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

Supreme Court of NSW|2023-08-16|Before: Cavanagh J

JUDGMENT

The plaintiffs seek damages from the defendant in respect of acts of abuse said to have been perpetrated on them by a Catholic priest, Father David Joseph Perrett, in December 1976. CM was 9 years old at the time. His brother, EM, was 10 years old. Father Perrett was the parish priest in the Diocese of Armidale.
CM complains of a single act of abuse said to have occurred on a camping trip organised by Father Perrett in December 1976. CM alleges that whilst he was in his tent, Father Perrett came into the tent and lay down next to him. Father Perrett then rubbed CM's stomach and placed his hand down CM's pants, holding onto his penis.

Principles to be applied

In Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 ("Moubarak"), Bell P (as the Chief Justice then was) set out a number of uncontroversial propositions at [71]: "From a brace of decisions of the High Court between 1989 and 2006 (Jago; Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 (Spautz); Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 (Walton); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (Batistatos)), the following uncontroversial propositions may be derived: 1. The onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant: Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ); 2. A permanent stay should only be ordered in exceptional circumstances: Jago at 31 (per Mason CJ), 76 (per Gaudron J); Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ); Walton at 388 (per Mason CJ, Deane and Dawson JJ); 3. A permanent stay should be granted when the interests of the administration of justice so demand: Jago at 30 (per Mason CJ), 74 (Gaudron J); Spautz at 520 (per Mason CJ, Dawson, Toohey and McHugh JJ); Batistatos at [12] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); 4. The categories of cases in which a permanent stay may be ordered are not closed: Jago at 74 (per Gaudron J); Batistatos at [9] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); 5. One category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive: Jago at 74 (per Gaudron J); Walton at 393 (per Mason CJ, Deane and Dawson JJ); 6. The continuation of proceedings may be oppressive if that is their objective effect: Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); 7. Proceedings may be oppressive where their effect is "seriously and unfairly burdensome, prejudicial or damaging": Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 at 247 (per Deane J); [1988] HCA 32 cited in Jago at 74 (per Gaudron J); Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); 8. Proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); and Proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ)."
In Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78, Mitchelmore JA observed that the principles which apply to the grant of a permanent stay under s 67 of the Civil Procedure Act are well-settled (at [95]) and referred to the summary of principles contained in Moubarak, as well as a similar summary of principles referred to by Bathurst CJ in Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 ("Anderson") at [422]-[430].

Abolition of limitation period

By virtue of the Limitation Amendment (Child Abuse) Act 2016 (NSW) ("Limitation Act"), there is no limitation period in respect of these causes of actions, being "personal injury to a person resulting from an act or omission that constitutes child abuse of the person": s 6A(1) of the Limitation Act. That change commenced on 17 March 2016 and operates retrospectively.
However, Parliament expressly preserved the right of a party to make an application such as this by virtue of s 6A(6) of the Limitation Act (see Moubarak at [188]; Gorman v McKnight (2020) 19 ASTLR 181; [2020] NSWCA 20 at [4]): "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."
In Moubarak at [72], the Court referred to the observations of Lord Sumption in Abdulla v Birmingham City Council [2012] UKSC 47; [2013] 1 All ER 649 as follows: "In Abdulla v Birmingham City Council [2013] 1 All ER 649; [2012] UKSC 47 at [41], Lord Sumption observed that: '[41] Limitation reflects a fundamental and all but universal legal policy that the litigation of stale claims is potentially a significant injustice. Delay impoverishes the evidence available to determine the claim, prolongs uncertainty, impedes the definitive settlement of the parties' mutual affairs and consumes scarce judicial resources in dealing with claims that should have been brought long ago or not at all.'"
In circumstances wherein the legislature has expressly abolished the limitation period in respect of these kinds of claims (as observed in Moubarak at [75]), the plaintiff should not be criticised for any delay in bringing such a claim. Questions of culpability for delay do not arise. However, delay is still relevant in assessing whether the continuation of the proceedings would be manifestly unfair to a party. This is the basis of the defendant's application for a stay: that the continuation of the proceedings would be manifestly unfair.

The defendant's submissions

The defendant submits that it was first notified of the plaintiff's claims by a letter from the then solicitors for the plaintiff, Ellis Legal, dated 13 December 2020.
The defendant submits that, despite extensive enquiries on its part, it will be unable to meaningfully participate in the trial and the trial will not be fair because of the unavailability of relevant and critical witnesses. Specifically, the defendant says that: 1. Father Perrett died on 2 July 2020, prior to which it was not aware of the plaintiff's claim; 2. it was not able to obtain any statement or instructions from Father Perret in respect of the allegations against him; 3. it is not able to adduce evidence from Father Perrett; 4. it is not able to adduce evidence from Sister Rita, who died in 2003; 5. it was unaware of the suggestion that it might be liable for Sister Rita's conduct in December 1976 at the camp, until it received the letter in December 2020; 6. there are other witnesses who are unable to give relevant evidence, such as the Bishop of Armidale at the time, Bishop Henry Kennedy, and officers of the Church referred to in the various documents, such as the priest who was responsible for the supervision of Father Perrett in the 1970s.
Adopting the language used in GLJ, the defendant submits that, having regard to the evidence, there are two foundational issues: (1) whether the plaintiff was at the camp; and (2) whether Father Perrett abused the plaintiff as asserted. The defendant submits that it is not able to adduce evidence on these foundational issues in circumstances in which the proceedings were commenced by the plaintiff 45 years after the conduct is said to have occurred and all of the critical witnesses died before notice of the claim was given.
The defendant also submits that other evidence critical to issues such as the state of the defendant's knowledge of Father Perrett's activities and its nexus with the defendant as well as the role and knowledge of Sister Rita is no longer available.

