CM v Trustees of the Roman Catholic Church for the Diocese of Armidale

bour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34 Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: J Beal et al, New Commentary on the Code of Canon Law (Paulist Press, New York, 2000) Category: Principal judgment Parties: CM (First Applicant) EM (Second Applicant) Trustees of the Roman Catholic Church for the Diocese of Armidale (Respondent) Representation: Counsel: S H Hartford-Davis and B Smith (Applicants) L Gyles SC and D Stretton (Respondent)

Solicitors: Koffels Solicitors & Barristers (Applicants) Wotton + Kearney (Respondent) File Number(s): 2023/298291 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2023] NSWSC 1000 Date of Decision: 23 August 2023 Before: Cavanagh J File Number(s): 2022/222779; 2022/223057

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

1. LEEMING JA: The applicants are brothers whose identities cannot be disclosed by reason of s 15A(1) of the Children (Criminal Proceedings) Act 1987 (NSW). Their names were anonymised as CM and EM in the proceedings in the Common Law Division and I shall do the same. They seek leave to appeal from orders granting a permanent stay of separate proceedings brought by each of them, arising out of child sexual abuse which they say was committed some 47 years ago by Father David Joseph Perrett: CM v Trustees of the Roman Catholic Church for the Diocese of Armidale; EM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWSC 1000.
2. No claim was brought against Father Perrett prior to his death in July 2020. Nor has a claim been brought against his deceased estate. The respondent is (despite the reference in its name to "trustees") a body corporate constituted by s 4(2)(b) of the Roman Catholic Church Trust Property Act 1936 (NSW), in which Church trust property vests and therefore against which execution in the event that a judgment is obtained is possible. It is not suggested that the respondent in its own right can be liable to the applicants. Instead, this Court was told that it had been agreed between the parties that the respondent was the proper defendant for the purposes of such liability as the Bishop of the Diocese of Armidale might have, thereby resembling what would occur if the regime in Division 4 of Part 1B of the Civil Liability Act 2002 (NSW) were applicable and application had been made for the appointment of a "proper defendant". I do not express any view one way or the other whether the regime applied. The reason for mentioning this is to indicate that one of the causes of action advanced by each brother in the court below, and the only cause of action sought to be advanced in this Court, is one which asserts that the Bishop of Armidale is vicariously liable for the tortious conduct of Father Perrett in 1976.
3. The principal proposed grounds of appeal are 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.

Procedural background

1. The primary judge gave judgment very promptly on 23 August 2023 following a three day hearing on 14, 15 and 16 August in the course of which there was relatively lengthy cross-examination of the respondent's solicitor and the Chancellor of the diocese, and more limited cross-examination of the solicitor who had formerly acted for Father Perrett, Mr Greg Birtles. 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, both brothers did make police statements before Father Perrett died, leading to his being charged and interviewed in 2017. Mr Birtles took instructions from Father Perrett in some detail, evidently asking for his client's response to each paragraph of the applicants' statements.
2. In addition to the document recording those instructions, a very large number of documents had been produced either by the respondent or on subpoena, and it seems that very many were tendered before his Honour (while only around 1,000 pages were included in the appeal books, it seems that the court book before his Honour had at least 2,982 pages).
3. The primary judge determined the application with extreme expedition, doing so at the applicants' express request notwithstanding that the appeal which became GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 was reserved. Ordinarily, knowledge that the High Court would deliver judgment within 10 weeks (for Kiefel CJ participated in the appeal, and thus it was known in mid-August that the High Court judgment would be delivered no later than early November) would be good reason to delay an interlocutory ruling, lest there be needless cost and consumption of the parties' and public resources. The urgency was driven by the unfortunate medical prognosis of one of the brothers, CM, who suffers from stage four pancreatic cancer and has a life expectancy of a handful of months. It was accepted that the stay granted in respect of the other brother's proceeding stood or fell with the stay of CM's proceeding, and in what follows I shall mostly refer only to CM's claim.
4. The application for leave to appeal was brought reasonably promptly, just over four weeks after orders were made by the primary judge, and the parties have co-operated to achieve an early concurrent hearing some 10 weeks thereafter.

