Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes

ex tempore JUDGMENT (revised)

1. The plaintiff claims damages from the three defendants in respect of personal injury that he claims to have suffered when he was a pupil in the infants' school at Saint Ignatius Parish School in Bourke ("St Ignatius"). The school was conducted by the first defendant, the Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes. His claim is that he suffered personal injury at the hands of the infants' schoolteacher Sister Marietta Green and an Aboriginal Liaison Officer Mr Alex Dixon during the period between 1992 and 1994. Sister Green is a nun and a member the Institute of Mercy Sisters, for whom the third defendant is the appropriate defendant under Pt 1B, Div 4 Civil Liability Act 2002 (NSW).
2. When the plaintiff was a pupil, pursuant to an agreement between the first defendant and the second defendant, the Trustees of the Marist Brothers, members of that Order filled the role of principal of the school and, from time to time, other teaching positions. The actual terms of the agreement between the first and second defendant were not in evidence before me. Sister Green herself is not named as a defendant.
3. The plaintiff did not bring the action seeking damages until the filing of his statement of claim in September 2022. In bringing his action then, which would otherwise have been well out of the time limited by s 18A Limitation Act 1969 (NSW), he relies upon categorising his injury as the result of serious physical abuse referred to in s 6A Limitation Act. If that claim is made good, there is no limitation period barring his claim.

Procedural background

1. The action ran before me in February of this year for 14 days concluding on Friday 23 February 2024. At that time, the hearing of the appeal in the matter of Bird v DP (a pseudonym) (2023) 69 VR 408; [2023] VSCA 66 ("VSCA Bird v DP") was pending in the High Court of Australia. That decision, which was binding on me by application of the modern law of judicial precedent (as stated by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22), developed the Common Law in Australia to decide that relationships akin to the employment relationship, normally established under a contract of service, attracted the application of the doctrine of vicarious liability by which the liability of an employee is attributed to the employer without the need for the establishment of any personal fault on the part of the employer.
2. On 13 November 2024, the High Court handed down its judgment: Bird v DP (a pseudonym) [2024] HCA 41 ("HC Bird v DP"). By a majority of six to one, the High Court overruled VSCA Bird v DP and affirmed that, for the purpose of the Common Law of Australia, the doctrine of vicarious liability in what is sometimes referred to as its "true or proper sense" is limited to the legal relationship of employer and employee, legally denoted by the existence of a contract of service, as opposed to a contract for services or other relationship, between them (HC Bird v DP at [44]-[46] per Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ),