The plaintiff's submissions

The plaintiff's primary submission is that I would not accept that the defendant cannot have a fair trial.
Specifically, the plaintiff submits: 1. the defendant was or ought to have been on notice of Father Perrett's conduct prior to 1976; 2. the defendant ought to have been aware of the potential for such a claim to be pursued as early as 1995, when Father Perrett pleaded guilty to criminal offences involving the molestation of young boys and the defendant took action against Father Perrett; and 3. the defendant was and ought to have been aware of the likelihood of the plaintiff pursuing these claims, at least by 2017, when Father Perrett was charged with criminal offences in relation to CM and EM.
The plaintiff identifies a number of reasons why the motion should be dismissed, including: 1. Father Perrett was confronted with the allegations made by the plaintiff before his death through the criminal charges. According to his solicitor, Father Perrett denied the allegations and, as the plaintiff submits, his denial is available to be used by the defendant in its defence of the plaintiff's claim; 2. prior to the filing of the motion, the defendant had certified and verified its defence. The plaintiff submits that this motion represents an unexplained attempt to retreat from the certification and verification. Further, the delay in pursuing the motion stands squarely against the relief sought; 3. the defendant has failed to adduce evidence as to why more appropriate and timely enquiries were not made about the plaintiff's claim and the role of Father Perrett. If any prejudice to the defendant is found, that arises because of the defendant's own failures; 4. the defendant has maintained a substantial claim for privilege both in respect of redactions to documents and in open court. The plaintiff submits such claims are fatal to the motion (O'Callaghan v Trustees of the Marist Brothers [2023] NSWSC 432 ("O'Callaghan") at [26]); and 5. the defendant has not made satisfactory enquiries and placed all available evidence before the Court so as to satisfy the Court that it cannot have a fair trial.
Obviously, the parties' submissions are much more extensive than I have summarised. I will deal with the matters raised by the parties in my determination of the application.

The evidence proposed to be adduced by the plaintiff on the final hearing

As indicated by the solicitor for the plaintiff during oral evidence, no final decision has yet been made on what evidence will be adduced during the final hearing. I understand that, at this stage, the plaintiff intends to rely on their own evidentiary statements and perhaps another witness statement from his cousin. The solicitors for the plaintiff informed the defendant (when the proceedings were listed for hearing, rather than just the stay application) that the plaintiff would not be relying on tendency evidence.
The witnesses attest to their attendance at the camp or knowledge of the camp organised by Father Perrett in 1976. They also attest to the conduct of Father Perrett at that camp, including that he slept in the same tent as the boys and he abused each of them by placing his hands down their pants and grabbing their genitals.
They also attest to the presence of Sister Rita at the camp. In their statements, both plaintiffs say that following the abuse, their lives will never be the same again. EM also refers to a significant period of sexual abuse by his aunty whilst he was living with her. Both plaintiffs refer to turning to drugs and alcohol whilst they were teenagers, as well as their trauma and other difficulties. EM says that he reported the sexual abuse by his aunty to the police in June 2007.
There may also be evidence from another witness who was employed as an Elder in-Residence Liaison Officer at the University of New England in Armidale. He recalls the Georges Creek camps. He recalls Father Perrett. He says that he was at the camps as a supervisor and sometimes drove the bus. His evidence is slightly different to that of the other witnesses because he says that they used to put up a tent for the boys and one for Father Perrett. Some of the boys would sleep in Father Perrett's tent. He recalls Sister Rita being present; she was in charge of the girls who attended the camp and assisted in the supervision of the girls. The plaintiff says that Sister Rita was on the particular camp despite the fact that no girls were in attendance.

