Plaintiff v Defendant

(a) A proposed amendment to the statement of claim;

(b) An application for discovery of unredacted complaint documents; and

(c) Proposed legislative change following the High Court's decision in Bird v DP (A Pseudonym) [2024] HCA 41 (Bird).

1. As to the first basis for the vacation of the trial, the present amended statement of claim pleads liability of the defendant for sexual abuse suffered by the plaintiff as a student of a school operated by the defendant and at a summer camp for catholic students. The proposed statement of claim dated 9 January 2025, as foreshadowed in the Notice of Trial dated 10 January 2025, wishes to add a breach of a non-delegable duty of care owed by the defendant to the presently pleaded bases for liability directly in negligence and vicarious liability. Although previously opposing the amendments, the defendant indicated that it neither consented to nor opposed such an application if it were made.
2. The discovery of other complainants, whose identity has been redacted in the discovery supplied, was said to be for the purpose of establishing those witnesses as unavailable within the exception to hearsay provisions of the Evidence Act 2008 (Vic) and the statements therefore admissible. The defendant foreshadowed opposition to this based upon the ruling of Judicial Registrar Clayton (as her Honour then was) in Stephenson v The Salesian Society Incorporated & Ors.[1] No application has been made and the defendant noted that the Notice of Trial stated no further discovery or inspection was contemplated.
3. Given the absence of formal applications in either matter and the concession of the parties that both matters could be determined prior to the present trial date, the application to vacate rested on the proposed legislative changes in relation to vicarious liability.
4. The plaintiff's affidavit in support deposed to a question asked of the Victorian Attorney-General in Parliament on 26 November 2024 as to whether she would actively support legislative reform following the High Court decision in Bird.[2] In response, Ms Symes indicated that 'the Standing Committee of Attorneys-General [had met] on Friday, where I raised this matter...I have been tasked with leading the work on bringing some material back to that committee; we meet in February [2025]'.[3] Other correspondence and news articles from December 2024 were also referred to and exhibited. The proposed legislative amendments were submitted to establish a particular injustice to the claim of the plaintiff which would also affect others matters in the Institutional Liability List. An adjournment to a date not before 1 July 2025 was sought.
5. There is a long line of authority establishing the general principle that the role of the Court is to determine cases according to the existing law. The comments apply whether the contemplated changes derive from a court appellate process or a legislative process. In Meggitt Oversesas Ltd v Grdovic, Mason P found that a trial judge had erred in vacating a trial so that a plaintiff could rely on proposed legislative changes to reform available damages for dust diseases.[4] It was argued that proceeding to trial before the foreshadowed amendments would seriously prejudice the plaintiff. In finding that the trial judged had erred in exercising this discretion, his Honour said:

In my view, the discretion miscarried. The learned judge erred in taking into account the prospect of legislative amendment as a controlling factor in the decision granting the adjournment. The error was compounded by the apparent intent that the hearing date will, as presently advised, be deferred until the amending legislation is passed and the plaintiff becomes thereby entitled to take advantage of it.[5]

1. The announcement of a decision to introduce particular legislation, and any retrospective operation of such legislation, may impact pending proceedings. But, as Mason P went on:

Does the announcement qualify in any way the judicial branch's obligation to uphold the existing - I emphasis the word "existing" - law? And does it enliven a power to grant a contested adjournment of proceedings fixed for hearing so as to enable one party to gain the benefit of proposed legislation to the detriment of another party? The answer to each question must be a categorical "no".[6]

1. These comments in turn relied on a line of authority based upon the comments of Starke J:

Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.[7]

1. At present there is no Bill before the Victorian Parliament. The Victorian Attorney-General said in the Victorian Parliament on 26 November 2024, legislative amendments are complex and involve considerations of federal laws and retrospectivity, amongst other things. There is a need to consider unintended consequences, and consultation with stakeholders will be required.[8] The effect of proposed legislative change on any individual case is presently speculative.
2. Since the trial judgment in Bird, delivered on 22 December 2021, cases in the Institutional Liability List have continued to be determined, pending the appeals to the Court of Appeal and then to the High Court in accordance with the law as it stood from that time.[9] This is in accordance with the general principle that cases are not delayed because the outcome of a prospective change in the law might have a bearing on the outcome of a particular trial. As Ormiston JA said in Geelong Football Club v Clifford:

It is not ordinarily sufficient to show that an appeal yet to be heard in another case may reach a legal conclusion which could support the claim made by the party seeking the adjournment. Of course there are no black and white rules preventing adjournments in appropriate circumstances. ...

Generally speaking, however, a possible change in the law, whether judicial or legislative, is not to be treated as justification for failing to hear a case fixed and ready for trial. [10]

1. The general principle may be displaced in an appropriate case. The plaintiff did submit that an injustice would arise because of how the plaintiff intended to put his case at trial. As articulated, this injustice arose because of how the pleadings dealt with the role of Brother Webster against whom abuse is alleged and who was the school principal at the relevant time. The plaintiff submitted that the potential exclusion of liability for Brother Webster's acts or omissions as principal warranted an adjournment. Whatever the particular factual circumstances, the change to come from potential legislative change remains a matter of general application to many cases. The plaintiff accepted a significant number of pending cases are likely to be similarly impacted by the decision in Bird. I do not accept that this was a basis upon which I ought adjourn this particular trial.
2. I informed the parties that I would not grant the adjournment application and indicated that I would provide these reasons.
3. The final directions for the proceeding was also listed and to that end the parties have otherwise agreed timetabling orders relating to the applications to amend the statement of claim and for unredacted discovery. They have also sought a referral for judicial mediation. I have now made those and the standard trial timetabling orders and confirmed the scheduled trial listing.
4. The defendant sought, and in my view is entitled to, the costs of the adjournment application.

[1] [2018] VSC 602.

[2] Plaintiff, 'Affidavit of Shea Rowell' affirmed 30 January 2025, Affidavit in Taylor v Trustees of the Christian Brothers [2025] VSC 25, ('Plaintiff's affidavit in support'), [22].

[3] Ibid, extract of the Hansard, Legislative Council, on 26 November 2024, as exhibited to the Plaintiff's affidavit in support, 26.

[4] Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527.

[5] Ibid 529, Sheller and Beazley JJA agreeing.

[7] Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230 at 253; see also as applied in Attorney-General (NT) v Minister for Aboriginal Affairs (1987) 73 ALR 33 at 50-51, Jupp v Computer Power Group Ltd (1994) 122 ALR 711, Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246, McHugh J at 258 quoting R v Whiteway; ex parte Stevenson [1961] VicRp 26; [1961] VR 168 at 171.

[8] Plaintiff's affidavit in support, 26.

[9] DP (a pseudonym) v Bird [2021] VSC 850.

[10] Geelong Football Club v Clifford [2002] VSCA 212, [6]-[7], Callaway JA agreeing.