Present context

1. That introduction is significant for present purposes because on 12 February 2024, just prior to the closure of the plaintiff's lay case, over the objection of the first defendant, I permitted the plaintiff to amend his statement of claim in the form of the third further amended statement of claim to plead that the first defendant was vicariously liable for any liability of Sister Green for inflicting the serious physical abuse, on the assumption that the necessary primary facts are proved by the evidence. In granting that leave, I limited the leave to vicarious liability based upon the now overruled VSCA Bird v DP principle (see Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 3) [2024] NSWSC 126 at [28]-[31]). I expressly excluded an argument that the first defendant was vicariously liable for any liability of Sister Green based upon the subsistence of a contract of service between them, for reasons I gave in that those passages.
2. By way of further background, it is necessary to refer to another aspect of the way in which the matter was conducted. At the outset of the hearing before me, Mr D Lloyd SC who announced his appearance with Mr D Stretton for the third defendant, made it clear that there was an agreement between the defendants as to contribution and indemnity and the conduct of the proceedings. And in that regard, with one exception which is not presently relevant, he would be responsible for the conduct of the defence of all defendants.
3. As things transpired during hearing of the application by the plaintiff to amend the statement of claim, that agreement, which is in writing, was tendered as Exhibit 1 on the voir dire. It provided for, as I summarised in my judgment already referred to, a sharing agreement as amongst the three defendants in the event that the plaintiff was successful against any one of them.
4. When I made my ruling on 12 February 2024 there was no concession made that the principle said to be established by VSCA Bird v DP was applicable, or, if applicable, to which defendant it would apply. However, on the final day of the hearing, after the conclusion of Mr Lloyd's address and before Mr E Romaniuk SC, who appears for the plaintiff with Mr J Masur, commenced his address, Mr Lloyd made a concession in the following terms (T1028.5-10): "Just before your Honour moves on, I wish to announce a concession that's being made and I wish to explain some aspects of that. The first defendant makes what I'll describe as a contingent admission that if the pleaded acts against Sister Marietta Green are established and if the other aspects of liability, that is the defences raised are rejected, the first defendant accepts, and I'll come back to this in one minute, purely on the basis of the material before your Honour in this case that vicarious liability would be established. I need to say just something briefly about 'purely on the material' before your Honour in the case."
5. It is not necessary for me for present purposes to quote further from the transcript. What became clear during the course of further discussion is that: first, the concession was being made only for the purpose of this case, as usually occurs; and secondly, the concession was being made for all purposes in relation to the present case, including in the event of an appeal, given that the High Court hearing was relatively imminent.
6. When Mr Romaniuk commenced his closing submissions I asked him about the concession, given that, in any event, there was no doctrine of duality of vicarious liability in New South Wales, or in Australia for that matter, and only one defendant may be vicariously liable for the liability of a tortfeasor. Mr Romaniuk, with great respect, was put in a position by the concession where it had to be dealt with on the run, and my impression of what he said at T1029, and again at T1047-1049 when I raised the matter with him again, was that he was wary of it. Indeed, I formed the firm view that he did not accept the concession and he did not, on behalf of the plaintiff, regard the plaintiff as being limited by it in the manner in which the plaintiff's case was formulated and presented. As learned senior counsel's concern was expressed in the pages of the transcript to which I have referred, accepting the concession, or proceeding on the basis that the concession in some way limited the plaintiff's avenues of recovery would be, rather than for the plaintiff's benefit, to the plaintiff's disadvantage. Although the comprehensive written submissions that were provided by Mr Romaniuk and Mr Masur were drafted before the concession was made, they proceed on a wide front, if I may put it that way without any criticism. That is to say, fulsome arguments were presented as to separate bases of the liability of each of the three defendants. That is a significant matter as I will seek to explain.

Issue at hand

1. In any event, because of the impression I formed of the position of counsel for the plaintiff and given the imminence of the hearing in the High Court, bearing in mind that as I understood it anyway, the decision in VSCA Bird v DP was novel in Australian jurisprudence, I decided to await the decision of the High Court before handing down my own decision. Indeed, on 14 November 2024, the day following the High Court's decision, I caused my associate to email each of the legal representatives for the parties inquiring whether any party wished to make any application or further submission as to how the High Court's decision affected the case at hand. I am not quoting the email but that is the substantial effect of it.
2. Following correspondence, and I infer from the contents of that email correspondence that discussions between learned senior counsel took place, a notice of motion was filed on 29 November 2024 on behalf of the first defendant seeking leave to withdraw the concession made on 23 February 2024 and other consequential relief substantially by way of leave to make further submissions in the light of the High Court's decision.
3. Those discussions between senior counsel I infer continued, and I benefitted greatly from written submissions prepared by each of the legal teams dealing with the question of whether leave to withdraw the concession should be allowed and outlining the arguments of each of them in relation to vicarious liability. It is appropriate that I should emphasise that the very firm position advanced by the plaintiff was that I should not grant leave for the concession to be withdrawn.

