Bird v DP (a pseudonym)
[2024] HCATrans 16
[2024] HCATrans 016
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M82 of 2023
B e t w e e n -
BISHOP PAUL BERNARD BIRD
Appellant
and
DP (A PSEUDONYM)
Respondent
GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 14 MARCH 2024, AT 10.00 AM
Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends MR A.M. DINELLI, KC and MR A.D. JAMES‑MARTIN for the appellant. (instructed by Colin Biggers & Paisley Lawyers)
MR D.R. CAMPBELL, SC: May it please the Court, I appear with my learned friends MR G.J. BOAS, MR J.A.G. McCOMISH and MR E.H.R. KELLY for the respondent. (instructed by Ken Cush & Associates)
GAGELER CJ: Thank you. Mr Walker.
MR WALKER: May it please the Court. As your Honours know, at the heart of the differences between the parties as a matter of legal argument, there are two issues which are said to raise matters of the nature of binding authority in this Court, or alternatively, the opportunity held out by the respondent for this Court to change the law.
The first of those concerns what we submit to be relevantly and, with appropriate qualifications, a threshold requirement for vicarious liability in a case of this kind of the relation of employer and employee between the defendant and the wrongdoer. The second concerns a matter which, as your Honours know, bears a somewhat fraught or uncertain relation to that first area of doctrine, and that is the response by way of imposing a so‑called non‑delegable duty on the person who is the defendant in order to open the possibility of finding that defendant liable in the absence of what I am going to call direct negligence by them, but on the basis that they have failed to ensure that the wrongdoer took reasonable care, the non‑delegable duty being a duty of care.
That understanding of the doctrine raises, of course, in a somewhat similar way as was true for vicarious liability until it was settled, whether the wrong committed by the wrongdoer harming the plaintiff could be a crime or, if it be relevant, an intentional tort. In this Court, as your Honours have seen from our written submissions, the position we take is that it is clear – exemplified by statements in Lepore to which we have drawn attention – that crime or intentional wrongdoing is not within the ambit of the wrongdoing for which a person on whom there is imposed a non‑delegable duty of care can be held liable.
That is the second area in which the respondent invites – in this case by a notice of contention we resist as to its fairness in this Court – this Court to reconsider. It follows that for each of those two issues, as your Honours have seen from our submissions, there are Johns considerations with respect to reopening so as to consider overruling a number of authorities in this Court. In our submission, as an overall proposition, and for the reasons we have written, your Honour should regard this as an area where proceeding case‑by‑case and on the basis of appropriately specific concrete findings of fact, there is no occasion, whatever, for these proceedings to be occasion to doubt, let alone overrule, the role of employment as one of the key requirements in a case of vicarious liability – the first one – and, certainly, the radical extension of the non‑delegable duty liability to encompass liability for criminal conduct.
The case as a vehicle presents in some simple form, namely, a diocesan hierarchy – the word literally applying for once – in which the wrongdoer, a so‑called assistant priest to whom, for example, the parish priest may delegate tasks which the Bishop may have originally delegated to the parish priest – so, delegation in a hierarchy is, of course, commonplace – but the assistant priest, bottom of the totem pole, so to speak, is a person with a relatively wide range of possible activities. I need not at the moment revisit the conclusory findings of the Court of Appeal in that regard to which I will come back.
The significance is, however, that this criminal wrongdoer was the subject of a failed claim against us, by which I mean the diocese – I will explain that later – in negligence. So, there was a claim in negligence against the Diocese for whom my client, Bishop Bird, was the so‑called nominated defendant on familiar bases, including there being what might be called red flags which should have operated so as to prevent this criminal offending by appropriate steps to remove or otherwise control the activities of such a person.
That failed, and it failed factually. That is, the circumstances were not such as to show that the inaction of the Diocese in that regard was negligent. It is a mixture of what one was on notice of and what reasonable response would have been. The case succeeded against us on the basis of vicarious liability. It is only by the notice of contention, and for the first time that matters of non‑delegable duty are raised, and for the reasons I will come to towards the end of my address, that lacks the appropriate foundation in fact, which should produce one of two responses by this Court.
Either, as we urge at the outset, you should not entertain the merits of the notice of contention because the case was not run on the basis which would have directed attention to the kind of factual matters that are brought to the fore by the notion of a non‑delegable duty and the boundaries or limits within which it operates in a relationship, say, between a teacher and a pupil, a doctor and a patient, et cetera.
Secondly, if your Honours were to entertain it for the reasons we have written, the response to the notice of contention is to rule against it on the basis that, as a matter of principle and supported by such authority as can be found in this Court, there is no justification whatever for the drastic, very large and probably unmappable extent of liability opened up by a form of absolute no‑fault liability for the covert crimes of people who do not even have to be employees in order to attract the doctrine.
So, the first proposition with respect to vicarious liability is one which builds upon what we submit is a clear understanding of what notoriously has been regarded historically as a doctrine with unclear roots. But now, in our submission, it should be regarded as clear, and we draw to attention as exemplifying the clarity, Hollis, Scott, and Sweeney. They are not exhaustive, but they are important markers. Those constitute authority in this Court that I will paraphrase as follows: the paradigm case for vicarious liability is the liability of an employer for the negligence of an employee in a case where there is no negligence of the employer.
As your Honours know, that last matter is important because in many of these cases there is a two‑pronged approach, what is sometimes called a direct liability or direct breach allegation against the employer. One can ring the changes on how that can be pleaded, but a failure to institute appropriate systems, a failure to be careful in the selection of a particular employee to do a particular task, for example.