Evidence emerging from Father Perrett's prosecution and sentencing in 1996

1. There was nothing in the evidence to suggest that anything Father Perrett did in 1976 came to the attention of anyone in the church for around two decades. In 1980, Father Perrett was appointed as the parish priest in Guyra some 30-40km to the north, and subsequently as the parish priest at Walgett, further still removed from Armidale. Even so, both parishes were within the Diocese of Armidale, and he remained subject to the authority of the bishop of that diocese. Ultimately Father Perrett pleaded guilty in 1996 to two charges of indecent assaults upon two young boys in 1991 and 1992 or 1993, and two further charges of indecent assault and common assault upon a third boy in 1983.
2. The documents tendered from the time fall into two categories. The first is the documents which were used in the proceedings on sentence. The second is what appears to have been an internal church investigation, which led to Father Perrett being suspended from the priesthood. Both throw some light on the vacation camps at which those assaults are alleged to have been committed.
3. When being sentenced in the District Court, Father Perrett gave this evidence on 1 November 1996: Q. [Y]ou were appointed assistant priest in Armidale from 1969 to 1980? A. Yes. Q. And I think with Sister Rita Steptoe you established an Armidale association for the Aboriginal Community Development? A. Yes sir. Q. You in fact and Sister Rita, established the Aboriginal Youth Club which is still going isn't it? A. Yes sir. Q. And that was particularly to assist underprivileged and poorly resourced families? A. (No verbal reply). Q. You organised vacation camps for Aboriginal children? A. With Sister Rita, yes. Q. In 1973 Bishop Kennedy, that's the Bishop of Armidale asked you to go to Holdsworthy as an Army Chaplain? A. Yes sir. Q. And there was a deputation of aboriginal people to the Bishop begging him to let you stay? A. Yes sir. Q. And you did stay? A. Yes sir. Q. I think you were the foundation captain coach of the Narwan Football Team? A. Yes sir. Q. An all aboriginal team. Of course, in addition to your work with aboriginals you were doing a great deal of parish work for non aboriginals? …
4. Father Perrett also agreed that he "had a bus … which [he] used to take young lads to football matches and bush outings and so forth". Consistently with this, a reference dated 4 September 1996 included: He has done enormous good for youth, both aboriginal and white. He owned a small bus and would take needy families, esp. aboriginal families on camping trips. He has always shown a genuine concern for the underprivileged of our society.

The applicants' police statements and their aftermath

1. Much more recently, but still more than six years ago, each applicant gave statements to the police concerning the allegations of sexual assault. In May 2017 Father Perrett participated in an electronically recorded interview based on the statements made by the applicants. He was confronted with the allegations, and said that he had no comment to make. He added "I just find the whole matter absurd and I'll leave it at that". He was then aged 79, unwell, and taking 11 medications each day.
2. It appears that Father Perrett was charged with offences based upon the applicants' police statements, but was never required to enter a plea.
3. Father Perrett prepared an affidavit dated 19 February 2020, when he was 82. The evident purpose was in connection with a proposal to shift the venue of his criminal trial from Armidale to Sydney, and the affidavit addressed at length the debilitating medical conditions from which he suffered (including that his life expectancy was short - he died 5 months later). The affidavit also stated that he denied the allegations, had instructed his solicitor to enter pleas of not guilty, and had "little or no memory of the complainants".
4. Father Perrett also gave instructions to his solicitor in respect of the charges. Father Perrett's instructions to Mr Birtles accepted that he and Sister Rita took children on camps to Georges Creek in January every year for 20 years. He accepted that he drove them there in a bus. He agreed that he camped with the boys and slept with them in a tent. He denied the assaults.
5. Emphasis was given to two documents which bore upon whether the camping trips were part of his duties. The records of Father Perrett's instructions decades after the event include "I don't deny that I spent perhaps consider[able] time with Sister Rita, and that we shared the Aboriginal ministry"; the word "ministry" was said to suggest it was part of his role within the diocese under the control of the Bishop.
6. More contemporaneously, the letter of his appointment as Parish Priest of the Parish of Guyra, dated 8 April 1980, advised of the appointment and the duties involved, requested him to provide banking details so that he could be authorised to operate accounts, and then added as follows: I would however be grateful to you if you would still continue your apostolate among the Aborigines in the Armidale and Northern Region. Many thanks for everything you have done in so many fields of activities over the years while attached to the staff of the Cathedral. I have appreciated and enjoyed your company at the Bishop's House. Begging God's Blessing on you and your apostolate. I remain, Yours sincerely in Our Lord, (Most Rev H J Kennedy) Bishop of Armidale.

