First Plaintiff v First Defendant

2 The plaintiffs have served reports by four experts in international law on whose evidence they intend to rely at the hearing of the immunity application. The second defendant objects to that expert evidence on grounds that:

(a) it in part pertains to the content and/or application of Australian law, and to that extent is not admissible; and

(b) the plaintiffs should not be permitted to rely on expert evidence that is duplicative.

3 The second defendant has applied for a ruling pursuant to s 192A of the Evidence Act 2008 (Vic) ('Evidence Act') that the plaintiffs' evidence is not admissible insofar as it falls within subparagraph [2](a) above; and for orders under ss 47(f)(i), 49(3)(d)(iii) and 65H(2)(e) of the Civil Procedure Act 2010 (Vic) ('CPA') that the plaintiffs be restricted from relying on more than one expert in relation to any single issue of public international law ('evidence application').

4 The plaintiffs allege that they were sexually assaulted by former Catholic priest Michael Glennon while they were children in the early 1990s. They allege that the second defendant's negligent failure to laicise Glennon on the basis of his earlier convictions of sexual assault was a cause of the assaults against them. Further, the plaintiffs allege that the second defendant is vicariously liable for the assaults perpetrated by Glennon.

5 The second defendant has not taken any step in the proceeding other than to object to jurisdiction on the grounds of immunity.

6 The parties have filed and served evidence upon which they intend to rely on the hearing of the immunity application. Relevantly, the second defendant intends to rely on the following expert reports:

(a) Professor Roger O'Keefe, international law expert, dated 26 July 2024; and

(b) Professor Kurt Martens, canon law expert, dated 26 July 2024.

7 The plaintiffs have filed and served the following expert reports:

(a) Dr John Morss, international law expert, dated 24 October 2022 and 28 August 2024;

(b) Professor Richard Garnett, international law expert, dated 2 September 2024;

(c) Professor Cedric Ryngaert and Dr Luca Pasquet, international law experts, who prepared a joint expert report dated 29 August 2024; and

(d) Thomas Doyle, canon law expert, dated 25 October 2021 and 29 August 2024.

8 Annexed to the second defendant's written submissions on the evidence application was a schedule setting out the parts of the Garnett, Morss and Ryngaert/Pasquet reports that the second defendant submitted were inadmissible or duplicative.

9 The second defendant's claim of immunity is not limited to the FSI Act. However, it is sufficient for the purposes of the evidence application to focus on the provisions of that Act.

10 Immunity from jurisdiction is granted pursuant to s 9 of the FSI Act, which provides:

Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.

11 'Foreign State' is defined in s 3 of the FSI Act to mean:

a country the territory of which is outside Australia, being a country that is:

(a) an independent sovereign state; or

(b) a separate territory (whether or not it is self-governing) that is not part of an independent sovereign state.

12 A reference to a 'foreign State' in the FSI Act relevantly includes 'the head of a foreign State, or of a political subdivision of a foreign State, in his or her public capacity'.[1]

13 The plaintiffs intend to rely on the 'contracts of employment' exception to immunity set out in s 12(1) of the FSI Act, which provides:

A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia.

14 Further, the plaintiffs intend to rely on the 'personal' exception to immunity in s 13 of the FSI Act, which provides:

A foreign State is not immune in a proceeding in so far as the proceeding concerns:

(a) the death of, or personal injury to, a person; or

(b) loss of or damage to tangible property;

caused by an act or omission done or omitted to be done in Australia.

15 Evidence is not admissible to prove the content or application of Australian law.[2]

16 In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6)[3] ('Allstate'), Lindgren J considered the admissibility of evidence as to the content and application of law in the context of a submission that evidence in the latter category was rendered admissible by abolition of the 'ultimate issue' rule by s 80(a) of the Evidence Act 1995 (Cth):

... In my view, those words are not apt to refer to expert legal opinion which impinges upon the essential curial function of applying law, whether domestic or foreign, to facts. I confess to finding it most difficult to accept that the Australian Law Reform Commission or the legislature intended by the modest terms of s 80 to make admissible in all cases before the courts the opinions of those trained, studied or experienced in the law as to how the curial function is properly to be performed.

I find it convenient at the outset to state some principles of the general law against which, in my view, the effect of par 80(a) is to be determined. It is fundamental that the ascertainment of the law relevant to a matter before a court and its proper application to the facts of the particular case are of the essence of the judicial function and duty. Although those processes are properly the subject of submission, evidence of opinion, whether as to the identification of the relevant law or as to its proper application, is not admissible. The rationale underlying this fundamental principle may be expressed in various closely related ways: to admit such evidence would be to permit abdication of the judicial duty and usurpation of the judicial function; such evidence cannot be allowed to be probative or to rise higher than a submission; such evidence is necessarily irrelevant.

In the case of foreign law, the only variation required to the foregoing statements is that foreign law is proved in the way in which facts are proved (this is what is meant by statements that foreign law is proved "as fact"), whereas the court is presumed to know the public laws of the State. But foreign law remains law to be applied by the Court. It has been said that where there is a jury, "the only sound view, either on principle or on policy, is that it should be proved to the judge, who is decidedly the more appropriate person to determine it": J H Chadbourn (ed), Wigmore on Evidence (1981), Vol 9, P 687, par 2558, and authorities there cited. Accordingly, evidence of opinion as to the proper application of foreign law to fact is not admissible.[4]

17 There are circumstances in which evidence about the application of foreign law is admissible. In Idoport Pty Ltd & Ors v National Australia Bank Ltd & Ors,[5] the plaintiffs claimed damages for alleged breaches of the Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW). The damages were in respect of the loss of alleged commercial opportunities that would have been available in various parts of the world. The defendants sought to lead expert evidence that, for various foreign law reasons, those commercial opportunities did not exist. Einstein J concluded that this evidence fell into a different category than the evidence excluded by Lindgren J in Allstate, reasoning as follows:

... Here, the Court is not concerned to administer foreign law for the purpose of determining the rights and obligations of the parties under foreign law. The facts in issue all occurred within the jurisdiction of this Court. No issues concerning the exercise of foreign jurisdiction over the facts of this case arise. Here the court is concerned with foreign law as a subsidiary fact necessary to determine the rights and liabilities of the parties under the law of New South Wales. The essential curial function of this Court in this case is the administration of and the proper application of the law of New South Wales. Evidence of foreign law experts as to the effect of foreign law, where the effect of foreign law is relevant to the administration of domestic law, is not capable of usurping the function of the court any more than is evidence of any other fact relevant to the determination of the rights and liabilities of the parties under domestic law.[6]

18 The legal identity and status of His Holiness the Pope, the Holy See, the Catholic Church and the Vatican are potentially relevant facts in issue on the immunity application.

19 Both parties have filed and intend to rely on expert opinions about matters of foreign and international law relevant to those issues. No objection is taken at this stage of the proceeding to evidence falling within that broad description.

20 The second defendant alleges that the plaintiffs have gone further, by seeking to rely on their experts' express opinions about the content of domestic law. The clearest example is the expert report of Garnett, which commences as follows:

I have been asked to provide an expert report on the question of whether the Second Defendant is entitled to plead head of state immunity and/or foreign state immunity in the current proceeding under the Foreign States Immunities Act 1985 (Cth) (FSIA).

21 After setting out some relevant background, Garnett sought to deal with claimed head of state immunity as follows:

In the Second Defendant's statement of contentions it alleges that it is entitled to claim both head of state and foreign state immunity under the FSIA in the current proceedings. This assertion is incorrect: the Second Defendant is only entitled to either head of state or foreign state immunity; not both. For the reasons set out below, the Second Defendant falls within the definition of 'foreign State' under s 3(3) of the FSIA and so may only claim the immunities of the state.

First, and assuming that the Holy See is a 'state' for the purposes of the FSIA (which is denied), it is accepted that the Second Defendant forms part of a 'foreign state' in s 3(3) of the FSIA. Section 3(3) provides that: 'a reference in this Act to a foreign State includes a reference to ... (b) the head of a foreign State ... in his or her public capacity'. The principles of foreign state immunity in the FSIA therefore apply to the Second Defendant assuming that he was acting in his public capacity at the time the relevant events occurred.

Section 3(3) must however be read in conjunction with s 36 of the FSIA, which relevantly provides:

'(1) subject to the succeeding provisions of this section, the Diplomatic Privileges and Immunities Act 1967 (Cth) extends, with such modifications as are necessary, in relation to the person who is for the time being:

(a) the head of a foreign State ... as that Act applies in relation to a person at a time when he or she is the head of a diplomatic mission ....

(3) This section does not affect the application of any provision of this Act in relation to a head of a foreign State in his or her public capacity.

The combined effect of ss 3(3) and 36 is that a head of a foreign state is either acting in his or her public capacity, in which case the immunity provisions in the FSIA applicable to the foreign state apply, or he or she is acting in a private capacity and the provisions of the Diplomatic Privileges and Immunities Act 1967 apply (that is, the rules governing head of state immunity). The two categories are separate and mutually exclusive.