But they are the true alternatives at a basal level because the direct liability or breach allegation is one which alleges negligence by the defendant employer, whereas vicarious liability makes no such allegation and renders – alleges the liability of the employer by reason of the relation between the employer and the identified wrongdoer whose negligence must be demonstrated in order to render the employer vicariously liable. To put it another way, vicarious liability is the liability of someone who is not the wrongdoer who caused the harm.
Now, that is the paradigm case and it proceeded by reference to a distinction which, in our submission, cannot now be regarded as appropriate for the Court to revisit root and branch; that is, the distinction between employee and independent contractor. The distinction was important in practice because the kind of relationship, which might very generally be called a relationship of representation – or even more generally and inexactly, non‑technically a relational agency, acting through or by means of another – is obviously in play with equal cogency whether the wrongdoer is an employee or an independent contractor.
GAGELER CJ: It is said against you that the dichotomy does not cover the entire field, and what we have here is someone who is neither of those things.
MR WALKER: It is said against me, I do accept. Indeed, I embrace that that is the central issue I need to address. My reference to qualifications earlier is one of the reasons why I do not suggest there is anything like a simple dichotomy. However, it is not, in our submission, an open field in which this Court can, without disturbing the careful adjustments that can be seen in the case law to a degree which is not at all justified by the usual approach to whether authority should be reopened. Let me explain in particular as follows.
The distinction between employee and independent contractor, as leading to the radical difference of outcome – vicarious liability in the first and not in the second – is one which, as your Honours well know, has been described as too deeply rooted simply to be torn out. That is normally a hallmark that if there is to be change in the availability of claims of liability, that ought to be changed by the legislature. That is the first thing.
The second thing is, we do not see in this case any reason to examine the distinction between employee and independent contractor – the wrongdoer was neither. His case provides no test to suggest that, for example, there should be vicarious liability for the conduct of independent contractors, which would be a radical departure going to the very root of the old doctrine of vicarious liability.
EDELMAN J: Why do you say the wrongdoer was neither?
MR WALKER: In this case, I am sorry, your Honour?
EDELMAN J: Yes. If the nature of an employment relationship is one person acting on another’s behalf and the nature of independent contracting is one person acting on their own behalf, what is the third category?
MR WALKER: I do not suggest there is a third category, your Honour.
EDELMAN J: I see.
MR WALKER: But that is not a dichotomy that covers the whole world. In public office, it is not a third category to point to the office of constable, where it would not be sensible to talk about acting on somebody else’s behalf or acting on one’s own behalf; you are acting in an office.
GLEESON J: In Sweeney, the majority identified that the grey area as one that was dependent on closeness of connection as opposed to, simply, drawing a bright line between employment and independent contractor.
MR WALKER: In Sweeney, the bright line is observed. It is not so much a grey area as then the appropriate inquiry – completely factually based in the so‑called second stage – to ask about close connection to answer the course of employment inquiry. But Sweeney, actually, in our submission, lends weight to our proposition that this has been institutionalised – the difference between employment and independent contracting – for the purposes of the availability of vicarious liability against somebody who has not, themselves, committed the wrong.
GLEESON J: In one way it does but, in another way, it also reconciles Colonial Mutual.
MR WALKER: I am obliged to your Honour. One of the most important qualifications to which I was referring is, of course, the thing that need be neither employment nor independent contracting, though it might be either, as it happens, and that is the person who – to use the rather compressed language – is a true agent in the sense that Sir Owen Dixon explains the matter with respect to, in that case, the business contracted to canvas for an insurance company; contracted on terms and by respective organisation that meant that on no view is the person an employee.
However, having, as the allocated task and thus authority, the obtaining of business – I do not think it matters when regarding CML – to distinguish between the authority, whether it extends up to binding the insurance company or not, but, certainly, authority to obtain business.
GLEESON J: The allocated task of the priest is to augment the flock to secure parishioners or to retain parishioners.
MR WALKER: Can I briefly respond by saying analogies between insurance canvassing and a church which has an evangelical aspect as well as a pastoral aspect is a very unsafe analogy, and there needs to be a statement of principle which will comfortably encompass both in order to treat them the same way, and there is none in the authorities. Can I come back and develop that later when I come to the facts about the diocesan organisation, and the wrongdoer in this case.
Going back to CML, this notion that is dubbed “true agent” is accompanied by language that says “standing in” the place of or “acting for”, with respect for the canvasser and the insurance company, as your Honours well appreciate, in order to delineate whether or not the incidental defamation committed by the canvassing – dispraising the competitor, as well as praising the client – would be something for which the client was responsible vicariously.
EDELMAN J: It is not vicarious liability, though, is it? It is what Glanville Williams called “vicarious action”.
MR WALKER: Quite so, your Honour, but in this Court, it is convenient to see the outcome as liability being visited by reason of what your Honour has correctly, with respect, called the vicarious action of another, who need not be an employee for that purpose, can certainly be an independent contractor – as was true in CML – but might not be either. Might be somebody who, without any contract or obligation, nonetheless has undertaken to perform in a particular way.
That is more than a mere qualification; it is not a matter of detail, it is a very large area of potential liability. It is not, in our submission, in question in this case for reasons I am going to try and develop in further answer to Justice Gleeson’s questions earlier about possible analogies between the position in CML and the position in the case before your Honours.
GAGELER CJ: Mr Walker, when you speak of “true agency”, what do you mean?