Consideration

1. I have been referred to a number of authorities, in particular to the oft-cited judgment of Santow J, as his Honour then was, in Drabsch v Switzerland General Insurance Co Ltd (Unreported, Supreme Court of New South Wales, Santow J, 16 October 1996 at pp 7-8). I do not propose to set out the five principles that his Honour enunciated with great care. I remind myself as I discussed with counsel, that the context was slightly different in as much as the application to withdraw the concession was made before his Honour on appeal from a decision of a Master of the Equity Division.
2. However, it is perhaps sufficient that I recite the gravamen of his Honour's first and third principles. They are as follows (at pp 7-8): "1. Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the Court, an application to withdraw the admission, especially at appeal, should not be freely granted (citations omitted). […] 3. Where a court is satisfied that admissions have been made after consideration and advice such as from the parties' expert and after a full opportunity to consider its case and whether the admissions should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn (citations omitted)."
3. His Honour went on to say that it will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts (at p 8). His Honour added leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters (at p 8). That last consideration is absent here. What his Honour had to say in Drabsch related to admissions made on the pleadings. Having said that, there must be little difference between an admission made on the pleadings and a concession made by senior counsel in open court as to the manner in which the case should be dealt with. I move on.
4. There is no doubt, as the written submissions on behalf of the defendants make clear, that the concession made by Mr Lloyd was a concession of mixed fact and law, and as Santow J's analysis demonstrates, admissions are normally limited to admissions of fact. Having said that, the adversarial nature of common law litigation permits of the parties choosing the ground upon which they will fight the case. However, there is force in Mr Lloyd's submission that the Court is not bound to act upon a concession which involves a misstatement of law. It is a primary function of any court of justice that it conscientiously and accurately, so far as the judge can, identify the applicable law and apply it faithfully to the facts as found. It is sufficient for that purpose to refer to Attorney-General (WA) v Marquet (2003) 217 CLR 545; [2003] HCA 67 (per Callinan J) and O'Connor v O'Connor [2022] NSWCA 97 (at [66] per Bell CJ, Ward P and Leeming JA).
5. As I have said, the plaintiff on my appreciation of the matter did not accept the concession and cut his cloth accordingly. Rather, Mr Romaniuk was appropriately resistant to the idea that the concession should not be permitted to govern the outcome of the case, assuming that the hotly contested questions of primary fact were decided in favour of the plaintiff.

