Plaintiff v Defendant

PRACTICE AND PROCEDURE - Permanent Stay - Abuse of Process - Whether it would be manifestly unfair to defendant or would otherwise bring administration of justice into disrepute if claim proceeded - Limitation of Actions Act 1958 (Vic) s 27R - Connellan v Murphy [2017] VSCA 116 - Moubarak v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218.

1 The plaintiff alleges that in the period 1977 to 1980, when he was between the ages of about 11 and 14, he was repeatedly sexually abused ('the abuse') by Daniel Hourigan ('Hourigan'), who worked at the time as a priest in the Warragul Catholic Church, within the Catholic Diocese of Sale ('the Diocese'). He brings this proceeding claiming damages for personal injury suffered as a consequence of the abuse.

2 In 1996 the plaintiff made a claim against Bishop Coffey as Bishop of the Diocese in relation to the abuse, in a proceeding issued in the County Court of Victoria ('the County Court proceeding'). That proceeding settled, and the plaintiff and Bishop Coffey entered into a Deed of Release dated 19 November 1996 ('the Deed'). In the current proceeding, the defendant pleads that the plaintiff's claim is barred by the Deed.

3 Three recent legislative changes are central to the potential success of the plaintiff's action.

4 First, the Limitation of Actions Act 1958 (Vic) ('Limitation Act') was amended in 2015 by inserting div 5 into pt IIA, which relates to actions for personal injury resulting from child abuse. The County Court proceeding was issued outside the limitation period which then applied, which had expired in 1989, six years after the plaintiff's 18th birthday. The effect of the new provisions is that there is now no limitation period for such actions.

5 The second change was the enactment of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) ('the Legal Identity Act'), which relates to any claim against a non-government organisation (NGO) that is an unincorporated association or body, such as the Diocese, founded on or arising from child abuse. At common law, an unincorporated association cannot be sued in its own name.[1] The Legal Identity Act provides for the nomination or appointment of an entity, often a trust associated with the NGO, to act as the proper defendant in a proceeding and to incur any liability arising from the claim on behalf of the NGO as if the NGO were capable of being sued and found liable. The plaintiff's claim is pleaded against the Diocese, and the Roman Catholic Trusts Corporation for the Diocese is named as proper defendant in accordance with the Legal Identity Act.

6 The third legislative change involved further provisions being inserted into div 5 of pt IIA of the Limitation Act, which provide that an action may be brought on a previously barred or settled cause of action, and give the court power to set aside a previous judgment or settlement if it is just and reasonable to do so. The plaintiff has applied under s 27QD of the Limitation Act to have the Deed set aside, and related paragraphs of the defence struck out.

7 Pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) there were two questions for determination on the plaintiff's application:

(1) Subject to any answer to question (2), is the plaintiff's claim against the defendant barred by:

a. clause 8;

b. further and alternatively, clause 9;

of the Deed?

(2) If the Court answers 'yes' to question (1), should the Deed be set aside pursuant to ss 27QD and 27QE of the Limitations of Actions Act 1958 (Vic)?

The plaintiff conceded that the answer to the first question should be yes. These reasons are directed to the second question.

8 The plaintiff argued that insurmountable barriers to his claim in 1996, which included the lack of a proper defendant to a claim against the Diocese and the expired limitation period, resulted in him agreeing to settle for far less than a reasonable assessment of damages. Those barriers have since been removed, and it is just and reasonable that the Deed is set aside to allow his claim to be determined on the merits.

9 The defendant argued the plaintiff must show compelling reasons why the court should exercise the discretion to alter inter partes rights embodied in the Deed. The plaintiff has not identified any unique or particular feature that warrants the court's relief. The fact that the plaintiff's legal position in respect of this claim may have improved since the 1996 settlement is not a sufficient basis for exercise of the discretion in his favour. The defendant says it would be prejudiced by continuation of the action because of lapse of time and loss of evidence, and a trial of the plaintiff's claim would be unfair to it. These matters militate against setting aside the Deed, such that question 2 should be answered 'no'.

10 The following issues arise for consideration on the plaintiff's application:

(a) What prejudice will the defendant suffer if the application is granted?

(b) What is the proper interpretation of ss 27 QD and 27QE of the Limitation Act, and what considerations are relevant to the exercise of the discretion to set aside a settlement agreement?

(c) Should the discretion to set aside the Deed be exercised in the circumstances of this case?

11 The defendant's submissions raised the further question of whether the proceeding should be permanently stayed as an abuse of process because it is so manifestly unfair to the defendant, or would otherwise bring the administration of justice into disrepute.[2]

12 For reasons which follow, question 2 is answered yes. Further, I have determined the proceeding is not an abuse of process, and should not be stayed.

13 The following documents were tendered at the hearing of this application:

(i) Affidavit of the plaintiff with exhibits affirmed 26 September 2019;

(ii) Affidavit of the plaintiff's mother sworn 18 June 2020;

(iii) Affidavits of the plaintiff's solicitor Laird Macdonald with exhibits affirmed 10 October 2019, 25 March 2020, 31 March 2020, 30 April 2020, 6 May 2020, 19 June 2020, 22 June 2020, 22 June 2020 (related to Canon Law) and 22 June 2020 (related to defendant's answers to interrogatories);

(iv) Opinion of Mr Tim Tobin SC dated 20 January 2020;

(v) Plaintiff's interrogatories of the Diocese and answers dated 15 April 2020; and

(vi) Extract of a Copy of Canon Law 1983.

(i) Affidavits of the defendant's solicitor Bernard McMahon with exhibits sworn 12 December 2019, 6 February 2020, 20 February 2020, 10 March 2020, 19 May 2020, 1 June 2020 and 15 June 2020;

(ii) Affidavits of Maria Kirkwood with exhibits sworn 10 March 2020, 19 March 2020 (Affidavit of Documents), 1 April 2020, 6 May 2020 and 17 June 2020;

(iii) Affidavit of Father Bernard James Buckley sworn 12 May 2020;

(iv) Affidavit of Father Peter Kooloos sworn 14 May 2020;

(v) Affidavit of Father Bernard Mahony sworn 14 May 2020;

(vi) Affidavit of Father Denis O'Bryan sworn 14 May 2020;

(vii) Affidavit of Father Ian Waters with exhibits sworn 18 May 2020;

(viii) Opinion of Father Ian Waters dated 5 June 2020;

(ix) Email from Williams Winter Solicitors to Wotton Kearney dated 22 June 2020; and

(x) Email from Wotton Kearney to Williams Winter Solicitors dated 22 June 2020.

14 Father Waters was the only witness to give viva voce evidence.

15 The plaintiff was born in Warragul in 1965. His family were devout Catholics, and he was an altar boy at the Warragul church.

Hourigan's background, appointment and career as a priest

17 After completing secondary school Hourigan qualified as a teacher, then worked for a decade as a missionary and teacher in Papua New Guinea. He returned to Australia in about 1960 and worked as a high school teacher, before travelling to South America in 1969, where he was an envoy of a Catholic organisation called the Legion of Mary.

18 In the 1970s Bishop Fox was the Bishop of Sale. On 3 July 1972 Hourigan wrote to Bishop Fox asking that he be accepted to study for the priesthood. In the letter Hourigan set out what he said were two 'flies in the ointment'. First, he briefly described a back condition which had required surgery. Second, he disclosed that on three separate occasions, occurring at two separate boarding schools in Papua New Guinea at which he was working, boys in his care who, he said, he had occasion to punish for misbehaviour, responded by complaining to a priest that he had treated them harshly and that he was a homosexual ('the disclosure'). A short time after the second and third complaints, Hourigan left the second boarding school and returned to Australia.

19 A letter in response from Bishop Fox dated 10 August 1972 includes:

I will give favourable consideration to your desire to be a priest.

You should obtain a recent letter from the local authorities, say, from the parish priest. A letter from the local Bishop concerning your work and character etc. over the time you have spent in Sth. America would be helpful.

I know that you come from a very good family. This, of course, accounts for much.

Please send me as soon as possible the letters I referred to above. In the meantime I will look for a place at the seminary in Kensington.

PS You should also obtain a recent certificate of health.

20 A letter from Bishop Fox to Hourigan dated 29 September 1972 states in part:

I have received your letter of September 18th, 1972 and the attached medical certificate. I also received the letter of recommendation from Bishop Tubino.

I have applied for a place for you in 1973 at St Paul's National Seminary, Kensington, New South Wales.

On the same day Bishop Fox wrote to the rector of St Paul's National Seminary ('St Paul's Seminary') nominating Hourigan as a student for the priesthood for the Diocese, stating in part:

I have received recommendations from South America and from local priests who knew him in former years, I have also received a recent doctor's certificate testifying to his good health.

Mr Hourigan comes from an excellent family in Traralgon, in the Sale Diocese.

The rector replied on 4 October 1972 providing an application form for entrance to the seminary and remarking that Hourigan seemed to be a good prospect.

21 Hourigan wrote to Bishop Fox on 15 December 1972 attaching a completed application form to St Paul's Seminary dated 12 December 1972 which appears to have been signed by him, and a document entitled 'Autobiography Daniel Dominic Hourigan'.

22 Bishop Fox wrote to the Rector of St Paul's Seminary on 24 January 1973 forwarding documents in connection with Hourigan's application to enter the seminary. Bishop Fox stated he was obtaining a copy of Hourigan's parents' marriage certificate, and that Hourigan had not yet returned to Australia, but should be back any day.

23 No mention is made of the disclosure in any of these documents.

24 Hourigan studied at St Paul's Seminary between 1973 and 1975. In periodic reports and correspondence sent to Bishop Fox the seminary rector referred to Hourigan as being a very suitable candidate for priesthood who was doing well, and who was unanimously recommended by seminary staff. There is no mention in any document produced from the seminary file of the disclosure to Bishop Fox, and no indication Hourigan was required to, or did, undergo psychological examination. Hourigan successfully completed his studies, and was ordained to the diaconate in 1975, and to the priesthood in 1976. On 16 August 1975, Bishop Fox wrote to the rector of St Paul's Seminary as follows:

My student for the diocese of Sale at St Paul's, Mr Dan Hourigan, is due to be ordained to the Diaconate this year.

It is the custom of the diocese of Sale that seminarians be ordained to the Diaconate in their home parishes and the Priesthood in the Cathedral. Consequently I wish to arrange for Mr Hourigan to receive the Diaconate at Traralgon.

And on 17 August 1976, Bishop Fox wrote to the rector as follows:

I thank you for your letter of August 3 1976 recommending Reverend Daniel Dominic Hourigan, deacon, for ordination to the priesthood.

I am glad to know that he has fulfilled all the requirements of canon law for promotion to the order of priest.

PS Have now received your letter of 15/8/76 with testimonial letter from Cardinal Freeman.

25 It seems most likely Hourigan was ordained by Bishop Fox at Sale. After Hourigan was ordained, Bishop Fox appointed him to work as a curate in Maffra for about 12 months, then as assistant priest at the Warragul church from August 1977. At the time the parish priest was Monsignor Daly, who was ill and died in March 1980, shortly after Hourigan was transferred from Warragul to the Leongatha parish. Hourigan worked in other parishes in the Diocese until the late 1980s when he was appointed chaplain to a local school. He was placed on sick leave in about 1990, and retired in 1993 but continued to carry out some pastoral duties until 1994 when Bishop Coffey, who was then Bishop of Sale, suspended him. Hourigan died on 18 September 1995.

26 The abuse occurred at the Warragul presbytery, in Hourigan's car and on occasions when the plaintiff accompanied Hourigan on trips to places such Lakes Entrance, Stawell, Queensland, Ballarat and Orbost, and included multiple instances of Hourigan showing the plaintiff pornographic material, kissing, fondling, masturbation, Hourigan forcing the plaintiff to suck his penis, and Hourigan penetrating the plaintiff's anus with his penis.

Disclosure of the abuse, investigations and actions taken

27 The plaintiff first reported the abuse to his family in about 1986. One of his brothers also complained about Hourigan's conduct. His parents told his uncle, who was a priest in Melbourne, who in turn reported the matter to Father Waters.

28 Father Waters informed Bishop D'Arcy, then Bishop of Sale, who delegated responsibility to him to investigate, and advised him to not inform anyone else of the matter. Father Waters then travelled to Gippsland to interview the plaintiff, his brother and Hourigan.

29 In December 1986 Father Waters wrote to Hourigan referring to the conversation between them and confirming arrangements for Hourigan to attend with psychiatrist Dr Eric Seal, stating:

I have provided Dr Seal with the outline of your problem, and leave it to you to provide him with the detail.

On the same day, Father Waters wrote to Bishop D'Arcy, stating in part:

I am sure that if the police had been alerted by either lad, criminal charges would have been laid.

...

I told [Hourigan] what had been alleged, that I was acting as your delegate and that no priest of the Sale diocese had any knowledge of the allegations. I then invited his reaction. At first he said that the activities could be viewed from different points of view ... I then said that the activity, as described by the lads to me, was clearly criminal, and that while they could be blatant liars or hallucinating, their parents and I believed them to be both truthful and objective, and that the seeking of legal advice and police action had been discussed.

Father then calmly and humbly admitted he was guilty and needed help. I said I would arrange for him to see Dr Eric Seal, psychiatrist, that I would report to you and that I would guarantee the [redacted] that Father would not visit them or make any contact ...

Father Waters also identified that another priest, Monsignor Connors had 'warned' Bishop D'Arcy confidentially earlier in 1986 that accusations of sexual misconduct had been made against Hourigan.

30 Hourigan was seen by Dr Seal and, later, psychologist Mr Conway. In April 1987 Mr Conway wrote to Dr Seal, stating in part:

Thank you for referring this priest from the Sale Diocese to me, who has been involved in a series of rather distressing incidents of homosexual involvement with two boys of the same family in Gippsland. This occurred some 10 years ago and the matter has just come to light before the boys' parents.

...

[Hourigan] was a late vocation from St Paul's, and was ordained in 1976. Thus he escaped the overview by me at that time, since I screened most of the candidates for the province at that period. It is, of course, not altogether certain that I would have elicited the signs even then, although it is probable that I could have pointed to some warning indications had he seen me. But then, there was always the possibility that his vocation would have been lost, and he seems a very good and worthy priest apart from this unfortunate lapse early in his priestly career. Fr Hourigan had been a lay missionary teacher in Papua- New Guinea for 11 years before entering for priestly studies, and I note that he comes from a relatively solid Catholic family of the old school ...

