Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore

Supreme Court of NSW|2019-12-04|Before: Beech-Jones J

Solicitors: Porters Lawyers (Plaintiff) Hannigans Solicitors (Defendant) File Number(s): 2018/252291

Judgment

This judgment concerns a notice of motion filed by the defendant seeking a permanent stay of proceedings commenced in 2018 involving an allegation of historical sexual abuse perpetrated by a priest on the plaintiff in the 1940's when she was very young. The alleged perpetrator died in 1957. For the reasons that follow, a permanent stay should be granted.

The Proceedings

On 11 April 2018, the plaintiff's solicitors wrote to "St Agnes' Catholic Parish" in Port Macquarie (the "Parish") putting it on notice of a claim by the plaintiff in respect of her being sexually abused by a priest from the Parish, Father John Curran, "in or about 1950". On 13 August 2018, the plaintiff served a psychiatrist's report.
Proceedings were commenced on 16 August 2018. The plaintiff sues the Trustees of the Roman Catholic Church for the Diocese of Lismore (the "Trustees" and the "Diocese" respectively). In her statement of claim, the plaintiff alleges that "during 1945 or 1946" she was sexually assaulted by Father John Curran who was then a Priest appointed to the Parish. The plaintiff sues the Trustees in negligence, alleging that it had care and control of the Parish and St Agnes Church in Port Macquarie (the "Church") and was obliged to take various steps to address the risk of parishioners being sexually assaulted by, inter alia, priests such as Father Curran. It was also pleaded that the Trustees are vicariously liable for the sexual abuse committed by Father Curran.
From September to November 2018, there was an exchange of particulars. In October 2018, the plaintiff served her evidentiary statement dated 10 July 2018. In January 2019, the plaintiff caused subpoenas to be issued. On 15 March 2019, the Trustees filed a defence. It did not admit any relevant fact. In May 2019, the parties participated in a mediation which was obviously unsuccessful. As noted, by notice of motion filed 26 June 2019, the Trustees sought a stay of the proceedings.

Plaintiff's Affidavit

The plaintiff swore an affidavit dated 22 July 2019. She stated that she was born in September 1937. She attended St Joseph's Catholic School in Port Macquarie from age 5 to age 15. The school was in the same grounds as the Church. The plaintiff recalled two priests at the Church, Father Curran and Father Leo Donnelly. She stated that when she was about "12 or 13 years old" she stayed after school to clean the Altar. She described being sexually assaulted by Father Curran in his bedroom "which was across the path from the Church". It is unnecessary to recite the details other than to state that it clearly would have been a deeply distressing and traumatic event. There is a discrepancy between the plaintiff's affidavit and the statement of claim. The affidavit states the assault occurred at the time the plaintiff turned 12, being September 1949, whereas the statement of claim pleads that the sexual assault took place in 1945 or 1946. In the end result, nothing turns on this difference.
In the balance of her affidavit, the plaintiff describes leaving school at age 15, her difficulties in maintaining work and her 52 years of marriage from 1963 until her husband passed away in 2015. It is only necessary to note two matters about this aspect of her affidavit. First, the plaintiff describes various social and psychological difficulties she experienced which she attributes to the sexual assault. Second, the plaintiff's affidavit reveals that the first time she advised anyone of the assault was in recent years after her husband died. [1]
According to the plaintiff's affidavit, in March 2018 she contacted Father Donnelly. They spoke on the telephone. Ms Ward stated that she did not mention her married name but instead introduced herself as "Judith Boswell". At one point during the conversation she told him that there was "something [that] has been on my mind since I was a little girl." The plaintiff started to recount her abuse by Father Curran. [2] The plaintiff stated that Father Donnelly interrupted her and said "I know" and then stated: "I have thoroughly conducted my own investigations into Father Curran's behaviour. One 8-year-old girl told me that Father Curran had raped her on her way home from helping with the Bingo and that she never ever wanted Father Curran to pick her up or come near her. Another 8 year... old had told me a similar thing. I believed them. I investigated Father Curran thoroughly, and [he] had a habit of calling little girls … into his room."
The plaintiff states that Father Donnelly said he did not telephone the police but he had "eventually … gotten him fired". Father Donnelly is also reported as saying that Father Curran told the Church "he was reformed", and that he was "reinstated and sent to another parish", although Father Donnelly asked priests in the new parish to "keep an eye" on him. [3] The plaintiff stated that Father Donnelly said that Father Curran died some years ago and "[n]ow God can deal with him".

