Plaintiff v First Defendant

1 The current proceeding was commenced by writ and statement of claim filed on 20 February 2018. The trial, before judge alone, is listed for hearing on 12 August 2019. The plaintiff alleges that, in April 1982, when he was nine years old, he was anally raped by Gerald Ridsdale ('Ridsdale'). At the time Ridsdale was the parish priest at St Colman's Parish, Mortlake ('St Colman's).[1] In a defence filed on 1 May 2018, the defendants admit that Ridsdale sexually abused the plaintiff.[2] The plaintiff claims damages, including aggravated and exemplary damages, for negligence. The defendants deny the allegations of breach of duty and negligence.

2 By summons filed on 28 March 2019, the plaintiff seeks leave to file an amended statement of claim. He also seeks leave to join the Catholic Diocese of Ballarat ('the Diocese') as the third defendant and the Roman Catholic Trust Corporation for the Diocese of Ballarat ('RCT') as the fourth defendant. The defendants oppose the application for leave to amend and the joinder of the proposed third and fourth defendants.

The application for leave to amend to join the Diocese as third defendant

3 Bishop O'Collins was the Bishop for the Diocese between 1 May 1941 and 30 April 1971.[3] Bishop Mulkearns was the coadjutor for the Diocese between 1968 and 1971, and the Bishop for the Diocese between 1 May 1971 and 30 May 1997.[4]

4 The defendants do not plead any defence based upon the judgment of the New South Wales Court of Appeal in Trustees of the Roman Catholic Church v Ellis[5] ('Ellis defence'). During the hearing on 6 May 2019, Dr Freckelton QC, who appeared for the defendants, informed the Court that Bishop Bird, who is the current Bishop for the Diocese, 'stands in the shoes' of Bishop O'Collins and Bishop Mulkearns as the first and the second defendant.[6]

5 Notwithstanding the absence of any reliance upon the Ellis defence, the plaintiff seeks leave to amend his statement of claim to make allegations against the Diocese and to join the Diocese as a party to the proceeding. Paragraphs 3A and 3B of the proposed amended statement of claim ('PASOC') plead:

The Third Defendant is a 'Non-Government Organisation' (NGO) as defined by the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (the Act).

The Third Defendant is being sued pursuant to the Act, in particular s 13. [7]

6 The defendants submit that the plaintiff's reliance upon the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 ('Act') is misconceived. In particular, the defendants submit that the Act does not permit the joinder of a non-government organisation as a party to a proceeding commenced prior to 1 July 2018, the date that the Act came into operation. The defendants submit that, if the Act authorised the joinder of the Diocese, it would operate retrospectively. The defendants submit that there is no specific indication in any provision of the Act that it is intended to apply retrospectively to a proceeding commenced prior to 1 July 2018.[8]

7 Whether the Act applies to a proceeding commenced prior to 1 July 2018 turns upon the construction of a number of provisions of the Act. The task of statutory construction begins with a consideration of the text itself. The language which has been employed in the text of the legislation is the surest guide to legislative intention.[9] There are no transitional provisions in the Act which expressly regulate the application of the Act to a proceeding commenced prior to 1 July 2018.[10] In particular, there is no provision which permits the amendment of a proceeding commenced prior to 1 July 2018 to plead causes of action against a NGO which was not a party to the proceeding at the time it was commenced.

8 The term 'proceeding' has a well-established legal meaning. In reference to the definition of 'proceeding' in s 3 of the Supreme Court Act 1986, Tadgell JA stated that a 'proceeding' refers to the 'vehicle by which the jurisdiction of the court is invoked and not to the subject matter of a justiciable dispute'.[11]

9 There is a distinction between the proceeding commenced by writ filed on 20 February 2018, and the claims made in that proceeding and the parties to the proceeding. There is only one proceeding. However, the claims made in the proceeding and the parties thereto may alter as a consequence of amendment subsequent to the commencement of the proceeding.

4 Application of Act

(1) This Act applies to any proceeding for a claim founded on or arising from child abuse.

(2) This Act applies to an NGO if -

(a) a plaintiff commences or wishes to commence a claim against an NGO founded on or arising from child abuse; and

(b) but for being unincorporated, the NGO would be capable of being sued and found liable for a claim founded on or arising from child abuse; and

(c) the NGO controls one or more associated trusts.

(3) This Act applies to a claim founded on or arising from child abuse whether the child abuse occurred or occurs before, on or after the commencement of this section.

11 Pursuant to s 4(1), the Act applies 'to any proceeding for a claim founded on or arising from child abuse'. The phrase 'proceeding for a claim' obscures the distinction between the proceeding (being the vehicle by which the Court's jurisdiction is invoked) and the claims made in the proceeding. It is necessary to construe the phrase 'any proceeding for a claim' in accordance with the well-established distinction between the proceeding, which is the vehicle by which the Court's jurisdiction is invoked, and the claims made in the proceeding. When the phrase is read in accordance with this well-established distinction, the phrase 'any proceeding for a claim founded on or arising from child abuse' means 'any proceeding in which a claim founded on or arising from child abuse is made'.

12 Section 4(2) of the Act deals expressly with the application of the Act to a NGO. It is not in dispute that the Diocese is a NGO for the purposes of the Act. Thus, s 4(2) bears directly on the question of whether the Act applies to the Diocese.

13 There is no blurring of the distinction between 'proceedings' and 'claims' in relation to the application of the Act to a NGO. Section 4(2) is enlivened by the making of a claim against a NGO founded on or arising from child abuse. By his application to amend his pleading and join the Diocese:

(a) The plaintiff wishes to commence a claim against a NGO founded on or arising from child abuse;

(b) But for being unincorporated, the Diocese would be capable of being sued and found liable for a claim founded on or arising from child abuse; and

(c) The Diocese controls one or more associated trusts.

14 Each of the three pre-conditions prescribed by s 4(2) for the Act to apply to the Diocese are satisfied. The application of the Act to the Diocese does not result in the Act having a retrospective operation. The plaintiff's application to amend the statement of claim to make a claim against the Diocese post-dates the commencement of the Act on 1 July 2018. The application of the Act to a NGO is enlivened by the making of a claim against the NGO. No such claim has been made in the current proceeding prior to the plaintiff foreshadowing such a claim in the summons filed on 28 March 2019. If the application is granted, the Act will operate prospectively in respect of the claims against the Diocese founded on child abuse.

15 The claim against the Diocese does have a retrospective aspect insofar as it is founded on child abuse which occurred prior to the commencement of the Act. However, s 4(3) expressly provides for the application of the Act to claims founded on child abuse which pre-date the commencement of the Act.[12]

16 The application of the Act to a NGO is enlivened by the making of a claim against the NGO founded on child abuse, as distinct from the date of the commencement of the proceeding in which the claim against the NGO is made. In the present case, the claim against the Diocese founded on Ridsdale's abuse of the plaintiff post-dates the commencement of the Act. As such, save for the fact that Ridsdale's sexual abuse of the plaintiff pre-dates 1 July 2018, no issue of retrospectivity arises in respect of the application of the Act to the Diocese.

17 This conclusion is reinforced by provisions of the Act which operate by reference to the making of a claim against a NGO, as distinct from the commencement of the proceeding in which a claim against a NGO is subsequently made.

7 Nomination of proper defendant

(1) An NGO to which this Act applies, in relation to any claim founded on or arising from child abuse, with the consent of the nominee, may nominate an entity that is capable of being sued -

(a) to act as a proper defendant to the claim on behalf of the NGO; and

(b) to incur any liability arising from the claim on behalf of the NGO.

(2) 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.

(3) Unless the court otherwise orders, a nomination of a proper defendant may occur at any time within 120 days after the commencement of the proceeding for the claim against the NGO.

19 The legislative intention of s 7 is to provide a NGO with a period of 120 days within which to nominate a defendant 'in the claim' on behalf of the NGO. The 120-day nomination period is activated by the making of the claim against a NGO rather than the commencement of the proceeding in which the claim is made. As is demonstrated by the present case, there can be a significant time lag between the commencement of a proceeding and its subsequent amendment to plead a claim against a NGO founded on child abuse. If the phrase 'the commencement of the proceeding for the claim against the NGO' in s 7(3) refers to the commencement of the substantive proceeding rather than to the commencement of the claim against the NGO, absurd consequences would follow. If a proceeding was commenced against individual defendants on 1 July 2018 and was amended four months later to name a NGO as a defendant in respect of claims founded on child abuse, unless the 120-day nomination period was activated by the making of the claim against the NGO, the 120-day nomination period would have expired on the same day the NGO was joined as a party to the proceeding.

20 If a NGO fails to nominate a proper defendant under s 7 'within 120 days of the commencement of the proceeding against the NGO', the plaintiff may apply for an order under s 8 'that the claim is to proceed against the trustees of an associated trust of the NGO as a proper defendant.' The opening words of s 8(1) are:

21 Section 8 is pre-conditioned upon there being a claim against a NGO. As in s 7, the 120-day period in s 8 is activated by the bringing of a claim against the NGO, rather than the commencement of the proceeding in which the claim against the NGO is made.

22 Dr Freckelton submitted that the second reading speech of the Act supports the conclusion that the Act has no application to the current proceeding. In the second reading speech, the Attorney-General stated:

Any claim founded on or arising from child abuse can be brought in reliance on the provisions of the bill, including negligence, vicarious liability, or direct liability, regardless of when the abuse occurred.

The bill will only apply to proceedings that are commenced after the commencement date of the bill. However, the abuse that is the subject of the proceedings can have occurred at any time, including before the commencement date of the bill.[13]

23 Dr Freckelton submitted that this statement supports a finding that the Act has no application to the current proceeding because it was commenced prior to the commencement date of the Act, 1 July 2018. I reject this submission. The Attorney-General's statement must be read in the context including s 4(2)(a) of the Bill which provides:

(2) This Act applies to an NGO if -

(a) a plaintiff commences or wishes to commence a claim against an NGO founded on or arising from child abuse.

24 Further, the second reading speech must be read in light of r 9.11(3)(a) of the Supreme Court (General Civil Procedure) Rules 2015. This rule provides that, where an order is made joining a party to a proceeding as a defendant, the proceeding against the new defendant commences upon the amendment of the filed originating process. Thus, if an order is made joining the Diocese as a defendant, the effect of r 9.11(3)(a) is that the proceeding against the Diocese commences upon the amendment of the writ filed on 20 February 2018. Such amendment will post-date the commencement of the Act. As such, the application of the Act to the Diocese does not entail any retrospective application of the Act.