MR WALKER: I mean “agent” in the sense of the relation between a principal and a person called an agent, consisting of the authority by which the actions of the so‑called agent are, in law, the actions of the principal.
BEECH‑JONES J: Mr Walker, just to pick up what, I think, Justice Edelman was adverting to, are we talking about the attribution of the liability, or the attribution of the act to the principal?
MR WALKER: In the CML case, in our submission, it is the attribution of the act, but it has been regarded, perhaps inappropriately, but nonetheless authoritatively, as being a means of establishing vicarious liability.
EDELMAN J: That is using vicarious liability in two different senses, though.
MR WALKER: It absolutely is. I am saying the CML case is not this case ‑ ‑ ‑
EDELMAN J: Yes.
GORDON J: One of the other ways it has been put is to identify that when we are looking at attribution of acts, they have to be acts done in the course or scope of the employment, so that where you have acts which are not acts which could ever be said to have been done in the course or scope of the employment, they are acts which fall outside.
MR WALKER: Yes. Now, when we come to the position of employees, it was precisely that inquiry and precisely attribution in particular of liability that led to the gymnastics involved in an authorised mode of carrying out an authorised act which, with respect, it was very often a mouthful method of saying acting outside your authority.
In our submission, care should be taken not to permit the distinct – we submit, distinct way in which a person can be rendered liable for the wrongs of another by CML, which is simply to attribute the actions of the true agent because they are a true agent to the principal – probably the most fundamental aspect of agency is that the act of an agent is the act of the principal – and to the area with which this case was concerned at trial and on appeal, namely whether there was a relation which would give rise to inquiries along the lines of scope of employment and course of employment.
EDELMAN J: It becomes a little bit distorted when you start talking about abusing children as being an unauthorised act within the scope of employment.
MR WALKER: Absolutely, and that is why the other language, which is authoritative in this Court and is sufficiently recent in adumbration not to call for revisiting at all, particularly with a case as exiguous on the facts as this one, and that is the notion of distinguishing between the connection between the three persons – plaintiff, defendant and wrongdoer – as showing that the defendant in their relation with the wrongdoer provided something called “an occasion” as opposed to merely “an opportunity” for the plaintiff to be harmed.
It is, as Justice Edelman points out, a constantly jarring note to talk about intentional torts – and certainly crimes – as being, as it were, unauthorised modes of doing what you are meant to do. There is no core of reality to the notion that there is anything about sexual abuse which carries with it any authority in a paradigm case of an employer.
However, the way in which, to deal with the problem thus raised at a level of principle, the Court has said that the course of employment will include the arrangements between the defendant and the wrongdoer vis‑à‑vis the plaintiff so that it can be said that the relationship between defendant and wrongdoer provided the occasion – through allocation of tasks, ordinarily – for the harm to be suffered. That is why all the hallowed language – “course of employment”, “scope of employment”, “allocated task”, not merely “opportunity” but “occasion” – comes to a head when one considers that now, in this country, there is no question that an employer can be vicariously liable for the criminal conduct of an employee so long as those tests or safeguards that I have just referred to are satisfied.
That is the current state of the law, and apart from the requisite status of being an employee, we do not understand that any of that is subject to challenge by our friends. It would be, in our submission, a highly destabilising exercise for the Court to embark upon a reordering of those matters, even if, perhaps properly, especially because they have emerged with some difficulty over the last hundred years or so. That is not a reason, as it were, to attempt to rebuild the whole area.
It is for those reasons that, as we have drawn to attention in our proposition 2, this is a case where, in Johns terms, there is a particularly piquant force given by the non‑judicial executive and expert consideration of these matters which, as your Honours know, before this Court in this very case has produced a plethora of various legislation by an arm of government which is in a position not only to tinker and experiment but also to permit variety according to political decision and also to make social judgments concerning, for example, disincentive to various kinds of favoured or disfavoured endeavour of a kind that this Court would not engage in. It is for those reasons, in our submission, that at the threshold, the notion of fitting this case, as the Court of Appeal did, into what we call an “akin to employment” English approach, is one which should be resisted just as a matter of authority.
If there is to be a notion of “akin to employment”, one of the first questions to ask, of course, is why would you count as akin to employment somebody whose position is more remote from the rights, obligations and corelative control that an independent contractor displays. That would rather suggest that independent contractors should be regarded as “akin to employment” and that, in our submission, is the skeletal fracturing of a matter which the facts and the way in which this case has been fought simply does not justify.
We have also drawn to attention, as your Honours have seen, as a hallmark of the way in which legislatures can change the law not available to this Court, that this Court cannot prospectively overrule, and that is a very important factor when considering the administration of justice on the basis of settled rules of law, and it is one which, in our submission, adds to the considerations we have drawn to attention in proposition 2 against a reopening of the criterion of employment for the paradigm case of vicarious liability.
Before I come to the statute in question, can I draw to attention that this case has been fought on a basis that is almost taken for granted in the reasons, namely that the Church and, more to the point, that element in its organisation called the Diocese, is not as such a legal person. It is aspects of that – consequences of that, of course, which are addressed by the statute to which I am about to come. But your Honours will have seen repeatedly in our friends’ written submissions a notion that, by reason of the Diocese’s actual nature, there could be no employment, and we have no difficulty with the idea that there is no employment and the practicalities of imagining employment by the Diocese of any individual are mind‑boggling, but not legally impossible.