31 In April 1992 Bishop Coffey, then Bishop of Sale, completed a Catholic Church Insurances Limited ('CCI') Special Issues Incident Report in relation to Hourigan, in which he wrote:

Fr. Hourigan admitted to being guilty of acts described by the two boys as clearly criminal. The sexual acts started when Father claimed to teach the boys the facts of life. This occurred sometime in 1977 & continued for two years.

The plaintiff was one of the two boys to whom Bishop Coffey was referring.

32 In April 1995, when he was interviewed in relation to allegations of sexual abuse by Hourigan of another victim, Bishop Coffey referred to a documented report of sexual abuse of the plaintiff, made relevant documents available to the interviewer, and said Hourigan admitted the allegations to Father Waters. It is evident that Bishop Coffey was aware at the time of complaints by other alleged victims of Hourigan.

33 The defendant has discovered an unsigned, heavily redacted, statement said to be made by Hourigan in the presence of his solicitor on 10 July 1995. The statement contains denials of 'sexual activity'.

34 In 1995 the plaintiff was approached by investigating police officer Detective Sergeant Nankervis, and on 14 September 1995 made a statement setting out the abuse.

35 On 15 September 1995 Hourigan was charged with numerous offences which included indecent assaults, rape, sexual penetration of a person 10-16 years of age and gross indecency, in respect of a number of victims, one of whom was the plaintiff. Hourigan died on 18 September 1995, three days after he was charged.

36 The following year Bishop Coffey commissioned former Magistrate Mr Spencer to make a case study of how two incidents of sexual abuse within the Diocese had been handled, and how well or how badly the needs of victims had been met. One of the two matters Mr Spencer was asked to study was the sexual abuse by Hourigan. Mr Spencer prepared two reports in October 1996. In the first report Mr Spencer stated:

The police interviewed Father Hourigan and also obtained a search warrant to remove his file from the Bishop's office.

...

A search warrant was served on the Friday seeking Father Hourigan's file which was given to them. Father Hourigan died on the Monday night in his sleep.

37 In 1996 the plaintiff decided to seek compensation for the abuse, and saw a local lawyer in Warragul.

38 In June 1996, a writ and statement of claim were filed in the County Court of Victoria, naming Bishop Coffey as the defendant.

39 The County Court pleadings alleged Hourigan repeatedly sexually abused the plaintiff while engaged in his work as a parish priest in the Diocese under the supervision of Bishop Coffey. The pleaded particulars of negligence include:

(a) Failing to make any or any proper assessment of Hourigan's fitness to work as a parish priest;

(b) Failing to make any or any proper assessment of Hourigan's fitness to work with children in his parish;

(c) Failing to make any or any proper assessment of the likelihood of Hourigan posing a moral danger to boys in his parish;

...

(g) Failing to supervise any activities in which Hourigan engaged where he was likely to be alone with boys in his parish;

(j) Allowing Hourigan to work in circumstances where he could exercise influence over the Plaintiff;

(k) Allowing Hourigan to work in circumstances where he could be alone with the Plaintiff;

(l) Allowing Hourigan to work in circumstances where he could take the Plaintiff away on outings alone overnight;

(m) Allowing Hourigan to work in circumstances where he could suborn the will of the Plaintiff ...

40 In August 1996 Bishop Coffey filed a defence in which he admitted he was Bishop of Sale from June 1989, did not admit the abuse, denied that Hourigan abused the plaintiff while engaged in work as priest in the Diocese, denied negligence and pleaded that the claim was statute barred.

41 A settlement conference was held between the parties in late 1996 and the proceeding settled by Bishop Coffey agreeing to pay to the plaintiff $32,500 together with his costs of the proceeding.

1. In consideration of Coffey entering into this deed, [WCB] agrees and warrants that he shall make no further claim for damages or compensation arising out of the matters the subject of the allegations in the statement of claim.
2. This deed may be pleaded by any of the parties and by the Roman Catholic Diocese of Sale its servants and agents, in bar to any action, claim or demand now or hereafter commenced or made by any person arising out of or connected with the facts or circumstances the subject of this proceeding or its subject matter.

43 The plaintiff describes his disclosure of the abuse, the proceeding and settlement as follows:

1. I told my parents in the mid 1980's about what Hourigan had done to me. They then contacted the Bishop of Sale, a man named Eric D'Arcy, who arranged for Father Ian Waters came to see me from Melbourne. As I understand it after Father Waters came and saw me, he spoke to Hourigan and put the allegations of abuse to him.
2. As part of the Royal Commission Father Hourigan was investigated. I have seen two letters from Father Waters that he sent to Father Hourigan and Bishop D'Arcy after I met with him. It is heartening to see that I was believed by Father Waters but it is really difficult to read those letters and then recall the way the Church dealt with me when I brought a claim for compensation. ...
3. When I was contacted by the Police I found giving a statement and the whole process to be very stressful. I had tried to supress all of the memories of the abuse but it all came flooding back. I never knew how the police got my name, but I have thought about it over the years and I can only assume that some of the other kids who complained about Hourigan must have gone away with me and Hourigan at some point.
4. As I understand it Hourigan was interviewed by Police and then he killed himself. The police were very good, the investigating officer, Mr Nankervis came to see me after Hourigan took his own life to apologise that he was not going to be charged.

1. After I had given my statement to the police and Hourigan killed himself, I was not in a good way. I decided I would seek compensation for what had been done to me and what I was dealing with. I saw a local lawyer in Warragul, and he got the claim underway.
2. After the case had been going for a while I went to Melbourne and met my barrister who was named "Mr Misso". As I recall he told me that I had a hard case but the church wanted to settle and he was going to try and get as much money as he could. I was eventually offered $32,000 to settle. I was not pleased with the result but as I understood it my case was hard and the next step was Court.
3. I remember feeling like I had been underdone in the settlement. I think that the church did not act in a fair way with me.

44 It is likely the files of the solicitors who represented the parties in the County Court proceeding have been destroyed. The legal practitioners involved either have no memory of the proceeding, or have since died. Mr McMahon states that CCI indemnified the Diocese and Bishop Coffey in respect of the 1996 proceeding and instructed solicitors to act on their behalf. After the current proceeding was issued, CCI provided copies of documents from its file relating to the County Court proceeding to Mr McMahon.

45 The limitation period which applied to the plaintiff's cause of action in 1996 was the later of six years from the date on which the cause of action accrued, or six years from his 18th birthday.[3] This meant that the plaintiff's cause of action founded on the abuse by Hourigan became statute barred in October 1989, six years after his 18th birthday.

46 In 1996, when Bishop Coffey pleaded in the County Court proceeding that the cause of action was barred because the limitation period had expired, the plaintiff was entitled to apply to the Court to extend the period.[4] In that regard s 23A, which would have applied to any application by the plaintiff in 1996, relevantly provided:

(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.

(3) In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following:

(a) The length of and reasons for the delay on the part of the plaintiff;

(b) The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) The extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d) The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;

(e) The extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(f) The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

47 This proceeding was commenced by the plaintiff in December 2018. The plaintiff alleges the abuse resulted from breaches by the Diocese of a duty owed to him. The disclosure by Hourigan to Bishop Fox is specifically pleaded in the Statement of Claim (in the pleadings the disclosure is called 'the admissions'). The particulars of negligence include:

(i) Despite knowing or ought to have known that Hourigan was, because of the admissions, a risk to altar boys and other boys under his care, accepting Hourigan's application to become a priest;

(ii) Failing to properly investigate the admissions and Hourigan generally before ordaining Hourigan as a priest and/or permitting him to work with children;

(iii) Failing to have Hourigan psychiatrically assessed before ordaining him as a priest and placing him at the Warragul Church where he had unsupervised access to children;

(iv) Despite knowing or ought to have known that Hourigan was, because of the admissions, a risk to altar boys and other boys under his care, placing him in a position of control and power over altar boys as a priest at the Warragul Church;

(v) Failing to supervise Hourigan appropriately;

(vi) Providing Hourigan with access to the Plaintiff alone in the Warragul Church presbytery whilst Hourigan was in the course of performing his duties as a priest;

(vii) Giving to Hourigan the authority and ability to take the Plaintiff away unsupervised and therefore the opportunity to achieve intimacy with the Plaintiff, exercise power over him and carry out the abuse unseen on multiple occasions;

(viii) Failing to detect and failing to have any system in place for detecting sexual abuse by priests at the Warragul Church;

(ix) Failing to implement policies or procedures for:

(A) requiring priests and/or altar boys to report known or suspected sexual abuse;

(B) preventing and stopping sexual abuse of minors by priests.

(x) Putting Hourigan in a position of authority, trust and intimacy with the Plaintiff;

(xi) Failing to direct and take steps to monitor and enforce that Hourigan and other priests at the Warragul Church not be alone with children in the Presbytery or on trips away.

The plaintiff also alleges the Diocese is vicariously liable for the abuse because it placed Hourigan in a position of power and authority in relation to him, or provided Hourigan with the ability and opportunity to achieve intimacy with him. The following particulars are provided:

(i) The NGO gave to Hourigan the authority and ability to take the Plaintiff away to attend the Stawell Gift and to Ballarat, Queensland and Orbost unsupervised and therefore the ability and opportunity to achieve intimacy with the Plaintiff, exercise power over him and carry out the abuse on multiple occasions.

(ii) The NGO gave to Hourigan the power to require the Plaintiff to go into the presbytery at the Warragul Church, the interior of which could not be viewed from the outside. The NGO gave Hourigan the ability and opportunity to achieve intimacy with the Plaintiff, exercise power over him and carry out the abuse unseen.

(iii) The NGO entrusted the care of altar boys including the Plaintiff to Hourigan and created a situation of trust between them.

(iv) The NGO gave to Hourigan unsupervised control over the Plaintiff during and outside mass times.

(a) does not admit the letter dated 3 July 1972 sent by Hourigan to Bishop Fox setting out the disclosure;

(b) admits Hourigan worked as an assistant priest in the Warragul parish between August 1977 and January 1980;

(c) does not admit that Hourigan sexually abused the plaintiff as alleged;

(d) says that any duty of care allegedly owed to the plaintiff did not require it to prevent intentional criminal conduct in the nature of sexual abuse or otherwise, and denies negligence.

(e) in relation to the vicarious liability claim, the defendant pleads that:

(i) by failing to specify how, by whose actions and with what knowledge the Diocese provided the occasion for Hourigan to commit the abuse, paragraphs of the Amended Statement of Claim are embarrassing and liable to be struck out;

(ii) by reason of lapse of time the Diocese is now unable to respond to the allegations;

(iii) the Diocese is not vicariously liable for the abuse.

(f) pleads that the plaintiff's claim against the Diocese is barred by reason of clauses 8 and 9 of the Deed.

(g) seeks to reserve to the defendant the right to apply to permanently stay or dismiss the proceeding because:

(i) delay means a fair trial is no longer possible; or

(ii) the plaintiff's claim is barred by the Deed.

49 The proceeding is fixed for trial on 18 November 2020.

Evidence going to Hourigan's role as assistant priest at Warragul and direction, supervision and control of Hourigan by the Diocese

50 In his statement to police made in 1995 the plaintiff said:

I first met Father HOURIGAN when I was about 12 years of age. I was an altar boy at the Warragul Catholic Church before Father HOURIGAN arrived at Warragul. ...

...

As soon as I got to know him a bit, and about the time that I helped him to move some of his stuff from Traralgon, Father HOURIGAN began to touch me. The first time he touched me was in the Warragul presbytery.

He said other abuse occurred when he and other boys were taken away on trips by Hourigan:

I was told by him [Hourigan] not to repeat anything that went on and that it was our little secret. I could not tell my parents what was going on because of their faith in the Catholic Church. I trusted him and didn't think he would do me any harm, although I started to hate. I didn't want to go away with him but I couldn't say anything because my parents would want to know why.

At no stage did I give HOURIGAN permission to do what he did, it was because he was an authority type figure and I felt that I had to do what I was told by HOURIGAN. I felt obliged.

51 In an affidavit filed in this proceeding, the plaintiff's mother states that Hourigan knocked on their front door in 1977, explained he had been appointed to the Warragul parish and that he suffered from back problems, and sought the assistance of a couple of boys to help bring his belongings to Warragul. The plaintiff accompanied Hourigan to help him. Hourigan began to regularly visit the plaintiff's family home. Later, Hourigan was permitted to take the plaintiff away on various trips, sometimes with other boys and on other occasions alone. The plaintiff's mother states:

We accepted Dan Hourigan into our home as a visiting priest. Over the years, even when I was growing up in the parish at St Ignatius in Richmond, we were accustomed to priests visiting our home. Dan Hourigan was not the only priest from the Warragul parish to call in periodically. He did not in any way become a family friend, and we never considered inviting him to any of our social gatherings. ... He was present in his capacity as a priest and at his own instigation.

The plaintiff's mother stated Hourigan offered to assist the plaintiff with learning difficulties he was experiencing, including on various outings and holidays away.

52 The plaintiff relies on the statement of a witness who alleges he was also sexually abused by Hourigan when he was an altar boy at Warragul. That witness states:

I first met Hourigan when I was in primary school, I attended St Joseph's Parish School in Warragul. Hourigan would, from time to time, pull me out of school to do altar boy duties if there was a funeral or some other service at the Church.

The witness states Hourigan became well known to his family, and would come to their house frequently for meals, adding:

As the relationship between my family and Fr Hourigan grew, he commenced taking me away on trips. On occasion I would go by myself on other occasions I would go with other altar servers.

The witness describes Hourigan ingratiating himself with his family. He states:

When the abuse started he would abuse me in Warragul and on trips away. I was taken away to Lakes Entrance and other locations including Western Victoria and interstate.

I was taken away with other boys who I knew were also altar boys. I was taken away with two of the [plaintiff's family] brothers, they were another big Catholic family in the area. I was also taken away with a boy named ... he was an altar boy and his family lived in Leongatha.

