Australia, Aug. 11 -- New South Wales Land and Environment Court issued text of the following judgement on July 11:

1. BELL CJ: This is an application for leave to appeal from an interlocutory judgment of Faulkner J (the primary judge) in which his Honour declined to order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that certain questions be decided separately from and before any trial in the proceedings: LSR3 v New South Wales [2024] NSWSC 1570 (PJ or primary judgment).

2. In the underlying proceedings, commenced on 28 August 2023 (the 2023 proceedings), LSR3, a former ward of the State of New South Wales (the State), sought compensation for historic child sexual abuse alleged to have occurred between 1969 and 1976, and sued multiple defendants including the State of New South Wales (the State) and the South Eastern Sydney Local Health District of Caringbah (SESLHD).

3. The nub of the issue that supplies the context for the current application arises from the fact that LSR3 had twice previously sued the State and on one occasion had sued SESLHD in respect of (most of) the same allegations as were raised in the 2023 proceedings. Those past claims were twice settled (first in 2003 and again in 2017) on terms which included the payment of money by the State (the 2003 Settlement Agreement and the 2017 Settlement Agreement). A consent judgment was entered as part of the 2003 Settlement Agreement. The extent of the State's contribution to the 2017 Settlement Agreement was not entirely clear however, as the primary judge noted at PJ [8], it "does not matter for current purposes". LSR3 nonetheless claimed to be entitled to bring the 2023 proceedings by virtue of the regime set out in Part 1C of the Civil Liability Act 2002 (NSW) (CLA) which was, in the words of the primary judge, the third measure in a trilogy of related measures enacted by the New South Wales Parliament following the Royal Commission into Institutional Responses to Child Sexual Abuse.

4. The first measure was the retrospective abolition of the limitation period for actions for damages relating to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person, effected by the 2016 insertion of s 6A(1) into the Limitation Act 1969 (NSW) (the Limitation Act). The second measure was the abolition of the so-called Ellis defence to child abuse actions which might have arisen where the defendant was an unincorporated association: Trustees of the Roman Catholic Church for the Archdioceses of Sydney v Ellis [2007] NSWCA 117. This reform was effected by the commencement of Division 4 of Part 1B of the CLA on 1 January 2019 by way of schedule 1[4] of the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197f24a39269a33ce24cc774)

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