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LEGAL IDENTITY OF DEFENDANTS (ORGANISATIONAL CHILD ABUSE) ACT 2018 - SECT 8

Associated trust to be proper defendant

    (1)     This section applies to a claim if—

        (a)     an NGO fails to nominate a proper defendant under section 7 within 120 days from the commencement of the proceeding against the NGO; or

        (b)     the proper defendant nominated by the NGO is not an entity capable of being sued or does not have sufficient assets or property to meet any judgment or order that may arise in or from the proceeding for the claim.

    (2)     The plaintiff in a proceeding for a claim to which this section applies may apply to the court for an order that the claim is to proceed against the trustees of an associated trust of an NGO on behalf of the NGO as a proper defendant.

    (3)     For the purposes of an application under subsection (2), the NGO bears the onus of identifying any associated trust.

    (4)     On an application under subsection (2), the court may make an order that the claim is to proceed against the trustees of an associated trust of the NGO on behalf of that NGO as a proper defendant.

    (5)     If the court makes an order under subsection (4), any trustee of the associated trust—

        (a)     is taken to be the defendant to the claim on behalf of the NGO for all purposes; and

        (b)     incurs any liability arising from the claim on behalf of the NGO as if the NGO had been incorporated and capable of being sued and found liable for child abuse.

    (6)     More than one trustee of an associated trust, and more than one associated trust, may be a proper defendant and liability may attach to more than one such trustee or trust.

    (7)     A court may make any further order under this section that the claim may proceed, or any judgment obtained on that claim be enforced, against the trustees of one or more other associated trusts of an NGO.

    (8)     A court may substantively determine a claim in a proceeding founded on or arising from child abuse for which there is a proper defendant under this section as if the NGO itself were incorporated and capable of being sued and found liable for child abuse in respect of the claim.

    (9)     The appointment of a proper defendant under this section does not relieve an NGO from any obligations it may have in relation to the conduct of the proceeding, including any interlocutory matters, and for that purpose, the NGO is taken to be incorporated and capable of being sued and found liable for child abuse in respect of the claim.



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