Nominating a Proper Defendant in the Supreme Court of Victoria
Published on May 22, 2020 by and Connor Molloy
The Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (‘LIOD Act’) was enacted to provide for victims of child abuse to bring a claim against an organisational defendant specifically in relation to unincorporated Non-Government Organisations (‘NGOs’) who implement trusts to conduct their activities.[1] Section 7 of the LIOD Act allows an NGO to nominate a proper defendant to act on their behalf and to incur any liability arising out of the claim on behalf of the NGO.[2]
In practice this has resulted in a number of different approaches to nominating a proper defendant, both before and after proceedings are commenced.
The recent Supreme Court (Chapter I Legal Identity of Defendants (Organisational Child Abuse) Amendment) Rules 2020 (VIC) sets out a formal process for the nomination of a proper defendant pursuant to Section 7 of the LIOD Act. In particular, the amendment sets out that once proceedings have been commenced, a proper defendant must be nominated by way of Form 85A.[3]
This form lists the proper defendant and notes that they are capable of “…acting as a proper defendant to the claim on behalf of the NGO”. Form 85A is required to be filed with the Prothonotary and within seven days of filing, served upon:
- Each party to the proceedings; and
- The party nominated to act as proper defendant.
Where a proper defendant has been nominated and Form 85A has been filed and served, the Plaintiff is required to do the following within seven days (unless the Court grants otherwise):
- File an amended originating process and statement of claim which identifies the proper defendant to the claim acting on behalf of the NGO; and
- Serve each party with a copy of the amended originating process and statement of claim.
This amendment formalises the process for nominating an entity under the LIOD Act, however it does not interfere or materially change the process prior to the commencement of proceedings. Where a Plaintiff or their representatives indicate an intention to commence proceedings, the proper defendant should be nominated prior to proceedings being commenced to avoid the need for Form 85A, any amended pleadings and delays to the progression of the matter.
