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[2011] NSWSC 355
Supreme Court of NSW
2011-03-15
Original judgment source is linked above.
Judgment 1HER HONOUR: There are five notices of motion before the Court. The plaintiffs in the five proceedings are PAO, BJH, SBM, IDF and PMA. The second defendant in all five proceedings is the Trustees of the Roman Catholic Church for the Archdiocese of Sydney. It seeks an order striking out the proceedings against it pursuant to Rule 14.28(1) and/or Rule 13.4(1) of the Uniform Civil Procedure Rules 2005. 2The plaintiffs relied on the affidavit of Mia Donald affirmed 18 February 2011. The second defendant relied on the affidavits of Paul Richard McCann sworn 18 November 2010 and Kelvin Brian Canavan sworn 10 August 2010. Brother Canavan was cross examined. 3The claims brought by each of the plaintiffs are almost identical in their terms. They allege that, in 1974, they were sexually assault by Grealy, while they were students at the Patrician Brothers' Primary School, Granville ("the Granville school"). As a result of the assaults the plaintiffs each suffered psychiatric injury and seek general and exemplary damages from each of the nine defendants. 4The first defendant is Thomas Grealy (also known as Brother Augustine) ("Grealy"). As previously stated, the second defendant in all proceedings is the Trustees of the Roman Catholic Church for the Archdiocese of Sydney ("the Archdiocese Trustees"). The third defendant is the Trustees of the Patrician Brothers ("the Patrician Brothers"). The fourth defendant is Aengus Kavanagh as Administrator of the Estate of the late Celestine Mulhall. The fifth defendant is Patrick Lovegrove. The sixth defendant is Aengus Kavanagh. The seventh defendant is Aengus Kavanagh as administrator of the estate of the late Dominic Coates. The eighth defendant is Aengus Kavanagh as administrator of the estate of the late Vianney Foyle. The ninth defendant is Stephen Aitken. 5In summary, as against the Archdiocese Trustees, each plaintiff alleges that: the Archdiocese Trustees operated, managed and controlled the Granville school; the Archdiocese Trustees were responsible for the supervision of those who taught at the Granville school, including Grealy; the Archdiocese Trustees are vicariously liable for the act of Grealy by reason of: (i) Grealy being an employee of the Archdiocese Trustees, and the assaults occurred in the court of his employment; or (ii) Grealy acting as agent for the Archdiocese Trustees to educate children at the Granville school; (iii) Grealy being part of a common joint enterprise in concert with, the Archdiocese Trustees, to educate children at the Granville school; The Archdiocese Trustees breach a non delegable duty of care to each plaintiff to exercise reasonable care for their safety; The Archdiocese Trustees breach a duty of care to each plaintiff; and The Archdiocese Trustees failed to discharge their fiduciary obligations to each plaintiff.
The law 6Rule 13.4(1) of the Uniform Civil Procedure Rules ("the UCPR") provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the Court. Part 13.4(1) of the UCPR replaced Part 13.5 of the Supreme Court Rules 1970. 7Rule 14.28(1) of the UCPR provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the Court. 8Rule 14.28(2) provides that the Court may receive evidence on the hearing of an application for an order under subrule (1). Rule 14.28 replaces Part 5.26 of the Supreme Court Rules (he SCR") . 9Senior counsel for the plaintiffs referred to Wickstead v Browne [1992] 30 NSWLR 1, where the Court of Appeal stated (at 11-12): "The principles upon which a court should act in determining an application under Supreme Court Rules Pt 13, r 5 are well-established. A convenient summary is to be found in the well-known decision in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Barwick CJ said (at 128-129): 'The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and it is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion ... the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, ... to exercise its powers of summary dismissal- is clearly demonstrated.' The respondent submitted that the appellants had failed to adduce any evidence or any admissible evidence on a number of issues and that the appeals should therefore be dismissed. Again it seems to us that those submissions misconceived the nature of the court's jurisdiction to dismiss summarily a plaintiff's action. By launching such an application a defendant undertakes the burden of establishing that there is no triable issue. On such an application the defendant bears the onus of proof and where the facts are peculiarly within the defendant's knowledge the plaintiff's action should not be dismissed because of gaps in the case if the necessary evidence might be obtained as a result of discovery or interrogatories. However for another reason, which was first raised by the Court, the respondent as one of a number of defendants cannot be entitled to summary dismissal before trial because of evidentiary deficiencies in the plaintiff's case. If at the close of the plaintiff's case at the trial there was no evidence against this respondent he would not be entitled at that stage to judgment if any of the other defendants intended to go into evidence: see Menzies v Australian Iron & Steel Ltd (1952) 52 SR (NSW) 62; 69 WN (NSW) 68. The effect of this rule is now embodied in Supreme Court Rules Pt 34, r 7(6) and r 8(5). The reason for the rules is clear and was explained in the decision referred to. At the close of the plaintiff's case there may be evidence against some defendants but not against others. The court will not entertain a motion for judgment by some only of the defendants because any gaps in the plaintiff's case against those defendants may be filled when the other defendants go into evidence. In particular one or more of the defendants going into evidence may seek to exculpate themselves by inculpating defendants against whom the plaintiff had no admissible evidence at the close of his case. If the respondent would not be entitled to succeed on a no evidence point at the trial until all the evidence has been called, including that from other defendants, it is clear that there can be no such entitlement on an application by one of several defendants for summary dismissal." 10Part 29.9 of the UCPR has replaced Part 34.7 of the SCR and Rule 29.10 of the UCPR has replaced Part 34.8 of the SCR. 11Senior counsel for the Archdiocese Trustees submitted that while the Court's reasoning (extracted above) draws an analogy with a situation in which "at the close of the plaintiff's case at the trial there was no evidence against this respondent ...". It is suggested that a crucial difference between UCPR Rule 13.4 and a no-case submission at the close of a plaintiff's case at trial is that, under UCPR Rule 13.4, a defendant is expressly permitted to lead evidence to establish the hopelessness of the plaintiff's case. It is suggested that in such a case the analogy does not hold and the principle has no application. 12It would seem that while the Court is considers the two rules to have developed from a similar rationale, I do not necessarily agreed with the defendant's submissions on this point. It would appear that the Court in Wickstead v Browne is saying that before trial, under an application by a defendant pursuant to SCR Pt 13 (or UCPR 13.4), a defendant undertakes the burden of establishing there is no triable issue. It would seem the Court is cautioning that proceedings should not be summarily dismissed on the grounds of evidentiary deficiencies: (i) where facts are peculiarly within the defendant's knowledge and the missing evidence might be obtained through discovery or interrogatories; and/or (ii) if one of several defendants would not be entitled to succeed on a no evidence point at the trial until all the evidence has been called 13The Court saying, " for another reason", or in other words, a further consideration, is that at trial, the gaps in the plaintiff's case might be filled when the other defendants go into evidence. I don't think the Court was saying it element (ii) above is dependant on element (i). The Court is drawing a distinction between the rules and if anything, that they are complimentary considerations. There is a difference between an entitlement to a summary dismissal on the basis that there is " no triable issue" and a defendant succeeding on a "no evidence point at trial." 14Wickstead v Brown it is not a rule of blanket application. It does not apply if it is possible to say that the case of one defendant will certainly not implicate another defendant: Breheny v Caircross [2002] NSWCA 69 at [7] per Hodgson and Boumelhem v NSW Crime Commission [2006] NSWSC 1413 per Studdert J at [24] to [43]. In Boumelhem v NSW Crime Commission his Honour stated at [43], "I am persuaded ... that this case is an exception to Wickstead v Browne , which is enlivened where one of a number of defendants may give evidence that will incriminate the applicant for summary judgment. In such a case, summary judgment will be refused. However, this is not such a case." 15It is also submitted by the Archdiocese Trustees that this is not a case about "evidentiary deficiencies in the plaintiffs case" which might be filled by the evidence of other defendants at trial and point to evidence that the Archdiocese Trustees played no role in the management and/or administration of the Granville School, namely: (a) Brother Canavan's evidence as to the history of the management and administration of Catholic schools in the Archdiocese, including his evidence that the Archdiocese Trustees did not play and still do not play any role in the management and/or administration of Catholic schools in the Archdiocese; and (b) Minutes of the Trustees for the period demonstrate that the focus and role of the Archdiocese Trustees related to property matters and had nothing to do with the management and/or administration of schools in the Archdiocese in general. (c) The Archdiocese Trustees have also established, by the authority of Ellis, that it would have been beyond power for the Archdiocese Trustees to have had such a role under the Trust Property Act at the relevant time in any event. 16I shall refer to these considerations in more detail later in the judgment.
