Barker v Chick

File Number(s): 2023/00433534

EX TEMPORE JUDGMENT - REVISED

1. The plaintiff brings an action for loss and damage caused by the sexual abuse perpetrated by the first defendant John Chick in the 1980s. Sexual abuse which took place on 24 April 1986, for which the first defendant was convicted, is not in dispute.

2. In an Amended Statement of Claim, the plaintiff also alleges negligence against the second defendant, the Church of Jesus Christ of Latter-Day Saints (Australia) on several bases, including vicarious liability, the latter of which is no longer tenable in light of the decision of the High Court in Bird v DP (2024) 98 ALJR 1349; [2024] HCA 41. At all material times, it is alleged that the first defendant was a High Priest of the first defendant.

3. On 1 April 2025, the second defendant filed a notice of motion seeking summary dismissal or in the alternative to strike out the plaintiff’s Amended Statement of Claim. That motion is listed as a special fixture on 24 September 2025.

4. On 7 August 2025, the High Court heard an appeal in the matter of AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (“AA”), which decision is reserved. Three issues arise for consideration in that appeal: was a non-delegable duty owed to ensure that a delegate does not commit an intentional criminal act, did a diocese (in the 1960s) owe such a non-delegable duty to children entrusted to the pastoral care of a priest of the diocese for religious education and did a diocese (in the 1960s) owe no duty of care at all to a child assaulted by a priest of the diocese, unless it is shown that the Bishop or senior priests in the diocese knew that the priest posed a risk to children.

5. In light of a proposed Further Amended Statement of Claim which the plaintiff may seek leave to file (and which pleads, inter alia, that the second defendant owed the plaintiff a non-delegable duty of care), the plaintiff has filed a notice of motion seeking to vacate the special fixture of 24 September 2024 pending the outcome of AA. He relies on an affidavit of Pauline Yacoub sworn on 17 September 2025.

6. The second defendant consents to the order subject to the question of costs.

7. In my opinion, bearing in mind that AA will necessarily affect the future conduct of these proceedings one way or another, the course that the plaintiff proposes is sensible. However, in my view he should pay the costs thrown away by reason of the vacation of the hearing date.

8. I therefore make the following orders:

9. Pursuant to s 66 of the Civil Procedure Act 2005 (NSW), the second defendant’s notice of motion fixed for hearing on 24 September 2025 be vacated.

10. The parties have liberty to relist the matter before the Registrar on 3 days’ notice following the delivery of judgment by the High Court in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle.

11. The plaintiff is to pay the second defendant’s costs thrown away by reason of the vacation of the hearing date of the notice of motion.

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