B v Missionaries of the Sacred Heart [2025] ACTSC 144

1. The plaintiff, [B], has sought by application in proceeding dated 12 March 2025 to have his proceedings transferred to the Supreme Court of Victoria pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT). He relies upon either ss 5(2)(b)(i) or (iii) of that Act.

2. The proceedings (the ACT proceedings) are proceedings for personal injury arising out of sexual abuse alleged to have been committed by a priest who was a member of the defendant, the Corporation of the Society of the Missionaries of the Sacred Heart (Missionaries of the Sacred Heart).

The ACT and Victorian proceedings

3. The essential basis for the application is that there are two other proceedings involving allegations of sexual misconduct by the same priest currently on foot in Victoria. Each of those cases is temporally proximate to the allegations made by the plaintiff in the ACT proceedings and involves a modus operandi of abuse which is similar. The Victorian cases relate, however, to conduct in Victoria.

4. The allegations of abuse are, in chronological order: (a) In proceedings brought by [M], Mr [M] alleges abuse in about 1974 at his family home, at a drive-in movie theatre, and following a youth group meeting. This is alleged to have occurred while the priest was the parish priest at St Gerard’s Catholic Parish Church in Warrandyte, Victoria. (b) In proceedings commenced by [D], Mr [D] alleges that in about 1976 he was abused during or following a visit to a drive-in movie theatre where he was drugged and then sexually assaulted. This is alleged to have occurred while the priest was the parish priest of Saint Gerard’s Parish Church at Warrandyte, Victoria. (c) In the ACT proceedings, the plaintiff alleges that he was abused at a time when the priest was a priest at St John the Apostle Church in Kippax, ACT. He alleges that he was abused on multiple occasions: (i) once at a drive-in theatre; (ii) once in a storage area under the church; (iii) on about two occasions in the toilets of the church; (iv) on about 15 occasions in the priest’s bedroom in the presbytery of the church; (v) on about 12 occasions in the priest’s car at various bushland locations; and (vi) on about two occasions in the library at the church.

5. The defence in the ACT proceedings admits that the priest was a member of the defendant at all material times. Although the pleading is not as clear as it ought to be, it appears to put in issue whether the priest was present at the St John the Apostle Church at the relevant times.

6. The ACT proceedings are well advanced and would be in a position to be listed for hearing if not transferred to Victoria.

7. So far as the Victorian proceedings are concerned, the [D] case was commenced on about 18 August 2023. The plaintiff in that case seeks trial by jury as the mode of trial and named the Catholic Archdiocese of Melbourne as the first defendant and the Missionaries of the Sacred Heart as the second defendant. The [D] case was transferred to the Victorian County Court, but the plaintiff seeks to have it transferred back to the Supreme Court of Victoria to be heard with the [M] proceedings and the ACT proceedings if they are transferred.

8. The [M] case was commenced on about 7 March 2025. The plaintiff in that case also seeks trial by jury. The proceedings named the Catholic Archdiocese of Melbourne as the first defendant and the Missionaries of the Sacred Heart as the second defendant.

Plaintiff’s submissions

9. The plaintiff submitted that it would be appropriate to transfer the ACT proceedings to the Supreme Court of Victoria so that each of the three proceedings could be heard together. Having regard to the identity of the alleged abuser being the same in each of the cases, the plaintiffs would serve tendency notices and seek to have the evidence of each plaintiff admitted as tendency evidence in the case of each other plaintiff. Hearing the matters together would allow each of the plaintiffs to give evidence once and to be cross-examined on their evidence once, and would avoid the need for them to give evidence in each separate case, or alternatively, in the Victorian proceedings and then again in the ACT proceedings.

10. The plaintiff accepted that the hearing and determination of his case may take longer if transferred and listed together with the Victorian proceedings, however, he still wished to have the ACT proceedings transferred to Victoria.

11. The plaintiff pointed to the fact that, in the Victorian proceedings, the defendant is legally represented and, in one case, represented by the same firm that acts for the defendant in the ACT proceedings.

Defendant’s submissions

12. The defendant opposed the application, submitting that the evidence did not disclose a sufficient basis to justify the transfer and that there is a prospect that the defendant would be actually prejudiced if all three proceedings were tried by a jury.

13. So far as the limits on the evidence were concerned, the defendant submitted that the evidence was insufficient to establish that the Supreme Court of Victoria was the more appropriate forum or that it was in the interests of justice that the ACT proceedings be transferred. In particular, it relied upon the fact that the ACT proceedings are at an advanced stage and, if listed in the civil listing hearing callover on 17 April 2025, may be listed for hearing in the weeks commencing 14 July, 13 October or 20 October 2025. In contrast, there is no evidence as to where the Victorian proceedings are up to and when they might be heard in the Victorian Supreme Court.

14. So far as actual prejudice is concerned, the defendant pointed to a bill, the Wrongs Amendment (Vicarious Liability) Bill 2025 (Vic), which is currently before the Victorian Parliament. The aim of that Bill is to overcome the effect of the decision of the High Court in Bird v DP (a pseudonym) [2024] HCA 41; 98 ALJR 1349 and “make certain organisations vicariously liable for the abuse of children by persons akin to employees of those organisations”. There is no equivalent bill in the ACT.

15. In the Victorian proceedings, each plaintiff has identified the mode of trial as being trial by jury. There is therefore the potential, if the Bill is passed, that there will be a difference in the applicable law as between the Victorian proceedings and the ACT proceedings. The defendant submitted that this might lead to actual prejudice on the part of the defendant, with the result that the Supreme Court of Victoria would be unlikely to make an order that the proceedings be heard together.

Consideration and decision

16. In determining whether it is appropriate to transfer the ACT proceedings, and whether or not it is in the interests of justice to do so, it is necessary to take into account, at least: (a) the interests of the respective parties relating to costs and efficiency; (b) the extent of connecting factors to each forum; (c) the place of the tort; (d) the location of parties and witnesses; (e) the law governing proceedings; and (f) the capacity of the courts of each place to provide an efficient and speedy trial.

17. The tort allegedly occurred in the ACT. The plaintiff lives in Queensland. It appears that the head office of the defendant is in Coogee, NSW. There is no evidence about where the defendant conducts the majority of its business, although it is clear that it has in the past conducted business in different jurisdictions and is presently legally represented in both jurisdictions. There is no evidence about where the respective expert witnesses are based, although the likelihood is that, if not present in either jurisdiction, appearance by audiovisual link would be possible.

18. There is a possibility that the law relating to vicarious liability may, by the time of trial, have been altered in Victoria so that there is a difference between the law applicable to the claim arising in the ACT and the claims arising in Victoria. It is not clear what the likelihood of there being a change in the law is at this time and, if there is a change in the law, whether there would be an equivalent change in the ACT. However, even accepting that there would ultimately be a difference between the law of the Territory and the law of Victoria at the time of trial, I do not consider that this is likely to be a significant source of prejudice to the defendant.

19. The trial of civil proceedings before a jury will require the judge to give legal directions relevant to the determination of factual issues by the jury. The question of the status of the priest in relation to the defendant is a matter on which such directions will be required, but is not so obviously complex that it would give rise to a likelihood of actual prejudice. If, contrary to my view, a judge in Victoria with experience of such civil jury trials considered that there would be such prejudice, then that is a matter that could be addressed in that jurisdiction so as to allow the hearing of the proceedings without a jury, or at least in a manner that avoids the necessity for the plaintiffs to give evidence on multiple occasions about their alleged abuse.

20. Although there was no evidence as to the progress of the Victorian proceedings, at least one of them is likely to be substantially less advanced than the ACT proceedings. However, the plaintiff submits that the transfer of the matter to Victoria is appropriate notwithstanding any delay in the resolution of his case. Although the defendant undoubtedly has an interest in having the case finalised, no particular prejudice was identified as arising from a period of additional delay while the other matters are prepared for hearing.

21. The reliance upon tendency evidence and the desirability of having persons alleging sexual abuse give evidence on a single occasion may not, if there were other significant factors that tended against a transfer, be sufficient to allow the court to reach a conclusion that it is “more appropriate” to transfer the proceedings or that it is “otherwise in the interests of justice” to transfer the proceedings. However, in the present case, the defendant is already conducting proceedings of a very similar nature in Victoria, and there are no relevant practical considerations that would make Victoria a less suitable place in which to conduct the proceedings. As indicated earlier, I have not accepted the submission that there is any real likelihood of actual prejudice arising from the potential that the mode of trial be by jury.

22. I consider that the requirements of s 5(2)(b)(iii) have been satisfied. That is essentially because, in circumstances where the cost and inconvenience of running the proceedings will not be significantly different, it is in the interests of justice that the three proceedings be managed in a way that permits tendency witnesses who allege sexual assaults to give evidence on one occasion rather than two or possibly three occasions.

23. The satisfaction of sub-para (i) is less clear. I am satisfied that the proceedings in the ACT are related to the proceedings in Victoria. However, only the [M] matter is presently pending in the Supreme Court of Victoria. So far as the requirement that it is “more appropriate that the relevant proceeding be determined by that other Supreme Court” is concerned, in order to avoid tendency witnesses giving evidence on multiple occasions, it is only necessary that the matters be heard together in one way or another, and that can occur in either the Supreme Court or County Court of Victoria, not just the Supreme Court. It is not necessary to reach any final conclusion on this point because I am satisfied that it is “otherwise in the interests of justice” that the proceedings be transferred.

24. The plaintiff submitted that, in the event that the application was successful, costs of the application should be costs in the cause. In the event that the application was successful, the defendant did not contend to the contrary.

Orders

25. The orders of the Court are: (1) The proceedings are transferred to the Supreme Court of Victoria pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT). (2) The costs of the application in proceedings dated 12 March 2025 are costs in the cause.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: