In the recent matter of The Catholic Archdiocese of Melbourne v RWQ & Anor [2023] VSCA 197, the plaintiff, RWQ (a pseudonym), commenced civil proceedings in which he sought damages from the defendant, the Catholic Archdiocese of Melbourne, as a result of psychological injuries sustained as a result of being informed of the alleged historical childhood sexual abuse suffered by his late son perpetrated by Cardinal George Pell and by reason of his son’s death.  

The plaintiff alleges that his son and a friend were abused by Cardinal George Pell sometime between July and December 1996. The plaintiff further alleges that as a result of the abuse his son’s behaviour deteriorated and he commenced using illicit drugs at the age of 14 and used drugs consistently until his death on 8 April 2014 (cause of death being a heroin overdose). The plaintiff was informed of the abuse of his son by a member of the SANO Task Force on 1 July 2015, and alleges that as a result of leaning about the abuse of his son, suffered nervous shock.  

In this matter, the issue arose as to the application of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) to the plaintiff’s claims. The Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) provides a mechanism for the appointment of a proper defendant to incur liability in respect of claims ‘founded on or arising from’ child abuse. The defendant submitted that the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) does not have application to the plaintiff’s claims as he was not subjected to any child abuse personally and was, instead, a ‘secondary victim’.  

On 24 August 2022, the primary judge in the Victorian Supreme Court held that the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) does apply to the plaintiff’s claims against the defendant.  

The defendant sought leave to appeal the primary judge’s decision, advancing that the primary judge erred in concluding that: 

(a) On the proper construction of s 4(2) of the Act, the Act applies to RWQ’s claims against the applicant; and 

 (b) On the proper construction of s 7 of the Act, a proper defendant nominated by the applicant would incur any liability arising from RWQ’s claims against the applicant. 

The defendant further advanced that the primary “…judge ought to have concluded that, on the proper construction of ss 4 and 7, the Act does not apply to RWQ’s claims against the applicant.” 

On 25 August 2023, the Victorian Court of Appeal found in favour of the plaintiff, stating that the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) does apply to the plaintiff’s claims.  

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] 

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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