25 Section 1 of the Act provides that the main purpose of the 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'. A construction of the Act that would promote this purpose is to be preferred to a construction that would not.[14]

(a) The Act has no application to the current proceeding because it was commenced prior to 1 July 2018; and

(b) The writ and statement of claim cannot be amended to name the Diocese as a defendant.

27 If this submission is correct, there would be no impediment to the plaintiff commencing a new proceeding against the Diocese and seeking orders that the proceeding be heard concurrently with the proceeding commenced on 20 February 2018. Such a course would impose additional expense and inconvenience upon the plaintiff. It would likely result in delay. Given the stated purpose of the Act, there is no rational reason why the legislature would require a plaintiff wishing to make claims against a NGO based upon historical child abuse to commence a new proceeding against the NGO, rather than simply joining the NGO to an existing proceeding.

28 I reject the defendants' submission that the Court has no power to amend the proceeding to join the Diocese as a defendant in reliance upon the provisions of the Act because the proceeding against the defendants was commenced prior to 1 July 2018.

29 Dr Freckelton submitted that, putting to one side the question of the Court's power to amend the proceeding to join the Diocese as a defendant, it is not appropriate to do so given the proximity of the trial date in mid-August 2019. Mr Taylor, who appeared with Mr O'Brien, submitted that the plaintiff sought the joinder of the Diocese as a result of the defendants' denials and non-admissions in their current defence.

30 Paragraph 13 of the statement of claim alleges that, prior to Ridsdale's placement at St Colman's in January 1981, the defendants 'ought to have known of Ridsdale's propensity to engage in inappropriate sexual conduct with minors'.[15]

31 The particulars of the allegation in paragraph 13 make express reference to Ridsdale's sexual abuse of minors while at Ballarat North, and to Bishop O'Collins having been informed in about 1963 of an allegation that Ridsdale had engaged in inappropriate behaviour of a sexual nature with a minor while he was a priest at the Ballarat North Parish. This allegation is denied in paragraph 13 of the defence.

Prior to his placement at St Colman's the Second Defendant was and/or became aware of Ridsdale's predilection and propensity to engage in inappropriate sexual conduct with minors.[16]

(a) in or around late 1975, the second defendant was informed of the Inglewood complaint;

(b) save for the reference to the Inglewood complaint, they otherwise deny the allegations contained in paragraph 15.[17]

34 By their defence, the defendants have put in issue their knowledge of Ridsdale's propensity to engage in inappropriate sexual conduct with minors. During the hearing on 6 May 2019, Mr Taylor referred the Court to the submissions made by the Truth Justice and Healing Council ('TJHC') to the Royal Commission into Institutional Responses to Child Sexual Abuse ('Royal Commission'). In particular, he referred to the TJHC's Submissions in Response to Submissions of Counsel Assisting - Case Study 28: Ballarat.[18] Section 5.2 of the TJHC's submissions deals with Ridsdale. Section 5.2.1 is headed 'Objective Facts'. The submissions include the following:

On 16 January 1981, Ridsdale was appointed as parish priest of Mortlake. Mortlake is in the southern part of Victoria, approximately 120 kilometres south-west of Ballarat. There were no other priests appointed to Mortlake while Ridsdale was at Mortlake. He remained in Mortlake until August-September 1982. During this time, he sexually abused a large number of children, including David Ridsdale, Paul Levey, BPS, BPT, BPU, BPW, BPX and BPR.

During Ridsdale's time at Mortlake in 1981-82, various complaints or reports about him were made. Some were made directly to Bishop Mulkearns, and some to others who in turn informed Bishop Mulkearns. Those reports included the following:

(a) At some point in that period a doctor from Mortlake contacted Bishop Mulkearns about Ridsdale 'engaging in inappropriate behaviour with young children'.

(b) At some point in that period, three or four people from Mortlake travelled to Ballarat and expressed concern to Fr Finnigan, then the Bishop's secretary, about Ridsdale's 'over friendly' behaviour towards children, and Fr Finnigan reported their visit to Bishop Mulkearns.

(c) In August 1982 two sets of parents from Mortlake came to see Bishop Mulkearns to complain about Ridsdale.

(d) On 15 August 1982, Bishop Mulkearns attended Mortlake for a confirmation. On that visit he became aware that a boy, Paul Levey, was living in the presbytery with Ridsdale. Paul Levey's mother, Beverley Levey, gave evidence that she had already twice complained to Bishop Mulkearns that it was inappropriate for her son to be living in the presbytery with a priest.

(e) Shortly before Ridsdale was removed from Mortlake in about September 1982, a parent (BAI) said to the school principal Sister Kathleen McGrath that Ridsdale was 'molesting half the boys in the school'. Sister McGrath asked Sister Patricia Vagg to tell the Bishop, and Sister Vagg rang Bishop Mulkearns and did so.

(f) In about November 1981 (as recalled by BPF), or shortly before Ridsdale was removed from Mortlake in about September 1982 (as recalled in 1993 by Monsignor Fiscalini), Monsigner Fiscalini (who was Vicar General until July 1982), received a complaint from parents of 'sexual molestation' of their son by Ridsdale, and he reported that to the Bishop.

In about September 1982 Bishop Mulkearns removed Ridsdale from Mortlake.[19]

...

The Church parties have acknowledged elsewhere in these submissions that, in 1981 and/or 1982, during Ridsdale's time at Mortlake, Bishop Mulkearns received numerous reports in relation to Ridsdale offending against children. For convenience, that summary of those reports is reproduced here:

(a) At some point in that period a doctor from Mortlake contacted Bishop Mulkearns about Ridsdale 'engaging in inappropriate behaviour with young children'.

(b) At some point in that period, three or four people from Mortlake travelled to Ballarat and expressed concern to Fr Finnigan, then the Bishop's secretary, about Ridsdale's 'over friendly' behaviour towards children, and Fr Finnigan reported their visit to Bishop Mulkearns.

(c) In August 1982 two sets of parents from Mortlake came to see Bishop Mulkearns to complain about Ridsdale.

(d) On 15 August 1982, Bishop Mulkearns attended Mortlake for a confirmation. On that visit he became aware that a boy (Paul Levey) was living in the presbytery with Ridsdale. Paul Levey's mother, Beverley Levey, gave evidence that she had already twice complained to Bishop Mulkearns that it was inappropriate for her son to be living in the presbytery with a priest.

(e) Shortly before Ridsdale was removed from Mortlake in about September 1982, a parent (BAI) said to the school principal Sister Kathleen McGrath that Ridsdale was 'molesting half the boys in the school'. Sister McGrath asked Sister Patricia Vagg to tell the Bishop, and Sister Vagg rang Bishop Mulkearns and did so. According to Sister Vagg in an interview with a CCI investigator in 1993, she said to the Bishop 'Listen this seems to be true' and the Bishop said 'Probably is'.

(f) In about November 1981 (as recalled by BPF), or shortly before Ridsdale was removed from Mortlake in about September 1982 (as recalled in 1993 by Monsignor Fiscalini), Monsigner Fiscalini received a complaint from parents of 'sexual molestation' of their son by Ridsdale, and he reported that to the Bishop.[20]

...

When Bishop Mulkearns arranged for Ridsdale to go to Maroubra in 1982, when he appointed Ridsdale to Horsham in 1986, and when he was involved in Ridsdale's being placed in NSW parishes earlier that year, Bishop Mulkearns not only knew that Ridsdale had offended while at Inglewood in 1975 but he also knew that he had been the subject of numerous reports of abusive behaviour while in Mortlake in 1981-82.[21]

...

The Church parties accordingly acknowledge that for Bishop Mulkearns to make or arrange those appointments in 1982 and 1986, with the knowledge he had as to Ridsdale's offending both at Inglewood and Mortlake (and in the case of the 1986 appointment, also as to the incidents at the Catholic Enquiry Centre), was inexcusably wrong.[22]

35 At 5.2.2 of the TJHC's submissions under the heading: 'Where knowledge is clear, and the response was unacceptable', the following submission is made:

Between 1962 and 1964, whilst Ridsdale was at North Ballarat, Bishop O'Collins informed Ridsdale that a complaint had been made against him. Ridsdale's evidence was that he had in fact molested a boy, but that he did not remember if that incident was the one of which Bishop O'Collins spoke to him. Bishop O'Collins warned Ridsdale that he would be 'off the mission', that is, he would no longer be permitted to serve as a priest, if such a thing happened again.

Bishop O'Collins referred Ridsdale to a psychiatrist, Dr Eric Seal. Dr Seal apparently expressed the view to Bishop O'Collins that 'he (Dr Seal) was confident that with the appropriate care, he (Ridsdale) could function well as a priest into the future'.

According to Ridsdale, it was because of that complaint at North Ballarat that Bishop O'Collins moved him to Mildura in 1964, where no supervision or conditions were imposed on him.

Bishop O'Collins subsequently appointed him to Swan Hill (in October 1966, as assistant priest), and to Warrnambool (in 1970, as assistant priest). At Mildura, Swan Hill and Warrnambool, he sexually abused more children.

The Church parties acknowledge that for Bishop O'Collins to appoint Ridsdale to other parishes, after becoming aware that Ridsdale had offended while at North Ballarat, was wrong and unacceptable by any modern standard. However, it is respectfully submitted that, having regard to the evidence of Professor Quadrio and Dr Evans, in the mid-1960s it was not unreasonable for Bishop O'Collins to accept the advice of a psychiatrist that it was appropriate to do so.[23]

36 I was informed by Mr Taylor from the Bar table, without objection, that the Church parties on whose behalf these submissions were made include the Diocese.[24]

37 It is unnecessary for me to express any conclusion in respect of Mr Taylor's submission that the defendants' defence to paragraphs 13 and 15 of the statement of claim is inconsistent with the TJHC's submissions to the Royal Commission set out above. Nevertheless, there does appear to be substance in the plaintiff's contention that the admissions in the TJHC's submissions go well beyond the limited admissions and denials in paragraphs 13 and 15 of the defence.

38 What is relevant for the purposes of the present application is the fact that the TJHC's submissions accept that:

(a) Bishop O'Collins had knowledge between 1962 and 1964 of Ridsdale molesting a minor; and

(b) Bishop Mulkearns had knowledge that, prior to and during Ridsdale's appointment at Mortlake in 1981/82, Ridsdale was engaging in inappropriate sexual behaviour with minors.