The defendant's evidence on the application

The defendant adduced evidence from the Chancellor of the Diocese of Armidale, Ms Jennifer Harman. Ms Harman referred to her searches and investigations into the allegations made by the plaintiff. She first became aware of the plaintiff's allegations when the defendant received a letter from Ellis Legal dated 13 December 2020 notifying the defendant of the plaintiff's claim. Sparke Helmore Lawyers were appointed to represent the defendant on 22 December 2020. Sometime thereafter, the current solicitors, Wotton + Kearney, were appointed to represent the defendant.
Ms Harman details the results of her searches of documents held by the defendant. She undertook searches of various documents, including minutes of "College of Consultors" meetings, parish records, historical records, personnel files, annual reports from the Seminary, sacramental records and computerised records.
The documents on the file relating to Father Perrett (aside from a handwritten and typed biography) included a letter to the Bishop Henry Kennedy from Father Perrett, dated 4 January 1979, seeking a period of leave and a further letter from Father Perrett to the Bishop, dated 20 December 1979, also requesting leave. The records did not reveal any documents relating to the decision-making process for the appointment of Father Perrett as an assistant priest in Armidale.
Ms Harman searched the records of the College of Consultors and ascertained that the five Monsignors who formed the College of Consultors in 1968 and 1969 are now deceased. She also made searches to ascertain the identities of the Consultors in 1976 and found that all of them are also deceased. She undertook a review of the biographies of the priests of the Diocese of Armidale and other priests in Armidale in 1976.
Ms Harman ascertained that Bishop Henry Kennedy died on 3 September 2003 and Dr Bruce Macpherson, who was the Cathedral Administrator at the time of the alleged abuse, died on 8 April 1983.
A priest named Father Bernard Flood, who was the Diocesan Director of Education at the time, is still alive.
Ms Harman's search did not reveal any complaints of alleged abuse by Father Perrett prior to 1976 or, indeed, the 1990s.
The defendant generally became aware of the allegations of sexual abuse by Father Perrett on 31 August 1995, at which time he was charged with two offences. Father Perrett resigned from his position as parish priest of Boggabri on 15 July 1996 and an Employment Separation Certificate was completed and signed by Bishop Manning on 18 December 1996.
Ms Harman did not locate any contemporaneous documents before 1996 evidencing the Bishop's knowledge of Father Perrett attending or otherwise being involved in taking children camping. The first document Ms Hardman located which refers to camping is dated 4 September 1982. The document referenced altar servers camps.
Ms Harman was cross-examined extensively. The main area of cross-examination related to whether Ms Harman had contacted a number of persons identified by the plaintiff. Those persons are referred to in various documents produced by the defendant.
The effect of the cross examination was to ask Ms Harman why she had not contacted those persons. It was not put to Ms Harman in respect of any of these individuals that there was a particular purpose for contacting them, other than that they might have been able to assist. The plaintiff sought to establish that there were further enquires Ms Harman could have made but had chosen not to. However, as I will discuss later in this judgment, with limited exceptions, it was not explained either to Ms Harman or during submissions why the defendant should have contacted these persons or what information the defendant might have obtained from these persons.
The defendant also relied on the affidavit of Greg Alan Birtles, who was a solicitor retained by Father Perrett to represent him in respect of the criminal charges laid against him on 5 May 2017. Mr Birtles confirmed that he commenced acting for Father Perrett in May 2017. He met with and acted for Father Perrett until his death on 2 July 2020. After Father Perrett's bail was revoked on 22 August 2018, he was detained at Tamworth Correctional Centre before being transferred to maximum security at Shortland Correctional Centre. Father Perrett then suffered a fall and was moved to Long Bay Hospital.
Mr Birtles annexed to his affidavit his records of the instructions obtained by Father Perrett in respect of the criminal charges against him. Mr Birtles was instructed by Father Perrett that he denied the allegations contained within the statements of the complainants and intended to plead not guilty to all of the charges. Father Perrett said he had little or no memory of the complainants. Mr Birtles also annexed to his affidavit a document which he described as his "Instructions Document".
Mr Birtles' Instructions Document records Father Perrett instructing that: 1. he did not know the person CM; 2. he did not remember a person called "Flipper"; 3. he denied the allegation relating to CM; and 4. he denied that he was in Walgett when CM said that he saw him in a church in Walgett in 1997. Father Perrett was only in Walgett from 1987 to 1992. He had no recollection of meeting CM in Walgett.
For various reasons, there was a delay in the criminal proceedings and Father Perrett was not required to enter pleas to the charges against him before he died in July 2020.
The defendant then adduced evidence from its solicitor, Ms Gemma Burke. Ms Burke detailed the procedural history of the plaintiff's claim and the enquiries and investigations she undertook in defence of the claim. She annexed the request for further and better particulars from the solicitors for the plaintiff. She referred to the information which Mr Birtles provided to her.
Ms Burke identified the steps that she would need to take to properly defend the matter. These included: 1. obtaining instructions from Father Perrett; 2. interviewing Sister Rita and obtaining a statement from her; 3. obtaining information from Father Perrett's superiors in the parish at the relevant time to ascertain what they knew; 4. seeking instructions from the Bishop at that time about what he knew; 5. ascertaining whether there were any records attesting what was alleged in the Statement of Claim; 6. seeking instructions about the systems which were in place at the time; and 7. seeking instructions from the bishop or any senior cleric at that time as to the role of Sister Rita.
Ms Burke said that due to the deaths of the relevant persons, she cannot: 1. obtain instructions from Father Perrett; 2. obtain information from Sister Rita; 3. obtain information from Father Perrett's superiors, including the bishop, at the relevant time; 4. obtain information from the Cathedral Administrator, Dr Bruce Macpherson; and 5. obtain information from Bishop Henry Kennedy, who was the Bishop of Armidale from 1972 to 1991.
Ms Burke confirmed that the defendant's records contained no indication of complaint or allegation from the plaintiff prior to the receipt of the letter from Ellis Legal dated 13 December 2020.
Ms Burke also attested to telephone conversations with Father Flood, who was the only surviving priest stationed in Armidale in 1976. Father Flood said he was unwell. He did not assign duties to Father Perrett because he was not on the Bishop's staff, whereas Father Perrett was. Father Perrett was therefore under the authority of the Cathedral Administrator, who reported to the Bishop. Father Flood said that he was unaware of Father Perrett being involved in any misconduct at the time in Armidale, he had no recollection of Father Perrett taking children to the bush and he did not observe Father Perrett being physically affectionate towards children. Father Flood said that playing with children, being physically affectionate with children and taking them on trips were never part of Father Perrett's role as a priest in the diocese.
Ms Burke was cross examined in a similar way to Ms Harman. It was put to her that there were further investigations she could have taken, including searching for the various persons identified by the plaintiff through various documents. Again, it was not suggested to Ms Burke what sort of information each person might be able to provide to her, whether those persons were alive or whether any of them would have known of the central allegations in this case.