There can be plural employers, of course. Every firm of partners that employs is just that. As your Honours know, that too can provide in a fast‑moving world awkwardness by way of having to reconstitute or novate the arrangements every time there is a change in the identity of the employers, but in law there is no difficulty. In practice, of course, there is great difficulty, but it is not for that reason. Technically, it has to do with the constantly fluctuating identity of the people who constitute the Diocese – parishioners, clergy, et cetera. That is not the reason why this is not employment. It is because the position, if you must draw analogies, is far closer to that of an office than of an employee.
That does not mean that there are not aspects of office‑holding – ecclesiastical office‑holding – and true employment which are not in common. The notion of lawful direction is true for all of them. The same may well be true in many an independent contracting position, where there may be – and often are – requirements for responses to directions or instructions. Your Honours are well familiar with variation orders, so‑called, in the most independent of contracting, namely, a building case.
In our submission, one does not start by, as it were, expecting that anybody who works with others in an organisation must be an employee, because employment is not the only way in which one can work in an organisation – see the military, see the police and see, in our submission, volunteer organisations of a kind that dot the countryside and simply do not lend themselves to any analysis by reference to employment – that with respect to the relations between the multitude and fluctuating character of the body of volunteers, all working under an organisation and probably by reference to rules and procedures.
“Control”, then, has been taken up by the Court of Appeal’s reasons and endorsed by the written argument against us in this Court as being something which, as an indicium of employment, should vindicate the Court of Appeal’s decision to treat this non‑employee for the purpose of the vicarious liability of the Diocese as if there had been an employment. But “control”, in our submission, is again a completely unstable discrimen because it is true between an independent contractor and the contractor’s client or customer or counterparty in many cases – and in many cases in great detail – the average specification and requirement to proceed in accordance with dictated timetables, for example, exerts control with the immediate sanction of damages or dismissal – that is, termination – every bit as complete as the control of an employer entitled to give lawful directions.
In other words, control should not be regarded as one that the Court can confidently see as distinguishing between employment and independent contracting. So that, unless – this is not embraced by our friends but is entailed in their argument, we submit – one does away with independent contracting as a relationship that will not ordinarily support vicarious liability, then, in our submission, there must be something wrong with the argument that found favour in the Court of Appeal.
The controlling fact in this case is not control of a kind that you will find when considered in any of the multitude of discussions in the cases in this Court; courts below seeking to apply the authority of this Court, to designate whether a particular relation is one of employment or not. In all of those cases, as your Honours will understand, there has been an unmistakable trend not only to look to what actually happens on the shop floor, so to speak, but also to regard as sufficient for the presence of the kind of control which may indicate employment; the existence of a right to control, a right to exert direction.
That, in our submission, also unmistakably brings in its train a concern with enforceable contracts, as being that with which employment is concerned, just as enforceable contracts as being that with which independent contractors are concerned – and in this Court Rossato personnel – it is plain to demonstration that this is not to be left to what I might call vague or sociological generalisation about what a relationship looks like. It actually requires identifying the contract, its terms and that which is enforceable. There cannot even be the beginning of that inquiry in this case. There was lots of reference to canon law, none of which condescended to talk about the allocation of tasks, ultimately, devolving to the lowliest member of the clergy, the assistant priest; nothing at all. There was certainly nothing to show any enforceability in any cognisable sense that is in the civil courts.
There are no damages if the assistant priest wakes up one morning and walks away from the job, unlike an employee, or perhaps also, an independent contractor. There is no right in the Church to restrain an assistant priest who wishes no longer to be so from taking up some other task. So, in our submission, it can only be in a figurative, and therefore doctrinally dangerous sense, that the word “control” has been used as frequently as it has in the Court of Appeal reasons. The control is – as we put in our proposition 3 – simply, from time to time, the voluntary subjection of an individual to the discipline which has no footing in any aspect of civil law to the requirements, preferences, ordinances of the organised Church.
GORDON J: Do you propose to come back, Mr Walker, to the findings of fact that were, in fact, made?
MR WALKER: I am so sorry, your Honour?
GORDON J: Do you propose to come back and address the findings of fact that were, in fact, made about the relationship, having made those general propositions?
MR WALKER: Yes. I am going ‑ ‑ ‑
GORDON J: I do not seek to take you out of your order, I just ‑ ‑ ‑
MR WALKER: I absolutely am, and ‑ ‑ ‑
GORDON J: I would be grateful if you could do it at one point.
MR WALKER: Very much so. In our proposition 4 – I think I have already advanced this in answering, I think, Justice Edelman – anything which, using “agency” in a true sense, nonetheless is enlisted in this “akin to employment” endeavour, as I say, threatens anonymously to leave out independent contractors, though they may be far more closely under control and standing for, and doing the work of, a counter‑party who might be called a principal. So, that is why this case entails getting rid of an independent contractor, notwithstanding it was not an issue in this case. No one ever said that he was an independent contractor.
EDELMAN J: It is a category confusion as well. It is borrowing ideas that are concerned with a body of rules that involve attributing actions and transplanting them to a body of rules based on very specific policies that is concerned with attributing liabilities.
MR WALKER: Yes. I, with great respect, embrace that. There is a great danger in employing concepts and sometimes language as inadequate counters for concepts, to distinguish, say, in the old‑fashioned but evergreen way, between employment and independent contracting, and then simply holus‑bolus in a normative way – not adequately founded in any authority and contrary to the authorities we have identified – transferring that over to the question, is it just and fair that there be attribution of liability? We make no bones about it. We invite this Court to continue the course that has been set in this Court.