The pleading

1. The statement of claim alleges that the defendant was vicariously liable for the tortious conduct of Father Perrett. It did not identify why that was so, but both sides confirmed during the hearing in this Court that the (former) Bishop was said to be vicariously liable for the conduct of an assistant priest in the diocese (transcript, 4 December 2023, 16.15-17; 55.15-30), and I have proceeded accordingly.
2. The pleading also alleges that a direct duty of care was owed to the applicants, on the basis of there being a risk that a priest could unlawfully sexually assault a child in his care, and vicarious liability based on the negligence of Sister Rita, who accompanied Father Perrett on the camping trips. Nothing turns on this any longer, but it is very difficult to see how the Bishop could be vicariously liable for any alleged negligence at a holiday camp on the part of Sister Rita, who surely served at the direction of and reported to a superior in her order rather than to the Bishop. As was mentioned during the hearing, in this country two different defendants cannot be liable for the tortious act of a third person: Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34 and see Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 at [23]-[33].
3. I turn to the alleged vicarious liability of the Bishop for the acts of an assistant priest in his diocese. It is helpful to bear in mind the range of possibilities, in order to assess the consequences of the delay of many years between the events and this litigation. The Bishop may have directed, or encouraged, or acquiesced, or been entirely unaware of the camps. The relationship between the camps and those who ran the Mission is, on the state of the evidence at present, quite unclear. It is also unclear whether Father Perrett used his own bus and conducted the camps on his own initiative during what was formally or informally regarded as a break from his ordinary duties as an assistant priest, or whether he drove a church-owned bus as part of an outreach ministry for socially disadvantaged indigenous children whom the Bishop sought to benefit. The extent to which there was any religious content to the camp activities is unclear.
4. Before the primary judge, the applicants opposed the ordering of a stay of any of their causes of action. However, in this Court, the applicants proffered a condition that a grant of leave would be on the basis that the cause of action was confined to the vicarious liability for the torts alleged to have been committed by Father Perrett. The respondent said that this was a basis for refusing leave, because it involved a departure from the case presented to the primary judge.

The reasons of the primary judge

1. The primary judge identified the relevant principles at [62] primarily by reference to Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292, Connellan v Murphy [2017] VSCA 116 and Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37. His Honour recorded the following principles: 1. these types of applications are essentially fact driven or dependent; 2. the defendant must satisfy the Court that exceptional circumstances exist; 3. extensive delay without more would not justify a stay, although the length of time between the abuse and the pursuit of a claim may be a relevant factor; 4. the death of a witness does not, of itself, justify a stay; 5. the mere unavailability of a witness cannot be considered an exceptional circumstance; 6. the absence of documents would not, of itself, preclude the possibility of a fair trial.
2. His Honour noted at [20] that in Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 at [95], Mitchelmore JA had observed that the principles which apply to the grant of a permanent stay under s 67 of the Civil Procedure Act 2005 (NSW) were well-settled.
3. The primary judge concluded that there could not be a fair trial of any of those causes of action. Separate submissions were made to his Honour about each cause of action, and the primary judge addressed each cause of action separately (at [73]-[76], [77]-[81] and [82]-[84] respectively). It is unnecessary to address his Honour's reasoning in relation to the causes of action which are outside the scope of the application for leave to appeal.
4. The primary judge addressed this claim at [77]-[81]: The second aspect of the plaintiff's claim is that the defendant is vicariously liable for the conduct of Father Perrett. The High Court has not yet determined a case in which an organisation (such as the defendant) has been held vicariously liable for sexual abuse by a person under its control, such as a priest. Of course, the observations of the Court in Prince Alfred College at [80]-[81] have been referred to in a number of cases (see for example DP (a pseudonym) v Bird [2021] VSC 850; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234; [2020] VSCA 328 ("WCB"); SR at [146]-[158]). In WCB, the Victorian Court of Appeal observed that the determination of the question of vicarious liability for the conduct of a parish priest would substantially depend on the relevant nexus between the authority and power invested in him as a parish priest and his abuse of the plaintiff: at [151]. An important matter of fact in the [vicarious] liability claim would thus be the nexus between the authority and power vested by the defendant in Father Perrett, and the camping trips (not the altar servers camps) which he organised. The defendant submits that it is unable to obtain any instructions by speaking to the Bishop who was in authority at the time, the Church Administrator, Father Perrett, or Sister Rita, and it is unable to meaningfully engage on the issue of vicarious liability. In my view, there is merit in the defendant's submission. The fact that the camps took place does not assist in resolving the issue as to the knowledge of others, such as the Bishop or the Church Administrator, about the camps. Father Perrett engaged in other activities, such as playing rugby league and coaching the local rugby league team. Whether all of his activities could be said to be connected to his role as a priest in the diocese is in issue. I accept that the defendant is unable to obtain instructions, not just from Father Perrett, but also from other witnesses who would be critical to the vicarious liability claim.

