Abuse Law – Case Law Update – Secondary victims – The Catholic Archdiocese of Melbourne v RWQ & Anor [2023] VSCA 197

Of note, the Victorian Court of Appeal made the following observations:  

Turning to the critical provision, s 4, not only is there no reference to ‘child abuse plaintiffs,’ there is no reference to any particular individual or category of individuals at all. Although s 4(2) makes reference to a ‘plaintiff’ it also does not purport to limit such persons to ‘child abuse plaintiffs’, ‘primary victims’, or ‘survivors’. The sole limitation found in s 4(2)(a) is that found in s 4(1), ie, that the claim be ‘founded on or arising from child abuse.’ The applicant acknowledged that s 4 says nothing about whose claims are encompassed by the Act. This is also consistent with the use of the indefinite article in s 4(1). Thus, s 4(1) refers simply to ‘any’ proceeding for ‘a’ claim, provided only that the claim is ‘founded on or arising from child abuse.’ [60].  

If the applicant is correct, the Act would only have application to primary victims. However, given that any such claims would be clearly ‘founded on’ child abuse, this would leave the words ‘arising from’ with no work to do. As indicated already, the applicant sought to suggest that estate claims and claims based on vicarious liability would ‘arise from’ abuse, but not be ‘founded on’ such abuse. However, the essential nature of an estate claim would not alter even after the death of the primary victim. Given that the entire Act is concerned with the liability of organisations (as opposed to individual perpetrators of abuse) a claim brought by a primary victim based on vicarious liability must also have been in clear contemplation and readily classified as a claim ‘founded on’ child abuse. The applicant ultimately submitted that, given a choice, we should prefer the applicant’s construction, even if some words were otiose, to interference with the status quo. However, we do not consider that any such choice arises given the clear and unambiguous language used. Instead, as the judge stated, all words of a statute should be given meaning. [68] 

We also consider that the judge’s construction is consistent with the evident purpose of the Act. That purpose is clearly directed to overcome the perceived unfairness of the Ellis defence which prevented legal redress in respect of child sexual abuse. There is no sound reason why Parliament would address this issue for one group of plaintiffs (those who had suffered abuse), but not others (those who suffered mental harm as a result of the abuse of their children). For reasons given already, the reference to (undefined) ‘child abuse plaintiffs’ in s 1 does not evince such an intention. The Explanatory Memorandum also took the matter no further given it largely reproduced the language of the Act. The references to the Fosters in the second reading speech also weigh against the applicant’s construction. Hence, we agree with the judge that it is improbable that, in circumstances where the Attorney-General expressly acknowledged the Fosters as survivors and advocates, that Parliament intended to enact legislation which would allow the applicant to rely on the Ellis defence in respect of claims brought by the Fosters arising from the alleged sexual abuse of their daughters. [69] 

Even considering the extrinsic materials in a way most favourable to the applicant, they might suggest that the main focus of the legislation was directed to primary victims. However, this does not mean that secondary victims were to be excluded, particularly when there is no support for that result in the text of the legislation. [70]