53 In the context of this application the plaintiff's solicitors identified a number of potential witnesses who had been priests in the Diocese at or around the time Hourigan was a priest at Warragul. As a consequence, the defendant obtained affidavits from some of those potential witnesses, and filed evidence as to the incapacity of others to give evidence.

54 Father Mahony, who between 1976 and 1980 was the assistant priest at Neerim South, the parish next to Warragul, said he did not know how Hourigan and Monsignor Daly split duties between them, but based on his experience Hourigan would have been doing the normal things that assistant priests did in those days, which included daily masses, confessions, going to the Warragul Hospital, parish visitations, and going to the primary and secondary schools.

55 Father Kooloos, who between 1977 and 1980 held positions at Sale and Yarram, said the role of assistant priest varies from parish to parish, and he did not know what Hourigan's assigned roles were at Warragul. He said assistant priests commonly performed functions involving young people, including altar boys, as well as going to both government and Catholic schools to give religious instruction and provide chaplaincy services. He could not say whether that applied in Hourigan's case, but appreciating Monsignor Daly's poor health during that period he did not think he would have been attending to these tasks himself.

56 Father O'Bryan commenced as assistant priest at Warragul in February 1980. He said at that stage Monsignor Daly was very ill. He could not recall precisely how he and the next Warragul parish priest arranged duties between them. He did not turn his mind to how Monsignor Daly and Hourigan had split their duties before he arrived. He regarded the parish priest as his superior, who gave him something between a 'tight rein' and 'free rein' in the supervision of his functions.

57 Father Waters gave expert evidence as to the canon law. He said in 1977 canon law required that each diocese be subdivided into distinct territorial areas known as parishes, each of which was confided to the governance of a parish priest. One or more assistant priests could be appointed to a parish by the diocesan bishop. Canon law required a letter of appointment to appoint an assistant priest. The custom in many dioceses was that the bishop made appointments of clergy during a meeting of priests known as the Diocesan Consultors. The roles, duties and functions of an assistant priest were determined by the bishop's letter of appointment, most of which merely stated that the assistant priest was to assist the parish priest in the entire parish ministry. In some cases the letter would specify that the assistant priest was to concentrate on a specific ministry within the parish, such as hospital, gaol or youth, but such specifications were an exception to the normal. Canon law determined that the assistant priest worked under the immediate supervision of the parish priest, and there was some remote supervision by the diocesan bishop. Should an assistant priest not be assisting the parish priest as desired, the parish priest could put in a request to the bishop that the assistant priest be replaced. Pastoral visitation of parishioners was seen as a duty of priests. Regularly visiting Catholic schools was normal and expected, and encouraged and appreciated by teachers. Taking the children of parishioners on trips, outings or holidays was neither normal nor expected, and if an assistant priest engaged in such activities it would have raised concerns and caused people to wonder. He said:

In my experience as a parish priest, it is difficult to imagine that children would be taken on interstate trips and holidays without the knowledge and consent of the parish priest.

Requiring a child to go into the presbytery was outside the role, duties and functions of an assistant priest. The role of assistant priests in relation to altar boys was limited to their training and supervision at church services, and interacting with altar boys outside the celebration of a mass would not be classified as a role, duty or function of an assistant priest, and functions with altar boys individually would, in his experience, be abnormal. Altar boys would never be seen as in the 'care' of the priest.

58 In oral evidence Father Waters said that an assistant priest normally helps the parish priest in the whole of his ministry, and if the assistant priest was doing everything in the ministry that is the role you would assume the bishop had given him. The role of the parish priest included having special care for the Catholic education of children and young people. It was not contrary to the canon law for an assistant priest to offer to assist a child with reading or learning, however it was not okay to give one on one educational coaching because that would give rise to concern.

59 A letter written by Hourigan to Form 1 boys at a local school in June 1979 includes: 'This coming Thursday at lunchtime, I am starting a Legion group for Form 1 boys at ... The meeting will be in one of the Form 1 classrooms. I have already discussed the matter with Mr. Taylor.' In December 1980 Hourigan wrote a circular seasonal letter in which he described some of his activities as an assistant priest at Warragul, and later Leongatha. In that letter Hourigan wrote that when he was transferred to Warragul the parish priest, Monsignor Daly, had cancer. The letter includes:

In Leongatha, we have Four Sisters of St. Joseph in the primary school but as there is no Catholic secondary school in South Gippsland, I have 12 catechists to assist me with the religious instruction classes for Catholic secondary school students on a Thursday night. Students travel up to 30 miles (60 mile round trip) to attend!

I have 5 Legion of Mary groups (or praesidia) so far in the parish. (I had 13 in Warragul). This year, we have started a parish council, a Majellan Club (for young mothers), a parish historical society (8 members and we have a big exhibition coming up next February); employed a full-time parish clerk (he's 32 and looks after many material matters in the parish); founded a Club 31 (and a Junior Club 31) - where members promise to pray for vocations on a specific date each month when they attend morning Mass.

There are three branches of the Catholic Women's League in the parish, a St. Vincent de Paul conference (which runs a store with a profit of $25,000 last financial year) a branch of the Knights of the Southern Cross and a very active school auxiliary which has a monthly average attendance of 35.

All these groups take up time ...

60 In her first affidavit, Ms Kirkwood stated she has been director of Catholic Education of the Diocese since 2012, and summarised her employment history with the Catholic church before that time. Ms Kirkwood stated that:

(a) She has undertaken relevant enquiries and investigations, including searches of archived materials, to instruct the defendant's solicitors in the conduct of the proceeding, and to comply with the Diocese's discovery obligations.

(b) St Paul's Seminary was closed in 1998. Through enquiries she was able to obtain the entire file maintained by St Paul's Seminary in respect of Hourigan.

(c) It is a bishop's responsibility to consider and approve applications from those wishing to be ordained and then work in that bishop's diocese. Only the bishop of a diocese can permit the ordination of a priest.

(d) Many of the older records in relation to appointment of priests within the Diocese have been lost, and she was unable to find the appointment letter or anything regarding the decision to formally appoint Hourigan as assistant priest to the Warragul parish.

(e) Apart from what is contained in Hourigan's St Paul's Seminary file she does not know the extent and nature of any investigation conducted by Bishop Fox before accepting Hourigan to study for the priesthood in 1972, or later approving his ordination in 1976.

(f) She does not know what enquiries, steps, supervision or monitoring were undertaken by Bishop Fox or the then diocesan leadership team with respect to Hourigan during the relevant period, or what systems were put in place by Bishop Fox and the leadership team to supervise and monitor priests, particularly with respect to any proclivity to paedophilia, during the relevant period.

(g) There is no evidence in the St Paul's Seminary file or otherwise that Hourigan underwent any psychiatric or psychological assessment at St Paul's Seminary. She does not know what the practice at St Paul's Seminary was in this regard. In those years both the practice of such assessments and the rigour with which they were conducted varied greatly across Catholic seminaries.

61 In relation to Hourigan's role as assistant priest at Warragul, Ms Kirkwood stated:

(a) In each instance, what an assistant priest does in the course of his functions will be arranged with the parish priest. The specific role and duties of an assistant priest within a diocese are not defined or prescribed by any diocesan or church document.

(b) The allocation of duties between Monsignor Daly and Hourigan is not something that the parish priest and assistant priest would have documented.

(c) Based on her personal experience working with parish priests and assistant priests over several decades, her understanding is that the arrangements within parishes and relationships between parish priests and assistant priests varied greatly from parish to parish. In her experience, there was little obvious supervision by the parish priest and generally no structured reporting framework.

(d) Her searches and enquiries have confirmed that there are people, some of whom could likely give evidence on matters relevant to this proceeding, who are now deceased. Ms Kirkwood identified Monsignor Daly, Hourigan, Bishop Fox and Bishop Coffey.

62 Ms Kirkwood stated that, although she could not say one way or the other, in her view relevant documents may have been lost or destroyed, noting historical inadequacies in the Diocese's system of retaining, storing and archiving documents, and referring to her search of documents in the presbytery and office of the Warragul parish. Ms Kirkwood identified as examples of documents which cannot be found the letter from Bishop Fox appointing Hourigan as assistant priest at Warragul parish, and correspondence between Bishop Fox and St Paul's Seminary which she now possesses from Hourigan's St Paul's Seminary file.

63 In the affidavit of documents Ms Kirkwood identified Consultor meeting minutes as being among documents which were at one stage, but are no longer, in the possession of the defendant.

64 In her third affidavit, Ms Kirkwood responded to a suggestion by the plaintiff that former priests of the Diocese and Father Waters were potentially relevant witnesses by stating that to her knowledge and based on her investigation of the records of the Diocese none of the priests identified could give relevant evidence.

65 Ms Kirkwood's fourth affidavit responded to allegations by the plaintiff that the defendant's discovery was incomplete. Ms Kirkwood described the chain of enquiry which led her to review the content of two large envelopes and folders marked as confidential, which were in her office, and which contained the two reports by Magistrate Spencer and a newspaper clipping regarding Hourigan's death. Ms Kirkwood made discovery of those documents.

66 Ms Kirkwood's fifth affidavit was made after receipt of the expert report of Father Waters in which he described the role of diocesan Consultors in the appointment of priests. Father Waters stated in his report that he had recently enquired of a current Diocesan Administrator who said he looked at the meeting minutes of the Diocese Consultors, and that during the term of Bishop Fox all appointments of the clergy were made by the Bishop after he proposed names to a meeting of the Diocesan Consultors and heard their opinions and/or advice. Although she does not say so in her affidavit I accept that this information contained in Father Waters' expert report prompted Ms Kirkwood's enquiries in relation to the Consultor meeting books, which she said were kept under lock and key for access only by the bishop or vicar-general of the Diocese from time to time. Ms Kirkwood obtained access to the Consultor meeting books, and made discovery of relevant entries relating to Hourigan, together with the letter from Hourigan dated 4 June 1979 which was only recently found.

67 Central to the plaintiff's claim in negligence is the disclosure, which he alleges put the Diocese on notice that Hourigan posed a risk to altar boys and boys in his care. The vicarious liability claim relies on allegations as to the position assigned, or ability or opportunity provided, to Hourigan by the Diocese such that the apparent performance of his role gave the occasion for the abuse. The defence puts in issue the existence and extent of any duty of care owed by the Diocese, and denies breach and vicarious liability for the abuse.

68 The plaintiff's allegations require a careful examination of the response of Bishop Fox and the Diocese to the disclosure, and of the role assigned to Hourigan and the position in which he was placed in relation to boys in the parish. The evidence of these matters is incomplete.

69 First, a number of witnesses are now deceased. Monsignor Daly died in 1980, Hourigan in 1995, Bishop Fox in 1997 and Bishop Coffey in 2014. Bishop Fox could have given evidence of his understanding of Hourigan in 1972 when he was accepted to study for the priesthood, and in 1976 when he was ordained. The plaintiff wants the court's inquiry of these matters to be confined to the disclosure letter. However, in circumstances where there is so much that cannot now be known, including what steps Bishop Fox or others took in response to the disclosure, it is unfair to do so.[5]

70 Hourigan and Monsignor Daly were critical witnesses who could have given evidence about Hourigan's role and responsibilities within the Warragul parish, the issue which is central to the vicarious liability of the Diocese. The claim pleaded by the plaintiff poses specific questions about the power, authority and ability that the defendant is alleged to have given Hourigan. The court's inquiry in relation to vicarious liability requires close examination of Hourigan's role.[6]

71 Second, the records of the Diocese in relation to Hourigan are incomplete. Ms Kirkwood, who has been primarily responsible for the search for relevant documents, and has sworn affidavits of discovery for the defendant, states:

(a) While the St Paul's Seminary file in relation to Hourigan has been located, the Diocese file, and the counterpart of correspondence with St Paul's Seminary, have not.

(b) While the Consultor meeting books containing minutes of periodic meetings dealing with appointment of priests within the Diocese have been located, diocesan records relating to Hourigan's ordination, and the letter from Bishop Fox appointing Hourigan assistant priest to the Warragul church, have not.

(c) No documents have been located as to:

(i) the nature and extent of investigation by Bishop Fox before accepting Hourigan to study at St Paul's Seminary, or before approving his ordination;

(ii) psychiatric or psychological assessment of Hourigan arranged by Bishop Fox or St Paul's Seminary;

(iii) systems in place or steps taken to supervise or monitor Hourigan during the relevant period; and

(iv) the precise role and functions of Hourigan while he worked as assistant priest at the Warragul church.

The defendant submitted that what remains is nothing like a full record, and is simply a patchwork of documents.

72 Third, priests identified by solicitors for the plaintiff as working in the Diocese at the relevant time are either not in a position to give evidence because of illness or infirmity, or were not stationed at a parish with Hourigan and can give little evidence relevant to his role and duties as an assistant priest at the Warragul church.

73 The evidence which is now available has been significantly diminished, and as a consequence the defendant is not in a position to answer the plaintiff's case. Due to the lapse of 40 years since the events in question, and the state of the evidence, the trial of the plaintiff's claim would be unfair to the defendant.[7]

74 Lapse of time is inevitable in child abuse cases, because of the time it takes victims to report abuse. It will only be if the effluxion of time produces an absence of evidence which cannot be mitigated that unfairness might arise and a permanent stay of a proceeding might be justified.

75 When the defendant became aware of the sexual abuse in 1986 it should have reported Hourigan to the police, and investigated the matter. There were further opportunities and reasons to investigate including when Bishop Coffey acknowledged the abuse to CCI in 1992, when allegations against Hourigan were reported to and investigated by police in 1995 resulting in him being charged, and in 1996 when a claim for damages was made. Bishop Fox and Hourigan were alive and able to assist with investigations, at least until Hourigan died in September 1995. The defendant cannot rely on its own failures in this regard to establish prejudice.[8]

76 Any loss or destruction of diocesan documents will tell against the defendant.[9] In any event the documents which remain appear to be a complete record and are sufficient to establish that Bishop Fox and the Diocese took no step in response to the disclosure to protect boys in the Warragul parish from Hourigan. Correspondence shows Bishop Fox responded to one 'fly in the ointment', being Hourigan's health concern, but not the other, the disclosure. St Paul's Seminary was not made aware of and did not act on the disclosure. It should be inferred Hourigan was not subject to psychological evaluation, such as was usually undertaken by Mr Conway, who also appears not to have been made aware of the disclosure. The records which were available appear complete and there is no reason to suppose that important documents are missing.

77 As to the claim in vicarious liability there appears to be little about Hourigan's appointment as assistant priest at Warragul church, and his duties and functioning, that differed in any material way from other diocesan appointments. The Consultor's meeting book does not disclose anything particular in relation to the role to which Hourigan was appointed. Further, valuable evidence as to Hourigan's role is available from priests who worked in the Diocese at the time and, very likely, from persons such as teachers and parishioners closely involved in Catholic organisations and church activities in the parish at the time. It is likely there will be a very substantial body of evidence available as to these matters once proper investigation occurs.

78 The defendant's search for relevant documents, and investigations to identify witnesses who can give relevant evidence, has been substantially reactive to prompting from the plaintiff. The defendant cannot rely on the inadequate investigations undertaken to date to establish that it will not be able to obtain a fair trial of the plaintiff's cause of action.

79 I will deal first with the plaintiff's negligence case against the Diocese, which relies heavily on the 1972 disclosure letter.

80 There is evidence Bishop Fox received the disclosure letter. The nub of the defendant's complaint is that it cannot now be known what actions Bishop Fox and the Diocese took in response to the disclosure. An examination of the evidence demonstrates there is less substance to this complaint than the defendant submits.

81 When he received the disclosure letter in mid-1972 Bishop Fox acted promptly, responding positively to Hourigan's desire to study for the priesthood. He corresponded with Hourigan setting out what was required of him in terms of references and a certificate as to his health, sent the application form for entering St Paul's Seminary and assisted by obtaining some necessary documents. Bishop Fox contacted St Paul's Seminary recommending Hourigan to commence his studies in 1973. All of this occurred before Hourigan returned to Australia from South America.

82 There is nothing to indicate the record of correspondence from that time is incomplete. There is no mention of the disclosure in any document save for the first letter by Hourigan to Bishop Fox. There was no hint that Bishop Fox's promotion of Hourigan to study for the priesthood at St Paul's Seminary was somehow contingent on investigation of the disclosure, whether by interrogation by Bishop Fox, enquiry of those with whom Hourigan worked in Papua New Guinea, psychological evaluation or otherwise.

83 Hourigan studied for the priesthood at St Paul's Seminary from 1973 to 1976. Ms Kirkwood states the entire seminary file in relation to Hourigan has been discovered. There is no reference in the seminary documents to the disclosure, or to any related investigation or evaluation of Hourigan by the seminary, Bishop Fox or any other person. Save for one comment which is irrelevant for present purposes, the reports as to Hourigan's progress through the seminary were uniformly positive. In correspondence with the seminary during this period Bishop Fox did not discuss the disclosure, the need for investigation or evaluation of Hourigan, or that his ordination to the diaconate in 1975 or the priesthood in 1976 was contingent on any issue being attended to.

84 Bishop Fox, and later Bishop D'Arcy, appointed Hourigan to positions in the Diocese between 1976 and 1983. Ms Kirkwood states there are 18 pages of the Consultor meeting books which record those appointments. There is no reference in the meeting minutes to the disclosures, or to any particular requirements in relation to the supervision, direction or control of Hourigan, or to any particular role he was to perform as assistant priest at Warragul.

85 There is no reference to a psychological assessment of Hourigan arranged by Bishop Fox or St Paul's Seminary in the report of Mr Conway, or in documents relating to the investigation by Father Waters in 1986; the insurance disclosure by Bishop Coffey to CCI in 1992; police investigations and statements made by Hourigan and Bishop Coffey when he apparently had access to the diocesan file in 1995; the County Court proceedings; the investigation by Magistrate Spencer, or in the Royal Commission case summary relating to Hourigan. It is improbable that a psychological assessment occurred without there being a hint of it in any of the documents or investigations.

86 Hourigan's role as assistant priest at Warragul, and the control and supervision of him, is relevant to both negligence and vicarious liability.

87 The defendant focused on the missing letter of appointment from Bishop Fox, and the absence of evidence as to what Hourigan was authorised by Monsignor Daly to do as assistant priest, and submitted, relying on what was said by the High Court in Prince Alfred College Inc v ADC ('Prince Alfred College'), that while vicarious liability might attach in respect of tasks he was authorised to perform or which were assigned to him, the defendant would not be liable for activities which were simply adopted by Hourigan without authority. The critical question in Prince Alfred College was whether it was within the role of the housemaster who sexually abused the plaintiff to have access to student dormitories at times when the abuse occurred. Because of the dearth of evidence on that point no conclusion could be drawn about this aspect of the housemaster's role. The plaintiff's evidence was that no other housemaster was present in dormitories after lights out and that prefects had the role of supervising boys at night. A number of potential witnesses, including the school headmaster, senior master, housemaster and chaplain had either died or were not available to give evidence. The loss of relevant evidence meant the real question which was raised about what the role of housemaster entailed could not be fairly answered. That conclusion weighed heavily against the plaintiff on the exercise of the discretion in relation to an application to extend time to commence the proceeding.

88 This case does not suffer the same dearth of evidence that characterised Prince Alfred College.

89 The question of Hourigan's role as assistant priest, and the supervision and direction of him in that role, will be determined on all of the evidence.

90 As an assistant priest Hourigan was subject to supervision and direction by Monsignor Daly and Bishop Fox. The Consultor meeting books do not indicate any particular direction was given by Bishop Fox in relation to Hourigan's role.

91 There is evidence which suggests that when he was assistant priest at Warragul, Hourigan often had altar boys in his company alone, including on trips away. Father Waters said such activities were neither normal for, nor expected of, an assistant priest, and that it was difficult to imagine children could be taken away on interstate trips or holidays without the knowledge and consent of the parish priest.

92 There are witnesses who can give relevant evidence as to how Hourigan performed his role as assistant priest, including the plaintiff, his mother and likely other family members, and the witness who alleges he was also abused by Hourigan. Hourigan himself gives some description of his role in the letters which he wrote in 1979 and 1980, to which I have referred. The other diocesan priests can give evidence about Monsignor Daly's poor health and the duties commonly performed by assistant priests, who were on something between a 'tight rein' and a 'free rein' from the parish priest. Father Waters can give expert evidence as to the canon law, and as to roles, duties and functions of an assistant priest.

93 It is likely that further investigation will uncover other witnesses who are able to give evidence going directly to Hourigan's activities as an assistant priest at Warragul church, and the respective roles adopted by him and Monsignor Daly. The source of potential witnesses includes other religious, teachers parish officers such as clerks, and parishioners who assisted as catechists or with church services, or who were involved in church organisations such as the Legion of Mary, parish council, St Vincent de Paul, the Knights of the Southern Cross, or school auxiliaries. I do not accept the defendant's submission that it is unlikely there will be witnesses who can give evidence as to the arrangement between a parish priest and his assistant as to the roles they were to adopt. Ms Kirkwood's evidence of her observation and knowledge of the division of roles between priests and assistants supports the likelihood that there will be witnesses who can give relevant evidence about these matters.

94 The defendant is entitled to a fair trial, not a perfect one. Relevant evidence has been lost. However, a substantial body of evidence remains, only part of which has been uncovered by investigations undertaken to date.

95 Recent legislative reforms have addressed actions for personal injury resulting from child abuse. The reforms were implemented in various stages following recommendations, or the identification of issues, by the Victorian Parliamentary Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations, Betrayal of Trust ('the Inquiry')[10] and the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse ('the Royal Commission').[11]

No limitation period for actions for personal injury from child abuse

96 Part IIA of the Limitation Act applies to causes of action for damages related to the death of, or personal injury to, a person. Limitation periods for personal injury actions are imposed by div 2 of pt IIA, and div 3 gives the right to apply for an extension of time to the applicable limitation period.

97 In 2015 the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) ('Child Abuse Act') amended the Limitation Act by inserting div 5 into pt IIA. The effect of the amendment is to remove any limitation period for a cause of action founded on death or personal injury resulting from physical or sexual abuse of a minor.

98 The new provisions came into effect on 1 September 2015. Section 27O defines the actions to which div 5 applies, and provides that divs 2 and 3 do not apply to those actions:

27O Application of Division

(1) This Division applies to an action if the action -

(a) is in respect of a cause of action to which this Part applies or extends; and

(b) is founded on the death or personal injury of a person resulting from -

(i) an act or omission in relation to the person when the person is a minor that is physical abuse or sexual abuse; and

(ii) psychological abuse (if any) that arises out of that act or omission.

(2) Divisions 2 and 3 do not apply to an action of a kind referred to in section 27P.

...

99 There is no limitation period for action to which div 5 applies:

27P No limitation period for certain actions

(1) An action to which this Division applies that is not an action that arises under Part III of the Wrongs Act 1958 may be brought at any time after the date on which the act or omission alleged to have resulted in the death or personal injury has occurred.

(2) Subsection (1) applies whether the act or omission alleged to have resulted in the death or personal injury occurs before, on or after the commencement of section 4 of the Limitation of Actions Amendment (Child Abuse) Act 2015.

...

100 Division 5 does not limit a court's jurisdiction or powers, for example with respect to granting a stay of proceedings. Section 27R provides:

27R Interaction with other powers of court

Nothing in this Division limits -

(a) in the case of the Supreme Court, the court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or

(b) in the case of a court other than the Supreme Court, the court's implied jurisdiction or statutory jurisdiction; or

(c) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.

Example

This Division does not limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.

101 The Explanatory Memorandum states that the aim of the Child Abuse Act is to implement recommendation 26.3[12] of the Inquiry's Betrayal of Trust report to exclude child abuse from the operation of the limitation period under the Limitation Act, and that s 27P applies irrespective of the date of the act or omission on which the action is based, and whether or not the action was subject to a limitation period in the past.[13] The Explanatory Memorandum further states that the fundamental rights of parties before a court are safeguarded by s 27R:

The new section 27R safeguards the fundamental rights of parties before a court, including the right to a fair and balanced trial, by expressly stating that it does not limit any existing powers or jurisdiction of the courts. This includes the power or jurisdiction to control or dismiss proceedings where a court determines that the lapse of time has had a burdensome effect on the defendant that is so serious that a fair trial is not possible (for example, where crucial evidence has deteriorated or been lost over time).[14]

102 The second reading speech introducing the Child Abuse Act describes the difficulties experienced by survivors of child abuse recovering compensation:

The Family and Community Development Committee tabled its landmark report Betrayal of Trust on 13 November 2013. The report highlighted, among other things, the difficulties that survivors of child abuse face in recovering compensation for the devastating effects of their abuse.

In particular, a major obstacle for survivors is the existence of statutory time limits created by the Limitation of Actions Act 1958. The Limitation of Actions Act establishes time periods within which proceedings for different civil actions must be commenced. If proceedings are brought outside a limitation period, a claimant can be barred from obtaining a remedy.

Betrayal of Trust examined civil limitation periods, and concluded that they were inappropriate for survivors of child abuse, who, due to the injury inflicted upon them by their abusers, often take decades to fully understand and act upon the harm arising from their abuse. ....

Many survivors therefore find themselves faced with an expired limitation period by the time they are ready to commence legal proceedings, and must place themselves at the mercy of courts even to have their claim heard. In settlement negotiations, too, survivors have told how the prospect of an expired limitation period has been used against them to reduce the settlement amount that is offered.

Betrayal of Trust therefore recommended that child abuse be excluded from the operation of the Limitation of Actions Act. This government has pledged to implement all outstanding recommendations from Betrayal of Trust, and the introduction of this bill is an important step in the process of allowing access to justice for survivors of child abuse ...

...

Furthermore, the bill will apply to past, as well as future claims of abuse, regardless of whether or not past claims were previously subject to a limitation period. While the bill will not reopen cases that have previously settled or been subject to final judgement, it will allow historical victims of abuse - such as many of those who spoke to the Family and Community Development Committee - the opportunity to have their civil claims heard in court. This will be the case even if those people were previously dissuaded from bringing their claims by the existence of limitation periods.

...

In recognising that survivors of child abuse face unique and challenging circumstances, the bill is careful to safeguard the fundamental rights of parties before a court, including the right to a fair and balanced trial.[15]

103 The Child Abuse Act had the effect that there was no longer a limitation period which applied to the plaintiff's cause of action.

104 At common law an unincorporated association that is not a partnership cannot be sued in its own name.[16] In the past this has been a real impediment to persons such as the plaintiff wishing to claim and recover damages for child abuse.

105 The purpose of the Legal Identity Act is set out in s 1:

The main purpose of this Act is to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities.

106 The Explanatory Memorandum states that the Legal Identity Act was introduced to respond to recommendation 26.1[17] of the Inquiry's Betrayal of Trust report, which found that lack of incorporation made it difficult to identify an appropriate entity to sue for damages,[18] and adopts the approach at recommendation 94 of the Royal Commission's Redress and Civil Litigation Report.[19]

107 The second reading speech introducing the Legal Identity Act refers to the difficulty experienced by child abuse survivors in bringing actions against unincorporated associations because of the common law position and defendants taking all available defences to defeat claims.[20]

108 The Legal Identity Act applies to the claim made by the plaintiff against the Diocese in this proceeding. The defendant has been nominated as a proper defendant to the plaintiff's claim against the Diocese under s 7 of the Act, sub-s (2) of which provides:

If an NGO nominates a proper defendant under subsection (1), that entity -

(a) is taken to be the defendant in the claim on behalf of the NGO for all purposes; and

(b) incurs any liability arising from that claim on behalf of the NGO as if the NGO had been incorporated and capable of being sued and found liable for child abuse.

The effect is to alter the common law position to allow the plaintiff to bring the claim and, if he succeeds, recover damages against the defendant.

Bringing an action on a previously barred or settled cause of action

109 A person bringing a child abuse action before enactment of the Child Abuse Act and the Legal Identity Act might encounter significant and possibly insurmountable barriers because of the limitation period having expired, or the inability to bring the action against an unincorporated organisation. In those circumstances the possible outcomes included the action being dismissed, or settled for a sum which reflected the barriers to success. The plaintiff alleges the claim brought by him in 1996 falls into the second category.

110 One of the purposes of the Children Legislation Amendment Act 2019 (Vic) ('Children Act') set out in s 1(2)(e) is:

to amend the Limitation of Actions Act 1958 to allow for certain actions in relation to death or personal injury arising from child abuse to be brought despite being dismissed due to the expiry of a limitation period or settled prior to the removal of limitation periods on 1 July 2015 and to provide for certain judgments and settlement agreements to be set aside.

That purpose was achieved by inserting provisions into div 5 of pt IIA of the Limitation Act.

111 Definitions in s 27OA of the Limitation Act include:

In this Division -

previous judgment means a judgment or an order in a previously barred cause of action;

previously barred cause of action means a cause of action to which this Division applies for which any applicable limitation period expired before 1 July 2015;

Note

1 July 2015 is the date of the commencement of the Limitation of Actions Amendment (Child Abuse) Act 2015.

previously settled cause of action means a cause of action to which this Division applies that was settled and given effect by a settlement agreement before 1 July 2015;

settlement agreement means an agreement giving effect to the settlement of a cause of action to which this Division applies.

...

112 Pursuant to s 27QA an action may be brought on a previously barred or settled cause of action:

27QA Action may be brought on previously barred cause of action or previously settled cause of action

(1) An action may be brought on a previously barred cause of action even if an action on the cause of action was dismissed -

(a) on the ground that the action was brought after the expiry of any applicable limitation period; or

(b) by refusing to extend any applicable limitation period.

(2) An action may be brought on a previously settled cause of action.

113 An application to set aside previous judgment is governed by ss 27QB and 27QC:

27QB Application to court to set aside previous judgments

(1) This section applies to an action referred to in section 27QA(1).

(2) In a proceeding to which this section applies, application may be made to the court for a previous judgment to be set aside.

(3) A court other than the Supreme Court may not set aside a previous judgment of another court.

27QC Court's powers - set aside previous judgments

(1) On an application under section 27QB or otherwise in a proceeding on an action referred to in section 27QA(1), the court, if satisfied that it is just and reasonable to do so -

(a) may make an order setting aside the previous judgment, whether wholly or in part; and

(b) may make any other order that it considers appropriate in the circumstances.

(2) In hearing and determining any action to which this Division applies in relation to which there is a previous judgment which has been set aside, the court, if satisfied that it is just and reasonable to do so -

(a) when awarding damages in relation to the action, may take into account any amounts paid or payable under that previous judgment; and

(b) when awarding costs in relation to the action, may take into account any amounts paid or payable under that previous judgment.

114 An application to set aside a settlement agreement and any judgment or order giving effect to the settlement is governed by ss 27QD and 27QE:

27QD Application to court to set aside previously settled causes of action

(1) This section applies to an action referred to in section 27QA(2).

(2) In a proceeding to which this section applies, application may be made to the court for the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action to be set aside.

(3) A court other than the Supreme Court may not set aside a judgment or an order of another court.

27QE Court's powers - previously settled causes of action

(1) On an application under section 27QD or otherwise in a proceeding on an action referred to in section 27QA(2), the court, if satisfied that it is just and reasonable to do so -

(a) may make an order setting aside the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action, whether wholly or in part; and

(b) may make any other order that it considers appropriate in the circumstances.

(2) In hearing and determining any action to which this Division applies on a previously settled cause of action, the court, if satisfied that it is just and reasonable to do so -

(a) when awarding damages in relation to the action, may take into account any consideration (whether monetary or non-monetary) paid, payable or given or to be given under -

(i) a settlement agreement set aside under this section; or

(ii) any other agreement related to the settlement that has been set aside under this section; and

(b) when awarding costs in relation to the action, may take into account any amounts paid or payable as costs under -

(i) a settlement agreement set aside under this section; or

(ii) any other agreement related to the settlement that has been set aside under this section.

115 In relation to setting aside a settlement, the Explanatory Memorandum to the Children Act states:

New section 27QE(1) empowers the court, if it is satisfied that it is just and reasonable to do so, to set aside a previous settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action, whether wholly or in part, and make any other order it considers appropriate. The court may do so on an application for a previously settled cause of action to be set aside under section 27QD, or otherwise in a proceeding on an action referred to in section 27QA(2), in order to provide flexibility for when an application may be made. It is in the court's discretion to determine what is just and reasonable according to the circumstances of each case, allowing the court to apply broad principles and take account of any relevant factors. This may include, for example, the relative strengths of the parties' bargaining positions, the conduct of the parties and the amount of the settlement.[21]

116 In the second reading speech to the Children Act the Minister for Child Protection referred to previous legislative reforms in relation to child abuse:

While these reforms have removed significant barriers to civil litigation for survivors of institutional child abuse, they do not deal with the unjust product of previous barriers, which led to survivors accepting inadequate settlements and releasing institutions from future liability.[22]

The Royal Commission found that survivors of child sexual abuse take an average of around 22 years to report the abuse that they have suffered, due to the significant power imbalances between survivors and perpetrators, along with deep feelings of shame, guilt and embarrassment. Once ready to commence proceedings, survivors were confronted with barriers to civil litigation which have since been removed, including time limitations, difficulties in identifying a proper defendant and establishing organisational liability, which led to formal settlements that may be considered inadequate.

To overcome this, the Bill proposes to amend the Limitation of Actions Act 1958 to allow a court to set aside past judgments and previously settled causes of action relating to child abuse concluded after a limitation period had expired, if it is just and reasonable to do so. The proposed amendments will apply to all causes of action founded on the death or personal injury of a person resulting from child abuse. The proposed amendments will allow the court to take into account any amounts paid or payable as compensation, damages or costs under a previous judgment relating to the cause of action or the previous voided settlement agreement, if the court is satisfied that it is just and reasonable to do so.

In determining what is just and reasonable a court can take into account a number of considerations, informed by the Royal Commission. Many survivors of child abuse were not able to obtain justice even with independent legal representation, because of the barriers to civil litigation which existed at the time and the conduct of institutions at the time to deny responsibility for abuse and exploit legal loopholes. As a result, many survivors accepted inadequate compensation and entered into deeds of release. Community expectations and understanding today recognise the lifelong impact of child abuse and the key responsibility of institutions in protecting children from abuse. Where survivors faced significant disadvantage in pursuing compensation due to legal barriers such as the statute of limitations, the Ellis defence, or the deficiency of the law regarding the duty of care of organisations, settlements entered into should be set aside in the interests of justice, to allow victims to obtain compensation which is deemed adequate by today's standards.

...

It is not necessary that the existence of the limitation period be the predominant reason as to why the agreement was entered into. There may be a number of reasons that a plaintiff entered into such an agreement, including but not limited to unequal bargaining power, barriers to identifying a proper defendant, feelings of guilt and shame compounded by the burden of giving evidence and being subject to cross-examination, or the behaviour of the relevant institution.

...

In summary, the Bill contains significant substantive amendments, as well as some technical and clarifying amendments. These will offer greater protection to children, implement recommendations of the Royal Commission into Institutional Response to Child Sexual Abuse and facilitate the intended operation of current legislation directed to promoting the wellbeing and safety of children and protecting them from harm, as well as support for survivors of institutional child abuse.[23]

117 The Explanatory Memoranda and second reading speeches to the Child Abuse Act, Legal Identity Act and Children Act highlight the role of the Inquiry and Royal Commission findings and recommendations in the legislative reforms required to remedy injustices in relation to actions for personal injury resulting from child abuse.

(a) Finding 25.1: Victims of criminal child abuse have a fundamental right to sue non-government organisations for damage they have suffered at the hands of representatives of that organisation. This course is an important avenue for some victims of criminal child abuse to achieve justice.

(b) Finding 25.4: Victims can be at a disadvantage in private settlement negotiations, due to their lack of resources and the evidentiary, legal and practical barriers to challenging an organisation in court. The emotional impact of an adversarial battle also acts as a deterrent to litigation for already suffering victims of criminal child abuse.

(c) Finding 26.4: There is no evidence that non-government organisations have deliberately been structured to avoid liability for criminal child abuse claims. However, the lack of incorporation by non-government organisations that work with children can make it difficult for victims of abuse in organisational settings to identify an appropriate entity to sue for damages.

(d) Finding 26.5: The application of the statute of limitations is currently at the discretion of the defence and judges. However, there is evidence that non-government organisations have aggressively pursued the limitation defence in civil trials. There is also evidence that the limitation defence adversely affects the bargaining position of victims in settlement negotiations for victims.

(e) Finding 26.6: Statutes of limitations disadvantage victims of child sexual abuse because these victims typically take decades to understand the harm arising from their abuse and to act on that understanding and decide to issue proceedings.

(f) Finding 26.7: There is no public policy justification for applying limitation periods to civil cases relating to criminal child abuse.

(g) Finding 26.8: Because reporting in cases of criminal child abuse is typically delayed for several decades, it is necessary to amend the Limitation Act to allow victims of criminal child abuse sufficient time to initiate civil legal action.

119 The Inquiry also sets out various reasons why policy justifications for limitation periods do not apply in cases where there has been criminal child abuse.

Royal Commission into Institutional Responses to Child Sexual Abuse: Redress and Civil Litigation Report

120 With respect to the issues in this application, the Royal Commission made the following recommendations:

(a) Recommendation 85: introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child.

(b) Recommendation 86: ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past.

(c) Recommendation 87: expressly preserve the relevant courts' existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period.

(d) Recommendation 94: introduce legislation to provide that, where a survivor wishes to commence proceedings for damages in respect of institutional child sexual abuse where the institution is alleged to be an institution with which a property trust is associated, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability arising from the proceedings:

(i) the property trust is a proper defendant to the litigation;

(ii) any liability of the institution with which the property trust is associated that arises from the proceedings can be met from the assets of the trust.

Construction of ss 27QA - 27QF of the Limitation Act

121 When considering a legislative discretion, it is necessary to look to the scope, purpose and real object of the provision.[24] The discretion conferred by s 27QE is substantially unconfined, other than by the words themselves, and the intent of the statute. The statute is remedial or beneficial, and should be 'construed so as to give the fullest relief the fair meaning of its language will allow'.[25]

122 Extrinsic materials may be used to ascertain the purpose and scope of a provision and to ensure that construction promotes the purpose of the legislation, even where the provision is unambiguous on its face.[26] In this case, the court should have regard to the second reading speech to the Children Act when considering the scope, purpose and object of the discretion in s 27QE of the Limitation Act.

123 The focus of the application should be on the circumstances of the parties at the time they entered the settlement.[27]

124 There will almost be a presumptive inference that a previous settlement entered into, in the context of legal barriers which rendered an otherwise good cause of action into one which would probably or certainly fail, will be set aside. The plaintiff submitted:

Put another way, how could it not be just and reasonable to permit someone who settled a case for significantly less than its worth, for reasons beyond their control, to pursue fair and just reparation for sexual abuse inflicted upon them as a child, and for its life long consequences? It would be a rare case that would not qualify.

The question to be answered is whether the plaintiff has demonstrated the justice and reasonableness of being able to bring a claim for fair compensation.

125 Prejudice to the defendant is largely irrelevant to exercise of the power conferred by s 27QE of the Limitation Act. If the defendant seeks to agitate the issue of prejudice it must do so on the test which applies to an application for a permanent stay of the proceeding, including that such a step is exceptional and will only be taken in an extraordinary case, and that the defendant bears a heavy onus on such an application.[28]

126 Construction of ss 27QD and 27QE of the Limitation Act must begin with consideration of the text of the provisions, which is the surest guide to legislative intention.[29] How the discretion conferred by the provisions might be applied is to be discerned from a proper construction of the legislation itself. A statutory discretion which is not confined by the words of the provision granting it will only be confined to the extent of any limitation implied by the subject matter, scope and purpose of the legislation.[30]

127 The extrinsic materials should not be considered before exhausting the ordinary rules of statutory construction. In this case, those materials evidence the legislature's undoubted intention that a plaintiff who has previously compromised a particular kind of claim may seek to have any relevant settlement agreement set aside. While the defendant accepts that the matters mentioned in those materials may, depending on the circumstances, bear on the court's discretion, the extrinsic materials provide only limited guidance in relation to the exercise of the discretion, and do not endorse an approach whereby the plaintiff's improved legal position, on its own, justifies the court's relief.

128 The term 'just and reasonable' is employed in other provisions within the same legislation, and it should be presumed as a matter of construction that it bears the same meaning across all of the provisions in which it is used.[31] The legislature has chosen the same statutory term found in those provisions providing for an extension of time. As case law on those provisions indicate, that term covers the prejudice asserted by the defendant in this case.[32] Nothing in the statutory context of ss 27QD and 27QE indicates the term is intended to be applied differently here. Indeed, the court might equally conclude, from the removal of the need for an extension coupled with the insertion of s 27QE, that any prejudice formerly considered in an extension application is now to be considered under s 27QE. Putting that aside, the primary consideration is the statutory criterion, 'just and reasonable', which on a plain reading provides that prejudice is to be considered if raised in an appropriate way.

129 Sections 27QD and 27QE are primarily concerned with 'previously settled causes of action', and:

In this way, the Court's discretion is directed to altering (cf determining) inter partes legal rights otherwise embodied in a "settlement agreement and any judgment or order giving effect to the settlement...": s 27QD(2), Act. The legislation does nothing to displace the notion that, as a primary position at least, the applicant is to abide by his bargain. For the Court to be appropriately moved to exercise such a discretion, and for such an alteration to be "just and reasonable," compelling reasons are required.

130 In determining what is just and reasonable, the Court's primary concern should be with the circumstances in which the settlement agreement was created, and the consequences for each party if the court alters rights embodied in the Deed.

131 With respect to the consequences for each party, it is relevant that the existence of limitations legislation, within which ss 27QD and 27QE are found, 'has been driven by the general perception that "where there is delay the whole quality of justice deteriorates."'[33] Recent examples of courts exercising a discretion by reference to injustice arising out of delay[34] illustrate a well-established concern with the effect of substantial delay on the integrity of the trial process. Delay causing the type of prejudice discussed in those cases should militate heavily against the Court allowing the plaintiff to depart from his or her bargain. To do so would allow the plaintiff to continue with a proceeding that amounts to an abuse of process.

132 The reasonableness of a settlement may be illustrated by changes in the law since it was entered into.[35]

133 The provisions are not intended to provide for an applicant to be relieved of their contractual obligations merely so they can re-litigate a previously settled cause of action in more favourable legal conditions.

134 The court should not intuitively examine the justice of the law at the time of compromise and assess whether the current state of the law yields a more just result, thereby justifying setting a settlement aside.

135 The plaintiff bears the onus of persuading the court that intervention is just and reasonable. Upon the court attaining that frame of mind, its discretion is enlivened. It does not inexorably follow from the court's satisfaction that relief should be granted. Rather, the applicant bears an additional 'onus of persuasion',[36] or 'positive burden of demonstrating'[37] that the circumstances justify the relief sought.[38] Admittedly, in many circumstances, although an applicant may bear two separate burdens, the circumstances established to discharge one burden may operate contemporaneously to discharge the other. Without derogating from the applicant's primary onus, the defendant, on the other hand, bears an evidentiary onus to raise any question telling against the exercise of the discretion.[39] That is, once the respondent has discharged an evidentiary onus, the applicant must show that any prejudice has not been relevantly established, or has not been established to a degree that militates against relief.

136 The provision with which this application is most immediately concerned is s 27QE of the Limitation Act, which gives the court power to set aside a previous judgment or settlement if it is just and reasonable to do so. The discretion is not expressly confined, and the matters to which the court must or may have regard are not set out. The questions which arise are: what considerations are relevant, and on what basis should the discretion be exercised?

137 The statutory interpretation is said to begin and end with consideration of the words of the statute. The primacy of the statutory text, and the relevance of extraneous material, was described by the High Court in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd[40] in the following terms:

"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[41]

138 Similarly, but emphasising also the importance of context and purpose, in Federal Commissioner of Taxation v Unit Trend Services Pty Ltd,[42] the majority stated:

As French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". Context and purpose are also important. In Certain Lloyd's Underwriters v Cross French CJ and Hayne J said:

"The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' ... That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'." (Emphasis of French CJ and Hayne J.)[43]

139 In Miller v Martin,[44] the Court of Appeal considered the application of s 35 of the Interpretation of Legislation Act 1984 (Vic), and the search for statutory purpose:

1. Consistent with these general principles, s 35(a) of the Interpretation of Legislation Act 1984 provides that 'a construction that would promote the purpose or object underlying the Act ... shall be preferred to a construction that would not promote that purpose or object'. Section 35(b) empowers the Court to consider 'any matter, document or thing that is relevant' to the interpretation of a provision.
2. In Thiess v Collector of Customs, the High Court described the search for statutory purpose as:

... a particular statutory reflection of a general systemic principle. For:

it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.[45]

140 A discretionary power is conferred by s 27QE. Klein v Domus Pty Ltd ('Klein') concerned a power to extend time to commence common law proceedings if the court was satisfied sufficient cause had been shown, or if it would be reasonable to do so having regard to all the circumstances of the case.[46] In the High Court, Dixon CJ, with whom the other members of the Court agreed, said:

This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised and in a sense this is one such case. We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.[47]

141 The subject matter of s 27QE is an action referred to in s 27QA(2), that is an action which may be brought on a previously settled cause of action. 'Action' is defined in s 3(1) to include any proceeding in a court of law. Division 5 of pt IIA, in which s 27QE sits, applies to actions founded on the death or personal injury of a person resulting from child abuse.

142 Therefore the subject matter of the s 27QE discretion is an action founded on the death or personal injury of a person resulting from child abuse brought on a previously settled cause of action. The question posed by the provision is whether, in respect of such an action, it is just and reasonable to set aside the settlement agreement. Expressed at a high level of generality considerations relevant to the discretion are those which relate to what is just and reasonable in respect of the action on a previously settled cause of action.

143 By focusing on the settlement agreement, the circumstances in which it was made, and the inter partes rights embodied in it, the defendant's submissions confine the discretion in a manner which is inconsistent with the text and purpose of the provision. The subject matter of the discretion is not the previous settlement, but the action which may be brought on a previously settled cause of action. The provision is concerned with whether, in the circumstances of the case, it is just and reasonable to set aside the settlement, and any judgment or order giving effect to it, in order to allow an action on a cause of action for personal injury resulting from child abuse to proceed.

144 The circumstances in which the settlement agreement was created, and the consequences for each party of alteration of inter partes legal rights embodied in the agreement will often, perhaps always, be relevant. However, there is nothing in the express words in s 27QE which makes the factors identified by the defendant, insofar as they are relevant to the exercise of the discretion, the court's primary concern or more significant or controlling than other factors.[48]

145 The defendant's submission that compelling reasons are required to set aside a settlement is inconsistent with the text of s 27QE, and adds an unjustifiable gloss to the onus which a plaintiff bears on an application to which this provision applies. In Klein, Dixon J observed, in relation to the discretion there under consideration:

The applicant has got to show that there is a reason, within the expression which I have read, for extending the time, and it is a positive burden on the applicant, not of any great severity perhaps, but it is a positive burden which the applicant must discharge as he must discharge any other matter in which the burden of proof lies on him.[49]

While the applicant in an application for relief under s 27QE bears a positive burden of demonstrating that it is just and reasonable that the discretion be exercised in their favour, there is no basis for the submission that compelling reasons are required.

146 The defendant's submission as to the existence of two separate burdens which an applicant bears under s 27QE misunderstands the statutory provision as compared with the statutory provisions which were the subject of consideration in Brisbane South Regional Health Authority v Taylor ('Brisbane South') and Prince Alfred College. The plaintiffs in Brisbane South and Prince Alfred College were required to establish certain conditions or requirements before the discretion to extend the time for the action to be commenced was enlivened. A point made by the court in each case was that proof of satisfaction of the preconditions did not give rise to a presumptive right or entitlement to an extension of time. Rather, the applicant still bore the onus of showing good reason for the exercise of the discretion in their favour. By contrast, in this case there are no preconditions or requirements which an applicant for relief under s 27QE of the Limitation Act must establish to enliven the discretion, other than that the application is being made in respect of an action to which the section applies, which is not in issue. An applicant seeking relief for relief under s 27QE does not bear a separate or additional onus beyond the requirement to establish that it is just and reasonable that the discretion be exercised in their favour.

147 The text of s 27QE does not support the plaintiff's submission that the focus of the application is on the circumstances of the parties at the time they entered the settlement agreement. While the circumstances at the time the action was settled will undoubtedly be relevant in most if not all cases, it may often be that things which occurred before or matters which have arisen since the settlement have particular relevance to the exercise of the discretion.[50]

148 I do not accept the defendant's submissions as to the relevance of changes in the law which have occurred since settlement of the County Court proceeding, resulting in what are now more favourable legal conditions. There is nothing in the text of s 27QE, or elsewhere in div 5, which limits consideration of what is just and reasonable in respect of an action on a cause of action for child abuse to the state of the law as it existed when the settlement was entered into. It is relevant to repeat what was said by the Minister in the second reading speech to the Children's Act:

Where survivors faced significant disadvantage in pursuing compensation due to legal barriers such as the statute of limitations, the Ellis defence, or the deficiency of the law regarding the duty of care of organisations, settlements entered into should be set aside in the interests of justice, to allow victims to obtain compensation which is deemed adequate by today's standards.[51]

If the previous settlement of the cause of action reflected legal barriers which have since been removed, it may be just and reasonable to set aside the settlement in order to allow the plaintiff to see adequate compensation.

149 Context provided by the Limitation Act is relevant in a number of ways. First, s 27QE is within div 5 of pt IIA of the Limitation Act, which applies to actions founded on death or personal injury resulting from child abuse. The general purpose of div 5 is to take a fundamentally different approach to delay, prejudice and time limits to that which applies under divs 2 and 3 to all other actions for damages that relate to death or personal injury.

150 The defendant relied heavily on adverse consequences if the application were granted, and submitted that the effect of the lapse of time together with specific prejudice which it has made out would make any trial unfair to it, and should result in the plaintiff's application being dismissed.

151 Authoritative consideration of the rationale and purpose of limitation legislation, and the discretion to extend time, was undertaken by the High Court in Brisbane South. The respondent, who claimed injury as a consequence of negligent medical advice, sought an extension of time within which to bring a proceeding claiming damages. McHugh J, with whom Dawson J agreed, identified four broad rationales for the enactment of limitation periods:

First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:

"The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served."

Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.[52]

In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

The scheme of the Act is that s 11 forbids the bringing of an action for damages for negligence after the expiration of three years from the date on which the cause of action arose unless leave is given under s 31. It follows that an applicant for extension must show that justice will be best served by excepting the particular proceedings from the general prohibition which s 11 imposes. In this context, justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved. That the applicant had a good cause of action and was unaware of a "material fact of a decisive character relating to the right of action" does not alter the burden on the applicant to show that the justice of the case favours the grant of an extension of time. Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion, as Davies JA and Ambrose J held. As Wells J has pointed out, "to qualify is not to succeed". The object of the discretion, to use the words of Dixon CJ in a similar context, "is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case". In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.[53]

The majority in Prince Alfred College referred with approval to the judgment of McHugh J in Brisbane South.[54]

152 The rationales to which McHugh J referred underpin and inform the legislative purpose of provisions which impose limitation periods, and those giving the court power to extend time. The subject matter of those provisions is the lapse of time, and the effect of delay on the quality of justice. The legislative purpose described by McHugh J in Brisbane South is evident in s 27D of the Limitation Act, which imposes limitation periods for personal injury actions, and in ss 27K and 27L, which empower the court to extend time on consideration of matters directed principally to the length of, reasons for and consequences of delay.

153 The legislative purpose of div 5 of pt IIA of the Limitation Act is not driven by the same rationales. There is no limitation period for actions to which the division applies. The subject matter of the division is the right to bring an action, rather than limiting the period in which that can be done, or the consequences of delay. The purpose of div 5 of the Limitation Act, and of the Legal Identity Act, is to retrospectively remove barriers to actions for personal injury resulting from child abuse. The mischief to which those legislative provisions are directed is injustice which limitation periods, difficulties identifying a proper defendant and the state of the law regarding the duty of care of organisations, and the disadvantaged bargaining position which may result from those barriers, caused to victims of child abuse.

154 Time is not an element of a cause of action for personal injury. Time may be in issue if a defence is taken that the limitation period which applies has expired, and an application to extend time is made. The principles in Brisbane South and Prince Alfred College will then apply, and considerations which relate to the explanation for, length and consequences of delay will be relevant to the exercise of discretion on an application to extend the limitation period. However, in this case there is no limitation period, and the lapse of time is not in issue in this way. Treating considerations of the lapse of time and prejudice in accordance with the principles set out in Brisbane South and Prince Alfred College as relevant to the exercise of the s 27QE discretion is inconsistent with the statutory purpose of the provision.

155 This may be illustrated as follows. Suppose a plaintiff suffered injury as a consequence of child abuse which occurred in 1980. The limitation period for the resulting cause of action expired in 1992, proceedings were commenced in 2000, the limitation defence was taken, and the court hearing the application found material prejudice to the defendant, and refused relief. The plaintiff now brings a second action in 2019, relying on the div 5 provisions, and makes an application under s 27QB to set aside the previous judgment barring their action. The 20 years which had elapsed since the earlier judgment would necessarily have a further eroding effect on the quality of justice at any trial. If, as the defendant submitted, the lapse of time and prejudice is relevant to the court's discretion under s 27QE, then it must also be relevant under s 27QC. If the defendant's submissions are accepted, it is difficult to see in the circumstances of this example how the plaintiff could succeed with an application under s 27QC. Yet, if the plaintiff had not commenced the earlier proceeding in 2000, there would be nothing to prevent them from bringing an action in 2019, because there is no limitation period. It is not consistent with the purpose of div 5 of part IIA of the Limitation Act that such a different outcome should ensue depending on whether or not the plaintiff attempted to bring proceedings on the cause of action at an earlier time. In both instances the plaintiffs' right to bring an action will be subject to exercise by the court of its inherent jurisdiction to permanently stay the proceeding as an abuse of process on an application by the defendant under s 27R made on the basis that a fair trial is not possible.

156 Suppose the plaintiff in the above example had a strongly arguable cause of action, but settled on a heavy discount in 2000 because it appeared an application to extend time may fail. Taking advantage of div 5, the plaintiff commences a second proceeding in 2019. Despite the fact that no limitation period applies, on the defendant's submission, that plaintiff would face what amounts to a re-litigation of the limitation defence on any application made under s 27QE. The defendant in the example, who gained the benefit of negotiating a discounted settlement in the earlier proceeding, would be entitled to run the very same argument against the plaintiff on an application under s 27QE, strengthened by the effect of the further lapse of time, to protect the discounted bargain it had achieved because the limitation period had expired. That is not the scheme or purpose of div 5 of pt IIA of the Act.

157 The fall-back position adopted by the defendant was to submit that a relevant consideration to the exercise of the discretion under s 27QE was the lapse of time and prejudice which are so manifestly unfair to it that a fair trial is not possible. For the following reasons, I reject this submission. First, a defendant bears a heavy onus on an application for a permanent stay, which will only be granted in exceptional circumstances.[55] The onus under s 27QE is borne by the plaintiff. The effect of the defendant's submission would be to import into the s 27QE discretion consideration of issues relevant to a permanent stay, and to impose on the plaintiff the onus of establishing that a fair trial is possible and the proceeding is not an abuse of process. Second, if it is determined that the proceeding is an abuse of process because a fair trial is not possible, no discretion remains to be exercised.[56] In other words, the fact that the proceeding is an abuse of process is not a matter which can be taken into account as part of the synthesis of considerations relevant to the exercise of discretion under s 27QE. Third, the fact that the legislature has seen fit to insert s 27R in div 5 indicates an intention that considerations relevant to the exercise of the court's inherent power to grant a permanent stay are separate from considerations which are relevant to the discretion under ss 27QC or 27QE.

158 However, given that the defendant's central argument was that the effect of the lapse of time and prejudice are such that a fair trial is not possible, it is necessary that I consider whether the circumstances are such that the proceeding should be permanently stayed as an abuse of process.[57] The principles which apply are set out in Connellan, which concerned s 27R of the Limitation Act, and Moubarak, which concerned the equivalent provision of the Limitation Act 1969 (NSW).