Defendants' Affidavits

The Trustees read three affidavits, an affidavit sworn by Gregory Bernard Isaac on 24 June 2019, an affidavit sworn by Julie Patston on 25 June 2019 and an affidavit sworn by their solicitor, Francis Hannigan, on 3 December 2019. Mr Hannigan's affidavit simply outlines the course of the proceedings to date. Its contents are reflected in the above summary.
Mr Isaac is the Secretary and Diocese Business Manager for the Trustees. Mr Isaac states that he had caused a search to be undertaken of the Diocese's records and that he "cannot find any other allegations against Father John Curran". Annexed to his affidavit is a history of Father Curran's and Father Donnelly's appointments within the Diocese. [4] Father Curran's records reveal that he was ordained on 18 December 1926. He was appointed the Priest in Charge of the Church from 19 May 1941 to 8 April 1954 when he is described as having "resigned". He was appointed the Priest in Charge of Coffs Harbour on 30 May 1955. Father Curran died in Coffs Harbour on 20 October 1957. Father Donnelly was ordained on 21 December 1950 and appointed "Assistant" at the Church from November 1951 to 1 December 1954. [5] After various other appointments in the intervening period, he was appointed "Parish Priest" at the Church (ie, at the St Agnes Church in Port Macquarie) from 12 March 1970 to 16 March 2018. He died in Sydney on 23 January 2019 at the age of 91.
In his oral evidence, Mr Isaac stated that he commenced working for the Diocese in 2000 and had access to the Diocese's archives. [6] In his affidavit, he stated that "at the relevant time he was retired" Father Donnelly had no "authority" to conduct any investigation for or on behalf of the Diocese and that at the time of the conversation with the plaintiff, Father Donnelly would have been aware of the then prevailing requirements within the Diocese to "report such matters to [the] appropriate authorities". [7]
In his affidavit, Mr Isaac stated that, after "due search and enquiry", he could not locate any documents referring to any conversation between the plaintiff and Father Donnelly [8] and he could not locate any records relating to the events described by the plaintiff arising from her conversation with Father Donnelly; ie, complaints of sexual abuse against Father Curran [9] or any record his having been "fired", suspended or "de-frocked". [10] Mr Isaac noted that in January 2019 the plaintiff caused to be issued subpoenas to the Catholic Church's "NSW/ACT Professional Standards Office", the New South Wales Police Force, the "NSW Office of the Director of Public Prosecutions" and the Trustees. In broad terms, the subpoenas sought documents concerning any allegations or charges against Father Curran or documents concerning his resignation or removal in 1954. No documents were produced.
In his oral evidence, Mr Isaac said he had no knowledge of whether there were any systems for recording complaints made against priests in the 1940's or 1950's, [11] although he had seen material concerning complaints made against other priests during that period. [12] He said that there were no documents concerning Father Curran's resignation in 1954 (other than the history of appointments attached to his affidavit). [13] At one point in explaining the dearth of material concerning Father Curran, Mr Isaac stated (in reference to the plaintiff) "Well, you've got everything that we've got." [14]
In her affidavit, Ms Patston states that she is the "Safeguarding Manager" for the Trustees. She states that she read an evidentiary statement of Ms Ward dated 10 July 2018, which referred to the conversation with Father Donnelly noted above at [7]. On 21 August 2018, Ms Patston travelled to Port Macquarie and met with Father Donnelly who was by then "aged about 90". Father Donnelly advised her that he did not want the conversation recorded and would not "sign anything" as he was "concerned about [his] memory". [15] According to Ms Patston, she asked Father Donnelly about whether he could recall being telephoned by Judith Ward. Father Donnelly said he did and recalled her saying that Father Curran "took her into his room." [16] However, Father Donnelly denied saying that he knew she had been abused or telling her that he heard a story about Father Curran "raping two 12-year olds". He said he did not telephone the police in relation to Father Curran or the plaintiff. The balance of the conversation recorded in Ms Patston's affidavit is as follows: [17] [Ms Patston]: "Did you tell Judith Ward that you were responsible for getting Fr Curran fired?" Fr Donnelly said: "No. But I did request his transfer to another Parish. This was for an adult relationship Curran had in 1954." [Ms Patston]: Did you tell Judith Ward that Fr Curran was then reinstated and sent to another Parish? Fr Donnelly said: "No." [Ms Patston]: "Did you say to Judith Ward 'Now God can deal with him' when referring to Fr Curran?" Fr Donnelly said: "Yes but not in those words. I ended the conversation by saying he's gone to God now and he can answer to him like we all do."
In her oral evidence, Ms Patston explained that she took handwritten notes during her discussion with Father Donnelly and prepared typed notes from those notes afterwards. [18] A copy of the typed notes was attached to her affidavit. [19] Those notes include a reference to Father Donnelly advising Bishop Farrelly of Father Curran's "adult violation" and that he, being Father Donnelly, requested Father Curran's transfer. Ms Patston stated that Bishop Farrelly is deceased. [20]

