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. Father Perrett died on 2 July 2020, prior to which it was not aware of the plaintiff’s claim; 
  2. It was not able to obtain any statement or instructions from Father Perret in respect of the allegations against him; 
  3. It is not able to adduce evidence from Father Perrett; 
  4. It is not able to adduce evidence from Sister Rita, who died in 2003; 
  5. It was unaware of the suggestion that it might be liable for Sister Rita’s conduct in December 1976 at the camp, until it received the letter in December 2020; 
  6. There are other witnesses who are unable to give relevant evidence, such as the Bishop of Armidale at the time, Bishop Henry Kennedy, and officers of the Church referred to in the various documents, such as the priest who was responsible for the supervision of Father Perrett in the 1970s. 
  7. Adopting the language used in GLJ, the defendant submits that, having regard to the evidence, there are two foundational issues: (1) whether the plaintiff was at the camp; and (2) whether Father Perrett abused the plaintiff as asserted. The defendant submits that it is not able to adduce evidence on these foundational issues in circumstances in which the proceedings were commenced by the plaintiff 45 years after the conduct is said to have occurred and all of the critical witnesses died before notice of the claim was given. 
  8. Other evidence critical to issues such as the state of the defendant’s knowledge of Father Perrett’s activities and its nexus with the defendant as well as the role and knowledge of Sister Rita is no longer available. 

The plaintiffs submitted the following: 

  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. 

On 23 August 2023, the New South Wales Supreme Court through Cavanagh J provided as follows: 

Whilst it is not up to the plaintiff to identify what further information might be available, the Court is not involved in a process of speculation. The plaintiff’s submission that the defendant has not carried out all reasonable enquiries is not supported by the evidence. (at [106]).  

In all these circumstances, I do not consider that any of the matters raised by the plaintiffs are fatal to the defendant’s application for a stay or are such that I should find that the defendant might be responsible for the significant prejudice which arises due to its inability to meaningfully participate in any hearing by adducing evidence on a number of issues. (at [122]).  

I am satisfied that the defendant is unable to have a fair trial. These are exceptional circumstances. The defendant is required to meet more than an allegation about the conduct of the perpetrator of the abuse. Because the plaintiff pleads vicariously liability on two bases, the defendant is required to meet allegations about the knowledge and conduct of a number of other persons who might include Sister Rita, Bishop Kennedy and Dr Macpherson. The defendant is unable to meaningfully participate in the trial, not just in respect of the primary allegation, but in respect of all of the causes of action pleaded by the plaintiff. (at {123]).  

Ultimately, the Court granted the defendant’s application for the proceedings to be permanently stayed pursuant to section 67 of the Civil Procedure Act 2005 (NSW). The Court made no order as to costs but granted the parties liberty to apply should either party seek a different order as to costs. 

Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website written by Emily Wright and our office.  

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. 

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