Consideration of the Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117 17Senior counsel for the Archdiocese Trustees submitted that the plaintiffs' case against it disclosed no reasonable cause of action. He relied upon The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117 as being directly on point and for the reasons given in The Trustees v Eillis , these current proceedings are also doomed to failure and should be dismissed. 18In The Trustees v Ellis , Ellis commenced proceedings in the Supreme Court for damages alleging that he was repeatedly sexually assaulted by an assistant priest of the Roman Catholic Church in the Archdiocese of Sydney between 1974 and 1979. Ellis sued the current Archbishop of the Archdiocese of Sydney, who was appointed in 2001. Ellis also sued the Trustees of the Roman Catholic Church for the Archdiocese of Sydney, the same entity that is being sued in these current proceedings before this Court. The defendants were sued in tort and for breach of statutory duties. 19Both in this case and in Ellis it was not alleged that the second defendant was liable as an occupier of the properties on which the abuse is said to have occurred - see The Trustees v Ellis at [18]. 20In The Trustees v Ellis, t he plaintiff sought an extension of time under s 58 and s 60G of the Limitation Act 1969. The Supreme Court dismissed proceedings against the current Archbishop of the Archdiocese of Sydney, but extended the limitation period against the Trustees of the Roman Catholic Church for the Archdiocese of Sydney. The Trustees appealed, by leave, against the decision to extend time, and the plaintiff cross appealed, by leave, against the dismissal decision. 21The Court of Appeal upheld the appeal and dismissed the cross appeal. The Court of Appeal found that an unincorporated association, such as the Trustees of the Roman Catholic Church for the Archdiocese of Sydney, could not be sued in its own name at common law, as it did not exist as a juridical entity. 22In The Trustees v Ellis , Mason P (with whom Ipp and McColl JJA agreed) referred to the provisions of Roman Catholic Church Trust Property Act 1936. His Honour stated at [99] - [112]: "[99] The Trustees submit that the situation is particularly clear in light of terms of the Act throughout the 1970s when the pleaded acts of negligence by people within "the Church" (including Father Duggan) occurred. The Trustees rely on the decision of this Court in the Archbishop of Perth case. [100] The long title describes the Trust Property Act as: 'An Act to make certain provisions relating to property held upon any trust for or for the use, benefit or purposes of the Roman Catholic Church in New South Wales; to repeal the Roman Catholic Diocese of Lismore Church Lands Act , 1908, and the Saint Patrick's College (Manly) Act , 1914; and for purposes connected herewith.' [101] The Preamble to the Trust Property Act at the relevant time provided: 'WHEREAS lands held on trust for or for the use or benefit or for purposes of the Roman Catholic Church in New South Wales are vested in many different bodies of trustees, and owing to deaths and other causes, the necessity for the appointment of new trustees frequently arises: AND WHEREAS it is expedient that bodies corporate be created for the purpose of holding, managing and dealing with lands so held, that provision be made of the vesting in bodies corporate to be created by this Act of lands so held, that conveyancing transactions in respect of lands so held be facilitated and rendered less expensive.' [102] When the Minister of Justice moved the second reading, he informed the Legislative Assembly that the Bill was submitted at the request of the Roman Catholic Church authorities throughout New South Wales. The Minister described the Bill as "a measure designed to provide the same facilities for the Roman Catholic Church to hold its properties conveniently in the various dioceses as are granted to other churches" (Parliamentary Debates, Legislative Assembly, 23 June 1936, pp 4860, 4861). In the Upper House, the Assistant Minister moving the second reading spoke to similar effect. He drew attention to the preamble and described the measure as: '... designed to overcome difficulties which have arisen from time to time in relation to the title to lands held in trust for the Church. These difficulties have been occasioned by the practice, hitherto existing of vesting church trust property in individual trustees, usually in the parish priest and certain residents of the parish in which the property is situated. In the course of time these trustees have died, or have left the State, and in many instances the trustees cannot now be located, so that the statutory provisions relating to the appointment of new trustees cannot be utilised.' (Parliamentary Debates, Legislative Council, 25 June 1936, pp 4991-2). [103] The Trust Property Act established a body corporate for each Roman Catholic diocese in New South Wales. In the case of Sydney it is called "The Trustees of the Roman Catholic Church for the Archdiocese of Sydney", ie the name of the second defendant. [104] The Trustees so incorporated are the Archbishop and the "Diocesan Consultors" for the Archdiocese (s 3). The Consultors are the members for the time being of the Cathedral Chapter (s 2). [105] Section 4(1) of the Trust Property Act conferred upon each body corporate established by the statute perpetual succession, the right to acquire, hold and dispose of property, the capacity to sue and be sued in its corporate name, and of doing and suffering all such acts and things as bodies corporate may by law do or suffer. [106] The diocesan Bishop and two other members of each body corporate constitute a quorum for the purpose of any meeting (s 6). [107] The Act then proceeded to vest all Church trust property within each diocese in the body corporate for that diocese (s 8). [108] Section 9 relevantly provided: '9 Every body corporate created by this Act shall have power from time to time - (a) to purchase, take on lease, or acquire by gift, devise, bequest, exchange or otherwise any real or personal property; and (b) in relation to any Church trust property at any time vested in it - (i) to sell it, and to exchange it for other land, and to transfer or convey Church trust property so sold or exchanged to the purchaser or person taking in exchange, freed and discharged from all trusts affecting the same in the hands of the body corporate, and (ii) to demise or let it for such term at such rent and with or without taking premium, fine or foregift and subject to such provisions as to the body corporate shall appear desirable, and (iii) to accept surrender of leases, upon such terms and subject to such conditions as to the body corporate shall appear desirable, and (iv) to raise money on the security of it on such terms and conditions as to the body corporate shall appear desirable, and (v) to declare trusts of it or of any estate or interest in it created by the body corporate for any Order or Community of the Church or for any association of members of the Church or for the use or benefit of or for any purpose of any such Order, Community or association, and either to retain the property in relation to which trusts are so declared, or to vest it, or any estate or interest so created, in other trustees upon the trusts so declared; and (c) For any purpose mentioned in this section to execute all such instruments as to the body corporate shall appear proper.' [109] The conduct sued upon occurred while the Act was in this form. [110] There are many church property trusts operating as statutory corporations in Australia (see Halsbury's Laws of Australia, "Religion", [365]; MacFarlane & Fisher, Churches, Clergy and the Law, (1996), Sydney, pp 52, 135-8). [111] ... "Church trust property" as defined in s 2 is vested in the relevant corporation. That corporation is armed with wide powers extending to real and personal property, but they are powers referable to the holding, management and disposal of property. General statements, such as the conferral of power to do and suffer all such acts and things as bodies corporate may by law do or suffer (s 4), and (after 1986) the power to act as if a natural person (s 9), are all directed at this role, and this alone. The appointment, management and removal of priests in the Catholic Church are not functions that the law confers upon bodies corporate or natural persons. [112] I accept these submissions. ..." 23Mason P, in The Trustees v Ellis , continued at [113] - [118]: "[113] The long title and preamble explained the limited statutory purpose. So too did the second reading speeches referred to above. Neither assist the plaintiff in the present submission. The Court is directed by s33 of the Interpretation Act 1987 to prefer a construction that promotes the purpose or object underlying an enactment. [114] There is nothing to indicate why "the Church" would have sought statutory authority to address the relationship between the Church hierarchy and priests. It is inconceivable that an Australian Parliament in the twentieth century would have legislated on such matters without invitation. Even the Anglican Church was firmly disestablished in Australia by the mid nineteenth century ( Wylde v Attorney-General for New South Wales (ex rel Ashelford) (1948) 78 CLR 224 at 284-7). Dr Austin's evidence about the role of a diocesan bishop in the Catholic Church contradicts the notion that episcopal authority in non-property matters would have in some way devolved from the bishop to the body corporate given that the bishop did not in law control the body corporate. [115] One may assume that the Trustees would as a body choose to be obedient to the wishes of the Archbishop from time to time. Equally, it is apparent that they might from time to time exercise their powers over property in a way that impacted upon the performance of ecclesiastical functions. Thus, to take a hypothetical case, the Trustees might have to institute proceedings for possession against a former priest whose licence to occupy a Church property had been withdrawn for some reason. [116] The Trustees have power to employ servants and agents for example, to attend to property repairs and conveyancing transactions. The normal legal incidents would attend such a relationship. These may expose the Trustees to liability in contract or tort at the suit of third parties in a proper case. [117] The evidence shows clearly that the Trustees played no role in the appointment or oversight of priests in the Archdiocese in the 1970s. In one sense this makes it unnecessary to consider whether the Trustees had power to do so under the Act as it then stood. However, in fact they did not, for reasons that follow. [118] In their various functions, the Trustees are themselves agents of the wider Church. But nothing in the Act makes them the universal embodiment of the Church within the Archdiocese. The commonplace stipulation that the body corporate is capable of being sued in its corporate is not a provision that renders the Trustee some universal nominal defendant responsive in law to any and every claim for legal redress that a person might wish to bring against a Catholic in the Archdiocese." 24Mason P, in The Trustees v Ellis , concluded that the proceedings in their present form were doomed to fail and ought to be dismissed as against the first and second defendants both as regard the claim in tort and the claim for breach of fiduciary duty. 25I accept that the Roman Catholic Church Property Act 1936, as set out in the Trustees v Ellis , applies to these current proceedings.
The evidence 26In these current proceedings both parties relied on evidence. The plaintiffs relied on the contents of three letters. One is from Mr Marchant, Head of Staff Services, Catholic Education, Diocese of Parramatta dated 10 December 2008 and two letters by the solicitors acting for Patrician Brothers dated 24 June 2009 and 11 November 2010. The defendants relied on the affidavit of Brother Canavan. 27By letter dated 10 December 2008, Mr Marchant informed the plaintiffs' solicitors that: "... regarding Patrician Brothers' High School known as Delany College. ... 2. The school was Church owned and part of the system of Catholic Schools of the Archdiocese of Sydney. Parramatta Diocese was established in 1987. 3. I am unable to provide a definite answer, however believe that the Patrician Brothers managed the school on behalf of the Archdiocese of Sydney. ..." 28By letter dated 24 June 2009, the solicitors acting for Patrician Brothers informed the plaintiffs' solicitors that: "... We have been instructed to represent the Patrician Brothers. The Patrician Brothers have made enquiries concerning the questions you have raised, noting that the questions related to 1974, 35 years ago. The information provided is accurate to the best of our client's knowledge and belief. On that basis, the answers we are able to provide are as follows:
The evidence of Brother Canavan 32Brother Canavan swore an affidavit dated 10 August 2010. His evidence, contained in his affidavit and given during cross examination, is as follows: 33Brother Canavan gave evidence that the Catholic Education Office ("CEO") was first set up in the late 1930's. In 1965 the Catholic Building and Finance Commission was established ("the CBFC"). In conjunction with the CEO, the CBFC became the central body, within the Archdiocese of Sydney, responsible for the financial management for funds collected by the schools by way of fees, donation and the like. 34Brother Canavan was first appointed to a primary school teaching position in 1960 at the Marist Brothers school at Parramatta. He was appointed by the Provincial of the Marist Brothers, Brother Quentin Duffy. 35From 1963 to 1965, Brother Canavan taught at the Marist Brothers school at Dundas. In 1966, he taught at the Marist Brothers School at Eastwood. In 1967, he was appointed to the position of Principal of the Primary Department at Eastwood. 36In 1968, he was appointed to work at the Sydney Catholic Education Office ("CEO") as Inspector of Schools and Supervisor of Marist Primary Schools. Brother Canavan was appointed to the CEO by the Provincial of the Marist Brothers, Brother Othmar Weldon, in consultation with Cardinal Gilroy, the then Catholic Archbishop of Sydney. 37Brother Canavan's primary duties, in his role as Inspector of Schools, involved coordinating the activities of various CEO Inspectors and school supervisors. He undertook this role on a full time basis for seven years. 38As Inspector of Schools at the CEO, his primary duties involved supporting struggling principals and providing some professional development to staff. At the time there were 15 to 20 other Supervisors from different religious orders administering Catholic schools in Sydney. Over time, Brother Canavan increasingly came to coordinate the activities of the other Supervisors. 39In 1975, Brother Canavan was appointed Director of Primary Education at the CEO. He was appointed by Monsignor Slowey, who was the director of the CEO at the time. This appointment coincided with an increase in Federal Government funding to Catholic schools and a decline in the number of principals from religious orders. 40Brother Canavan's role as Director of Primary Education at the CEO principally involved recruiting lay staff and working on the professional development of teachers in the Catholic schools in the Archdiocese of Sydney. 41In 1982, he was appointed Deputy Director of Schools at the CEO. His role principally involved the day to day management of the school system and communications across the system. In 1986, Brother Canavan was awarded a Doctor of Education from the University of San Francisco. The focus of his doctoral theses was the role of the CEO. 42In January 1987, Brother Canavan was appointed to the position of Executive Director of Schools at the CEO. The position had been advertised; there was a detailed position description and an interview process headed by Bishop Robinson. His responsibilities in this role included building relationships between the CEO and the individual Catholic schools while at the same time tightening financial accountability. Brother Canavan remained Executive Director of School at the CEO until January 2009. 43Many of the Catholic secondary schools in Sydney are also situated on land owned by the Archdiocese Trustees, and the Archbishop asked or "invited" a religious order to run the secondary school. While some Catholic secondary schools in Sydney are situated on land owned by a religious order, often the construction of the school was paid for by the Archdiocese Trustees. For example, in about 1960, Cardinal Gilroy asked the Marist Brothers to establish St Patrick's School at Dundas, one of the Marist Brothers' schools where Brother Canavan was a teacher. The School was situated on land owned by the Marist Brothers and the Archdiocese Trustees paid for the construction of the school. In either instance, these Catholic secondary schools were then financed by the religious order through the tuition fees it collected from students and fundraising activities. In effect, each religious order had its own system or network of schools that it administered. 