The different approach advanced in this Court

1. Neither senior nor junior counsel who appeared for the applicants in this Court had appeared before the primary judge. The case sought to be advanced to set aside the permanent stay was substantially different from that advanced to the primary judge.
2. First, as noted above, the applicants did not cavil with the decision to order permanent stays of two of the three causes of action in each proceeding, namely, the direct tortious liability of the Bishop, and the claim that he was vicariously liable for the negligence of Sister Rita. Prior to the hearing, the applicants consented to a condition on the grant of leave that it be confined to the claim of vicarious liability for the tortious conduct of Father Perrett.
3. Secondly, this Court was taken explicitly to many documents to which the primary judge had not been taken, with a view to identifying the basis on which it would be open to the trustees to defend the allegations of assault and vicarious liability.
4. Thirdly, the applicants eschewed any reliance on tendency evidence before the primary judge. However, after the stay had been given, the applicants served a document that purported to be a very substantial tendency notice. Their primary position was that they sought leave to rely upon that notice at any trial in February or March 2024. Their fallback position was that the stay should be lifted, but upon terms that they should not be permitted to rely on the notice.
5. Fourthly, reliance was placed upon what was described as an expert report from a Victorian priest or retired priest concerning the control of Bishops. The report did not address holiday camps at all. The applicants indicated, pursuant to leave granted at the hearing, that any supplementary report from that priest would be supplied later this month, and flagged that it would deal with holiday camps. Counsel said: Father Dillon is not talking about camps in the report; I just want to acknowledge that immediately, and that's a difficulty with the material at the moment. Mitchelmore [JA] didn't deal with it, and it would be wrong in our respectful submission to deal with it as if, as Callinan J put it in Batistatos, "all the evidence is in". One doesn't assume that all the evidence is in. One analyses it from the perspective of can there be a fair trial given the availability of evidence of a generalised kind.

The essential issue bearing upon the grant of leave

1. The respondent emphasised the new ways in which the case was sought to be advanced, quite differently from what had been put before the primary judge, and maintained that the consequence was that leave should be refused.
2. The fact that there was a concurrent hearing does not mean in this or any other case that the applicant should assume that leave will be granted. The matters raised by the respondent opposing the grant of leave are not without force, and in another case (say, where there had not been an intervening decision of the High Court) they might warrant a refusal of leave.
3. However, the position as I see it is as follows. There are two threshold issues. The first is whether GLJ changed the applicable principles. The second is whether the applicants are entitled to a grant of leave so as to advance a new, narrower case in relation to only one of the causes of action, and by reference to different evidence, on appeal. The issues are linked. If the principles have changed, then that is a powerful consideration favouring the grant of leave, so that the application for a permanent stay may be determined in accordance with the law as it presently is. It would be quite unsatisfactory for permanent stays to have been ordered on what is now established to be an incorrect basis, even if the way in which the case is propounded has changed. And if there is to be a redetermination of the application because principles which have since been superseded were applied, then there can be little prejudice in permitting the applicants to advance a narrower case than had been advanced at first instance. There is ordinarily no difficulty in an appeal being confined to "a subset of the case made and pressed at trial": Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75 at [85]. However, the fact that the applicants now wish to advance a different broader case - by reference to a new expert report and a new tendency notice - means the case now falls in a different category, to which it will be necessary to return, principally because the consequences of the anticipated further expert evidence cannot presently be assessed.
4. Accordingly, at the forefront of the parties' submissions was whether GLJ altered the applicable principles.