Stay: Principles

On 17 March 2016, the Limitation Act 1969 was amended by the inclusion of s 6A which removed any limitation period for any action for damages relating to the death of or personal injury to a person "resulting from an act or omission that constitutes child abuse" (s 6A(1); inserted by the Limitation Amendment (Child Abuse) Act 2016). The effect of s 6A(6) was to preserve the Court's power to stay proceedings, including the power to "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" (see note to s 6A(6)).
There are a number of sources of the Court's power to grant a stay including s 67 of the Civil Procedure Act 2005 (see Moubarak by his Tutor Coorey v Holt [2019] NSWCA 102 at [68]; "Moubarak"). The Report of the Royal Commission that documented the long national nightmare of institutional child sexual abuse, and recommended the removal of the limitation period for such claims, pointed to the Court's power to stay proceedings to protect defendants from unfairness occasioned as a result of the passage of time (Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (September 2015), at 53 (Recommendations 85 to 87) and 457; see Moubarak at [34] to [38]).
A permanent stay is an exceptional remedy (Williams v Spautz (1992) 174 CLR 509 at 529; [1992] HCA 34 per Mason CJ, Dawson, Toohey and McHugh JJ; "Spautz") and a defendant bears the onus of establishing that it should be granted (Spautz at 529 per Mason CJ, Dawson, Toohey and McHugh JJ). There are various formulations of the relevant test for the grant of a stay all of which emphasise the heavy burden imposed on a defendant who seeks such a stay. Those formulations include that the effect of the proceedings is "seriously and unfairly burdensome, prejudicial or damaging" (Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247 per Deane J; [1988] HCA 32); that their continuation would be manifestly unfair to a party (Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 per Mason CJ, Deane and Dawson JJ'; "Walton"; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [6] per Gleeson CJ, Gummow, Hayne and Crennan JJ; "Batistatos"); and their continuation would bring the administration of justice into disrepute amongst right-thinking people (Walton at 393 per Mason CJ, Deane and Dawson JJ; Batistatos at [6] per Gleeson CJ, Gummow, Hayne and Crennan JJ).
The circumstances in which a stay of proceedings may be ordered are not limited to any existing category of case (Moubarak at [71]). That said, one common circumstance that warrants consideration of whether to order such a stay is where "[d]elay impoverishes the evidence available to determine [a] claim" (Abdulla v Birmingham City Council [2012] UKSC 47; [2013] 1 All ER 649 at [41] per Lord Sumption). While delay itself may not be sufficient, its effect on the availability of the evidence to determine a claim may have the ultimate effect of rendering it a "practical impossibility [for a] defendant [to have] any real opportunity to participate in the hearing, to contest [the proceedings] or, if it should be right to do so, to admit liability on an informed basis", such that in the end result "[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" (Newcastle City Council v Batistatos; Roads & Traffic Authority of NSW v Batistatos [2005] NSWCA 20 at [80] per Bryson JA cited in Batistatos at [54]).
In cases where no limitation period or its equivalent is in play, there is no obligation on a plaintiff to provide a proper or satisfactory explanation for any delay in the commencement of the proceedings (Moubarak at [75]). Instead, the relevant issue is the objective effect of the delay on the fairness of the trial (Moubarak at [76] and [156]; Batistatos at [70] per Gleeson CJ, Gummow, Hayne and Crennan JJ).
After reviewing the cases establishing these principles, Bell P in Moubarak concluded that "[o]ne circumstance in which a permanent stay will be appropriate is where it is demonstrated, on the balance of probabilities, that it will not be possible to obtain a fair trial" (at [88]) bearing in mind that a "fair trial" is not the same as a "perfect trial" (at [89]). In Moubarak, the appellant, who suffered from severe dementia, was sued by the respondent, his niece, who alleged that he sexually assaulted her 42 years previously. Bell P noted various salient features that warranted the stay, specifically that at no stage prior to the onset of dementia was the appellant ever confronted with the allegation or the allegation reported to police, that the dementia was advanced at the time the proceedings were commenced, that there were no eyewitnesses rendering any inquiries of limited significance and that the dementia rendered the appellant unfit to give evidence or instructions (Moubarak at [162] to [168]). While it was accepted that there were some steps that the appellant's tutor could take on his behalf, such as cross‑examining the respondent to explore inconsistencies in her evidence, it was found that none of them "would make up for the fact that the [appellant] was, because of his mental condition, at all relevant times utterly in the dark about the allegations made against him and quite unable to give instructions in relation to them" (Moubarak at [158]).