There had been no reason shown, certainly in the Court of Appeal reasons or even, with respect, in our friend’s arguments, as to why this Court should now, as it were, backtrack and follow in the English route, assuming one could, in the case law to which your Honours’ attention has been drawn – assuming that one can say what the English route is in a way that would find a footing then in the way this case was actually argued.
EDELMAN J: Do you say that each of Hollis, Scott v Davis and Sweeney would need to be reopened and overruled?
MR WALKER: Yes, we do. There are propositions in all of those concerning the significance of the distinction between employment and independent contracting. In all of those, those are real, not metaphorical categories – employment, real employment, independent contracting, real independent contracting – in all of those it is said that this is a means by which the doctrine of vicarious liability may or may not be invoked, depending upon the stage one inquiry; is this employment, for example, or is this CML, in a case governed by CML? It is obviously to count them as in error to say wait, there is another thing that might be called “akin to employment”.
Now, your Honours will appreciate, before I turn to this statute, our proposition 5. Can I just say this further about “akin to employment”. I am going to come back to this when, as I said to Justice Gordon, I dwell on the factual conclusions reached by the Court of Appeal. Anything which employs in a doctrine designed to produce a radical difference of outcome, liability or not, that is framed by language such as “akin to employment”, starts, of course, by saying you are talking about some category or categories, because there may be gradations, which is not employment.
It is not employment because it does not have the defining characteristics of employment, that is the only way you are not employment. In which case, one asks what are the features that can be absent in any particular case, and rather than simply producing the result that this is not employment it produces the further response: but it is “akin to employment”.
I have already said the one in the old cases about master/servant seemed to be, for a while, to the forefront. Namely, control is an unreliable discrimen between independent contracting and employment. Many an employee has, by reason of his or her skill, expertise and experience, much more discretion and self‑starting requirements than the lowly tradesman hogtied by highly detailed specifications and timetables. Control is a will‑o’‑the‑wisp, we respectfully submit. I do not say it is irrelevant, but as a discrimen between the two categories which are required to be considered because they produce radical difference of outcome.
GLEESON J: I think at some stage it would assist me to understand why you say that Sweeney states an employment requirement, particularly in the light of paragraph 24 of the judgment.
MR WALKER: Paragraphs 26 and 27 are paragraphs which are, as it were, the clear marker and against an argument which must have some resemblance, surely, to what is, we think, intended against us. Your Honour asked me about paragraph 24, but, with respect, ours is not a CML case and 24 preserves the distinction between the – I will call it the CML true agent situation and the situation of the tortious acts of a servant, which is employment.
Now, it means we have, if you like, two comparisons. One is a contrast, being referred to in paragraphs 24, 26, 27. There is the familiar one that I have been spending time on, employment and independent contracting or, to use the old language, contract of service, contract for services. There is that contrast. Then there is a comparison which, with great respect – there is a comparison that may or may not be useful – it is certainly obscure – between the CML agency position and employment. It is difficult because, if there is a comparison, it is hard to see why you would not simultaneously consider independent contracting as part of that ‑ ‑ ‑
GLEESON J: You mean a comparison that is expressed in these reasons?
MR WALKER: No, conceptually. So, we have employment, independent contracting and what I will call CML agency.
GLEESON J: At paragraph 21 you have the observation that:
the conclusion reached in Colonial Mutual Life fits entirely within the explanation of vicarious liability identified by Pollock and reflected in the subsequent decisions of this Court culminating in Scott, Hollis and Lepore.
MR WALKER: Yes.
GLEESON J: So, that is the comparison that is being justified.
MR WALKER: Can I go back to paragraph 19, where you will see the familiar connection of the familiar language, “agent”, “representative for”, “on behalf of”, et cetera. But there is a warning in the last sentence of paragraph 19, and in paragraph 20 there is one of the better known passages in this Court, which justifies current reflection on the, perhaps, uncertain roots of all of this, but uncertain roots or not here we are now.
GORDON J: The point you seek to make is the last sentence in 22, is it not? That is, in a sense, as I understand your argument, it was not because they were independent contractor, it was because they were the agent.
MR WALKER: Absolutely. That is what I was saying earlier. The CML agency point is one that can apply regardless of whether they are an employer, or independent contractor, or not.
GAGELER CJ: And it could apply in a volunteer situation, in somebody canvassing for the firefighters.
MR WALKER: As I have already said, and that must be true. What that means is that vicarious liability can proceed by attribution of act by means of a true agency, which might be gratuitous, that is, not renumerated; and many an agency is gratuitous. Wearing the badge of a charity and knocking on the door, as the Chief Justice points out, is an agency; you are not the principal, you are not meant to be, anyhow. In our submission, what that means is that what we call vicarious liability can come about by attributing the acts by means of an agency analysis – a strict legal agency analysis. That is not this case.
GORDON J: Your argument is really that you need a relationship either of employment or of a true agency. Then, when having established that kind of relationship, one then asks whether or not the act was done in the course of that relationship, and your contention is by adopting “akin to employment” you have conflated or collapsed both of those inquiries into one inquiry.
MR WALKER: There is certainly that, but you have – in place of the legally prescriptive, legally workable stage one inquiry of employment or agency – introduced something which is – not so far as we can see in any of the writings – a strict legal inquiry, able to be worked as such. As Justice Gordon has raised for my consideration, there is a conflation properly involved in the notion of course of employment, course of authorised conduct, and whether it is just and fair in the circumstances that there be the imposition of liability.