The parties' submissions on the effect of GLJ

1. The applicants submitted that the reasons of the majority confined the circumstances in which a stay would be ordered, notwithstanding the express preservation of such jurisdiction by s 6A(6), by reason of the fact that the removal of limitation periods involved "a fundamental change to the legal context" or a "new reality" or a "new normative structure" or a "radically new context" (invoking the reasons of the majority at [34], [40] and [43]). They pointed out that Steward J had said at [122], that the majority's decision amounted to "the dilution of standards" which was "with respect, unsupported by authority or principle and sanctions trials which are unfair". The applicants maintained that his Honour was entirely correct to conclude that there had been a significant change.
2. The applicants submitted that GLJ stood relevantly for the following propositions: 1. That no discretion was being exercised when an application for a permanent stay was being determined. 2. The effect of what was said in GLJ at [18], [20] and [22] was that the focus was no longer on prejudice to the parties, but instead was on "congruence" with the system. When asked to explain, it was said that: the point we're seeking to draw from it is the focus is systemic rather than personal. It's not a matter, as our learned friends would have it, of listing forms of prejudice to the respondents that arise because of, for example, the absence of a witness. Prejudice to a party is relevant only insofar as it implicates this systemic consequence or systemic focus of the purpose of the power. 1. In determining whether a fair trial is possible, the requirements to be satisfied to the civil standard having regard to the seriousness of the issues, the principles in Blatch v Archer (1774) 1 Cowp 64, the difficulties with testimonial evidence having regard to the fallibility of human memory considered in Watson v Foxman (1995) 49 NSWLR 315, the fact that courts are not bound to accept uncontradicted evidence, and will scrutinise claims with special care when the only person who could contradict them has died, were all of considerable importance. Indeed, it was submitted that: the systemic focus of the inquiry on the integrity of the adversarial system requires that great importance be attributed to these matters as ameliorating the consequences of deficiencies in the evidentiary record. 1. The "effect of the passing of time on evidence has to be evaluated within a new normative context or new legal framework". One aspect of this was the reiteration in [43] about what was "neither uncommon nor unexpected" concerning the effluxion of time, such that: The critical thing which fidelity to the new normative structure requires is the acknowledgment that when, and this is the step not taken in Moubarak by President Bell, as his Honour then was, acknowledging the effect of the effluxion of time on evidence must now be regarded as not exceptional, and the effect of the effluxion of time on evidence has [to] be evaluated differently. 1. This carried with it, according to the applicants, the consequence that there were now two categories of permanent stays: permanent stays of criminal and civil proceedings which did not fall within s 6A(1), and permanent stays of civil proceedings involving claims of child sexual abuse. They submitted that Steward J, dissenting, was correct to observe that there was a different tolerance for impoverishment of evidence in the case of child sexual abuse cases than in any other case for a permanent stay. 2. It was also said that the context in which some child sexual abuse occurs was likely to be relevant, with the effect in substance that a permanent stay was less likely to be available in an institutional context.

The majority reasons for judgment in GLJ

1. It will have been seen that the parties were diametrically opposed on the basic question whether GLJ had changed the law. I shall follow the course adopted by both sides' submissions and focus almost exclusively upon the reasons of the majority. In light of the fact that the threshold issue in this Court was, a little unusually, as to whether a joint judgment of a majority of the High Court altered the law, it is necessary to reproduce the most salient passages more extensively than would ordinarily be the case.
2. Kiefel CJ, Gageler and Jagot JJ introduced their reasons at [3]-[4] thus: [T]he grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute. In the present case, the abolition of the limitation period that would have applied to and precluded the appellant's proceedings before the enactment of the Limitation Amendment (Child Abuse) Act 2016 (NSW) has created a new legal context within which the alleged abuse of process must be evaluated. In this new legal context, the Diocese's contention that any trial of the proceedings would be necessarily unfair must be rejected. As the Diocese acknowledged that its case for a permanent stay for abuse of process was based only on necessary unfairness of a trial and not undue oppression or unfairness otherwise, no permanent stay is justified. The proceedings must go to trial. [Footnotes omitted].
3. What their Honours said at [21] (albeit when addressing the standard of appellate review) bears upon the sense in which the word "exceptional" is used: The party seeking the permanent stay bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus has rightly been described as a heavy one, and the power rightly said to be exercisable only in an exceptional case. This is because it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided. Lest the concept of "exceptional circumstances" be reduced to the formulaic, the power to grant a permanent stay, as Gaudron J explained in Jago v District Court (NSW), is "a power to refuse to exercise jurisdiction" which operates "in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised", it being "a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts". This context underlies the requirement of exceptionality to enliven the power to grant a permanent stay. [Footnotes omitted].

