitable proper defendant under s 6L of the Civil Liability Act 2002 (NSW), such defendant to be an entity which satisfies s 6M of the Civil Liability Act 2002 (NSW).
(6) If the Congregation of the Christian Brothers does not nominate a suitable defendant, the plaintiff has liberty to apply on 3 days’ notice for the appointment of a proper defendant under s 6N of the Civil Liability Act 2002 (NSW).
(7) The proceedings be listed for directions in the Institutional Abuse Matters List on 17 July 2026.
(8) Costs to be costs in the cause.
Catchwords: CIVIL PROCEDURE — application to amend pleadings — where first defendant has filed application to stay all proceedings against it in New South Wales pending scheme of arrangement — first defendant previously nominated as proper defendant within the meaning of s 6M of the Civil Liability Act 2002 (NSW) — plaintiff seeks leave of the Court to amend pleading to discontinue proceedings against first defendant but continue proceedings against second defendant — where plaintiff seeks further order that second defendant be required to nominate alternative proper defendant
Legislation Cited: Civil Liability Act 2002 (NSW), ss 6M, 6N
Category: Procedural rulings
Parties: Murray Rankin (Plaintiff)
Trustees of the Christian Brothers (First Defendant)
Congregation of the Christian Brothers (Second Defendant)
Representation: Counsel:
D Campbell SC with J Masur (Plaintiff)
M Slattery (Solicitor) (Defendants)
Solicitors:
Porters Lawyers (Plaintiff)
Carroll & O’Dea (Defendants)
File Number(s): 2024/216819
HIS HONOUR: This matter comes before me today on an urgent basis as Duty Judge. The plaintiff seeks leave to file in Court a notice of motion. Mr Campbell SC appears with Mr Masur of counsel for the plaintiff. Mr Slattery, solicitor, appears for the defendant.
The plaintiff relies on an affidavit of Jason Parkinson dated 29 June 2026. Mr Parkinson is a solicitor for the plaintiff.
The plaintiff seeks damages for historical sexual assault.
The reason for the urgent application is that, according to the plaintiff and as not disputed by the defendants, the first defendant, being the Trustees of the Christian Brothers (“the Trustees”), has filed an application in the Equity Division of this Court proposing that there be a scheme of arrangement in respect of its affairs and seeks orders that all proceedings against it be stayed until a date on which the scheme becomes effective or otherwise until further order of the Court.
The plaintiff seeks to discontinue the proceedings against the first defendant so as to avoid the effects of that stay. The plaintiff says that the first defendant was nominated as a proper defendant within the meaning of s 6M of the Civil Liability Act 2002 (NSW) but, as it is now seeking to enter into a scheme of arrangement, it would no longer be a proper defendant. That is, at least on the information available to the plaintiff, the first defendant is at least asserting that it does not have sufficient assets in this State to satisfy any judgment that might be entered against it.
The plaintiff, thus, seeks urgent orders both permitting it to discontinue the proceedings against the first defendant and requiring the second defendant, being the Congregation of the Christian Brothers (“the Congregation”), to nominate another suitable proper defendant as that term is understood under s 6M of the Civil Liability Act.
After some debate, Mr Slattery has indicated, on behalf of the first defendant, that the first defendant does not oppose the orders sought and is endeavouring to work with the plaintiff to solve the problem. However, Mr Slattery indicated that he could not consent to an order that the second defendant nominate and file a notice of the appointment of a suitable proper defendant by 7 July 2026 in circumstances where his instructions did not include the suggestion that there would be an alternative defendant. Having said that, he did not object to orders about the nomination of a replacement defendant if the orders were qualified with the words “if able to”.
The effect of what I am being asked to do is to remove the first defendant, being the Trustees, from the proceedings and require that the second defendant, being the Congregation, nominate a replacement proper defendant. Whether the second defendant can or will do that is not the subject of evidence in these proceedings, although Mr Campbell points out that in similar proceedings in the Supreme Court of Victoria, the Trustees suggested that there would be a replacement defendant.
In the circumstances, I am satisfied that the orders sought by the plaintiff, as modified in consultation with the first defendant and the second defendant, for whom Mr Slattery also appears, should be made.
Whether the Congregation will appoint a replacement defendant is not known, but I will also make an order that the plaintiff can approach the Court to make an order for the appointment of a proper defendant under s 6N of the Civil Liability Act if necessary. I will also place the matter in the Institutional Abuse List for further case management.
Therefore, I make the following orders:
Pursuant to r 18.2 of the Uniform Civil Procedure Rules 2005 (NSW), the time for service of the notice of motion be abridged.
Grant leave to file in Court on the undertaking of the plaintiff to pay the filing fee, the notice of motion and supporting affidavit of Jason Parkinson dated 29 June 2026.
By consent, grant leave to the plaintiff to discontinue proceedings against the first defendant and order that the proceedings are hereby discontinued as against the first defendant (on the basis that the first defendant is no longer a proper defendant pursuant to s 6M of the Civil Liability Act 2002 (NSW)).
Grant the plaintiff leave to file and serve an amended statement of claim by 1 July 2026.
If able to, on or before 7 July 2026, the Congregation of the Christian Brothers is to nominate and file a notice of appointment of suitable proper defendant under s 6L of the Civil Liability Act 2002 (NSW), such defendant to be an entity which satisfies s 6M of the Civil Liability Act 2002 (NSW).
If the Congregation of the Christian Brothers does not nominate a suitable defendant, the plaintiff has liberty to apply on 3 days’ notice for the appointment of a proper defendant under s 6N of the Civil Liability Act 2002 (NSW).
The proceedings be listed for directions in the Institutional Abuse Matters List on 17 July 2026.
Costs to be costs in the cause.
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Rankin
Trustees of the Christian Brothers