It is that last step which, in our submission, is how your Honours would characterise how the Court of Appeal proceeded in the passages to which I am about to come. It is that which lies outside the current authority in this Court, and it is that which has the deficiencies, as a solution to cases of this kind, to be accomplished by this Court changing the law in an area where we know parliaments and those who advise parliaments are active.
In that regard, could I come, please, to the statute. This is part of the response to the social evil of which this case is an example. It is the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic). The text starts at page 40 of the bundle of authorities, and section 1 describes as its main purpose:
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.
There is packed into that sentence a deal of the notions in question, and your Honours hardly need me to expatiate on that famous New South Wales case of Ellis which was one of the landmarks in the legal and social controversy that has produced, among other things, this statute. The definitions include some important matters. I do not need to dwell on them, but there is this notion of an “associated trust” controlled by an NGO. I simply draw to attention that “control” has a specific meaning which you will find in section 6.
Your Honours are spared any worries about applying this because they are not issues in this case, but I need to take you to the provisions which show you what this statute does not do. “An NGO” has a special meaning in section 5; it travels well beyond what is colloquially an NGO. And we know what child abuse is. Section 4 stipulates cases to which the Act applies. It starts by applying to any proceeding for a claim founded on or arising from child abuse, and it applies to an NGO if the matters set out in subsection (2) are correct. Can I draw to attention the language in paragraph (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 –
That is redolent of language your Honours will remember from old pleadings concerning corporations capable of being sued in . . . . . et cetera. The expansion “capable of being and found liable” may point to a distinction – does not find any purchase in this case – it plainly does not render an NGO liable to any greater degree than being able to be sued as an NGO rather than the well‑known, practically unfeasible means by which you can sue an unincorporated association by suing all of its members and obtaining, perhaps, representative orders. All of that is cut through. This Act is going to apply to proceedings which would include these proceedings – did include these proceedings.
GORDON J: Is that to say that its sphere of operation is limited to just that aspect of cutting through?
MR WALKER: Not quite.
GORDON J: So, there are two. One is that which you just identified in terms of the party that sued ‑ ‑ ‑
MR WALKER: And then there is the money.
GORDON J: And then there is the money.
MR WALKER: Yes.
GORDON J: And is that the only sphere of its operation? It has no substantive operation in terms of attaching liability which otherwise would not be available against the NGO?
MR WALKER: So we say, so seems to have been the basis of decision below, so from what is not in our friends’ argument appears to be accepted by them.
GORDON J: Then at some point, would you – I would be very grateful if you could explain to me the intersection between this Act and the Wrongs Act. Not now, but when you get to it, please.
MR WALKER: Yes. We have anxiously considered that. I will come back to it. The view we take of the argument is that that will not actually impact upon what we are raising concerning the vicarious liability finding – or at least we cannot find support for our argument or anything I should draw to attention against our argument in the rather difficult notion of an interaction between the two statutes.
Section 7(4) is important. As happened in this case, what this statute permitted was that, in default of any favourable response from the Diocese – which your Honours can take it as treated as the relevant NGO – proceedings can be commenced against the Diocese in that name, notwithstanding it is not a legal person. That was met, as the statute obviously contemplated, by the response on our part to nominate the Bishop as the defendant. It does not have to be the Bishop, we chose to nominate the Bishop as the defendant. And that is why the case is brought by the plaintiff against the defendant, and why I appear for the Bishop. But the Bishop is not being sued for any wrong by him, and he is not being sued on the basis that he is vicariously liable for anything.
Subsection 7(4) is the provision that comes closest to what Justice Gordon was asking me about. It provides a power or authority:
A court may substantively determine a claim in a proceeding founded on or arising from child abuse for which there is a proper defendant under this section as if the NGO itself were incorporated and capable of being sued and found liable for child abuse in respect of the claim.
That goes back, of course, to the principal provision of section 7, which is paragraph 7(1)(a). The so‑called “proper defendant” is a person who is joined as a defendant:
on behalf of the NGO –
What subsection (4) is saying that the NGO, on whose behalf the so‑called “proper” – being nominated – “defendant” is joined, the case is then to proceed as if the NGO was incorporated and capable of being sued and found liable. It does not say anything – and no element of any fiction operating between the parties extends beyond that state of affairs which, as your Honours know, then, starting in section 9 – including section 11, as to trust funds; section 12 as to insurance policies – produces, by independently operating stipulations in the statute, access to the money.
Section 10 is worth noting because the proper defendant who is sued on behalf of the NGO may rely on what is called “any defence or immunity” and probably, it goes without saying, may give any answer that would have been available to the NGO as a defendant, had the NGO been incorporated. It is for those reasons that, in our submission, it has been properly accepted on all sides – including between the combatants – that one is still asking the question, does there need to be employment, et cetera, and, if so, is this employment? The statutory friction does not, for example, create employment.
EDELMAN J: Unless the only reason for the lack of employment was the lack of incorporation.
MR WALKER: That really should be left for a case in which there is any factual footing for that to be raised. I do not want to give evidence from the Bar table, but your Honours would know from cases about ecclesiastical organisations it is not by reason of lawyers calling them “unincorporated associations” that their priests and other office‑holders are not employees in many churches – not just Christian churches, obviously. So, if there were a case in which it is only because they are an unincorporated association that they are not an employee, an interesting issue would raise, assuming this statute was in an unamended form.
GORDON J: What was that? What did you just say at the end then? I just missed that last bit. Unless the Act?
