In September 2024 I gave judgment for AA, who had been granted expedition, there then being no issue about his terminal illness: AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWSC 1183. That illness persuaded me that judgment should not be delayed until the High Court's judgment in Bird v DP (a pseudonym) [2024] HCA 41 was delivered. AA's damages were later quantified to be $636,480.
The High Court's judgment was delivered in November 2024. The Diocese has since filed an appeal in which AA has filed a notice of contention. It is listed for hearing in February 2025.
There is no issue that Bird has resulting impact on my judgment, given that the High Court upheld the appeal, taking a different view to that taken by the Victorian Court of Appeal about vicarious liability, which I had followed. AA's notice of contention relies on grounds which did not arise to be considered in Bird, which he contends provides another basis for the challenged judgment.
There is also an issue between the parties about the Diocese's prospects of success on other aspects of its appeal. It challenging factual findings about child sexual abuse which I found had occurred over 50 years ago, the evidentiary contest having rested on the evidence of AA and Mr Perry who had been present in a presbytery on occasions when I concluded that AA had been sexually assaulted by a priest, while he was a young boy.
The Diocese now seeks a stay of the orders I made in favour of AA, which he opposes. He proposes a partial stay, finally consenting to the stay on the basis that he be paid $18,000 of the judgment sum.
There is no issue that AA is a terminally ill disability pensioner with minimal assets, who will be unlikely to repay any sum paid to him, in the event that the Diocese's appeal is entirely successful. The Diocese contends that there being no medical evidence led about his current circumstances, AA's case that he is at risk of dying before the appeal is heard and determined cannot be accepted. That is disputed.
The Diocese relies on the affidavit evidence of Ms Tisbury, who explained the searches which have been conducted, which have established that AA does not have assets which would enable him to repay the judgment sum without difficulty or delay, if its appeal succeeds.
The affidavit of his solicitor, Ms McLellan, discloses that AA has a litigation funder. But that he has no capacity to repay any part of the judgment sum if the appeal succeeds in its entirety must be accepted. The Diocese relies on this to oppose the order AA proposes.
[2]
The applicable principles
There is no issue that the appeal raises serious issues to be determined. Still a stay may be granted on terms. But the Diocese relies on Woolworths Limited v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72 at [68], to oppose the orders AA proposes. There the Court's usual practice "of staying judgments pending appeal where there is a risk that the plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed", was discussed.
That practice was not doubted and AA's difficult financial circumstances are not in issue. Despite this AA argued that the Court still had a discretion to refuse the stay the Diocese sought, which it would exercise in all of the circumstances, which had to be considered, given the requirement that a proper basis for a stay which is fair to both parties must be demonstrated by an applicant: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.
Otherwise there was no issue about the applicable principles, recently discussed in Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5].
Prima facie, a successful party is entitled to the benefit of a judgment and the presumption that it is correct: Re Middle Harbour Investments Ltd (In Liq) (Court of Appeal (NSW), 15 December 1976, unreported) at 2. In this case, that is unarguably impacted by the High Court's judgment in Bird.
Both the parties' respective rights and what the balance of convenience favours, also arise to be considered: Pamplin v Irwin [2024] NSWCA 112 at [11]. Further, in exercising the Court's discretion to grant a stay, the requirements of s 56 of the Civil Procedure Act 2005 (NSW) must now be borne in mind. It specifying the overriding purpose of the legislative scheme to be to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
It is pertinent that while there can be no question that the Diocese's appeal raises serious issues to be tried, so does the case which AA advances by his notice of contention. The strength of the Diocese's challenge to the factual findings is also in issue, AA contending that it is weak. That challenge being concerned with conclusions I reached about whether AA's evidence could be accepted, the credibility and reliability of his evidence and that of his friend Mr Perry having been in issue and what they gave evidence about having occurred so many years ago, while they were young boys.
Still it is undoubted that there is a real risk that the Diocese will suffer prejudice, if the stay it seeks is not granted and it succeeds on the entirety of its appeal. That reflects AA's financial circumstances, which were adversely affected by the ongoing impact of the sexual abuse I found he was subjected to. He has been on a disability pension since 1996, is now suffering a terminal illness and has no means to repay the sum he proposes not be stayed, if the appeal succeeds in its entirety.
AA contends that it is necessary to take into account that he may not live until the appeal decision is given.
[3]
AA's circumstances
I am satisfied that if justice is to be done between them, it is not only AA's financial position which must be considered in resolving what lies in issue between them, notwithstanding the Court's usual practice, discussed in Woolworths.
