DPC v Trustees of the Marist Brothers & Anor [2026] NSWSC 730 (Link to Caselaw).
With thanks to Courtney Laws for her assistance.
These proceedings arise from claims by the plaintiff that he was sexually and physically abused whilst a student at a Marist High School. The abuse is alleged to have occurred between 1980-1981. The alleged perpetrator of the abuse was a teacher at the school, Mr Graeme Stuart Hawkins.
The judgment concerns an application by the second defendant, the Trustees of the Roman Catholic Church for the Diocese of Parramatta (the Diocese), to withdraw an admission it had made in its Defence that Hawkins was employed by it. The application was resisted by the plaintiff and by the first defendant (the Marist Brothers).
Counsel for the Marist Brothers submitted that leave should be refused. That is because the admission is not, in fact, wrong and there is no compelling or adequate explanation as to why the admission should be withdrawn. Counsel for the plaintiff also made submissions opposing the grant of leave to withdraw the admission. He submitted that the admission previously made had not been explained, nor has the basis for the withdrawal of the admission. He noted that there was no suggestion that the admission was a product of inattention or carelessness.
The Court at [40] did not regard the explanation given in an affidavit by (a solicitor for the Diocese) as to why the admission was made, or why it should be withdrawn, as satisfactory. “Plainly, as solicitor for the Diocese, any admission made in a pleading is made on instructions. Saying this is why the admission was originally made does not add anything by way of explanation.”
The Court concluded at [60]:
I consider that the dictates of proper case management and the just, quick, and cheap resolution of this proceeding, in the circumstances described above, support a refusal of leave to withdraw the admission. As I have said, this outcome means that if the Diocese maintains its position in (another matter), these two proceedings will not run together. However, the proper application of the relevant principles on withdrawal of admissions, the whole of the circumstances of the case and the other proceedings I have referred to, and the dictates of the relevant provisions of the Civil Procedure Act, lead me to conclude that leave to withdraw the admission must be refused.
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