Consideration

1. I think that GLJ must be taken to have changed the law. In light of the debate in this Court as to whether or not that was so, it is as well to be clear as to what is meant. I think that there are cases which formerly would have been stayed which will now proceed to trial. I see no other way of construing the effect of the language of the reasons of the majority.
2. The High Court decision amounts to a determination of the effect of the enactment of s 6A(1) of the Limitation Act 1969 (NSW), inserted by the Limitation Amendment (Child Abuse) Act 2016 (NSW), upon the principles applicable to applications for a permanent stay, whether in the exercise of a general jurisdiction or, as in the present case, pursuant to s 67 of the Civil Procedure Act 2005 (NSW). It would seem that the changed principles only apply to civil litigation to which s 6A applies. That section provides as follows: 6A No limitation period for child abuse actions (1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act. (2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age - (a) sexual abuse, (b) serious physical abuse, (c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse). (3) To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age. (4) This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise. (5) This section extends to the following causes of action - (a) a cause of action that arises under the Compensation to Relatives Act 1897, (b) a cause of action that survives on the death of a person for the benefit of the person's estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944. (6) This section does not limit - (a) any inherent jurisdiction, implied jurisdiction or statutory jurisdiction of a court, or (b) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction. Note - For example, this section does not limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.

The evaluation of the burdensome effect of delay

1. One proposition established by Moubarak was that s 6A meant that the mere passage of time was not sufficient, but instead one asked whether the lapse of time has a burdensome effect which is so serious that a fair trial is not possible. There would be either an inconsistency or an incoherence with judge-made law governing the grant of a permanent stay if the mere passage of time warranted a stay, when faced with the entitlement conferred by s 6A(1) for actions based on child abuse to be brought at any time.
2. The same distinction may be seen in Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [69]-[70], in the joint judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ, in the dispositive passage of their reasons: attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants. What Deane J said in Oceanic Sun Line Special Shipping Company Inc v Fay, with respect to the staying of local proceedings, is applicable also to a case such as the present one. His Honour emphasised that there was no "requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff"; what was decisive was the objective effect of the continuation of the action. [Footnotes omitted].
3. The majority in GLJ disagreed with one aspect of Batistatos concerning the standard of appellate review. However, there is nothing expressly critical of the requirements in that passage to have regard to the "burdensome effect" or the "objective effect" of the litigation proceeding.
4. The passage from Batistatos does not merely have the authority of dispositive reasons for judgment of a majority of the High Court of Australia. There is no reason to doubt that it was picked up legislatively, by the note to s 6A which refers in terms to "burdensome effect" being a basis upon which a permanent stay might be ordered. This point was made by Gleeson J, dissenting, in GLJ at [170]-[171]: The dispositive question in Batistatos was whether the burdensome effect upon the defendants of the situation that had arisen by lapse of time was so serious that a fair trial was not possible. The language of that question, which reflects the more general requirement that a defendant must have a fair opportunity to respond to a case against them, appears in the note beneath s 6A(6) of the Limitation Act 1969 (NSW) which records: " ... this section does not limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible." The note is a legislative acknowledgement of the basic principle that the legislature cannot require the courts to adopt a procedure that is unfair to the defendant. [Footnote omitted].

The identification of exceptional circumstances

1. The construction adopted by the majority reasons for judgment is to the effect that a permanent stay will only be granted in exceptional circumstances, but the class of what is "exceptional" is to be taken to have narrowed following the enactment of s 6A. Matters that were once considered "exceptional", such as a forty or fifty year delay and the concomitant inevitable distortion of human recollection and impoverishment of documents, are not to be regarded as exceptional for the purposes of confining permanent stays of civil claims for child abuse to "exceptional" cases, at least in institutional settings.
2. I find it impossible to read what was said at [44] about "exceptional circumstances" not extending to the "common and expected effects of the passing of those years or decades, in and of themselves" in any other way. Likewise, the statement in [52] that "the mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay". Indeed, the substantive changes are heralded by the heading "A fair trial in child sexual abuse claims - a new world".
3. That conclusion is confirmed by having regard to the submissions advanced on behalf of GLJ in the High Court. GLJ's counsel said the following: But the position for which we contend does not controvert [s 6A(6) and the note], and let me explain why. We do not rely on the legislative changes and the reasons for them to move for any change in applicable principle. The question is and remains, whether the continuation of the proceedings is so unfair or would involve such unacceptable unfairness to warrant the stay, but the application of that principle is necessarily context‑specific and what is unacceptable in one context may not be unacceptable in another. The legislative reforms to which we have pointed and the circumstances which prompted them are highly relevant in calibrating the application of this power. The passage of time will inevitably impoverish the evidentiary record, often including the death of the alleged perpetrator. The acts of abuse, of their nature, will often have taken place in private with no other witnesses. They are not unusual features of cases such as this. They are typical. That being so, in this particular context, the death of the alleged perpetrator of the child sexual abuse, even where there are no other witnesses to the abuse, cannot be regarded as a sufficiently serious degree of unfairness to warrant a permanent stay. If it were otherwise, then stays of proceedings of this kind will not be "exceptional" or "extreme" cases, as the authority of this Court requires; they will be frequent.