39 There is utility in the joinder of the Diocese as a defendant. If the Diocese is joined and nominates a proper defendant, that defendant will incur liability on behalf of the Diocese as if the Diocese 'had been incorporated and capable of being sued'.[25] The TJHC's submissions contain admissions regarding Bishop O'Collins and Bishop Mulkearn's knowledge of Ridsdale's inappropriate sexual behaviour with minors. It is arguable that this knowledge would be imputed to any proper defendant nominated by the Diocese because the proper defendant's liability, on behalf of the Diocese, is determined as if the Diocese is a body corporate.[26]

40 Dr Freckelton submitted that, if the plaintiff is granted leave to amend his pleading in the terms of the PASOC, the breadth of the amendments will impose an unfair burden upon the defendants. In this regard, he pointed to three matters:

(a) The inclusion of numerous canons and instructions in the particulars of the duties and responsibilities of Ridsdale;[27]

(b) The particulars of the second defendant's knowledge of Ridsdale's inappropriate sexual behaviour with minors;[28] and

(c) The particulars of the defendants' knowledge of other priests' inappropriate sexual behaviour with minors.[29]

41 Paragraph four of the statement of claim pleads:

At all material times between in or about July 1961 and November 1993 [Ridsdale] was a priest of the Diocese (a 'Diocesan Priest') and was engaged in priestly duties and responsibilities.[30]

As to paragraph 4, the first and second defendants say that:

(a) they admit that at all material times between in or about July 1961 and November 1993, Ridsdale was a Diocesan Priest;

(b) they otherwise deny the allegations contained in paragraph 4.[31]

43 Paragraph five of the statement of claim pleads:

By reason of his position and his status as a priest during the First Period and the Second Period, up until 18 November 1993, Ridsdale:

(a) was imbued with special authority, power, control, and influence over members of the community;

(b) enjoyed the special trust and confidence members of the community reposed in priests.[32]

44 In paragraph five of their defence the defendants do not admit paragraph five of the statement of claim.[33]

45 Pursuant to s 42(1A) of the Civil Procedure Act 2010 ('Civil Procedure Act'), in a civil proceeding which involves allegations of fact, a legal practitioner making a proper basis certification must certify that, on the factual and legal material available, there is a proper basis for each denial and non-admission in a defence.

46 In paragraph four of their defence, the defendants have denied the allegation that Ridsdale was engaged in priestly duties and responsibilities between July 1961 and November 1993. By paragraph five of their defence, the defendants have not admitted the allegation that, by reason of his position and status as a priest, Ridsdale was imbued with special authority, power, control and influence over members of the community. A question arises as to whether the defendants and their legal representatives have a proper basis for:

(a) the denial that Ridsdale was engaged in priestly duties and responsibilities; and

(b) the non-admission of the allegation that, by reason of his position and status as a priest, Ridsdale was imbued with special authority, power, control and influence over members of the community.

47 What is relevant for the purposes of the present application is that, by their defence, the defendants have joined issue with the allegations in paragraphs four and five of the statement of claim. Paragraph four of the PASOC includes, in the particulars of Ridsdale's duties and responsibilities as a priest, reference to numerous canons and instructions emanating from the Holy See.[34] I accept Mr Taylor's submission that the canons and instructions particularised in paragraph four of the PASOC are relevant to the nature and extent of Ridsdale's priestly duties and responsibilities. These canons and instructions may also be relevant to the allegation in paragraph five of the PASOC that, by reason of his position and his status as a priest, Ridsdale was imbued with special authority, power, control and influence over members of the community.

48 I accept Dr Freckelton's submission that, by reason of the inclusion of the canons and instructions in the particulars of Ridsdale's duties and responsibilities, the defendants will be required to undertake additional work. However, I do not consider this constitutes a legitimate basis for precluding the plaintiff from relying upon the canons and instructions. In circumstances where the defendants have put in issue whether Ridsdale was engaged in priestly duties and responsibilities, the plaintiff is entitled to particularise this allegation by reference to the canons and instructions referred to in the particulars of paragraph four of the PASOC.

49 Dr Freckelton submitted that the particulars in paragraph 13 of the PASOC, regarding the defendants' knowledge of Ridsdale's inappropriate sexual behaviour, extend well beyond the admissions in the submissions made to the Royal Commission. In this regard, Dr Freckelton referred to the particulars in respect of:

• The Warrnambool allegations - about 1972;
• The Ballarat East confessional abuse - about 1972;
• Apollo Bay - about 1974;
• The Edenhope incidents - about 1977;
• The National Pastoral Institute - about 1980.[35]

50 The submissions made by the TJHC to the Royal Commission do not appear to contain express admissions that Bishop Mulkearns had knowledge of any inappropriate sexual behaviour by Ridsdale in respect of the five matters set out above. However, under the heading 'Objective facts', submissions were made in respect of Apollo Bay, Edenhope and the National Pastoral Institute as follows:

Between about September 1973 and February 1975, Ridsdale was the parish priest of Apollo Bay. Apollo Bay is on the south coast of Victoria, approximately 170 kilometres south of Ballarat. There were no other priests appointed to Apollo Bay while Ridsdale was at Apollo Bay. During his time there he sexually abused a number of children.

Ridsdale gave evidence that his time at Apollo Bay came to an end because in about January 1975, he was approached by a man in the community who said 'They are saying things down at the pub about you and kids'. Ridsdale said he thereupon requested a transfer. He could not recall the process for that request, but the request was granted. There is no evidence that either Bishop Mulkearns or any other diocesan personnel knew of the reason for Ridsdale's requesting a transfer.[36]

...

