Supreme Court of Tasmania|2025-09-25

For the reasons expressed, leave is refused for the plaintiff to amend his statement of claim in accordance with the proposed amended statement of claim attached to his interlocutory application filed on 23 December 2024.
The plaintiff states in his fourth written submissions that the defendants should make discovery before he is required to plead further. The order made on 10 December 2024 that the defendants make discovery by 28 February 2025 was obviously premised on the assumption that any amendments to the statement of claim would have already been made in accordance with a timetable and the pleadings would be closed by that date. That has not come to pass, and the pleadings are not yet closed. The plaintiff has not made any formal application for discovery under r 386 or r 388. If the plaintiff intends to apply for an order for discovery before pleading further, that application should be made within a reasonably short time. I will hear the parties further about that.
If the defendants propose to take any steps to seek any further orders in relation to the extant statement of claim, any such application should be made promptly.
In his third written submissions the plaintiff submitted that if the Court is persuaded that the second defendant was 'incorrectly named', and the archdiocese ought to be named as the second defendant, then it has the power, under s49M(3) and r 184 to make certain orders as follows:

(ii) that the Archdiocese of Hobart be joined as Second Defendant;

(iii) that the Roman Catholic Church Trust Corporation of The Archdiocese of Hobart be appointed as the proper defendant for the Archdiocese of Hobart;

(iv) that the plaintiff has leave to amend his writ and statement of claim to reflect the above orders, and apart from those changes, otherwise in accordance with his proposed amended statement of claim; and

(v) that the second defendant be granted an opportunity to amend its defence if necessary.

In relation to the striking out of the second defendant, this leads back to the issue of the identity of the unincorporated organisation which the plaintiff alleges is primarily liable as the operator of the school at the time of the alleged abuse. This is obviously of fundamental importance and is a wider issue, not to be determined on the application for leave to amend. The plaintiff readily concedes that this is an issue which ought not be determined by way of the defendant opposing an application for leave to amend the statement of claim.
On the material before me, the defendants appear to be open to assisting the plaintiff to correctly identify that unincorporated organisation and to ensuring the appointment of a proper defendant so that if liability is proved against that unincorporated organisation, there is a proper defendant with assets to satisfy any liability that may be incurred. I would hope that the plaintiff may be open to bringing his proceeding on this basis.
In relation to the clarification that the archdiocese is the subject of the action and that a proper defendant should be appointed, despite what is set above, I will hear the parties as to whether an order should be made in conformity with the second defendant's admission in par 12(c) of its defence, appointing the second defendant as a proper defendant for the archdiocese.
I will hear the parties further as to the appropriate steps to be taken for the further case management of the action.

[2] The extant statement of claim pleaded that the second defendant was an unincorporated organisation. The plaintiff acknowledges that was in error.

[3] See pars 43-52 of the defendants' first written submissions dated 3 March 2025 and par 85 of the defendants' second written submissions dated 20 March 2025.

[4] The plaintiff acknowledges the consent order in his first written submissions dated 24 February at par 2.10.

[5] See par 2(d) of the statement of claim and par 7 of the first defendant's defence.

[6] Plaintiff's first written submissions par 1.3.

[7] Bird v DP [2024] HCA 41 at [249] Jagot J.

[8] Plaintiff's outline in reply to the defendants' submissions dated 5 March 2025.

[9] Plaintiff's second submissions dated 5 March 2025, par 9 and the affidavit of Lucille Debra Nel affirmed 3 March 2025.

[10] See the defendants' second written submissions dated 20 March 2025, pars 8 and 9.

[11] Letter from Shine Lawyers, Annexure LDN2 to the affidavit of Lucille Deborah Nel affirmed 3 March 2025.

[12] Affidavit of Lucille Nel affirmed 3 February 2025, Annexure LDN3.

[13] See the submissions made at paras 19-49 of the plaintiff's fourth written submissions dated 31 March 2025.

[14] Thompson v Goold & Co [1910] AC 409 at 420.

[15] Legal Services Board v Gillespie-Jones [2013] HCA 35; 249 CLR 493 at 509, at par [50]; cited in EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490 at 48

[17] Affidavit of Lucille Nel affirmed 3 March 2025, annexure LDN-4.

[18] NSW v Lepore [2003] HCA 4; (212) CLR 511.

Legislation Amendment (Organisational and Liability for Child Abuse) Act 2019

Identity of Defendants (Organisational Child Abuse) Act 2018

Court (General Civil Procedure) Rules 2015

Civil Procedure Rules 2005

Procedure Rules 2005

Court Civil Procedure Act 1932

TBH v Marist Regional College & Anor [2025] TASSC 47 (25 September 2025)

The defendants' first written submissions at par 47 also identified examples of facts "clearly not material to any action against the first defendant". I have dealt with the most significant issues raised by the defendants, below. However, many of the examples identified in par 47 appear in the extant statement of claim, not the proposed amended statement of claim. The Court is not dealing with any application to strike out any of the identified examples which appear in the extant statement of claim.
The parties agreed that the relevant principles to be applied on the question of whether or not to allow a party to amend a pleading were set out in the decision of Spaulding v Law Society of Tasmania [2004] TASSC 1 by Master Holt (as he then was), as follows:

(a) compliance with r 227 requires a pleading to be as brief as the nature of the case allows and to contain only a statement of the material facts on which the party relies;

(b) r 258 and r 259 provide the Court with discretion to strike out a pleading which may tend to prejudice or delay the fair trial of the proceeding, or which fails to disclose a reasonable cause of action;

(c) relevant to the discretion under r 427 to amend the pleading is the "[t]he function of pleadings is to state with sufficient clarity the case that must be met": Banque Commerciale (SA) (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286;

(d) when considering a defective pleading, the Court will take into account whether the defects are of substance and whether notwithstanding the deficiencies the fundamental function of pleadings is served: Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499; (1999) ATPR 41-691 at 42-828;

(e) if the facts alleged, even if proven, would not afford any chance of the Court granting relief, no cause of action will have been disclosed, and no purpose would be served in allowing the pleading;

(f) an amendment which is futile because it is obviously bad in law will not be allowed: Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 456; and

(g) if the facts alleged are set out in prolix, confusing or ambiguous terms, or that are in material respects mere conclusions drawn from unstated facts, the fair and efficient conduct of the action may be placed in jeopardy. Such pleadings are embarrassing and it should generally be expected that they will not be permitted to stand.

In relation to the plaintiff's claim against the first defendant, for the reasons that follow, I agree that the proposed amended statement of claim fails to articulate the allegations in respect of liability with sufficient clarity or particularity.
The first defendant is an unincorporated organisation, without legal personality and without the ability to sue or be sued in its own name. On this basis, the first defendant would have a complete defence to the plaintiff's claim: the 'Ellis defence', see Trustees of the Roman Catholic Archdiocese of Sydney v Ellis [2007] NSWCA 117; 63 ACSR 346 at [47]. However, the Act, Part 10C removes this barrier and provides a pathway to relief by process of appointment of an entity which is able to be sued in Tasmania ('a proper defendant') under the Act s 49N and which is then taken to be the defendant for all relevant purposes, including incurring any liability from the claim under the Act, s 49Q.
By consent order made on 10 December 2024, the second defendant (an incorporated organisation) was appointed as a proper defendant for the unincorporated first defendant. The plaintiff's proposed amended statement of claim was delivered on 13 December 2024, but it does not plead anything in relation to that appointment. The defendants' position is that the second defendant's role in the proceedings is as a proper defendant appointed for the unincorporated first defendant. The plaintiff's position is entirely different: he pleads that the first defendant is sued as the successor organisation to MRCI under the Act s 49E: see the extant statement of claim par 4(i).
The extant and proposed statements of claim at par 5, make clear that the only appointment of a proper defendant acknowledged by the plaintiff is (relevantly) the appointment of the second defendant as a proper defendant for the archdiocese. It is unclear why the plaintiff consented to the order that the second defendant be appointed as a proper defendant for the first defendant given that he does not acknowledge that appointment in his pleadings. Even though the proposed amended statement of claim the plaintiff does not expressly acknowledge that order, none of the parties can be unaware of its legal effect.[4]
The plaintiff sued an unincorporated organisation; and that organisation appointed a proper defendant. Yet the plaintiff asserts it sued the unincorporated organisation in its own right as a 'successor organisation' to MRCI, a deregistered organisation.

The parties referred to the following principles of statutory construction:
- The fundamental rule of interpretation is that a statute is to be expounded according to the intent of Parliament: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-162
- The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 196 CLR 355 at [69]-[71]
- The process of construction is to begin by:
  - examining the context of the provision that is being construed. Project Blue Sky at [78]; and
  - considering the text itself_: Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue_ [2009] HCA 41; (2009) 239 CLR 27 at [47].
- The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning: Project Blue Sky at [78]
- The meaning of the provision must be determined by reference to the language of the statute viewed as a whole: Project Blue Sky at [69], the Engineers case at 161.

TBH v Marist Regional College & Anor [2025] TASSC 47

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Judgment (23 paragraphs)

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Legislation Cited (11)

Cases Cited (10)

TBH v Marist Regional College & Anor [2025] TASSC 47 (25 September 2025)