MR WALKER: If this Act remained in an unamended form.
GORDON J: An unamended form. Thank you.
MR WALKER: Yes. If I may say so, this is the kind of legislation which invites revisiting after experience.
GORDON J: Your answer to Justice Edelman seemed to be inconsistent, Mr Walker, at least from my perspective, with the answer you gave me, in the sense that I had understood you to say that the sphere of operation of this Act was limited to identification of the NGO in a limited situation, i.e. – and then plus access to the trust fund or associated trust funds.
MR WALKER: That is absolutely what I am saying.
GORDON J: I see. Your answer to Justice Edelman was, well, there is a nice question if you extended to include a statutory creation of an employment relationship where but for the incorporation there was no employment.
MR WALKER: Let me revisit my answer to Justice Edelman. This statute does not provide any footing for the erection by fiction, as I think I earlier said, of an employment relation where there was not one. Justice Edelman asked me to consider a case – which is absolutely not this case – of the absence of employment arising only because of the absence of incorporation. That is a case which ‑ ‑ ‑
EDELMAN J: It may be difficult to imagine that case because, of course, I mean, as you opened with, you can have many examples of employment by multiple parties without incorporation.
MR WALKER: That is right. Exactly so, in the olden days.
EDELMAN J: Unincorporated associations employ people collectively.
MR WALKER: Yes, absolutely. But section 10, going back to try and justify myself to Justice Gordon, may in a case – it is very hard to imagine it and certainly is a million miles from this one – raise a question as to whether there would be a case where lack of incorporation in itself was a defence or immunity. It does not sound like it, but if it had been, then there would have to be obedience to section 10 by the court. That is the only sense in which in a future case – difficult to imagine – the fiction of incorporation may have an effect on substantive outcome. Certainly not this case and, with respect, it would appear to be an unintended consequence of the drafting.
So, the statute is not so much something that can be put to one side, but, as we put in our proposition 5, it is very distant from the very rare case of a statute of a State being appropriately considered by this Court in relation to an application to reopen and overrule authority in this Court. As I say, it may be that the rare case of that ever being a legitimate consideration is close to non-existent, but for the reasons I have put concerning this particular statute, one does not get off of the launchpad as to that possibility here. Indeed, as your Honours know – see our proposition 2 – the fact of legislative activity cuts against the Court reconsidering the matter.
Can I come to proposition 6, the way in which the Court of Appeal proceeded. It can be picked up in the core appeal book at page 182, starting in paragraph 120. I will return to this, but we would remark that the use of the expression “sui generis”, as if it describes something with which the law has not hitherto dealt – that is, a fresh case – would be wrong. Depending upon levels of abstraction or generalisation, everything that can be described as being of a kind is of its own kind. The more colloquial force behind that Latin sui generis is to suggest something special, sometimes anomalous, sometimes not fitting a pattern; but none of that, in our submission, is available as an argument here. It may or may not be a conclusion after characterisations have been performed.
The fact is, the role of people working in an organised fashion in accordance with their own rules and procedures is not uncommon, not to be seen as in any way anomalous, and as one which is readily able to respond to a question – is this employment? Is this independent contracting? Is this true agency? It may, in some cases, get an affirmative answer only to a third of those questions. But the fact that the organisation proceeds in such a way that it renders, if you like, the first two questions ones that could be answered by does not arise on the facts, does not mean that the Court is now seized on a fresh area, because, in our submission, if it does not arise on the fact, that means no, it is not employment, it is not independent contracting. The only question will be: is it true agency without either of those? That simply means no vicarious liability. It is not an untended area of the law, it is an area of the law which is dealt with by existing rule.
Your Honours see the paraphrase in summary of the evidence of Father Dillon, who gave evidence which, for understandable reasons, had absolutely no connection in terms, specific or otherwise, to the events of the two days when, in the respondent’s parents’ residence, the assistant priest committed the offences in question. So, nothing about the attendance on either of those days and the detailed aspect which is necessary in order to show any harm produced, namely, a call at the house previously either in connection with marital counselling – that is of the parents, not the child, who was five – and a social gathering – again, with the parents, not, obviously, with the child as host. So, the assistant priest was the guest of parents with whom there had been pastoral connection by way of something in the nature of – I will call it marriage counselling, which may be a bit grandiose. So, Father Dillon does not go beyond that.
Now, that contrasts, of course, with a case of a kind that might be posited, such as was posited without it being able fairly to be factually determined in Prince Alfred, where the allocation of tasks, the designation of duty to look after the little boys in the boarding house, including in the dormitory the scene of the alleged offending, was the subject of evidence. Now, I do stress, Prince Alfred provides no precedent because there is no decision concerning the course of employment calculus in that case, but it is an example of the kind of evidence that Father Dillon was not giving. There are, with respect, fair points made under the rubric of Blatch v Archer, but Blatch v Archer does not fill gaps, and not giving evidence – and, for that matter, not challenging general evidence – does not render that evidence any less general or any less characterised by what it does not say.
In 124, can I draw to attention – not the only place. Your Honours will see an occasional and perhaps inconsistent elision of the difference between the Bishop and the Diocese. There is, I am afraid, an absence of what might be called ecclesiology in the findings of fact in this case. The Court of Appeal seems to have seen this NGO, this unincorporated association, the Diocese – which is comprised of parishioners and clergy – as if the Bishop had, as it were, complete dominion. That might well be so, but you will not find anything beyond the kind of statements that you will see reproduced in 124. Authority over all the priests in the Diocese is not the same as authority over every member of the Diocese, which includes, of course, parishioners and where there are organs of government with which your Honours are probably aware from other cases concerning the governance of a body such as the Diocese.