I also accept that there is a real risk that AA may not live to benefit from the judgment which the Diocese seeks to stay if the appeal fails in whole or part.
His terminal illness was why expedition was not opposed, AA's evidence was taken on commission in Newcastle before the August hearing and the Court sat in Newcastle to receive his further evidence, when that need arose. That is also why I sought to deliver the challenged judgment, which required a number of difficult issues to be resolved, expeditiously.
Contrary to the case now advanced by the Diocese, it does not require medical evidence to establish that in his circumstances, there must be a real risk that AA will not survive until the appeal judgment is delivered. That can sensibly be inferred from the way in which the proceedings have been conducted by the parties to this point, given what was undisputed about the seriousness of his terminal illness.
In AA's very difficult circumstances, I thus accept that regard has to be paid to the very real risk that he will never have the benefit of his verdict, if the stay the Diocese seeks is granted and the appeal does not entirely succeed, as is plainly a possibility, as the Diocese accepted. That is an unusual situation which I am satisfied cannot justly be ignored.
[4]
The proposed partial stay
Before the hearing AA proposed, but the Diocese rejected, a partial stay being ordered. Initially he suggested that he be paid 4.5% of the damages he was awarded, $28,695.70. And finally, that he be paid only $18,000, that being a sum which his litigation funder would not seek to have reimbursed.
In the case advanced for AA reliance was also placed on:
AA's right to the 'fruits of his victory", which has long been recognised in the authorities;
the child sexual abuse which was found proven on all the evidence, with resulting adverse impact on many aspects of his life;
it being cruel and unjust to deny a dying man some succour in what remains of his life, simply because if the appeal succeeds in its entirety, the Diocese may not be able to recover the small part of the judgment AA proposes not be stayed;
that was a modest sum, when it was considered that the appeal may not succeed in its entirety, given the factual findings which are challenged;
AA's case on the appeal otherwise being arguable; and
the circumstances, where the Diocese is prepared to risk multiple times the sum in issue on legal costs which will be unrecoverable, even on its best case, in order to have that relatively small sum available to fund its appeal, that leaving AA to face the ongoing hardship which the sexual abuse had caused, which the evidence was found to have established.
The Diocese did not accept what was so advanced, contending that there should still be no departure from the usual practice of ordering a stay, given AA's inability to repay even the relatively small sum in issue, in the event that its appeal succeeds.
I am satisfied that its position may not be accepted. In considering the balance of convenience and the parties' respective rights, in order to do justice between them in respect of the disputed stay, the Court cannot only be concerned with one party's unfortunate financial position.
Having considered all that the parties have respectively advanced, I am satisfied in all of the unusual circumstances which arise for consideration that justice does require that the orders which AA finally pressed be made. That reflecting the conclusions which I reached on the competing evidence which the parties led at trial, that AA had been sexually abused as he claimed, with resulting injury and lifelong adverse impact, as well as his financial difficulty in repaying any sum that is not stayed.
Further, that while the Diocese unquestionably has good prospects in relation to part of its appeal, given the High Court's judgment in Bird, that it will succeed completely is not assured. That will turn on the view which the Court of Appeal arrives at in relation to my conclusions about what the evidence established, which the Diocese challenges. That it has an arguable case about the matters it pursues may be accepted, but that AA's resistance of that case has real prospects of success, must also be accepted.
I am thus not satisfied that the Diocese has demonstrated that the stay it proposes is fair to both parties. That, I consider, requires that account also be taken of the success which AA achieved on his evidentiary case, the difficulty the Diocese accepts it faces in challenging that aspect of the judgment and that there is a real prospect that unless the partial stay which he proposes is granted, if the Diocese's appeal does not succeed in its entirety, he may never enjoy even a small portion of the fruits of his victory, his evidence about having been sexually assaulted while he was a young boy having been accepted.
I am satisfied that granting the stay which the Diocese seeks thus does not accord with what the dictates of justice require.
In the result I have concluded that what is just is that the orders which AA seeks be made, even though that risks the Diocese not recovering the sum in issue, in the event that its appeal does succeed in its entirety.
[5]
Orders
For these reasons I order that:
1. The defendant is to pay the plaintiff $18,000 of the judgment debt within 28 days;
2. The execution of the judgment debt to the plaintiff is otherwise stayed pending determination of the defendant's appeal; and
3. Costs of this motion shall be costs in the cause.
[6]
Amendments
19 December 2024 - In paragraph 2 the date should read February 2025.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 December 2024
Parties
Applicant/Plaintiff:
AA
Respondent/Defendant:
Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle