Abuse Law – Stay of Proceedings Case Law Update – CM v Trustees of the Roman Catholic Church for the Diocese of Armidale; EM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWSC 1000

As we all may know, permanent stay of proceedings of historical abuse claims is a very live topic in this area of law currently, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.  

The sibling plaintiffs in this matter (CM and EM, a pseudonym) seek damages from the defendant (the Roman Catholic Church for the Diocese of Armidale) in respect of acts of abuse alleged to have been perpetrated by a Catholic priest, Father David Joseph Perrett in December 1976 when the plaintiffs were 9 and 10 years old. Father Perrett died on 2 July 2020. The plaintiffs gave notice of their claim on 13 December 2020 and commenced proceedings on 29 July 2022. 

In this matter, the defendant filed an application seeking a permanent stay of the plaintiffs’ proceedings. The defendant submitted that: 

1. The defendant was or ought to have been on notice of Father Perrett’s conduct prior to 1976; 
2. The defendant ought to have been aware of the potential for such a claim to be pursued as early as 1995, when Father Perrett pleaded guilty to criminal offences involving the molestation of young boys and the defendant took action against Father Perrett; and 
3. The defendant was and ought to have been aware of the likelihood of the plaintiff pursuing these claims, at least by 2017, when Father Perrett was charged with criminal offences in relation to CM and EM. 
4. Father Perrett was confronted with the allegations made by the plaintiff before his death through the criminal charges. According to his solicitor, Father Perrett denied the allegations and, as the plaintiff submits, his denial is available to be used by the defendant in its defence of the plaintiff’s claim; 
5. Prior to the filing of the motion, the defendant had certified and verified its defence. The plaintiff submits that this motion represents an unexplained attempt to retreat from the certification and verification. Further, the delay in pursuing the motion stands squarely against the relief sought; 
6. The defendant has failed to adduce evidence as to why more appropriate and timely enquiries were not made about the plaintiff’s claim and the role of Father Perrett. If any prejudice to the defendant is found, that arises because of the defendant’s own failures; 
7. The defendant has maintained a substantial claim for privilege both in respect of redactions to documents and in open court. The plaintiff submits such claims are fatal to the motion (O’Callaghan v Trustees of the Marist Brothers [2023] NSWSC 432 (“O’Callaghan”) at [26]); and 
8. The defendant has not made satisfactory enquiries and placed all available evidence before the Court so as to satisfy the Court that it cannot have a fair trial.