The plaintiff's evidence on the application

The plaintiff adduced evidence from his solicitor, Mr Gregory Choat. Exhibited through his affidavit were eight volumes of material, six of which compromise of material from the Royal Commission into Institutional Responses to Child Sexual Abuse ("Royal Commission").
Mr Choat refers to the findings of the Royal Commission and various case studies. It is not clear to me how case studies relating to different priests in different cities at different times could be relevant to the current application. I understand the plaintiff to be submitting in general terms that it is apparent from the Royal Commission that the Catholic Church was aware of the possibility of priests abusing young children and was on notice of the associated risks.
Other than that, Mr Choat annexed the statements of CM and EM, as well as other witnesses upon whom the plaintiff may be relying for the purposes of this case. Mr Choat also annexed an affidavit of Father Kevin Dillon, who is a priest living in Melbourne, and who the plaintiff proposes to call as an expert on the work and responsibilities of a priest and the chain of command.
Mr Gyles SC sought to cross examine Mr Choat on the evidence he intended to adduce at the hearing and how he intended to run the case. Mr Tierney objected to this form of questioning on the basis that the opinion of the solicitor for the plaintiff as to what evidence might be adduced during the hearing was of no probative value. I did not allow the questioning, although I noted that in determining whether the defendant could have a fair trial, it is important to understand what evidence the plaintiff might be adducing. Mr Tierney correctly responded that, having regard to Anderson, I should determine the application on the basis of the pleaded case and that the plaintiff would be adducing evidence to support the pleaded case.

