In the recent matter of TBH v Marist Regional College & Anor [2025] TASSC 47, the plaintiff, TBH (a pseudonym), commenced proceedings on 21 May 2024 against the first defendant, the Marist Regional College, and the second defendant, the Roman Catholic Church Trust Corporation of the Archdiocese of Hobart, in relation to historical sexual abuse.  

The plaintiff alleges that throughout 1976 and 1977 when he was a student at Marist Regional College, he was sexually assaulted by Paul Goldsmith, who worked as an athletics coach. Paul Goldsmith is not a party to this action because he is deceased. There is a dispute about whether Paul Goldsmith was employed at the college. The plaintiff brought proceedings against two defendants. The first defendant is Marist Regional College, an unincorporated organisation which the plaintiff says he has sued as the ‘successor organisation’ to the incorporated organisation being the organisation which actually operated the school at the relevant time: Marist Regional College Incorporated. The second defendant is the Roman Catholic Church Trust Corporation of the Archdiocese of Hobart, a body corporate established under the Roman Catholic Church Property Act 1932 (Tas), which the plaintiff says he has sued as the proper defendant for the Archdiocese of Hobart. The basis upon which each of the defendants is sued, both in the extant statement of claim and the proposed amended statement of claim, is contested. The defendants’ position is that the archdiocese has not been sued in the proceedings. There is also an issue whether the former Archbishop of Hobart, the late Guilford Clyde Young, has been sued in the proceedings and if so, upon what basis. 

The plaintiff pleads that each of the first defendant, Archbishop Young and the archdiocese each owed duties of care to the plaintiff because they each had a degree of control over the school at which he was a pupil and at which Paul Goldsmith was employed. The plaintiff pleads that Paul Goldsmith’s employment or appointment at Marist Regional College was a foreseeable risk of harm to the plaintiff, in the form of sexual abuse because the Archbishop knew that Paul Goldsmith was alleged to have sexually abused school-aged boys. The plaintiff seeks to attribute Archbishop Young’s knowledge to the archdiocese because of his position as its ‘head’. The plaintiff says the archdiocese effectively operated Marist Regional College through an incorporated organisation named Marist Regional College Incorporated (MRCI). The proposed amended statement of claim pleads that this risk of harm to the plaintiff was one in respect of which a reasonable person would have taken precautions, but each of the first defendant (for MRCI), the archdiocese and the Archbishop failed to do so, which caused harm to the plaintiff.   

The plaintiff outlined that the proposed amended statement of claim is intended to clarify his claim against MRCI, Archbishop Young, the archdiocese and the second defendant. The defendants oppose the amendments, submitting as follows:

MRCI is deregistered and cannot be sued at law. Archbishop Young is dead and cannot be sued at law. The Archdiocese of Hobart is an unincorporated organisation which cannot be sued at law. 

Even now the claim is confusing, contains unnecessary allegations and wrongly incorporates alternative allegations of duty against multiple persons (none of whom are parties to the proceeding and none of whom can be legally sued).  

The defendants submit that the proposed amended statement of claim does not clearly articulate how liability is sheeted home to the first defendant; and to the extent that it is alleged that ‘the College’ is somehow separate to the first defendant, this amounts to an unnecessary and confusing plea. Secondly, the defendants submit that the proceedings against the second defendant were ‘improperly issued’. Thirdly, the defendants submit that there are multiple defects in the plaintiff’s proposed amended statement of claim. The defendants submit the defects they identify would, if allowed, attract the operation of r230 (inconsistent pleading), r258 (prejudice or delay the fair trial) and r259 (no reasonable cause of action disclosed) justifying striking out those paragraphs.

In its consideration, the Court provided as follows:

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 [at 14].  

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 [at 15].  

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… [at 16].  

In my view, the plaintiff fails to make clear enough which entity knew what particular information relevant to the risk of harm to the plaintiff (Goldsmith’s engagement at the school) and which entity failed in which respect to take reasonable care to avoid harm to him [at 43].  

Ultimately, on 25 September 2025, the Supreme Court of Tasmania held at [94] to [101] as follows:

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: 

  1. that the name of the second defendant be struck out; 
  2. that the Archdiocese of Hobart be joined as Second Defendant;
  3. that the Roman Catholic Church Trust Corporation of The Archdiocese of Hobart be appointed as the proper defendant for the Archdiocese of Hobart; 
  4. 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 
  5. 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. 

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