A Stay Must be Granted

A consideration of the evidence summarised above reveals that with more than 70 years having elapsed since the sexual abuse complained of is said to have occurred there is simply no means by which there could be a fair trial of the plaintiff's claim. There were only two potential eyewitnesses to the sexual assault, namely the plaintiff and Father Curran. Father Curran has been dead for over sixty years. There is nothing to suggest that during his lifetime he was confronted with the plaintiff's allegations. There are no documents currently in existence bearing on the allegations and nor is there anything to suggest that there ever were any such documents. There is no suggestion that any complaint or report was made to anyone about the plaintiff being sexually abused in the immediate years that followed its occurrence. Leaving aside Father Donnelly, there is nothing to suggest that any third person, party or agency was ever given the opportunity to investigate the plaintiff's allegations or any allegation of sexual abuse against Father Curran during his lifetime or even after he died. The position so far as a fair trial is concerned is much worse than that which was considered in Moubarak. The Trustees are "utterly in the dark about the allegations made" against Father Curran themselves and there does not exist any means by which the conduct of the trial could relieve the consequences of the effect of the passage of time (Moubarak at [158]). It follows that it is not possible for there to be a fair trial of the plaintiff's allegations. The Trustees would not have any "real opportunity to participate in the hearing, or contest them, or … to admit liability on an informed basis" with the consequence that any hearing would be "[n]o more than a formal enactment of the process of hearing and determining the plaintiff's claim" (Newcastle City Council v Batistatos; Roads and Traffic Authority NSW v Batistatos [2005] NSWCA 20 at [80]).
These conclusions are not affected by considering the evidence of the discussions with Father Donnelly noted above. During the hearing, Senior Counsel for the Trustees foreshadowed an objection to the reception of the plaintiff's evidence of her conversation with Father Donnelly on the basis that it was hearsay and that the hearing of the motion was effectively a form of final relief such that s 75 of the Evidence Act 1995 could not be relied on to support the admission of evidence of the conversation (see Collex Waste Management Pty Ltd v The Waste Recycling & Processing Service of New South Wales [1999] FCA 787). At the hearing of the motion I indicated that I would reserve my decision on the reception of the evidence and decide the matter without making a finding as to whether or not either of the plaintiff or Ms Patston fairly recounted what Father Donnelly told them.
Insofar as admissibility is concerned, the evidence is admitted. Even if s 75 of the Evidence Act is not engaged, the evidence is relevant for a non‑hearsay purpose on this application, namely as evidence of the result of the only possible inquiry that could conceivably have been made following the Trustees being notified for the first time of the plaintiff's allegations. The same applies to Ms Patston's evidence of her conversation with Father Donnelly.
Counsel for the plaintiff put to Ms Patston that her affidavit does not accurately set out the events that occurred on 21 August 2018, a proposition she denied. [21] I do not accept that there is any reason to doubt Ms Patston's evidence of what Father Donnelly told her. It was also suggested that Ms Patston did not ask Father Donnelly about the correct person because Ms Patston referred to the plaintiff by her married surname "Ward", rather than the surname the plaintiff said she used in her conversation with Father Donnelly, being "Boswell". However, both conversations appear to be referable to the plaintiff. In any event, the version of events that Ms Patston recounts Father Donnelly as providing is inconsistent with the version of events he is said to have recounted to the plaintiff. With the former, the suggested reason for his removal from the Parish was an "adult violation", whereas with the latter it was child sexual abuse.