On 18 March 1976, Ridsdale was appointed the Administrator of the parish of Edenhope. He was subsequently, on 19 July 1977, appointed the parish priest of Edenhope. Edenhope is in in the far west of Victoria, approximately 280 kilometres west of both Ballarat and Inglewood, and the parish extends west to the South Australian border. There were no other priests appointed to Edenhope while Ridsdale was at Edenhope. He remained there until early 1980. During this time, he sexually abused a large number of children, including David Ridsdale.

During 1980, Ridsdale undertook a year of study leave at the National Pastoral Institute in Melbourne. During this time, he again sexually abused children, including David Ridsdale and Paul Levey.[37]

51 By their defence, the defendants have put in issue the extent of Bishop Mulkearn's knowledge of Ridsdale's inappropriate sexual behaviour with minors prior to Ridsdale's appointment to Mortlake. Dr Freckelton submits that, if the plaintiff is permitted to include particulars in respect of incidents which have not been the subject of admissions to the Royal Commission, the defendants will be required to undertake substantial additional work in preparation for trial.[38] I do not consider that the prospect of the defendants being required to undertake substantial additional work is a legitimate basis for precluding the plaintiff from alleging that the defendants had knowledge of Ridsdale's inappropriate sexual behaviour on occasions other than those which have been the subject of specific admissions before the Royal Commission.

52 The defendants have put squarely in issue the extent of Bishop Mulkearn's knowledge of Ridsdale's inappropriate sexual behaviour, save for the admission in respect of the Inglewood complaint in 1975. It is appropriate that the plaintiff be given leave to amend his statement of claim to fully particularise the allegation that Bishop Mulkearns had knowledge of Ridsdale's offending prior to his appointment to Mortlake.

53 Paragraph 13(c) of the PASOC alleges that the second and/or third defendants knew of other priests within the Diocese that had abused minors.[39] The particulars of this allegation refer to Brother Gerald Leo Fitzgerald, Brother Stephen Farrell, Monsignor John Day, Father Paul Ryan and Father Michael Glennon. Dr Freckelton submitted that the plaintiff should not be permitted to allege that the defendants had knowledge of the offending of other clergy. He submitted that to permit the plaintiff to do so would result in a proliferation of issues for determination, in breach of the Civil Procedure Act. He submitted that '[t]he fact that somebody else, at some stage, behaved in an untoward way is not to the point'.[40]

54 I do not accept this submission. First, evidence of widespread sexual abuse of minors within the Diocese during the period preceding the sexual abuse of the plaintiff by Ridsdale may bear upon the defendants' duty of care to have taken steps to prevent Ridsdale from sexually abusing the plaintiff. Second, evidence of widespread sexual abuse of minors prior to March/April 1982 may be relevant to the plaintiff's claim for aggravated and/or exemplary damages. I reject the defendants' contention that the plaintiff should be precluded from pleading the particulars of knowledge regarding the offending of other priests.

55 The PASOC makes allegations referable to two discrete periods:

(i) 1 May 1941 to 30 April 1971 ('the first period');[41] and

(ii) 1 May 1971 to 30 May 1997 ('the second period').[42]

56 Allegations which post-date Ridsdale's tenure as parish priest of Mortlake are not relevant to either the existence or breach of any duty of care which the defendants owed the plaintiff. I will not grant leave to the plaintiff to file the PASOC in its current form. The second period should be confined to the period 1 May 1971 to 31 October 1982, when Bishop Mulkearns removed Ridsdale from Mortlake.

57 Confining the second period to 1 May 1971 to 31 October 1982 will necessitate amendment to the following periods of time specified in the PASOC:

• 'July 1961 and November 1993';[43]
• '18 November 1993';[44]
• '18 November 1993';[45]
• '18 November 1993'[46]
• '18 November 1993'.[47]

In each instance the relevant period will need to be confined to the period ending 31 October 1982. Although this will result in an amendment to the substantive allegations in each of the paragraphs referred to above, the particulars of the allegations as currently set out in the PASOC do not refer to any specific conduct which post-dates October 1982.

58 The observations set out above do not apply in respect of (xxix) and (xxx) of the particulars of paragraph 13 of the PASOC. These particulars refer to a decision of Catholic Church Insurance Limited in 1993 that it would not indemnify Bishop Mulkearns and/or the Diocese for the acts and/or omissions of Ridsdale post 31 December 1975 on the basis that Bishop Mulkearns and the Diocese had prior knowledge of Ridsdale's abuses for any abuse occurring on or after 31 December 1975. Although the decision not to indemnify was made in 1993, it relates to conduct engaged in by Ridsdale prior to October 1982.

59 In paragraphs 24 to 26 of the PASOC the plaintiff claims aggravated and exemplary damages. I accept that it is arguable that conduct of the defendants which post-dates October 1982 may be relevant to the assessment of aggravated and/or exemplary damages.[48]

60 If the plaintiff wishes to rely upon conduct subsequent to October 1982 in support of his claim for aggravated and/or exemplary damages, the relevant conduct will need to be particularised. It will also be necessary for the statement of claim to set out the basis upon which the plaintiff relies upon such conduct in aid of his claim for aggravated and/or exemplary damages.

61 The PASOC names the RCT as fourth defendant. The sole claim pleaded against the RCT is a claim for breach of occupiers' duty as follows:

At all times material the Fourth Defendant was the occupier and/or owner of the premises pursuant to s.14B of the Wrongs Act 1958 (as amended ("the Wrongs Act")) and the Fourth Defendant owed a duty to the Plaintiff, under the Wrongs Act to take such care as in all the circumstances of the case was reasonable to see that any person on or at the premises would not be injured or damaged by reason of the state of the premises or of the things done or omitted to be done in relation to the premises.