44Those teachers and principals at Catholic primary and secondary schools, who are members of a religious order, were and continue to be appointed to their position by the Provincial of the religious order. The Provincial also determines whether the appointment of such a teacher or principal should cease. As an example, Brother Canavan was appointed to teach at the Marist Brothers school at Dundas by the Provincial of the Marist Brothers and he was then appointed by the Provincial to be the Principal at the Marist Brothers school at Eastwood. 45The role of the Provincial in relation to the appointment and termination of teachers and principals from religious orders continues to the present day. The Provincial also administers the provision of stipends to the teachers and principals, although the nature of this arrangement has changed over time. The arrangement by which lay teachers in the Catholic school system are appointed and paid has also changed over time. 46Upon a religious order being invited to run a particular school, there was and continued to be little, indeed usually no, direct communication between the Archbishop and the school. Any such communication would occur through the CEO, the Provincial of the religious order which ran the school, and the Principal. 47In relation to those Catholic primary and secondary schools which were situated on land owned by the Archdiocese Trustees, on the basis of Brother Canavan's knowledge and understanding of the administration of Catholic schools in Sydney from the establishment of the CEO in 1939 to date, the Archdiocese Trustees have played no role in the administration of the schools, and there was and is no direct communication between the Archdiocese Trustees and the Principal of a school or the Provincial of the religious order that administers the school. 48Brother Canavan gave evidence in respect of the Catholic Education hierarchy. He indicated that if there was a concern about the conduct of one of the brothers the principal of the school could have directed it to the Provincial of the order or could have escalated the complaint to the Director of Schools, Monsignor Slowey who answered to the Archbishop of Sydney. 49Brother Canavan indicated that some parishes or individual orders had expressed a loss of autonomy following the centralisation process within the Catholic education system. However in 1965, Brother Canavan stated that there was still a high level of involvement by the Patrician Brothers Provincial. 50Based on the evidence of Brother Canavan it is clear that the CEO and the CBFC played a considerable role in the operation of the Patrician Brothers School in Granville. Neither of these bodies are legal entities and there was only limited evidence brought which explored the relationship between these unincorporated organisations and the Archdiocese of Sydney. The relationship between the unincorporated organisations and the Archdiocese will need to be determined as fact at trial. It is possible that further discovery will establish evidence either linking or distinguishing these organisational bodies.
Conclusion 51The letters produced by the legal representatives of the Patrician Brothers raises the possibility that the Archdiocese Trustees were themselves involved in the activities of the school beyond mere land holding. Brother Canavan gave evidence that would indicate that the CEO and the CBFC, both unincorporated entities, were responsible for some of the School's operations, it may be that these entities were operating as agents of the Archdiocese Trustees. 52Wickstead v Browne (1992), referred to earlier in my judgment, sets out persuasive reasons upon which this application should be rejected. Where the facts are within the defendant's knowledge, the plaintiff's action should not be dismissed where further evidence may be obtained as a result of discovery or interrogatories. Similarly, where multiple defendants are involved, it is possible that evidence will be adduced by one defendant that implicates another. Further evidence may be given at trial by the Patrician Brothers that implicates the Trustees of the Roman Catholic Church for the Archdiocese of Sydney in the management and operation of the Patrician Brothers Primary School at Granville. 53In these circumstances, I am not satisfied that the plaintiffs' cases against the Trustees of the Roman Catholic Church for the Archdiocese of Sydney are hopeless. It is my view that these matters should be permitted to go to trial. 54The notices of motion filed by the second defendant in each of the proceedings are dismissed. 55Costs are discretionary. Usually costs follow the event. The second defendant is to pay the plaintiffs' costs of the motions as agreed or assessed.
The Court orders that: In each of the proceedings - (1) The notice of motion filed by the second defendant is dismissed (2) The second defendant is to pay the plaintiffs' costs of the motion as agreed or assessed.
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: 09 May 2011