Garnett then referred to a number of international decisions that he said supported a conclusion that the second defendant was acting in a public capacity at the time of the alleged acts and omissions, and that his claim for immunity was exclusively governed by ss 9 to 21 of the FSI Act. Garnett concluded:

Hence, the Second Defendant's contention that he is entitled to head of state immunity under s 36 of the FSIA is rejected. The report will now focus on the Second Defendant's entitlement to foreign state immunity under the FSIA.

22 The balance of Garnett's report addressed the applicability of the exceptions to immunity in ss 12 and 13 of the FSI Act, assuming that statehood and immunity under s 9 of that Act was established.

23 The plaintiffs accepted the 'general rule' that opinion evidence is not admissible on matters of domestic law. However, they submitted that Garnett's evidence was admissible because it was:

(a) a direct response to the evidence of the second defendant's international law expert O'Keefe;

(b) inextricably interconnected with the foreign and international law issues raised by the second defendant's application; and

(c) relevant to application of the provisions of the FSI Act in a manner that was coherent with international law.

24 I reject the plaintiffs' submissions. O'Keefe expressly declined to address the construction and application of the FSI Act and limited his evidence to consideration of issues of foreign and international law. Garnett's reports and the parts of the Morss and Ryngaert/Pasquet reports identified by the second defendant are not responsive to O'Keefe's evidence. The authorities to which I have referred make clear that evidence of the content and application of domestic law is inadmissible. This is the subject matter of virtually all of Garnett's report and parts of the reports of Morss, Ryngaert and Pasquet. Neither the factual relevance of foreign law to the determination of the immunity application, nor the desire for coherence, can justify admitting evidence that is inadmissible.

25 The plaintiffs sought to sidestep the prohibition on evidence of domestic law in a number of ways. First, they asserted that the experts were performing the legitimate functions of generalising from experience and training, acting as a librarian and/or providing 'specialised knowledge' through training, study or experience. This attempt to re-characterise what is clearly opinion evidence about domestic law is not helpful.

26 Next, the plaintiffs submitted that the impugned evidence satisfied the requirements for admission in s 79 of the Evidence Act. The plaintiffs submitted, in effect, that the Court should be provided with as much useful material as possible relevant to the complex questions to be determined. Again, this submission does not address the point that evidence of domestic law is inadmissible.

27 Finally, the plaintiffs submitted as a fallback position that the question of admissibility should not be determined at this early stage. They submitted that admissibility could be determined as part of the judgment in the proceeding, or alternatively after an expert conclave and preparation of a joint report. They submitted that the intertwining content of foreign, international and domestic law, and the admissibility of the expert opinions, will be much clearer after evidence has been given or at least after a joint report has been prepared.

28 I reject this submission. The impugned opinion evidence about domestic law is clearly inadmissible. The experts engaged by the second defendant gave opinions that addressed foreign and international law, including canon law. As a matter of practicality, a conclave question directed to issues of domestic law would not be appropriate where the defendants' experts have not considered or given opinions in that field. Determination of the question of admissibility will inevitably be required. There are good case management reasons for ruling on admissibility now so that the conclave process and the parties' submissions proceed more efficiently on the basis of admissible evidence.[7]

29 I conclude that those parts of the reports of Garnett, Morss, Ryngaert and Pasquet that address issues of domestic law, as identified in the schedule to the second defendant's submissions, are inadmissible.

30 If the plaintiffs wish to rely on any part of the expert analysis or contentions as to domestic law, they should set that matter out fully in their submissions.

31 In Novartis AG v Pharmacor Pty Ltd[8] ('Novartis'), the Full Federal Court considered an appeal from case management orders made by the primary judge permitting the applicants to rely on only one of four neurological expert witnesses that they proposed calling at trial. The Court rejected the appellants' submission that the evidence of the neurologists was not substantially duplicative.[9] Yates and Moshinsky JJ considered that there was no practical significance to the difference in the instructions to each neurologist,[10] and that the differences in background and experience between the neurologists was not sufficient to justify calling multiple expert witnesses from the same discipline.[11]

32 Beach J refused leave to appeal for 'substantially the reasons given by Yates and Moshinsky JJ',[12] and made two further points that are relevant to this application. First, his Honour concluded 'that a party should not adduce expert evidence from more than one expert in any single discipline, absent telegraphing its intention to do so to the opposite party and the Court at the earliest opportunity.'[13] His Honour acknowledged that this may raise questions about the identification and breadth of the expert discipline. Second, his Honour said it was necessary that a party justify any departure from the default 'one expert per discipline' position before further expert evidence is filed and served.[14]

