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.  

 

In this matter, the plaintiff (CM, a pseudonym) commenced proceedings on 29 July 2022 against the defendant (the Trustees of the Roman Catholic Church for the Diocese of Armidale) in which the plaintiff sought damages for psychiatric injuries as a result of abuse said to have been perpetrated by a Catholic priest, Father David Joseph Perrett, in December 1976. The plaintiff was 9 years old at the time. Father Perrett was the parish priest in the Diocese of Armidale. 

 

Father Perrett died on 2 July 2020. For although so far as the evidence discloses no notification of a civil claim was ever made against Father Perrett or any emanation of the Roman Catholic Church while Father Perrett was alive, the plaintiff and his brother (who was also abused by Father Perrett) made police statements before Father Perrett died, leading to his being charged and interviewed in 2017.  

 

On 23 August 2023, the primary judge of the New South Wales Supreme Court ordered a permanent stay prior to decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (“GLJ”).

 

The plaintiff sought leave to appeal the primary judge’s decision placing a permanent stay on his claim.  

 

The principal proposed grounds of appeal were that the primary judge erred in concluding that it was not possible to have a fair trial on  

a. whether the alleged abuse occurred; and  

b. whether the Bishop (and thus, the respondent) is vicariously liable for Father Perrett’s tortious acts. 

The Effect of GLJ

The parties were diametrically opposed on the basic question whether GLJ had changed the law. The Court of Appeal held that GLJ must be taken to have changed the law and said at [75]: 

But I am unable to read the majority reasons for judgment as the respondent invites me. Those reasons state that the “new world” introduced by s 6A means that some forms of impoverishment of evidence – indeed, the most common forms, namely, the unavailability of witnesses and documents – are not to be regarded as exceptional. To the contrary, they are “neither uncommon nor unexpected”. This is developed in the reasons of the majority by reference to two themes: the evaluation of the effect of delay, and the way in which exceptional circumstances are to be identified. 

 

The Court of Appeal made comment as to three difficult aspects of the reasoning of the majority in GLJ, however the conclusion at [91] was: 

This Court’s obligation is to apply propositions of law stated by the High Court. That obligation is applicable irrespective whether lower courts regard those principles as correct, and there would be little point to the judicial hierarchy if that were not so. To the extent that there is an unresolved contradiction between the majority judgment in GLJ and that in Batistatos concerning burdensome effect being the test, the more recent judgment is to be applied. The High Court is empowered to depart from its earlier decisions, and in light of the repeated emphasis of disregarding the ordinary and unexceptional consequences of “the mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders”, I see no way of applying the reasoning in GLJ other than as impliedly altering the way burdensome effect is to be evaluated. 

Vicarious Liability

The Court of Appeal commented at [103] to [104]: 

The fact that Father Perrett has died does not render a trial of those issues necessarily unfair. The respondent has the benefit of instructions from Father Perrett in relation to each element of the claim; indeed, it has his sworn denials which will be able to be tendered at trial and can found a cross-examination. True it is that there is very substantial impoverishment of the sort of evidence which might ordinarily be available in a case such as the present, but applying the principles stated in the reasons of the majority in GLJ that is merely the common and expected effect of the passage of almost half a century. 

However, nothing turns on this unless the primary judge also came to the wrong conclusion concerning the claim that the Bishop was vicariously liable for Father Perrett’s torts. This is much less straightforward. 

 

Hence, at [109], it was noted that if the test for any vicarious liability is to cohere with what was said in Prince Alfred College Incorporated v ADC [2016] HCA 37, then “[t]he relevant approach requires a careful examination of the role that the [Bishop] actually assigned to [assistant priests] and the position in which [Father Perrett] was thereby placed vis-à-vis [CM] and the other children” (substituting Bishop for the School, assistant priests for housemaster, Father Perrett for Mr Bain and CM for the respondent). This is a central issue bearing upon whether the claim of vicarious liability will be made out. 

Orders

Ultimately, on 15 December 2023, the Court of Appeal granted leave to appeal, however, confined to grounds 1 and 1A of the draft notice of appeal which is in respect of the permanent stay applicable to the claim that the respondent is vicariously liable for the tortious conduct of Father Perrett. 

 

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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