Consideration

It is important to observe that: 1. these types of applications are essentially fact driven or dependent: see Moubarak at [111] (per Bell P); 2. the defendant must satisfy the Court that exceptional circumstances exist: Moubarak at [71]; Connellan v Murphy [2017] VSCA 116 at [54] ("Connellan"); 3. extensive delay without more would not justify a stay: Anderson at [427]-[429] (per Bathurst CJ), although the length of time between the abuse and the pursuit of a claim may be a relevant factor: Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 ("Prince Alfred College") at [105] (per French CJ, Kiefel, Bell, Keane and Nettle JJ); Connellan at [47]; and 4. the death of a witness does not, of itself, justify a stay. The mere unavailability of a witness cannot be considered an exceptional circumstance. Similarly, the absence of documents would not, of itself, preclude the possibility of a fair trial: Moubarak at [89]-[93] (per Bell P).
An application such as this does not involve the Court engaging in some form of mini trial. It is not incumbent on the plaintiff to prove that he has sufficient evidence to succeed. The plaintiff bears no onus on this type of application.
Having said that, in some circumstances, a party may wish to identify all of its evidence as it may tend to negate suggestions that the defendant could not obtain a fair trial. This might include historical documents which support a contention that the defendant had prior notice of the conduct of a perpetrator of abuse (see, for example, SR v Trustees of the De La Salle Brothers (2023) 321 IR 441; [2023] NSWSC 66) or which might tend to support a claim in vicarious liability could negate a party's complaint about the death of witness. However, there is no obligation on the plaintiff to do so.
On the other hand, if the plaintiff chooses not to expose his case, the Court will consider the application based on the pleadings. The Court would assume that there is a proper basis for the allegations made by the plaintiff and that evidence may be adduced by the plaintiff in support of those allegations.
The point raised by the defendant is that the unavailability of, not one, but all of the critical witnesses who might be able to provide information means that the defendant cannot meaningfully participate in the trial and cannot have a fair trial.
Those key witnesses include: 1. Father Perrett; 2. Sister Rita, who is alleged to have been on the camping trip in 1976 and who died in 2003. 3. Bishop Henry Kennedy, who, as I understand the plaintiff's case, was the Bishop in charge of the diocese in the 1970s and who the plaintiff asserts was the relevant authority for allocating Father Perrett's duties and responsibilities. Bishop Kennedy died on 3 September 2003; 4. Dr Bruce Macpherson, the Cathedral Administrator, who died on 8 April 1983. It was said in (at least) one of the historical documents that Dr Macpherson was responsible for the direct supervision of Father Perrett and the allocation of his responsibilities; and 5. Father Bernard Flood, the only priest who is still alive, who was working in the diocese in Armidale in 1970. The solicitors for the defendant have spoken to Father Flood, who said that, as far as he was aware, taking children on camps was never part of Father Perrett's role as a priest, nor was it part of his role as an assistant priest. Father Flood is unable to provide information as to what Bishop Kennedy or Dr Macpherson may have discussed or known about Father Perrett organising and taking children from the Aboriginal Mission on these camps.
Further, the defendant points to an absence of contemporaneous documents about such camps and the lack of knowledge of the defendant, the Bishop, the Cathedral Administrator and the other priests about the camps.
There is a contemporaneous document which refers to altar servers camps, but that is not the type of camp which the plaintiff say he was on when the abuse occurred. There is a letter from Father Perrett dated 4 September 1982, in which he refers to being involved in a vacation camp for Aboriginal youths in 1982.
The defendant does not dispute that Father Perrett organised and took children from the Aboriginal mission on these vacation camps in the 1970s, but says that the documentation relating to the camps does not assist in the resolution of the essential issues, being: 1. whether the abuse took place; 2. whether the plaintiff was at the particular camp; 3. whether Sister Rita was at the particular camp; 4. the role and knowledge of Sister Rita; 5. whether the camps were authorised by the defendant; 6. whether Father Perrett was taking the boys camping as part of his role as the priest in the diocese at the time.
The defendant points to some inconsistencies in the statements served as to who was on the camp and what happened there. The plaintiff did not suggest in his original police statement that his brother was on the camp. Sister Rita is said to have attended to supervise the girls but it is said that there were no girls present at the relevant camp.
Considering the substance of the defendant's submissions, it is important to say something more about the case being pursued by the plaintiff against the defendant.
The plaintiff's direct claim in negligence is pursued on the basis that the defendant knew or ought to have known that there was a risk that a priest could sexually assaulted a child he was supervising, causing personal injury and that the defendant knew or ought to have known that Father Perrett could unlawfully sexually assault an Aboriginal child, causing personal injury.
I have not seen any evidence to support such knowledge in 1976 (such as a contemporaneous note or letter from some unrelated person), but the plaintiff does not resile from these matters on the application. Further, the plaintiff asserts that there were reasonable precautions the defendant should have taken prior to the abuse, which included the implementation of systems and procedures to deal with complaints, supervising Father Perrett, preventing Father Perrett from having unsupervised access to children and conducting investigations into Father Perrett. It is said that the defendant was negligent in engaging Father Perrett as a priest when it was inappropriate to do so.
The plaintiff did not direct me to any evidence which would support such allegations, other than generally to the Royal Commission documents. In my view, the tender of many volumes of material from the Royal Commission is unhelpful. Mr Tierney referred to the process of inferential reasoning but I am not sure how establishing the Catholic Church's knowledge of the conduct of other priests in other places at different times supports the inference that the defendant ought to have known of the conduct of Father Perrett pre-1976.
However, I reiterate that it is not up to the plaintiff to adduce evidence of his case on this application. I merely note that, if there are documents which could support the allegation of knowledge, I would have expected them to be brought to my attention so as to negate the complaint about the absence of a particular witness.
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 various 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 third aspect of the plaintiff's claim is that Sister Rita owed a duty of care to the plaintiff and that Sister Rita breached that duty of care. The plaintiff submits that the defendant is vicariously liable for Sister Rita's negligence. As Mr Tierney points out, the defendant acknowledges that Sister Rita owed a duty of care, although it does so in general terms. I do not accept Mr Tierney's submission that an admission of a duty of care in such general terms should be viewed as an admission of that which the plaintiff asserts: the presence of Sister Rita at the camp and her knowledge of certain matters.
As Mr Tierney accepted during oral submissions, this is "a difficult" aspect of the plaintiff's claim. I must consider the defendant's application on the basis of the claim being pursued. Sister Rita died in 2003. She was an Ursuline nun. There is evidence that Sister Rita went along to supervise the girls but there is no suggestion that any girls were involved in the particular camp attended by the plaintiff. There are no contemporaneous records of Sister Rita's involvement in any of the camps, nor are there records of the defendant's awareness of Sister Rita's involvement or records showing that Sister Rita was acting as a servant or agent of the defendant at the camps (as the plaintiff asserts). Regardless of the difficulties associated with this cause of action, it is being pursued.
Having considered all of these matters, I accept that the absence of Father Perrett and the other potential witnesses identified by the defendant, coupled with the absence of documents about the camp, the activities of Father Perrett and the role of Sister Rita, would preclude the defendant from engaging meaningfully with a number of the issues raised by the plaintiff. It may result in the defendant not receiving a fair trial.
However, that does not necessarily mean that a stay should be granted. A stay should only be granted in exceptional circumstances. The plaintiff points to a number of features of this matter which undermine the defendant's application. A stay will not be granted if the asserted prejudice has been caused by the defendant's own delay in carrying out enquiries or if the defendant has withheld relevant evidence on the hearing of the application, such that the Court could not assess the availability of a fair trial.
I will now consider those matters raised by the plaintiff.