Further, or in the alternative, the Fourth Defendant was in breach of its statutory duty pursuant to the Wrongs Act in that it failed to take such care as in all the circumstances of the case was reasonable to see that the Plaintiff was not injured or damaged on the premises by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.[49]

62 Section 14B(3) of the Wrongs Act 1958 provides:

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or things done or omitted to be done in relation to the state of the premises.

63 The plaintiff submits that the phrase 'state of the premises' in s 14B(3) is not confined to the physical condition of the premises but extends to a situation, namely, the presence of Ridsdale on the premises at a given point in time. The defendants submit that the sexual assault of the plaintiff by Ridsdale had nothing to do with the state of the premises where the assault took place or of the things done or omitted to be done in relation to the state of the premises. They submit that the claim has no reasonable prospect of success and should not be permitted.

64 The plaintiff's claim in occupiers' liability is novel. The Court's attention has not been drawn to any authority which in terms supports the proposition that the presence of an individual on a premises falls within the ambit of the phrase 'state of the premises' in s 14B(3).

65 Notwithstanding the absence of any authority directly on point, I am not satisfied that the claim in paragraphs 20 and 21 of the PASOC has no real prospect of success.[50]

66 First, s 14B(3) uses the phrase 'state of the premises' in contradistinction to the phrase 'the physical condition of the premises'. It is certainly arguable that the phrase 'state of the premises' is broader than the 'physical condition of the premises'.

67 Second, the plaintiff submits that the presence of Ridsdale on the premises at St Colman's, at a time when he was known to be in engaging in inappropriate sexual behaviour with minors, was a circumstance or attribute for the purposes of the state of the premises which enlivens the duty under s 14B(3). This submission derives support from the Oxford English Dictionary definition of the word 'state':

Condition, manner of existing. A combination of circumstances or attributes belonging for the time being to a person or thing; a particular manner or way of existing, as defined by the presence of certain circumstances or attributes; a condition.[51]

68 The plaintiff's submission is also supported by a judgment of the Supreme Court of the Australian Capital Territory, Hartigan v Commissioner for Social Housing in the Australian Capital Territory.[52] In Hartigan, the defendant's liability as an occupier of the premises was said to arise under s 168(1) of the Civil Law (Wrongs) Act 2002 (ACT), which provided as follows:

(1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of -

(a) the state of the premises; or

(b) things done or omitted to be done about the state of the premises.

69 Penfold J, when considering the meaning of the phrase 'the state of the premises' in s 168(1), stated:

I would not rule out the possibility that the presence of a dog on premises could be treated as an aspect of the physical condition of the premises; for instance, the presence of guard dogs left by a temporarily absent occupier might give rise to conventional occupiers' liability in certain circumstances.[53]

70 Arguably, the presence of Ridsdale is analogous to the presence of a dangerous guard dog left on premises by an occupier. If the presence of a dangerous guard dog on premises can be an aspect of the physical condition of the premises, so too, the presence of a person known to have sexually abused minors can be an aspect of the physical condition of the premises.

71 The plaintiff will be permitted to plead paragraphs 20 and 21 of the PASOC.

72 The proceeding is listed for trial before judge alone on 12 August 2019. However, by reason of the amendment of the pleading to join the Diocese as third defendant, it is highly likely that the trial will not be able to proceed on 12 August 2019. Upon the amendment of the statement of claim to join the Diocese as a defendant, unless the Court otherwise orders, the Diocese has 120 days within which to nominate a proper defendant.[54]

73 If the Diocese does not nominate a proper defendant within the 120-day period, the plaintiff may apply to the Court for an order that the claim against the Diocese is to proceed against the trustees of an associated trust of the Diocese as a proper defendant.[55] Putting to one side any other interlocutory steps which arise out of the amendment of the pleading, if the Diocese utilises the full 120-day period for the purposes of nominating a proper defendant, the trial will not be able to commence prior to October 2019.

74 The practical consequence of the joinder of the Diocese as a defendant is that the defendants' submissions based upon prejudice flowing from the amendments in light of the proximity of the trial date of 12 August 2019 are ameliorated. Assuming the Diocese utilises the full 120-day period for the purposes of nominating a proper defendant, this period of time shall afford the defendants the opportunity to undertake further investigations in relation to the expanded allegations of the knowledge of the defendants of Ridsdale's inappropriate sexual behaviour with minors and the allegations of the defendants' knowledge of inappropriate sexual behaviour of other priests with minors.

Civil Procedure Act

75 I propose to provide the parties with an opportunity to file submissions addressing the question of whether any aspect of the defence dated 1 May 2018 constitutes a breach of the overarching obligations of the defendants and their legal representatives under Parts 2.3 and 4.1 of the Civil Procedure Act. I am satisfied on the basis of the material presently before the Court that a question arises as to whether paragraphs 13 and 15 of the defence are inconsistent with admissions contained in submissions made by the TJHC to the Royal Commission. I am also satisfied that a question arises as to whether the defendants' legal representatives have a proper basis for the denial in paragraph 4 of the defence and the non-admission in paragraph 5 of the defence.

76 If I am satisfied that there has been a breach of any overarching obligations, it will be necessary to consider whether it is appropriate, in the interests of justice, to make any of the orders prescribed by ss 29(1) and 46 of the Civil Procedure Act.

