In the recent matter of TJ v Bishop of the Roman Catholic Diocese of Wagga Wagga [2023] VSC 704, the plaintiff, TJ (a pseudonym), commenced civil proceedings in which he sought damages from the defendant, the Bishop of the Roman Catholic Diocese of Wagga Wagga, in relation to psychological injuries and losses he sustained as a result of sexual abuse perpetrated by Father Kiss between 1972 and 1976

On 21 August 2023, the plaintiff filed and served an amended statement of claim which introduced –

(a) the following further particular in respect of his allegation that, prior to the period, the Bishops of Wagga Wagga knew or ought to have known that Fr Kiss had a propensity to sexually abuse children –

Paul Ryan disclosed that he was abused by Kiss in October or November 1968 to Father Bernie Connell who was the Curate of the St Patrick Parish operated by the Defendant.

(b) a claim for exemplary damages supported by the following single particular –

If the complaint by Paul Ryan is proved at trial the knowledge held by Connell and his failure to prevent Kiss from having contact with children thereafter is attributable to the Defendant and constitutes a contumelious disregard for the Plaintiff’s right[s] and warrants an award of exemplary damages.

On 26 September 2023, in response to the plaintiff’s allegation of grooming and sexual abuse by Father Kiss during the period, the defendant pleaded as follows –

(a) he admits that Fr Vincent Kiss pleaded guilty to ten counts of indecent assault on a male and three counts of buggery occurring between 1 July 1966 and 31 March 1973 (collectively, the Charges) as detailed in the sentencing judgment in R v Vincent Keirin Kiss (District Court of New South Wales Proceeding No. 02/11/0142) dated 13 September 2002;

(b) he admits that the Charges set out in the subparagraph above included charges in respect of the Plaintiff and three others;

(c) he says further that on or around 13 September 2002, Fr Vincent Kiss was sentenced to 10 years and 6 months’ imprisonment arising from the Charges; and

(d) he otherwise does not admit the allegations in paragraph 8.

The defendant also denied that the plaintiff was entitled to any award of exemplary damages.

On 20 October 2023, which was four days prior to the date the proceeding was listed for trial, the defendant filed and served an amended defence which, among other things –

(a) in respect of the allegation of grooming and sexual abuse during the period, stated, among other things –

he admits that Fr Kiss groomed and sexually abused the Plaintiff during the period between 1972 and 7 August 1976…;

(b) in respect of the allegation concerning the propensity of Kiss, pleaded as follows –

In response to paragraph 9:

(a) he refers to and repeats his answer to paragraph 8 above;

(b) he admits that in or about 1968 Paul Ryan disclosed that he was abused by Fr Kiss to Fr Bernie Connell (the 1968 Complaint);

(c) he denies that any Bishops of the Diocese knew or ought to have known of the 1968 Complaint during or prior to the abuse of the Plaintiff during the Period; and

(d) he otherwise denies the allegations in paragraph 9.

The issue of exemplary damages was addressed by the jury, however, leave was granted for the defendant to move non-obstante veredicto (notwithstanding the verdict). The jury determined that exemplary damages should be awarded in the sum of $1.3 million.

Two bases were relied upon in respect of claim for exemplary damages. Firstly, whether the exemplary damages claim was precluded by statute, and secondly whether there was no evidence on which a reasonable jury, properly instructed, could return a verdict for the plaintiff.

In relation to the defendant’s reference to section 21 of the Civil Liability Act 2002 (NSW), the Court held that it was not now open to the defendant to abandon the common position (at the primary hearing) pursuant to which the case was presented for determination by the jury. That common ground disclaimed any reliance upon the relevant provisions of the Civil Liability Act (NSW), including and particularly section 21. It is noteworthy that vicarious liability was admitted by the defendant on the eve of the trial.

The defendant’s argument that there was no evidence on which a jury, properly instructed, might have allowed exemplary damages also failed.

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today.

Further Abuse Law information and case law updates written by our Emily Wright can be found on our website.

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