The defendant has denied the conduct in its defence

The plaintiff submits that the filing of a certified and verified defence stands squarely against the granting of the application and that the application is an unexplained attempt by the defendant to retreat from the defence just two weeks before the hearing.
The plaintiff submits that the defendant makes positive assertions, by way of denial, in its defence. For example, by denying that it is vicariously liable for the conduct of Father Perrett or Sister Rita, the defendant should be taken to have sufficient evidence to support such a positive assertion. The plaintiff also points to the defendant's denial that it knew or ought to have known of Father Perrett's proclivities prior to the camp, its denial of the substance of the abuse by Father Perrett and its denial in respect of Sister Rita's conduct. The plaintiff also refers to the defendant's admission that Sister Rita owed a duty of care.
I do not accept that the defendant is retreating from its defence. In any event, the Instructions Document prepared by the solicitor, Mr Birtles, is available to the defendant.
Nor do I accept that the defendant should not succeed on this application because it was brought close to the hearing. The defendant was granted leave to pursue the application. It is not my function to enquire about the basis on which earlier orders were made.
I do not accept the plaintiff's essential proposition on this point: that the defendant, having certified a defence which included positive denials must be taken to have evidence to support its case. The certification of a defence means that the solicitor was satisfied that there was a proper basis for the matters raised in the pleadings but that says nothing about whether a defendant can have a fair trial.

The existence of the Instructions Document

The plaintiff says that the defendant obtained access to Mr Birtles' file and the Instructions Document. The plaintiff says that the document indicates what Father Perrett might have instructed the defendant and what he might have said, had he been available to give evidence.
The defendant acknowledges this in part but submits that it is the unavailability of the witness which is critical (see Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10 at [21]-[22] (per Campbell JA); Moubarak at [162]-[171] (per Bell P)).
The plaintiff says that the defendant may seek to rely on the Instructions Document as a hearsay statement under s 63 of the Evidence Act 1995 (NSW), by calling Mr Birtles, or by tendering the documentary records of Father Perrett's denials as business records.
During oral submissions, Mr Tierney suggested that the defendant "may" seek to tender the Instructions Document. However, when asked, Mr Tierney did not concede or accept that such a document would be admissible or that the plaintiff would not oppose its admission. The plaintiff is entitled to adopt that position. However, the submission that the defendant "may" rely on the Instructions Document is rather hollow and does not assist the plaintiff because there are number of reasons why the document would not be admissible or would be given limited weight. The plaintiff does not accept that it would be admissible.
Further, I am unable to accept the submission that it is unlikely that Father Perrett would have been called as a witness at the hearing of this matter. That is not conceded and I am not in a position to speculate.
The existence of a document held by a solicitor who represented Father Perret on criminal charges never brought to trial may provide some basis for putting propositions to the plaintiff, but it does not overcome the prejudice which arises from the absence of Father Perrett on all of the three causes of action pleaded by the plaintiff.