The relevant possibilities appear to be that either the plaintiff or Ms Patston provided an inaccurate recount of their conversation with Father Donnelly or that Father Donnelly provided inconsistent accounts. In the end it does not matter. Accepting for the purposes of deciding this notice of motion that the plaintiff has accurately recounted what Father Donnelly told her, the information he imparted does not affect the findings above at [22]. In his conversation with the plaintiff, Father Donnelly did not purport to state that he had any direct or even indirect knowledge of the plaintiff's allegations against Father Curran. The effect of the conversation was only that he had received allegations concerning other children which were consistent with the plaintiff's allegations. Father Donnelly only commenced work in the Diocese in November 1951, which was between two and six years after any sexual abuse of the plaintiff allegedly occurred. The plaintiff's evidence of Father Donnelly's description of the complaints made to him suggests that he received complaints about child sexual abuse during that time but, other than receiving that information, there is no information of what his own investigations involved. Beyond the reference to Father Donnelly stating he told the "Church that he [ie, Father Curran] was reformed", there is nothing in the plaintiff's recounting of the conversation to indicate that the Church was advised of the details of any such complaints, much less a complaint concerning the plaintiff. There is nothing to suggest that Father Curran was confronted with any allegations concerning the plaintiff while he was still alive. As previously noted, there are no documents that relate to any of the matters stated by Father Donnelly to the plaintiff.
The matters divulged by Father Donnelly to the plaintiff do not of themselves provide the Trustees with any material which would assist it in now meeting the plaintiff's case against it. At most, they simply indicate that Father Donnelly was a potential line of inquiry available to the Trustees. The Trustees pursued that line of inquiry via Ms Patston and it did not assist in enabling it to "participate in [a] hearing, or contest [the plaintiff's allegations] or … admit liability on an informed basis" (cf Newcastle City Council v Batistatos; Roads and Traffic Authority NSW v Batistatos supra; see also The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 at [477] per Bathurst CJ). Counsel for the plaintiff submitted that the Trustees were somehow dilatory in failing to apply to have Father Donnelly's evidence taken on commission in 2018 given his advancing age. [22] When pressed on what evidence relevant to a trial Father Donnelly could have given, Counsel for the plaintiff accepted that at most it would be evidence of complaints of sexual abuse against children by Father Curran that occurred prior to the abuse of the plaintiff [23] or that otherwise he could have denied that the conversation with the plaintiff occurred in the manner in which she contended which could be then used to attack her credit. [24] In relation to the former topic, given that Father Donnelly was not appointed to any position within the Diocese until 1951, I do not accept that he could have given any such evidence. Otherwise, evidence on either topic does not enhance the Trustees' ability to address the substance of the plaintiff's case or otherwise make an informed decision to admit liability.
In his written and oral submissions, Counsel for the plaintiff sought to distinguish this case from Moubarak on the basis that the Trustees have not denied the plaintiff's allegations but instead only not admitted them in their defence. [25] However, that only reinforces the conclusion that there would be unfairness occasioned to the Trustees if the trial was to proceed. As the Trustees have no material of any kind to enable them to evaluate the plaintiff's claim, they are not in a position to determine whether or not to admit or deny any relevant fact. It is for that very reason that they cannot meaningfully participate in the proceedings.
Finally, Counsel for the plaintiff submitted that the Court had a discretion to grant a stay and, given the delay in the application, the discretion should not be exercised in favour of the Trustees. [26] Although in one sense the power to grant a stay can be described as "discretionary", that means no more than that the circumstances in which it will be exercised cannot be described exhaustively (Batistatos at [7]). It does not mean that there is "a discretion to refuse to stay proceedings that are an abuse of process" (R v Carroll (2002) 213 CLR 635 at [73] per Gaudron and Gummow JJ, cited in Batistatos at [7]). In this case, the continuation of the proceedings amounts to an abuse of process. Otherwise, I do not accept that there has been an undue delay in the filing of the notice of motion, although it would have been preferable if it had been foreshadowed at an earlier time than the mediation between the parties.