159 There may be circumstances in which delay by a plaintiff, and resulting prejudice to a defendant is relevant to an application under either s 27QB or 27QD of the Limitation Act. An example may be an unexplained lengthy delay by a plaintiff before commencing a second action in accordance with s 27QA. However, on the argument as put by the defendant, and in the circumstances of this case, I conclude those matters are not relevant considerations to the exercise of discretion by me on this application.

160 In my view, the extrinsic material to which I have referred support the conclusion I have reached in relation to the statutory purpose of div 5 of pt IIA of the Limitation Act, and of s 27QE in particular. The Inquiry findings, the Royal Commission recommendations and the second reading speeches to the Child Abuse Act and the Children Act make it clear that the rationales and public policy considerations identified by McHugh J in Brisbane South do not apply to div 5 of pt IIA of the Limitation Act.[58]

161 While the Limitation Act is not remedial legislation, provisions of div 5 of pt IIA of the Act, which include ss 27QD and 27QE, are. These provisions are intended to benefit that class of persons who have suffered personal injury from child abuse by enabling them to bring an action for that injury. That purpose is achieved by removing the limitation period which would otherwise apply, and by giving the right to seek to set aside a previous judgment or settlement which occurred in the context of legal barriers which have since been removed. The remedial character of the legislation supports an interpretation which confines the discretion in s 27QE to not include considerations such as lapse of time and prejudice which are relevant to a barrier to the action which it was intended be removed.

162 The plaintiff submitted that legal barriers which existed at the time of the County Court proceeding, being the expired limitation period, the lack of liability of the bishop sued and the difficulty of identifying a proper defendant, and the state of the law regarding the duty of care, meant he would undoubtedly lose. This was why he was advised by his legal representatives that he had a 'hard case', and that they would get him 'as much as they could'. But for those legal barriers the plaintiff's case was a relatively straightforward and strong claim for damages resulting from childhood sexual abuse by Hourigan. The case settled for significantly less than its worth because of the legal barriers it faced. It is precisely the sort of case that Parliament intended be given the opportunity to be pursued for proper compensation. There is nothing raised by the defendant in this case about the settlement or the settlement process that suggests that it was anything other than an inevitable result of reliance by the defendant on barriers to the plaintiff's action which have since been removed.

163 The defendant's conduct of the County Court proceeding warrants criticism. The defendant did not admit the abuse, and did not advert to the matters of which he and his lawyers were aware regarding Hourigan and his sexual misconduct, including his admission of it to Father Waters. The plaintiff settled under the apprehension that had he not done so, he would have to give evidence as to the occurrence of the child abuse, on which he would be cross-examined. Further, in the County Court proceeding the defendant did not provide documents to the plaintiff relevant to the case against it, such as the 1972 disclosure letter from Hourigan to Bishop Fox. Conduct of the County Court proceeding by the defendant should weigh in favour of setting the deed aside.

164 When he was a young altar boy, the plaintiff was shockingly raped and sexually abused by Hourigan, who came into his life because of appointment by the defendant to the position of assistant parish priest at Warragul. The plaintiff has suffered the loss of his childhood and serious post-traumatic stress disorder for more than 40 years. His case is deserving of a proper determination and proper and adequate compensation. His is, in every respect, a case that Parliament intended to have the benefit of enabling legislation passed in the wake of the Inquiry and the Royal Commission. The Deed should be set aside to give the plaintiff that opportunity.

165 There is nothing in the circumstances in which the plaintiff entered the settlement, such as lack of proper representation or bullying by the defendant, which supports the application to set aside the Deed.

166 Properly characterised, the plaintiff's application is that:

(a) The legal position with respect to his claim has significantly improved, since entering the Deed.

(b) In those circumstances, if his claim is tried in the current legal environment, he will likely receive a significant award of damages.

The circumstances relied upon do not pose any unique or particular features, and are insufficient to warrant the court's relief. If relief were granted in this case it might well be granted with respect to all, or certainly very many, historical settlement agreements. It is evident from the statutory criterion, 'just and reasonable', for exercise of the discretion that is not what the legislature intended nor what the legislative regime provides.

167 For the court to accept, on an interlocutory basis, that some aspect of the plaintiff's claim is strong, a high bar must be met.[59] Two aspects of the plaintiff's claim, regarding the existence and breach of a duty of care, and the vicarious liability for any criminal acts by Hourigan, are seriously open to question. On this application the court should go no further than to find the plaintiff has a feasible prima facie claim. Any assessment of the strength of the plaintiff's cause of action should not weigh heavily in favour of setting aside the Deed.

168 The plaintiff was subjected to horrendous abuse by Hourigan over a period of about two and a half years. At the time the plaintiff was between 11 and 14 years of age. Because he felt unable to report the abuse, the plaintiff suffered alone and without support for many years.

169 The plaintiff described the effects of the abuse by Hourigan on him as including:

(a) being left poorly prepared for adult life and having to deal with the consequences of the abuse over his entire life;

(b) being angry and disruptive at school and having strained relationships with his teachers and parents;

(c) an itinerant early work life, conflict with bosses and loss of employment;

(d) alcohol abuse;

(e) isolating himself from his children, and socially;

(f) requiring prescription antidepressants for more than 25 years;

(g) experiencing intrusive thoughts, disturbed sleep and nightmares related to the abuse;

(h) wishing to never think about the way he was abused, but knowing that was not possible.

For the purposes of this application I accept that the plaintiff has suffered since he was 11 or 12, and continues to suffer, significant adverse impacts of the abuse.

170 The plaintiff was reviewed in 1996 for the purposes of the County Court proceeding by forensic psychologist Mr Bruce and psychiatrist Dr Wahr. Mr Bruce diagnosed that the plaintiff was suffering a chronic, moderately severe post-traumatic stress disorder as a result of the abuse, that he was progressing well with psychological assistance, and would require approximately 10 or 15 further sessions over the following 18 months. Dr Wahr concluded the plaintiff was suffering from an anxiety state which, if the abuse were found to have occurred, was explicable as a result of those activities. He concluded the plaintiff was not incapacitated from work by his anxiety state, which he thought would respond to treatment consisting of 20 to 25 sessions of supportive psychiatric psychotherapy.

171 In the County Court proceeding the plaintiff claimed general damages and loss of earning capacity. As far as I am aware, there was no particularisation of the claim.

172 There is evidence which supports a significant assessment of damages for pain and suffering and loss of enjoyment of life, past and future treatment and some loss of earning capacity.

173 The settlement sum represents very modest and heavily discounted compensation for the loss and damage suffered by the plaintiff as a consequence of the abuse. This is so whether the comparison is between the settlement sum and damages which might have been awarded in 1996, or damages which might now be awarded.

174 There is little evidence in relation to the County Court proceeding and the circumstances of the settlement.

175 The plaintiff was represented in the County Court proceeding by solicitors and experienced counsel.

176 I do not accept the pleaded non-admission in relation to the abuse in the County Court proceeding should weigh in favour of the application to set aside the Deed. While Bishop Coffey was in possession of some information which positively supported the abuse having occurred, such as evidence of the admission by Hourigan to Father Waters and the subsequent attendance by Hourigan with Dr Seal and Mr Conway, there is no evidence Bishop Coffey was aware of particulars of the abuse.

177 The second criticism levelled by the plaintiff relates to the alleged failure of the defendant to the County Court proceeding to provide discoverable documents which were critical to any case against it, the best example of which is the letter from Hourigan to Bishop Fox of 3 July 1972. There is no evidence as to whether discovery was sought or provided in the County Court proceeding. In any event, access to the documents would not have improved the plaintiff's case against Bishop Coffey, who had no apparent liability in respect of Hourigan's acts, or the Diocese, against which an action could not be brought.

178 In his report Mr Bruce refers to the distress experienced by the plaintiff when forced to recall details of the abuse. Dr Wahr records being told by the plaintiff that he was anxious when the subject of the abuse came up, and that 'I want all this to end I am sick of it'. I accept that the prospect of continuing the County Court proceeding to trial and giving evidence would have been particularly confronting and distressing to the plaintiff. However, the evidence does not support a conclusion that psychological injuries suffered by the plaintiff as a consequence of the abuse had a material impact on his decision to settle rather than proceed to trial.

179 The circumstances of the County Court proceeding and the settlement do not, on the facts of this case, give rise to considerations which weigh significantly in the exercise of the discretion as to whether or not it is reasonable to set aside the Deed.

180 The plaintiff is, and was in 1996, in a position to call evidence as to the occurrence of the abuse which includes his own evidence as to what occurred and Father Waters' evidence as to the admissions of Hourigan. In the context of Father Waters' evidence, later acts by Hourigan such as attending with Dr Seal and Mr Conway, and his death three days after being charged by police, may constitute admissions by conduct or support inferences consistent with guilt. It is also possible that acts by members of the Diocese, such as provision of treatment to Hourigan, access to supportive counselling for the plaintiff, and Bishop Coffey's apparent acceptance in the 1992 CCI form that the abuse occurred, would be found to be admissions against interest by or on behalf of the Diocese. There is no evidence that strongly calls into question the occurrence of the abuse. I conclude that in 1996 the plaintiff was in a relatively strong position to prove the abuse occurred.

181 The opinions of Mr Bruce and Dr Wahr support the plaintiff in relation to causation and damage. There is no evidence that in 1996 the plaintiff was at risk of being unable to prove either of these elements.

182 Bishop Coffey admitted in the County Court proceeding, and the defendant admits in this proceeding, that in the period the plaintiff alleges he was abused Hourigan was working in the Diocese as an assistant priest at Warragul. There is evidence that Bishop Fox was aware of the disclosure by Hourigan, arranged for and supported Hourigan studying for the priesthood at St Paul's Seminary, ordained Hourigan, was at the time responsible for appointment of priests to positions within the Diocese, and appointed Hourigan to the position of assistant priest at Warragul. There is evidence that as an assistant priest at Warragul, Hourigan was subject to the supervision, direction and control of Bishop Fox and Monsignor Daly. It is not for me to determine questions of duty and breach on this application. It is enough to observe that on the available materials it is apparent that in 1996 the plaintiff had a prima facie case in relation to the elements of his cause of action and that leaving aside the limitation defence, and the difficulty of identifying a proper defendant, there is no particular hurdle which has been identified which stood in the way of his cause of action succeeding. Of course, that is not to say that success was assured then or now.

183 There is no direct evidence to explain why Bishop Coffey was named as defendant to the County Court proceeding. The statement of claim was drawn by experienced counsel, who has no memory of the matter. Understandably the plaintiff says nothing in respect of this issue.

184 The statement of claim directs attention to Hourigan's work as a priest in the Diocese, and Bishop Coffey's role as bishop of the Diocese. The Deed bars any action on the plaintiff's cause of action against Bishop Coffey and the Diocese.

185 It was of course well known in 1996 that it was not possible to bring an action against an unincorporated association such as the Diocese.

186 It is likely the plaintiff's advisers were aware in 1996 that Bishop Coffey did not become the bishop of Sale until well after the abuse occurred. That fact was specifically pleaded in the defence filed in the County Court proceeding.

187 There was no attempt in the County Court statement of claim to plead material facts which might establish personal responsibility on the part of Bishop Coffey for the acts of Hourigan and the injury, loss and damage suffered by the plaintiff. Bishop Coffey's responsibility was only said to arise from his position as bishop of Sale. Obviously enough, given that he was appointed Bishop in June of 1989, that could not provide any foundation for personal responsibility. I infer Bishop Coffey was named as defendant in the County Court proceeding because the plaintiff's then counsel well appreciated that no action could be brought against the Diocese. I further infer that the difficulty in identifying a proper defendant was a reason for the plaintiff being told by his counsel that he had a hard case.

188 I conclude that the difficulty identifying a proper defendant had a material impact on the County Court proceeding settling, and on the modest amount of that settlement.

189 The barrier to the plaintiff bringing an action on the cause of action against the Diocese has effectively been removed by the Legal Identity Act.

190 The limitation period which applied to the plaintiff's cause of action in 1996, expired in 1989, almost seven years before the County Court proceeding was commenced.

191 The plaintiff was entitled in 1996 to bring an application to extend time under s 23A of the Limitation Act.

192 There were at least two considerations which would have weighed against the application being granted. First, by 1996, Hourigan and Monsignor Daly had both died. As a consequence, the defendant was in a position to argue specific prejudice.

193 Second, for reasons already identified, the cause of action against Bishop Coffey was weak.

194 It is likely the expiry of the limitation period was another reason why the plaintiff was advised by counsel that he had a hard case. I am satisfied that the limitation defence taken by Bishop Coffey had a material impact on the 1996 settlement.

195 The law of vicarious liability has been clarified by the High Court in Prince Alfred College in a way which is favourable to the plaintiff. The less favourable legal environment which existed in 1996 may be a reason why no vicarious liability claim was pleaded in the County Court statement of claim.

196 In the second reading speech to the Children Act, referring to considerations a court could take into account in determining whether it was just and reasonable to set aside a previous settlement, the Minister included as a relevant legal barrier 'the deficiency of the law regarding the duty of care of organisations'.[60] The Minister added that settlements entered into in the face of significant disadvantage caused by such barriers should be set aside in the interests of justice 'to allow victims to obtain compensation which is deemed adequate by today's standards'.

197 There is nothing in the text of s 27QE or other relevant provisions of div 5 pt IIA of the Limitation Act which confines a court, when determining whether or not it is just and reasonable that a settlement be set aside, to consideration of matters at the time of the settlement. It is clear from the second reading speech that the legislative purpose is that the discretion not be so confined.

198 The clarification of the common law in relation to vicarious liability is favourable to the plaintiff in a way which increases his prospects of succeeding in the action against the Diocese, and of obtaining compensation deemed adequate by today's standards. The improved position of the plaintiff in relation to vicarious liability is a consideration which weighs in favour of granting the application to set aside the Deed.

199 My conclusion on this issue, is different to that of Davis J in TRG.[61] The legislation under consideration in TRG is different in a number of respects to the provisions of div 5 of pt IIA of the Limitation Act. The extrinsic materials on which Davis J relied to assist in determining the purpose of the Queensland provisions are very different to those which I have set out above. This may explain the different conclusions we have reached.