Failure to undertake satisfactory enquiries

The plaintiff submits that the defendant has not made satisfactory enquiries or placed all of the evidence before the Court on why it seeks a permanent stay.
Ms Harman and Ms Burke were cross-examined extensively on this issue. Mr Tierney took both witnesses through a number of documents, identifying persons referred to in the documents, and asked whether those persons had been contacted or whether evidence had been obtained from them. Questions were asked about bishops, priests, police officers, other complainants and other persons referred to in the documents.
On most occasions, Mr Tierney did not provide a reason to Ms Harman or Ms Burke as to why contact should have been made. He limited the questions to whether such contact had been made and whether the witnesses thought the person might have been able to provide evidence.
It is not necessary that I review every response provided by the witnesses. The responses were generally to the effect that: it was not considered that the person could provide any evidence relating to the issues; it would not have been appropriate to contact the person and the defendant had a policy of not doing so (such as in relation to other complainants against Father Perrett); the persons had been spoken to but could not assist; or the person was dead.
I accept that reasonable enquiries should be made by the defendant but naming almost every person mentioned in the documents without even suggesting what relevant information might have been provided hardly negates the evidence that it did. The submission that reasonable enquiries have not been made is not supported by the mere identification of various persons referred to within documents, without some indication as to why such enquiries should have been made and what evidence could have emerged.
I raised this directly with Mr Tierney during oral submissions. He identified his "top five" persons with whom the defendant should have enquired but he did not make any further submissions about why the persons should have been contacted.
Further, in a document provided after completion of the hearing, the plaintiff expanded its list of persons to 20 people. These persons include: 1. any solicitor referred to in any of the documents who might have acted for the defendant or Father Perrett at any time, no matter how briefly or for what reason; 2. the Director of Professional Standards, Mr Michael Salmon, who received a letter from Monsignor Wayne Peters the Vicar General for the diocese of Armidale on 7 January 2005. The letter provided details of the appointment of Father Perrett and was written in response to a meeting which occurred in Canberra; 3. Ms Anne Walker, a senior employment relations advisor from the Catholic Commission for Employment Relations, who wrote a letter to the Bishop on 3 August 2004 in respect of allegations against Father Perrett, which were unrelated to these claims; 4. a solicitor employed by Catholic Church Insurance ("CCI") and a solicitor retained by CCI, who were dealing with other claims relating to Father Perrett. The solicitor for CCI, Mr Kohn, was in Court at one stage during the hearing and the defendant said it was instructed by CCI. It was not suggested to Ms Burke that her client, CCI, may not have provided her with all of the relevant documents or information, or that the evidence as to the absence of information was incorrect; 5. Mrs Frida Nowakowski, who was referred to in a file note made by Father Peters on 22 June 1996 in respect of allegations that Father Perrett was a paedophile. Again, there is no evidence that the contents of this file note had anything to do with the plaintiffs or their claims or even that Ms Nowakowski might have been on the camps or knew something about them; 6. Bishop Gerard Hanna, who was the bishop of Wagga Wagga in 1995. He grew up in Armidale. He was referred to in a file note regarding a conversation he had with Father Perrett dated 7 September 1995 in relation to the charges Father Perrett was facing at that time. Father Perrett said he wanted to have a meeting with a number of people including Bishop Hanna. There is no indication that Bishop Hanna had any knowledge of Father Perrett's activities in the 1970s, as opposed to finding out about the criminal charges in the 1990s; 7. Bishop Michael Kennedy, who was the Bishop of Armidale for a lengthy period but not in the 1970s. Father Perrett wrote to him in 2017, stating that he rejected the recent allegations regarding improper dealings with the complainant, whose name meant nothing to him. It is clear from the terms of the letter that this relates to something that happened at the orphanage; 8. Bishop Kevin Manning, who is the Bishop of Armidale. He is not referred to in any document. The reason he should be contacted is unclear; 9. Sister Regina, a nun who lived at the orphanage in the 1970s when Father Perrett used to visit the orphanage. After being contacted by the solicitor for the plaintiff in August 2023, the solicitor for the plaintiff received an email from Mills Oakley Lawyers stating that they acted for Sister Regina and that she did not wish to have further contact. There is a statement from Sister Regina. She recalled Father Perrett taking Aboriginal children from the local communities on overnight camps but did not recall anyone from the orphanage attending overnight camps. Ms Burke was asked why she did not contact Sister Regina. She said that Sister Regina is a Sister of Mercy, is not a part of the diocese and would not be able to provide any relevant information on what happened at the camp. There is no suggestion that she was there or witnessed anything that happened at the camp; 10. Father Perrett's brother, Father Ron Perrett, who is alive. He was spoken to. There were documents relating to Father Perrett's funeral arrangements. Conversations with Father Ron Perrett appear to have involved a number of matters. There was an issue raised of something said at the confessional, over which privilege was claimed; and 11. finally, it is said that the defendant should have made enquiries with a police officer, Travis Murdock. Detective Senior Constable Murdock wrote to Ms Harman on 24 September 2018. Ms Harman responded on 7 December 2018 setting out her knowledge of matters raised by Constable Murdock, based on her enquiries. Ms Harman rejected the proposition that the defendant should have involved itself in the police investigation by making independent enquiries in December 2017 and 2018, just as she rejected the suggestion that she should have contacted the other complainants.
The submission that the defendant has not carried out all reasonable enquiries is not made out by merely identifying persons referred to in documents which were created many years after the events which allegedly occurred. The obligation on the defendant is to demonstrate that it has carried all reasonable inquiries in an effort to obtain evidence which might be relevant in responding to the plaintiff's allegations. What is reasonable may depend on the particular circumstances and the nature of the allegations which require a response.
I accept that the defendant has carried out all reasonable enquiries. Whilst it is not up to the plaintiff to identify what further information might be available, the Court is not involved in a process of speculation. The plaintiff's submission that the defendant has not carried out all reasonable enquiries is not supported by the evidence.

Making a claim for privilege

The plaintiff says that the defendant's "substantial claim" for privilege is fatal to the motion (O'Callaghan). I do not accept that in the circumstances of this case.
I say this for a number of reasons: 1. in general terms, no inference may be drawn against a party because it maintains privilege over documents: see Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 at 93; 2. the submissions of the plaintiff on this point are based on the decision of Elkaim AJ in O'Callaghan. It is clear from his Honour's judgment that the circumstances of that matter are far different from this matter. The point made by the plaintiff in that matter was that the defendant had not fully disclosed all of the information it had available relevant to its defence. Elkaim AJ accepted that and this formed the basis upon which his Honour found that the maintenance of the claim for privilege (that is, the failure to disclose all relevant information at the time of the application) was fatal to the application for a stay; 3. in his schedule identifying the claims for privilege, the plaintiff identifies five aspects of the evidence over which privilege is being claimed. However, on any analysis of the documents, the defendant has not made "a substantial" claim for privilege and has not failed to disclose all relevant information; 4. for example, privilege was claimed over a discussion Ms Burke had with Mr Watt, a solicitor. Mr Watt acted for the defendant in 2006. Ms Burke referred to the discussion with Mr Watt in her second affidavit. When asked if she was making a claim for privilege in other matters, she said she could not say, but the substance of what she discussed with Mr Watt was referred to in her affidavit; 5. in respect of the conversation with Father Flood, Ms Burke deposed to that conversation in her affidavit. There is no basis for any suggestion that the redacted part of the file note contained information which is in any way relevant to these claims; and 6. the plaintiff refers to a claim for privilege being made in respect of the conversation between Ms Burke and Father Ron Perrett, as part of the investigations into another matter. According to Ms Burke, part of the conversation related to another claim and Father Perrett relayed some concerns he had about whether information he had was subject to and had been discussed under the seal of the confession.
I do not accept that the maintenance of privilege over this material constitutes a substantial claim for privilege. Plainly, the finding of Elkaim AJ in O'Callaghan was a significant finding, having regard to the way in which the application was conducted in that matter. I do not read his Honour's finding as suggesting that any claim of privilege in respect of any document would be fatal to the defendant's prospects of success. I would not accept such a proposition.
There is no evidence of the defendant withholding any information upon which it might rely at any final hearing.