Decision

1. I am not of the opinion that the present case is covered by Santow J's first principle, mainly because while the concession was clear and distinct, it was not accepted by the plaintiff, and it was not acted upon by the plaintiff. I am satisfied that the concession was made in a clear-headed fashion after there had been a full opportunity for consideration, and as I have said, it was made by senior counsel with deliberateness and formality. Even so, while the questions of fact are still undecided and contested, it is now clearly established that the concession was based upon an erroneous understanding of the applicable common law in Australia, given the recent High Court decision.
2. Although there has been some evidence before me both from the first defendant's solicitor Mr Dalzell and argument from the plaintiff's side of the record, that the decision of the High Court surprised practitioners in the field, I am not sure that I share that sense of surprise given the decision of the High Court in Sweeney v Boylan (2006) 226 CLR 161; [2006] HCA 19 , and more recently, although not directly in point, in CGIG Investments Pty Ltd v Schokman (2023) 278 CLR 165; [2023] HCA 21. However, given that the Common Law is not set in stone but must develop and move with the times, as economic and social conditions in Australia progress, one would be reluctant to say that the cases which may attract the doctrine of vicarious liability consist of a closed class of one; but, so it presently appears.
3. Given those considerations, I am of the view that the first defendant has made a case for being granted leave to withdraw the concession. As is appropriate, Mr Romaniuk argued that any grant of leave over and above the plaintiff's objection and contrary to his argument should be on terms. His preference is that at this stage of the proceedings the case should be entirely reopened for the purpose of allowing the plaintiff, through his legal representatives, to thoroughly re-investigate, my expression not his, the question of whether Sister Green is employed by any of the defendants, including the first defendant, in the strict legal sense.
4. From the affidavit of his instructing solicitor, Ms Tatiana White affirmed on 9 December 2024, I am aware that investigations of the employment status of Sister Green, if I may put it that way, were undertaken, as one would expect, as a matter of course during the preparation of the case for hearing, and that subpoenas were issued to the defendants, including the first defendant, seeking relevant documents that may yet be extant.
5. The subpoena to the first defendant is Annexure "A" to Ms White's affidavit and a subpoena to the third defendant is Annexure "B". There is no suggestion that Sister Green was employed by the second defendant, the Trustees of the Marist Brothers. The subpoena to the first defendant sought, among other things, in para [1] of the schedule "all employment and/or personnel files held in respect of Sister Marietta Green ('Sister Green')." The same information was sought from the third defendant. Certain documents, Annexure "D", were produced by the first defendant and one document Annexure E was produced by the third defendant. The documents produced by the first defendant relate to correspondence in 2003 between the Congregational Leader of the Sisters of Mercy and the executive officer of the first defendant about payment of a stipend to Sister Green during her absence from the school to undertake what is described as a program of renewal. In September that year the executive director of the first defendant responded to a follow-up telephone call confirming that the first defendant would pay the congregation half a stipend towards the continued employment of Sister Marietta on a "part-time basis" at the school during the following year (my emphasis).
6. I had cause to remark during my discussions with Mr Romaniuk that although that letter used the expression continued employment it did not of itself, standing alone, prove the existence of a contract of service at the time relevant to the plaintiff's claim, or otherwise. It is also notable that in asking for the payment of the stipend, the congregational leader seemed to be seeking an indulgence and not a right, and, moreover, the payment was not made to Sister Green, as one would expect of wages or salary, but to the congregation itself. I am not of the view that that evidence advances the position at the close of evidence before me, and I reiterate, that there was no evidence of contract of service between Sister Green and any of the defendants led or tendered.
7. Annexure "E" consists of a table setting out the very many places where Sister Green has taught or conducted parish work, principally in NSW but also in South Australia, over the long years between 1959 and 2005. The list is headed "Sister Marietta Green's ministries/appointments". There was nothing about that list which suggests that any of those positions was an employed position in terms of an obligation to perform work for wages or salary under a contract of service. There is no suggestion that there was any failure on the part of the defendants to properly answer the subpoena. No steps were taken to seek to enforce the subpoena or to require formal answer of the subpoena in court to enable the proper officer of the organisations, to whom the subpoenas were directed to, to be examined in open court about the nature of the documents available and what efforts were made to identify all of the described documents.
8. From the course of the evidence before me, and from that new material, I am not satisfied that there is any basis to suppose that any evidence can be obtained at this stage that Sister Green was working as a teacher at St Ignatius in 1992 to 1994 under a contract of service. I am of the view it would be futile to allow further investigations to be undertaken. Moreover, I adhere to the ruling I made in my judgment of 12 February 2024 that the amendment I permitted did not extend to proof of employment under a contract of service.
9. On the other hand, there was on 23 February 2024, as I have said, discussion about the limiting effects that acceptance of the concession would have upon the presentation of the plaintiff's case. In that discussion, front and centre to Mr Romaniuk's expressed concerns was the capacity of the concession, if accepted by the plaintiff, to close out an available argument founded on breach of a non-delegable duty. As presently advised, I would regard it as beyond argument that the duty owed by the first defendant to a student at a school conducted by it, fell within the class or categories of case in which the common law of Australia firmly recognises non-delegable duties: The Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40. Mr Lloyd appropriately acknowledged that an argument based upon a breach of non-delegable duty would be available to the plaintiff on the pleadings as they stand and on the evidence led at the hearing before me.
10. Although it was not separately addressed in the comprehensive written submissions, I think that is because they proceeded on the basis that VSCA Bird v DP was good law and it was unnecessary to look for a "backup count", if I may put it that way. Moreover, as Mr Romaniuk has explained there may have been material advantages in a case based upon vicarious liability in terms of the measure of damages legally available which may be more generous than the damages available under the Civil Liability Act. I express no view about that, but that consideration also adds to my understanding why the approach taken by the plaintiff was adopted.
11. I am not satisfied that there was any abandonment of any argument based upon non-delegability. It would seem to me to that the extent to which that argument has not been properly addressed, the leave granted to the first defendant to withdraw the concession should be conditioned on leave being granted to the plaintiff to reopen the argument in the case to advance a case of liability of the first defendant on the doctrine of non-delegable duty.
12. My orders are: 1. Grant leave to the first defendant to withdraw the concession appearing at T1028.1-10 made on 23 February 2024. 2. Grant leave to the plaintiff to reopen the argument and address further submissions in writing in relation to the employment of Sister Green by the second or third defendants, and the applicability of the principles concerning non-delegable duty to the question of the liability of the first defendant with the defendants to have a right of reply in writing, so far as the plaintiff's submissions touch upon their respective liability. 3. Counsel to confer to agree upon a timetable for the exchange of the written submissions and upon agreement, to have liberty to forward a form of consent order encapsulating their agreement to my chambers by email without the need for any party to appear for the orders to be made.

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