33 The CPA empowers the Court to manage and control a civil proceeding in order to further the overarching purpose of the Act. Case management in relation to expert witnesses and expert evidence is dealt with by Part 4.6 of the CPA. The objects of that Part include furthering the overarching purpose by 'restricting expert evidence to that evidence which is reasonably required to resolve a civil proceeding'.[15] A party that intends to adduce expert evidence at trial must seek directions from the court as soon as practicable.[16] The court may give any directions it considers appropriate, including by 'limiting the number of expert witnesses who may be called to give evidence on a specified issue'.[17]

34 The second defendant filed the immunity application on 14 March 2024. Timetabling orders made by consent on 16 April 2024 provided for the second defendant to file and serve expert evidence by 17 May 2024, and for the plaintiffs to file and serve expert evidence in response by 12 July 2024. Those dates were subsequently extended by consent.

35 The plaintiffs did not seek directions before obtaining and serving reports from multiple international law experts.

36 I reject the plaintiff's submission that there was no requirement to 'telegraph' the number of experts that they wished to call. Such an argument is contrary to the obligation in s 65G(1), the objects in s 65F(b) and, more broadly, the overarching purpose of the CPA to facilitate the just, efficient, timely and cost-effective resolution of the immunity application. There were opportunities for the plaintiffs to raise and seek to justify their intention to rely on multiple international law experts before the reports were filed and served. In relation to this issue I adopt, with respect, the reasons of Beach J in Novartis.

37 My ruling on admissibility effectively excludes Garnett's evidence. The issue of duplication of expert evidence is therefore limited to Morss, Ryngaert and Pasquet.

38 There are two levels to this issue. The first relates to the justification for calling both Ryngaert and Pasquet in circumstances where they share the same expertise, have prepared a joint report, and expressly and entirely agree with each other's opinions.

39 The second is the broader duplication between the evidence of Morss on one hand and Ryngaert and Pasquet on the other.

40 At the time he produced his first report, Morss was a senior lecturer in international law at Deakin Law School and an adjunct professor at the La Trobe Law School. Pasquet and Ryngaert are, respectively, an assistant professor and professor of public international law at Utrecht University in the Netherlands. The plaintiffs did not submit that there was a material difference in the expertise of these three witnesses.

41 The plaintiffs submitted that there was no hard-and-fast rule prohibiting a party from calling a number of key experts on central and difficult questions. They submitted that it was frequently the case that multiple experts are called by a party in proceedings involving complex medical or scientific issues. They submitted that the Court's decision in Novartis reflected the narrow and confined issues to be determined in that case, compared to the complexity of issues arising in the immunity application.

42 There is no justification for the plaintiffs calling both Pasquet and Ryngaert. There is a total overlap in their evidence.

43 The plaintiffs submitted that Morss and Pasquet/Ryngaert each address the relevant questions of foreign and international law from somewhat different perspectives. However, they did not identify what these different perspectives were or why they were important. The experts were asked to address the same or very similar questions. While their opinions are not identical, the experts clearly considered similar matters relevant to the conclusions they reached. The plaintiffs did not identify any matters that were peculiarly within the province of the different experts, or raise any practical reason why the evidence as to foreign law on which they wish to rely could not be given by one expert.

44 I acknowledge that there will be cases where a party may be justified in relying on more than one expert from the same discipline. Relevant matters to consider include the breadth of the discipline; the different subspecialities, experience or expertise of the experts to the extent that this bears on the issues under consideration; and the complexity and dimensions of the facts in issue upon which the expert evidence will be called. However, there is nothing about the immunity application which justifies the plaintiffs relying on more than one expert in international law.

45 The plaintiffs should choose which international law expert they will rely on. It is not apparent to me that there is any gap in the matters considered by Morss or Ryngaert/Pasquet. However, if the plaintiffs identify further matters that require consideration by their chosen expert, I will give them the opportunity to obtain a supplementary report.

[1] Foreign States Immunities Act 1985 (Cth) s 3(3).

[2] Australian Competition and Consumer Commission v PT Garuda Indonesia (No 9) [2013] FCA 323, [31].

[3] (1996) 64 FCR 79.

[5] [2000] NSWSC 1077.

[7] Commissioner of the Australian Federal Police v Kannan (Evidence Ruling) [2024] VSC 35, [17]-[24]; Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953, [13]; Australian Securities and Investments Commission; Re Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324, [22].

[8] [2022] FCAFC 58.

[9] Ibid [15] (Yates and Moshinky JJ).

[15] Civil Procedure Act 2010 (Vic) s 65F(b).

[16] Ibid s 65G(1).

[17] Ibid s 65H(2)(e); see also ss 47(3)(f)(i) and 49(3)(d)(ii).