The defendant's prejudice has been caused by its own delay

Finally, the plaintiff submits that the lack of evidence available to the defendant has been caused by its own delay in investigating.
Firstly, the plaintiff says that the defendant should have carried out an investigation of Father Perrett's activities when he was charged with the criminal offences in 1995. However, the 1995 charges had nothing to with Father Perrett going on the camps, Sister Rita or the boys at the Mission. The suggestion that the defendant should have been investigating the potential for civil claims in 1995 and might have obtained evidence about this matter is entirely speculative and highly unlikely.
The plaintiff then submits that there was ample opportunity to obtain information from Father Perrett in the period 2017-2020. The difficulty with that proposition is that Father Perrett was no longer part of the diocese or acting as a priest at the time. He had been charged with serious criminal offences and retained his own solicitors. The idea that Father Perrett would have spoken to the defendant in preparation for potential civil claims, when none had been foreshadowed and when he was in the midst of criminal proceedings, is difficult to accept.
Mr Tierney put to Ms Harman that she ought to have known that the plaintiffs could become claimants because of a reference to the [redacted] boys in a file note. This was rejected by Ms Harman on the basis that there were a number of other [redacted] boys. Having regard to the other documents, this is correct.
It was not suggested to Ms Harman that she was giving false evidence. Ms Harman said that did not know that the two plaintiffs were complainants at that time. She rejected the suggestion that she should have commenced an investigation at that time, anticipating potential claims for damages against the defendant. Further, she rejected the suggestion that she should have organised to speak to Father Perrett at that time.
There is no evidence that the defendant was aware of the identity of the two plaintiffs in the period of 2017 to 2019. The first notification of these claims occurred in 2020, being five months after Father Perrett died. The plaintiffs' attempt to establish knowledge through a file note and a general reference to "the [redacted]" failed.
Further, had the defendant identified the two plaintiffs as likely claimants and had Father Perrett provided a statement to the defendant, the defendant would have only been in a position to seek to tender Father Perrett's statement in the proceedings.
The evidence of Father Perrett would only have dealt with one aspect of the claims being pursued against the defendant. As suggested in GLJ, that evidence might be foundational but there are other critical witnesses in this case who are no longer available. Obtaining a statement in 2017 would not have overcome the prejudice to the defendant in dealing with the various aspects of the plaintiffs' claims. For example, it is difficult to anticipate how it would have overcome the absence of Sister Rita or the Bishop or the difficulties which would have arisen through Father Perrett's subsequent death.

A stay defeats the purpose of s 6A of the Limitation Act

Finally, the plaintiff says that s 6A of the Limitation Act effects a substantive change to the law, investing rights in the victims of child sexual abuse. The plaintiffs submit that the intent of Parliament was to vest victims of sexual abuse with new rights to bring causes of actions, despite the fact that: (a) some defendants have long ago ceased concerning themselves about the with possibility of having to respond to a claim; and (b) some defendants would not have been aware of, or prepared for, possible claims. I do not accept this submission. The abolition of a limitation period does not vest new rights on a claimant. It just removes a potential defence or limitation on pursuing a claim.
In my view, the plaintiffs' statutory construction submission rather overlooks that provisions must be read as a whole and the words must be read in the context in which they appear. It is clear that the abolition of the limitation period does not limit the Court's power to summarily dismiss or permanently stay proceedings, where the lapse of time has a burdensome effect on the defendant which is so serious that a fair trial is not possible. The very point of s 6A(6) is to make that plain.
I do not accept that the introduction of s 6A in some way alters the principles which must be applied in determining an application under s 67 of the Civil Procedure Act.

Conclusion

In all these circumstances, I do not consider that any of the matters raised by the plaintiffs are fatal to the defendant's application for a stay or are such that I should find that the defendant might be responsible for the significant prejudice which arises due to its inability to meaningfully participate in any hearing by adducing evidence on a number of issues.
I am satisfied that the defendant is unable to have a fair trial. These are exceptional circumstances. The defendant is required to meet more than an allegation about the conduct of the perpetrator of the abuse. Because the plaintiff pleads vicariously liability on two bases, the defendant is required to meet allegations about the knowledge and conduct of a number of other persons who might include Sister Rita, Bishop Kennedy and Dr Macpherson. The defendant is unable to meaningfully participate in the trial, not just in respect of the primary allegation, but in respect of all of the causes of action pleaded by the plaintiff.
I order that the proceedings commenced by both CM and EM be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW).
On the conclusion of the hearing and after some discussion about costs, depending on my orders, I granted leave to the defendant to inform my chambers about whether it would seek costs if its application were successful. I did not hear further.
I make no order as to costs but I grant the parties liberty to apply should either party seek a different order as to costs.

Amendments 23 August 2023 - Judgment certification stamp removed. 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: 23 August 2023

Limitation Amendment (Child Abuse) Act 2016(NSW)

(2019) 101 NSWLR 762

(2019) 100 NSWLR 218

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