77 The plaintiff will be granted leave to file an amended statement of claim substantially in the form of exhibit JCL1 to the affidavit of Christine Atmore affirmed 26 March 2019. The second period is to be amended and confined to the period 1 May 1971 ending 31 October 1982.[56] Consequential amendments will need to be made to the time periods specified in paragraphs four, five, six, 16, 17 and 18.

78 I shall provide the parties with an opportunity to make submissions in respect of the costs of the plaintiff's summons filed on 28 March 2019. However, it may be appropriate to defer consideration of that issue until after the parties have filed submissions addressing issues arising under the Civil Procedure Act.

[1] Plaintiff, 'Statement of Claim', 20 February 2018, [12].

[2] First and second defendants, 'Defence', 1 May 2018, [12].

[3] Plaintiff, 'Statement of Claim', 20 February 2018, [2].

[5] [2007] NSWCA 117; (2007) 70 NSWLR 565.

[6] Transcript of proceeding (6 May 2019), 17.18-17.23.

[7] Exhibit JCL1 to the affidavit of Christine Atmore affirmed 26 March 2019, [3A]-[3B].

[8] First and second defendants, 'Submissions by defendants in relation to an application to amend the plaintiff's statement of claim', 2 May 2019, [24].

[9] Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143, [1]-[2], [99]-[102].

[10] In this respect, the Act may be contrasted with s 24AS of the Wrongs Act 1958.

[11] Braeside Bearings Pty Ltd v HJ Brignell & Associates (Boronia) [1996] VSC 348; [1996] 1 VR 17, 20. See also Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221, 253-4 [156].

[12] In this respect, s 4(3) can be contrasted with s 93 of the Wrongs Act 1958, which provides that 'Part XIII - Organisational liability for child abuse' applies to abuse of a child that occurs on or after the day on which the Wrongs Amendment (Organisational Child Abuse) Act 2017 comes into operation.

[13] Victoria, Parliamentary Debates, Legislative Assembly, 7 March 2018, 596 (Martin Pakula, Attorney-General).

[14] Interpretation of Legislation Act 1984 (Vic) s 35(a).

[15] Plaintiff, 'Statement of Claim', 20 February 2018, [13].

[17] First and second defendants, 'Defence', 1 May 2018, [15].

[18] See tab 20 of 'Plaintiff's Bundle of Documents and Authorities' relied on during the hearing on 6 May 2019.

[19] Ibid 47-48 [277]-[279] (emphasis in original) (citations omitted).

[20] Ibid 51-52 [308] (emphasis in original) (citations omitted).

[23] TJHC's submissions to the Royal Commission at tab 20 of 'Plaintiff's Bundle of Documents and Authorities' relied on during the hearing on 6 May 2019, 50 [295]-[299] (emphasis in original) (citations omitted). See also exhibit JCL5 to the affidavit of Christine Atmore affirmed 5 April 2019, [295]-[299].

[24] Transcript of proceeding (6 May 2019), 81.08-81.12. See also TJHC's submissions to the Royal Commission at tab 20 of 'Plaintiff's Bundle of Documents and Authorities' relied on during the hearing on 6 May 2019, 2 [1].

[25] Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) s 7(2)(b).

[26] Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, 582-83; Brambles Holdings Ltd v Carey (1976) 15 SASR 270, 276; Pacific National (ACT) Ltd v Queensland Rail [2006] FCA 91, [61].

[27] See exhibit JCL1 to the affidavit of Christine Atmore affirmed 26 March 2019, [4].

[30] Plaintiff, 'Statement of Claim', 20 February 2018, [4].

[31] First and second defendants, 'Defence', 1 May 2018, [4].

[32] Plaintiff, 'Statement of Claim', 20 February 2018, [5].

[33] First and second defendants, 'Defence', 1 May 2018, [5].

[34] Exhibit JCL1 to the affidavit of Christine Atmore affirmed 26 March 2019, [4].

[35] Transcript of proceeding (6 May 2019), 51.03-51.28.

[36] TJHC's submissions to the Royal Commission at tab 20 of 'Plaintiff's Bundle of Documents and Authorities' relied on during the hearing on 6 May 2019, 46 [266]-[267] (emphasis in original) (citations omitted).

[37] Ibid 47 [275]-[276] (citations omitted).

[38] Transcript of proceeding (6 May 2019), 44.13-44.21.

[39] Exhibit JCL1 to the affidavit of Christine Atmore affirmed 26 March 2019, [13(c)].

[40] Transcript of proceeding (6 May 2019), 38.07-38.08.

[41] Exhibit JCL1 to the affidavit of Christine Atmore affirmed 26 March 2019, [2].

[43] Exhibit JCL1 to the affidavit of Christine Atmore affirmed 26 March 2019, [4].

[48] Harold Luntz, Assessment of damages for personal injury and death: general principles (LexisNexis Butterworths, 2006) 97; P v R [2010] QSC 139, [38], [41]-[42]; Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 71.

[50] See Civil Procedure Act 2010 s 63.

[51] Oxford English Dictionary (2nd ed, 1989) 'state' (def 1) (emphasis added).

[52] [2017] ACTSC 100; (2017) 319 FLR 158 ('Hartigan').

[56] Exhibit JCL1 to the affidavit of Christine Atmore affirmed 26 March 2019, [3(b)].