Three aspects of the reasoning of GLJ

1. I have indicated above what in my respectful opinion would be the orthodox approach to construing s 6A(1) and (6). A change in the principles governing permanent stays is difficult to reconcile with s 6A(6) providing that s 6A does not limit the jurisdictions and powers of courts. That is not the only difficult aspect of the reasons of the majority.
2. First, the basic proposition is that a court must not permit trials that will be demonstrably unfair. This might be called a fundamental aspect of the normative structure of the Australian legal system, but what it is called does not greatly matter. Courts have many tools which can be used to prevent trials which will be necessarily unfair, as a result of which only exceptionally will there be an occasion for the remedy of a permanent stay. The fact that the Legislature has determined that a special class of plaintiffs can bring claims based on events occurring 46 years ago will mean that there may be more opportunities for defendants to complain, and courts to rule, on whether such proceedings are demonstrably unfair. That does not mean that most of those claims must go to trial so as to preserve the exceptionality of the remedy of a permanent stay. It means that there may be more occasions where a permanent stay is required lest there be an inevitably unfair trial.
3. Secondly, it would appear that there are separate principles for permanent stays of criminal claims and civil claims which do not attract s 6A, as opposed to applications for permanent stays to which s 6A applies. That introduces an especially awkward incoherence insofar as a criminal claim against the alleged perpetrator might be permanently stayed, but a civil claim against the perpetrator or a defendant said to be vicariously liable would not be. Take what might be regarded as a typical complaint of child abuse occurring decades ago, which resulted in a criminal prosecution and civil litigation arising out of precisely the same allegation. It might be expected that the civil proceedings would be stayed temporarily pending the criminal trial, because the obligations to give discovery, to respond to interrogatories and to give evidence were inconsistent with the rubric of rules associated with the "right to silence" enjoyed by an accused. The accused might also seek and in an appropriate case obtain a permanent stay of the prosecution. However, in accordance with the majority reasoning in GLJ, the same accused person would be unable to obtain a permanent stay of the civil litigation based on the same underlying allegation. That might be regarded as an unexpected consequence of s 6A, especially given the general absence of any limitation period applicable to the criminal prosecution.

Conclusion on the effect of GLJ

1. 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.
2. It follows that there should be a grant of leave on the main point argued (grounds 1 and 1A). That is because the primary judge must now be regarded as having misapplied the principle in his reasons at [119]-[121], and failed to discount the ordinary and expected consequences of most witnesses being unavailable. I should make it quite clear that in accordance with the law as it stood at the time his Honour was asked to decide the question, the reasoning in [119]-[121] was, in my respectful opinion, wholly unexceptionable.
3. I shall return to the application of the principles stated by the majority reasons of the High Court after addressing proposed ground 3.