200 In many respects the interests of the Diocese mirror those of the plaintiff. In other words, if there was evidence that the settlement paid by the defendant pursuant to the Deed was reasonable because it reflected an adequate assessment of the plaintiff's loss and damage, or that moderation of that assessment was likely the result of weakness in the plaintiff's case unrelated to barriers which have since been removed, those matters would reflect the interests of the Diocese which would weigh against the plaintiff's application being granted. However, that is not what the evidence establishes. As I have already stated it is likely the heavily discounted settlement embodied in the Deed reflects the difficulty identifying a proper defendant and the expired limitation period.

201 Clearly the Diocese does have an interest in maintaining the settlement and avoiding the costs and uncertainty associated with litigation of the plaintiff's cause of action in the current proceeding which should be taken into account on the current application. However, to the extent that is an interest in protecting a very modest settlement achieved through reliance on barriers to the cause of action which the legislature has since removed, it is not an interest which weighs heavily against the application being granted.

202 I have already determined that the effects of the lapse of time, issues of specific prejudice, and the availability of a fair trial are not relevant considerations on the exercise of the s 27QE discretion on the facts of this case.

203 The interests of the defendant in having paid the settlement sum and the plaintiff's and its own costs of the County Court proceeding pursuant to the terms of the Deed can be protected by appropriate consequential orders being made pursuant to s 27QE(1)(b), or by those matters being taken into account pursuant to sub-s 2 of that section.

204 A party is entitled to a fair trial, not a perfect one. The lapse of time, absence of documentary evidence, or inability to call witnesses unavailable because of death or incapacity, does not automatically result in a trial being unfair to the degree that a stay should be granted.[62]

205 On an application for a permanent stay, it is relevant to consider whether the defendant has made all reasonable enquiries to ascertain if evidence is available to enable it to meet the claim[63] and whether, to the extent the defendant is unable to deal with the proceeding, this is due to its own neglect or default because of a failure to take timely steps to gather evidence.[64]

206 After considering relevant authorities, the Court of Appeal said in Connellan:

In determining whether a proceeding should be stayed as an abuse of process, the authorities to which we have already referred disclose the following propositions:

1. In order to justify the grant of a stay, a defendant bears a heavy onus. A stay is ordinarily only granted in exceptional circumstances, because it effectively brings to an end litigation without adjudication.
2. The categories of abuse of process are not closed.
3. In particular, the concept of an abuse of process is not confined to cases in which, if the action were to proceed, the defendant would not receive a fair trial.
4. The fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people.[65]

The plaintiff's case in Connellan was that when she was aged about 7 years, she stayed at the defendant's family home for 7 to 10 days, and during this time was sexually abused by the defendant, then aged 13 years, on a number of occasions. The proceeding commenced almost 50 years after the alleged events occurred. The Court noted the effects of delay on memory and the quality of justice,[66] particularly where the alleged events involved children. The defendant was being called on to defend himself in circumstances where the plaintiff's own recollection of events was vague, neither side was in a positon to investigate the surrounding circumstances, and investigation of significant issues of causation and quantum were more difficult because of the lapse of time. The Court said it was relevant to look at the plaintiff's reasons for not commencing the proceeding at an earlier time, which it found were not adequately explained by her evidence. The Court concluded:[67]

Having regard to the elapse of time, the deaths of the plaintiff's mother and the defendant's parents and the loss of any evidence of surrounding circumstances that may have critically affected the determination of the central issues in dispute between the parties, to borrow from Bryson JA's description of the plaintiff's claim in Batistatos, 'no more than a formal enactment of the process of hearing and determining the plaintiff's claim could take place; it cannot be expected that the process would be just'.

207 The plaintiff in Moubarak, who alleged she was sexually abused on four occasions when she was 12 years old, commenced the proceeding over 40 years after the alleged events by which time the defendant was suffering dementia. Salient features of that case which the NSW Court of Appeal concluded warranted a permanent stay included that at no time prior to suffering from dementia was the defendant confronted with the allegations, the defendant had advanced dementia when the allegations were reported to police, and when the proceeding was commenced, the nature of the allegations limited the value of enquiries which could now be made, and the defendant could not now give instructions.

208 Features of this case are materially different to Connellan and Moubarak. I have already found that there is no deficiency in the state of the documentary record which results in any significant prejudice to the defendant on any aspect of the plaintiff's claim. Further, there is a substantial body of evidence going to Hourigan's application to join the priesthood, his study at St Paul's Seminary, ordination, appointment as assistant priest at Warragul parish and his duties and the manner in which he performed that role under the supervision and direction of Bishop Fox and Monsignor Daly.

209 The defendant first had notice of the abuse by Hourigan in 1986. At the time all relevant witnesses who have been identified, save for Monsignor Daly, were alive. The possibility of the plaintiff's family seeking legal advice and reporting the abuse to the police was mooted. There was no reason why litigation involving members of the Diocese should not have been anticipated, or why documentary and oral evidence relevant to any potential claim could not have been gathered. There were further opportunities to investigate in 1992 when CCI were put on notice by Bishop Coffey, in 1995 when a police investigation occurred, and 1996 when the County Court proceedings were issued. In my view the opportunities available to the defendant to investigate the abuse and potential claims against members of the Diocese weighs against granting a permanent stay.

210 The defendant has not fully investigated the plaintiff's claim. Urging by the plaintiff, discussion in relation to the Consultors' meeting book in Father Waters' report which only came late in the piece, and a chance discussion with another employee of the Diocese, have led to further discovery by Ms Kirkwood. It is surprising that the defendant having identified at an early stage the absence of documents recording the appointment of Hourigan by Bishop Fox, that the Consultor meeting books were only discovered at a late stage.

211 The inadequacy of the current investigation applies more to the identification of witnesses who can give relevant evidence, particularly as to the role of Hourigan as assistant priest in the Warragul parish. The defendant in Council of Trinity Grammar School v Anderson ('Trinity Grammar School'),[68] a case on which the Diocese relied, instructed an investigator to carry out certain investigations including interviewing and obtaining statements from a large number of potentially relevant witnesses. The defendant has not yet undertaken a similar investigation of the plaintiff's claim in this case. For reasons stated above, it is likely reasonable investigation of the matter will yield relevant evidence.

212 The effects of delay and the loss of evidence are not such as to make it likely that a trial will be unfair to the defendant. The proceeding is not an abuse of process. This conclusion is reinforced because the diocese did not take timely steps to conduct a reasonable investigation of the plaintiff's allegations when it had the opportunity in 1986 and subsequently, and by the likelihood that further relevant evidence, particularly as to Hourigan's role as an assistant priest at Warragul church, will be discovered upon a reasonable investigation now being undertaken.

(a) The settlement embodied in the Deed was not a reasonable assessment of the plaintiff's loss and damage in 1996, or adequate compensation by today's standards.

(b) Leaving to one side the limitation defence and the barrier which existed in 1996 in relation to the identification of a proper defendant, there was no particular reason why the plaintiff's action in the County Court proceeding would have failed.

(c) The difficulty identifying a proper defendant was likely to prove fatal to the plaintiff's cause of action in 1996. There was also a significant prospect of the plaintiff failing on an application to extend the period in which to bring the action. I infer it is likely the modest settlement embodied in the Deed reflects the impact of these barriers on the plaintiff's cause of action.

(d) The prospects of the plaintiff succeeding in proving his cause of action have been improved since 1996 because of the clarification of the law of vicarious liability by the High Court in Prince Alfred College.

(e) There are no considerations in relation to the manner in which the County Court proceeding was conducted or the settlement was achieved which bear significantly on the exercise of the discretion.

(f) There are no matters peculiar to the plaintiff or the defendant which have a material bearing on the exercise of the discretion.

214 Having weighed all of the circumstances of the case, including those relevant to the cause of action and any defence, I am positively satisfied that it is just and reasonable to answer question 2 yes, and to grant the plaintiff's application to set aside the Deed. I would reach the same conclusion had I not taken into account clarification of the law in relation to vicarious liability.

215 I have also concluded that there should not be a permanent stay of the proceeding in accordance with s 27R of the Limitation Act and the inherent jurisdiction of the court.

(a) Question 1 is answered yes.

(b) Question 2 is answered yes.

217 The parties have not addressed me as to any consequential orders that should be made. I will hear from the parties in this regard.

[1] Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565, 567 [47].

[2] Connellan v Murphy [2017] VSCA 116 ('Connellan').

[3] Limitation of Actions Act 1958 (Vic) s 5, as at June 1996.

[4] Ibid s 23A, as at June 1996.

[5] Council of Trinity Grammar School v Anderson [2019] NSWCA 292, [448]-[463] ('Trinity Grammar School').

[6] Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134, 163 ('Prince Alfred College').

[8] Trinity Grammar School (n 5) [477].

[9] Allen v Tobias [1958] HCA 13; (1958) 98 CLR 367. See also Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 98B; Camille Cameron and Jonathan Liberman, 'Destruction of Documents Before Proceedings Commence: What is a Court To Do?' [2003] MelbULawRw 12; (2003) 27 Melbourne University Law Review 273.

[10] Family and Community Development Committee, Parliament of Victoria, Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations, (Part H - Civil Justice Reform, October 2013).

[11] Royal Commission into Institutional Responses to Child Sexual Abuse (Redress and Civil Litigation Report, September 2015).

[12] Recommendation 26.3 of the Inquiry's Betrayal of Trust report: That the Victorian Government consider amending the Limitation of Actions Act 1958 (Vic) to exclude criminal child abuse from the operation of the limitations period under that Act. See Family and Community Development Committee, Parliament of Victoria, Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations, (Part H - Civil Justice Reform, October 2013) 543.

[13] Explanatory Memorandum, Limitation of Actions Amendment (Child Abuse) Bill 2015 (Vic) 3.

[15] Victoria, Parliamentary Debates, Legislative Assembly, 25 February 2015, 404-5.

[16] Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565, 567 [47]

[17] Recommendation 26.1 of the Inquiry's Betrayal of Trust report: That the Victorian Government consider requiring non-government organisations to be incorporated and adequately insured where it funds them or provides them with tax exemptions and/or other entitlements. See Family and Community Development Committee, Parliament of Victoria, Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations, (Part H - Civil Justice Reform, October 2013) 536.

[18] Known as the Ellis defence. See above nn 1 and 16 and accompanying text.

[19] Explanatory Memorandum, Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 (Vic) 1.

[20] Victoria, Parliamentary Debates, Legislative Assembly, 7 March 2018, 594-7 (Martin Pakula, Attorney- General).

[21] Explanatory Memorandum, Children Legislation Amendment Bill 2019 (Vic) 17.

[22] Victoria, Parliamentary Debates, Legislative Assembly, 15 August 2019, 2695 (Luke Donnellan, Minister for Child Protection, Minister for Disability, Ageing and Carers).

[23] Victoria, Parliamentary Debates, Legislative Assembly, 15 August 2019, 2695-6 (Luke Donnellan, Minister for Child Protection, Minister for Disability, Ageing and Carers).

[24] Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467, 473 ('Klein').

[25] Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370, 384 (Isaacs J). Note that this decision was reversed by the Privy Council in Bull v Attorney-General (NSW) [1916] UKPCHCA 3; (1916) 22 CLR 333.

[26] Interpretation of Legislation Act 1984 (Vic), s 35; Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 132-7; R v Boucher [1995] VicRp 7; (1995) 1 VR 110.

[27] JAS v Trustees of the Christian Brothers [2018] WADC 169, [21].

[28] Connellan (n 2); Moubarak v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218 ('Moubarak'); Gorman v McKnight [2020] NSWCA 20 ('Gorman'); and Trinity Grammar School (n 5).

[29] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 31 (Hayne, Heydon, Crennan and Kiefel JJ).

[30] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41 (Mason J).

[31] Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618 (Mason J).

[32] Edwards v Kennedy [2009] VSC 74 (Kaye J).

[33] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 551 (McHugh J) ('Brisbane South').

[34] Prince Alfred College (n 6); Connellan (n 2); _Moubarak (_n 28).

[35] TRG v Board of Trustees of Brisbane Grammar School [2019] QSC 157, 80 [263]-[265] ('TRG').

[36] Prince Alfred College (n 6) [99].

[37] Brisbane South (n 33) 554 (McHugh J).

[38] Prince Alfred College (n 6); Brisbane South (n 33).

[39] See Brisbane South (n 33) 547 (Toohey and Gummow JJ).

[40] [2012] HCA 55; (2012) 250 CLR 503.

[41] Ibid 519 [39] citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 [47].

[42] (2013) 250 CLR 523.

[43] Ibid 539-40 [47] (citations omitted).

[44] [2020] VSCA 4.

[45] Ibid [120]-[121](citations omitted).

[47] Ibid 473 [14]. See also Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66, 90 [59] ('Macedonian Orthodox Community Church St Petka'); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39.

[48] Macedonian Orthodox Community Church St Petka (n 47) 90 [59].

[51] Victoria, Parliamentary Debates, Legislative Assembly, 15 August 2019, 2695-6.

[52] Brisbane South (n 33) 552-3 (citations omitted).

[53] Brisbane South (n 33) 553-4 (citations omitted).

[54] Prince Alfred College (n 6) 164-5 [99]-[100] (citations omitted).

[55] Connellan (n 2); Moubarak (n 28).

[56] R v Carroll [2002] HCA 55; [2002] 213 CLR 635, 657 [73] and Connellan (n 2) [35].

[60] Victoria, Parliamentary Debates, Legislative Assembly, 15 August 2019, 2695-6 (Luke Donnellan, Minister for Child Protection, Minister for Disability, Ageing and Carers).

[61] TRG (n 35) [265]. TRG was subject to appeal in TRG v The Board of Trustees of the Brisbane Grammar School [2020] QCA 190, but not in respect of this issue.

[62] Moubarak (n 28) [89], [124]; Gorman (n 28) [43]; Trinity Grammar School (n 5) [429].

[63] Trinity Grammar School (n 5) [477], [489].

[65] Connellan (n 2) [54] (citations omitted). See also Moubarak (n 28) [71].

[66] Brisbane South (n 33) 551 (McHugh J).

[67] Connellan (n 2) [60] (citations omitted).