Conclusion and Orders

Accordingly, I am satisfied that the continuation of these proceedings would be manifestly unfair to the Trustees. To allow them to proceed would bring the administration of justice into disrepute amongst right-thinking people. It follows that I will uphold the defendant's application for a stay.
The plaintiff contended that, even if a stay was granted, she should receive an order for her costs given the Trustee's alleged tardiness in applying for the stay. Reliance was placed on Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188, in which the application for a stay was only filed just prior to an allocated hearing date and as a consequence the successful appellant was ordered to pay the unsuccessful respondent's wasted costs in preparation of the trial (at [34]). Given the finding at [29], no basis for such an order has been shown. Otherwise I note that Senior Counsel for the defendant advised the Court that if the motion was successful his client did not seek costs. He submitted that the appropriate order was that each party pay their own costs of the proceedings. I accept that submission.
Otherwise, I note the Diocese of Lismore is a participant in the "National Redress Scheme" formed in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. It is not part of this Court's function to address the plaintiff's eligibility for compensation under that scheme. It is, however, appropriate to record that nothing in this judgment should be taken as reflecting adversely on her credibility, including the credibility of the account of the sexual abuse she stated she suffered.
Accordingly, the Court orders that: (1) Pursuant to s 67 of the Civil Procedure Act 2005, the proceedings be permanently stayed; (2) Each party pay their own costs of the proceedings, including their costs of the defendant's notice of motion filed 26 June 2019; (3) The defendant's notice of motion filed 26 June 2019 otherwise be dismissed.

Endnotes

CB 92.
CB 81 at [85] to [88].
CB 82 at [91] to [95].
CB 33 to 36.
CB 35.
T 6.50; T 10.15.
CB 30 at [16] to [17].
Ibid at [15].
Ibid at [18].
Ibid at [19].
T 10.19.
T 10.24.
T 10.29.
T 11.31.
CB 69 at [5].
Ibid.
CB 70.
T 13.46.
CB 72.
T 16.27.
T 17.19.
Plaintiff's written submissions at [20] and [34].
T 25.35.
T 26.9.
Plaintiff's written submissions at [56(b)]; T 22.45.
Plaintiff's written submissions at [57] to [59]; T 26.40.

Amendments 16 December 2019 - Minor typographical amendment to Heading at [16]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2019

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Judgment (10 paragraphs)

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Cases Cited (14)