Proposed ground 3

1. Proposed ground 2 was abandoned by amendments supplied in advance of the hearing. Proposed ground 3 was not at the forefront of the parties' submissions. In light of the above, it does not arise. I shall address it concisely.
2. Proposed ground 3 was in the following terms: The primary judge erred in concluding that the Respondent had "carried out all reasonable enquiries" (J[106]), and in particular that it was "entirely speculative and highly unlikely" that investigation of Father Perrett's activities after 1995 might have yielded evidence relevant to this claim (J[112]). The primary judge ought to have found that: a. the defendant knew from at least mid-1996 that Father Perrett's abuse was not limited to the three boys the subject of the criminal allegations, but instead had been "since the beginning of priesthood; it has been all over the place; it has been with all sorts of kids in all sorts of places. It probably involves many, many boys of pre-pubescent age"; b. in the circumstances, it was reasonable in 1995-1996 for the Respondent to anticipate litigation; c. the defendant knew from at least 22 June 1996 that abuse was alleged to have occurred "on a camping trip" in "about 1979"; d. any investigation in 1995-1996 could have involved interviewing three of the four deceased persons now said to be "key witnesses" (J[67]) who were alive at that time - ie Father Perrett, Sister Rita, and Bishop Kennedy; e. the defendant either: (i) did carry out an investigation, but failed to adduce records about that investigation; or (ii) failed to carry out any investigation; f. accordingly, the defendant is responsible for any prejudice which arises.
3. This proposed ground is essentially factual, although it gave rise to a debate in this Court as to whether what Bathurst CJ had said in Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 concerning defendants making reasonable inquiries. It is neither necessary nor appropriate to determine whether, as the applicants maintained, GLJ impliedly overruled part of that case. As may be seen from the extract quoted in paragraph (a), this ground was based upon the "Peters' Memorandum" extracted above.
4. A deal was sought to be made of that document in submissions in this Court. Before the primary judge, it was the subject of brief cross-examination by the Diocesan Chancellor, and the subject of one sentence in written submissions and one sentence in oral submissions. At no stage were any of the findings which, on this proposed ground, are said ought to have been made either put to the witnesses or sought from the primary judge.

Conclusion and orders

1. For those reasons, I have concluded that there should be a grant of leave, confined to grounds 1 and 1A, so that the application for a permanent stay may be addressed in accordance with what the High Court has more recently determined is the effect of s 6A.
2. I start with the allegations of abuse in 1976. 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.
3. 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.
4. One category of difficulty arises because, as the primary judge observed, the principles applicable to vicarious liability in a case like this are uncertain. Father Perrett was neither the Bishop's employee nor his agent. Even if his office were regarded as analogous to employment, the "course of employment test" is itself conclusionary and offers little guidance as to how to approach novel cases (Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37). The conduct of which the appellants complain was in no sense an aspect of his duties as an assistant priest; it was antithetical to those obligations. Of course, the fact that the conduct is tortious and indeed criminal does not mean that a claim of vicarious liability is impossible, but it does present considerable difficulties in identifying the juristic basis of the claim. Those observations are scarcely original; they reflect the points made by Lord Burrows earlier this year when describing the two main problems of the established doctrine of vicarious liability: The first is that the type of relationship in question between the defendant and the tortfeasor may fall outside that of employer and employee. The second is that the torts in question in the sexual abuse cases are intentional torts that cannot easily be fitted within the idea that the tortfeasor's act is merely an unauthorised mode of doing some act authorised by the employer: Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15 at [3].

Orders

1. Accordingly, I propose the following orders:
2. Grant leave to appeal, confined to grounds 1 and 1A of the draft notice of appeal, in respect of the permanent stay applicable to the claim that the respondent is vicariously liable for the tortious conduct of Father Perrett.
3. Direct the appellants to file and serve a notice of appeal in accordance with that grant of leave within 7 days of today, and otherwise dispense with the requirements of service.
4. Subject to order 5 below, direct the appellants to file and serve any supplementary report of Father Dillon, and any further submissions in support of an order discharging the stay having regard to Father Dillon's supplementary report, on or before 22 December 2023.
5. Subject to order 5 below, direct the respondent to file and serve supplementary submissions having regard to Father Dillon's supplementary report, on or before 16 January 2024, and direct the appellants to file and serve any submissions in reply on or before 23 January 2024.
6. In the event that the appellants wish to have their appeal determined without regard to the supplementary report of Father Dillon, they should notify the Associate to Leeming JA and the respondent by 22 December 2023.
7. Direct the appellants to file and serve an updated estimate of CM's prognosis on or before 22 December 2023.
8. To the extent necessary, order that the permanent stay ordered on 23 August 2023 does not preclude any application on behalf of CM to preserve his testimony.
9. Liberty to apply to Leeming JA in the event that either side wishes to vary the dates in order 4 above.
10. PAYNE JA: I agree with Leeming JA.
11. HARRISON CJ at CL: I agree with Leeming JA.

Amendments 15 December 2023 - [84] - "his" changed to "GLJ's" 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: 15 December 2023