EJ v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2025] ACTSC 95

1. Before the Court are three sets of proceedings involving claims for damages by three brothers, each of whom alleges he was sexually assaulted by the same priest of the Roman Catholic Church, Father Lloyd Reynolds. Father Reynolds died in 1983. Each of the plaintiffs alleges that he was sexually assaulted by Father Reynolds as a child and parishioner of the Roman Catholic Church in the Archdiocese of Canberra and Goulburn.

2. The proceedings were commenced by originating process and statements of claim filed on 5 December 2023. In each case, the statement of claim pleads that the defendant, The Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn, is duly incorporated pursuant to the Roman Catholic Church Proprietary Trust Act 1937 (ACT). That allegation is admitted. Each statement of claim further pleads that the defendant “appointed or engaged Father Lloyd Reynolds as a priest of the church.” The pleading of that issue evidently proceeded on the legal assumption, which was an open question at the time the pleadings were filed, that it may be sufficient in order to establish vicarious liability on the part of an institution to prove that the institution’s relationship with the alleged wrongdoer was “akin to employment”.

3. In response to that pleading, the defendant admits in each case that it appointed Father Reynolds as a parish priest but otherwise denies the allegation. Those defences were filed on 5 July 2024.

4. On 13 November 2024, the High Court published its decision in the matter of Bird v DP (a pseudonym) [2024] HCA 41. That judgment definitively determines that vicarious liability can only arise in a relationship of employment, nothing less. The plaintiffs having initially proceeded on the assumption that a relationship akin to employment would give rise to vicarious liability on the part of the defendant, it became apparent that it was necessary in light of the decision of the High Court in Bird for them to replead their causes of action.

5. An application seeking leave to amend was filed in each proceeding on 13 December 2024. Those applications were listed before the Registrar on 7 March 2025. However, by that date, the plaintiffs had not yet circulated a proposed draft pleading. They were directed to do so by 12 March 2025, which they did. Each plaintiff has now served a draft proposed amended statement of claim repleading the course of action to contend that Father Reynolds was employed by the defendant.

6. On the same appearance before the Registrar, that is, on 7 March 2025, the Registrar listed the applications for leave to amend for hearing before me today. However, despite having two weeks to brief counsel and prepare for this hearing, including over a week when they were in possession of the proposed draft amended pleading, the defendant appeared today by its solicitor seeking an adjournment. The Court was not told of the proposed adjournment application before the matter was called for hearing at 9:00am. I was ready to proceed to hear the application, as was Mr Ronald, who appears for the plaintiffs.

7. The defendant, alternatively to seeking an adjournment, sought leave to put on written submissions opposing the application and alternatively submitted that leave, if it was to be granted, should be granted without prejudice to the defendant’s entitlement later to bring a strike-out application in respect of the pleading. I determined that it was not appropriate to grant an adjournment and I do not think it is appropriate to grant any further opportunity for the defendant to file written submissions. The defendant had that opportunity before the listing for hearing today.

8. Section 5A of the Court Procedures Act 2004 (ACT) provides that the main purpose of the civil procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Subsection (4) imposes an obligation on the parties to a civil proceeding to help the Court to achieve those objectives.

9. This was not a case in which the defendant contended that, by reason of only having had the draft pleadings since 12 March 2025, today being 20 March 2025, they were unable to be ready. Rather, the reason stated by the solicitor who appeared for the defendant was that senior counsel was “not available” today. The application reflects a creeping reversal of what should be the process of listing matters before the Court. When the Court allocates a date for hearing, it is not for the parties to cavil with the date on the basis of the convenience of counsel. Rather, in accordance with the requirements of s 5A, it is for the parties to make such arrangements as may be necessary to meet the listing date.

10. In the circumstances, I decided that it was appropriate to determine the application filed last December after hearing from the parties today. It should be well understood that it is more efficient for the Court to hear and determine a matter by delivering an ex tempore judgment than reserving its decision. That is particularly so in a small Court such as this.

11. As to the suggestion that leave should be granted without prejudice to the defendant’s entitlement later to bring a strike-out application, I do not think I can properly preclude the defendant from bringing any such application. However, if such an application were brought, no doubt a consideration in its determination would be the fact that the defendant had an opportunity to bring forward its arguments today.

12. Furthermore, based on the brief submissions made by the solicitor, Ms Lim, constrained as she was by my refusal of her application for an adjournment, it appears that the issues proposed to be raised could more properly be dealt with by other processes of the Court in accordance with the defendant’s duty under s 5A(4).

13. Ms Lim indicated that the arguments the defendant would wish to put were, first, that the pleading is vague and lacks clarity. That is the kind of objection that can be addressed by a request for particulars. I note that the clarity of the pleading might in any event have been enhanced had the defendant voluntarily divulged the personnel files for Father Reynolds, as the plaintiffs asked it to do in their ch 5 notice of claim. In any event, it has now been indicated that the parties are content to have that material provided in the ordinary process of discovery. All the same, it would be helpful if the defendant voluntarily provided that material now. Adversarial proceedings do not have to be combative.

14. The second argument it was indicated that the defendants would have wished to put this morning is that the claim is doomed to fail. That argument was based on the question of whether it could be established, based on the material pleaded, that Father Reynolds was an employee of the defendant. Ms Lim indicated that the defendant would seek to put an argument by reference to the decision of the Victorian Court of Appeal in Bird v DP (a pseudonym) [2023] VSCA 66; 69 VR 408 as to the indicia of employment of a priest or cleric. In the Court of Appeal in Bird, the proposition that the priest alleged to have committed sexual assaults in that case was not an employee of the church was common ground: at [77]. The question of employment is at least partly an issue of fact. The fact that it was common ground in Bird that the priest was not an employee of the church in that case does not establish as a matter of binding precedent whether Father Reynolds was an employee of the defendant being, I might add, a different defendant in the present case.

15. Mr Ronald drew my attention in that context to the decision of the High Court in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 where the Court said, at [7]: No assumption can or should be made that the organisation or institutions of the church and community in and with which the appellant worked in Australia was necessarily similar to the organisation or institutions of the churches of the western or Latin tradition. To take a seemingly small example noted by the Industrial Magistrate, the witnesses before him spoke of the “consecration” of priests but the “ordination” of bishops, reversing the customary usages of the western or Latin tradition.

16. That was a reference to the fact that the employment question in that case concerned the Greek Orthodox church. Nonetheless, it is plain from the decision in Ermogenous that the question of employment of a minister of religion involves a question of fact. There is a passage in the decision of the plurality which, while lengthy, is worth setting out in full in the present context: That the relationship between a minister of religion and the relevant religious body or group in which, and to which, he or she ministers is, at its root, concerned with matters spiritual is self-evidently true. That the minister's conduct as minister will at least be informed, if not wholly governed, by consideration of matters spiritual is likewise self-evident. It by no means follows, however, that it is impossible that the relationship between the minister and the body or group which seeks or receives that ministry will be governed by a contract, and the respondent in this appeal did not seek to advance any such absolute proposition. Rather, the respondent advanced the more limited proposition, adopted by Doyle CJ and Bleby J, that an intention to enter contractual relations is not to be presumed where the arrangement concerns the engagement of a minister of religion but must affirmatively be proved. Nevertheless, it is as well to identify some aspects of the more absolute proposition earlier identified — that the relationship between minister and church is pre-eminently or even entirely spiritual because, in the end, the conclusion at which the majority of the Full Court arrived, was that the only arrangement or relationship which the appellant had was with a church not the respondent, and was a spiritual, not a contractual relationship. First, although the proposition that the relationship between minister and church is pre-eminently or even entirely spiritual is couched in apparently absolute terms, it has been recognised that there are aspects of that relationship which may give rise to legally enforceable rights and duties. As was pointed out in Davies: “Until the applicant [in that case] was deprived of his pastorate in accordance with the procedures laid down in the book of rules, he was entitled to be paid his stipend out of the income of the sustentation fund and to occupy his manse. (Emphasis added.)” Secondly, the “essentially spiritual” character of the relationship may take on a different character when one of the parties to the arrangement (the putative employer) is not itself a spiritual body but is, as Staughton LJ said in Coker, “a school, or a duke, or an airport authority” or, we would add, an incorporated body having the characteristics of the present respondent. To say that a minister of religion serves God and those to whom he or she ministers may be right, but that is a description of the minister's spiritual duties. It leaves open the possibility that the minister has been engaged to do this under a contract of employment.

17. The author of the pleading in the present case has gone to considerable lengths to identify a large number of facts, matters and circumstances on the strength of which it will be contended that Father Reynolds was an employee of the defendant in the present case. Those matters point to indicia of supervision or control in just about every aspect of the life of a priest appointed to the archdiocese of Canberra and Goulburn.

18. Having given careful consideration to the proposed draft amended pleading, I am satisfied that it pleads facts, matters and circumstances which, if proved, would be capable of establishing that Father Reynolds was an employee of the defendant. Orders

19. For those reasons, I make the following orders in each proceeding: (1) Grant leave to the plaintiffs to file the amended statement of claim lodged on 12 March 2025. (2) Reserve the question of joinder of the three proceedings raised in a separate application in proceeding to be determined after the close of pleadings. (3) I direct that the costs of today’s hearing be each party’s cost in the cause. (4) Refer the proceedings to the registrar’s list at 2:30pm next Monday, 24 March 2025.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: