Emil Ford Lawyers

Education Law Articles - Foundations and Trusts

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Who is being sued? Church, School or Property Trust?

Former students of a Sydney catholic school allege that they were sexually assaulted by a teacher in 1974. The students attempted to sue:

  •  the teacher concerned;
  • the Trustees of the Roman Catholic Church for the Archdiocese of Sydney; and
  • several members of the Patrician Brothers’ religious order.

The students allege that the Archdiocese were liable on the basis that they “operated, managed and controlled the School”; were responsible for the supervision of those who taught at the school; and had breached their non-delegable duty of care to the students to exercise reasonable care for their safety.

The Chancellor of the Archdiocese of Sydney stated:

"The Archdiocese Trustees was established as a body corporate by the Roman Catholic Church Property Act 1936 (NSW) to hold title to land located within the geographical bounds of the Archdiocese of Sydney for the benefit of the Archdiocese of Sydney.”

The Court undertook a detailed analysis of the Trust Property Act and noted that there was “simply no evidence” that the Archdiocese Trustees were involved in “such pastoral activities” (e.g. operating, managing and controlling the school including responsibilities for those who taught at the school) at the time of the alleged assaults. For these reasons, the Court concluded that the proceedings against the Archdiocese Trustees was doomed to fail and should be dismissed.

The Court of Appeal also held than an unincorporated association such as the Archdiocese of Sydney cannot be sued in its own name at common law as it does not exist as a juridical entity*. However, persons or groups within the body can be held liable in tort or contract as principals provided they assumed some active or managerial role in which they exercised clear control at the relevant time.

The lesson here for schools is – know and understand your legal structure! No matter how valid the complaint against you – the claim will not be successful if brought against the wrong people.

* Entity other than a natural person (human being) created by law and recognised as a legal entity having distinct identity, legal personality, and duties and rights.

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