Then in 125, there is a reference to a strict set of normative rules which we are to understand are rules of canon law – in other words, none of them have any enforceability at law – which permitted the Bishop to “exercise control”. I have already pointed out that is a control which Coffey could defy at any time with full right and entitlement at law. There was then a reference to “formal structures”, and you can proceed on the basis that, correctly, it is the Bishop who ultimately controls whether somebody is an assistant priest in the parish and it is the Bishop who can ultimately bring that to an end.
In 126, what might be called the detail of delegation which, for all we know – the facts do not really include it – condescend to detail about family visits being delegated by the Bishop to parish priests, to assistant priests – and just using that as a hypothesis, we can see that in 126 it is acknowledged that the direction is not from the Bishop, but will be from the parish priest, as you might expect, in a staged set of reporting lines or hierarchy.
The fact that appointment was subject to ultimate authority is, of course, nowhere near the kind of position which is significant in two separate parts of this argument. It certainly does not show any allocation of task by which one can sensibly talk about course of employment for an employment vicarious liability inquiry. That is, being at the ultimate authority to remove a priest. That is the first thing. The second thing is it is an extremely unpromising way to build a non‑delegable duty argument concerning the Diocese having the care, control and supervision of the child in the house and, furthermore, in the bedroom, in the absence of his parents who, as hosts, had admitted a guest who then proceeded to commit a covert crime.
EDELMAN J: Why does the Diocese have to have the care and control?
MR WALKER: I am sorry. If it is – I am switching now to the notice of contention. These are the facts which serve a purpose for our argument ‑ ‑ ‑
EDELMAN J: Yes, but the school authority is not present in the school.
MR WALKER: No, but the care, control and supervision for school authority notoriously does not extend to places outside the school, hours outside school hours, except with the kind of detail which, for example, a school excursion would reveal. That is what I mean.
GAGELER CJ: Mr Walker, have you completed ground 2 at this stage?
MR WALKER: Yes, I have.
GAGELER CJ: We might take the morning adjournment, then.
MR WALKER: I am sorry, your Honour.
GAGELER CJ: Thank you.
AT 11.19 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.33 AM:
MR WALKER: Your Honours, the facts that one finds in particular, producing the conclusion in paragraph 128, in the book at page 184, are being enlisted by their Honours for the equivalent of the stage one inquiry – was the relationship one, which would produce vicarious liability. It is, of course, as their Honours recognised – see, in particular, the dealing with our arguments at stage two in their Honours’ paragraph 155, to which I will come back. They recognise that there is an overlap, or that the same material can serve a dual purpose.
That is perhaps an indication that the doctrine that would permit vicarious liability in this non‑employment, non‑true agency case is one which raises real doubts about its proper footing in such policy as can be perceived in the prehistory of the doctrine, because in 128, the notions which are at play in the language includes being a “representative”, which of course is rather broader than “true agent”, and is not, in truth, a legal category. Where the work in his role as an assistant priest:
was necessarily and integrally interconnected with the fundamental work and function of the Diocese.
says no more than he was assistant priest. There is repetition of “not acting independently”, but being “a representative”. That, in our submission, adds nothing, particularly to an understanding as to why the relationship is such as would produce vicarious liability. Then, there is a reference to what might be called, in the jargon, his vocation. He was an assistant priest; he was not also a motor mechanic. That, in our submission, does not distinguish his case from many a case, be it of employment, independent contracting, which may, of course, contain exclusivity clauses during the duration of the contract – and, for that matter, certain actions by volunteers.
Strangely, there is a reference to he not having a power of delegation. Now one knows in the classic master/servant analysis that the inability to delegate can be one of the hallmarks of employment as opposed to independent contracting, but it is strange thing to say – bearing in mind it is not true of anybody above him, all of whom can delegate. Does that mean they would be differently? How very odd. And all of this with respect to a Diocese which the Court of Appeal is really treating as consisting relevantly only of those in the hierarchy. The Diocese is not just those in the hierarchy. Most of the people who comprise the Diocese are the members of congregations or parishioners. In that guise, the language in 129, in our submission ‑ ‑ ‑
STEWARD J: Just before you get to 129, what do we make of the last sentence of 128 in the light of the findings of “control”?
MR WALKER: I think it reminds one of the oaths that used to be taken by those appointed to judgeship in the colonies: so long as you personally discharged the duty – so, you cannot get someone to look after your living.
STEWARD J: Does it suggest autonomy?
MR WALKER: I cannot say that. Holy orders are really not free‑form liberty, and I would not want your Honours to think otherwise, but holy orders, including sacred prescripts, are not matters of civil law – unless and until a statute does so, and they have not in this case.
BEECH‑JONES J: The Diocese would not look favourably upon him getting a friend to do the role of assistant priest.
MR WALKER: Absolutely not. I was hesitating in my response to Justice Steward – can I complete what I wanted to say. That is an unremarkable truism about being an assistant priest. If I may say so, I hope it is still true that it would be unremarkable truism about being a chosen surgeon – I hope it is true.
GORDON J: It is put against you that if you start at paragraph 123 through to 129, 123 giving rise to 124, identifies, as you have identified, what might be described as the diocesan or canon law that established the arrangement. And I use that in a neutral term.
MR WALKER: There can be no doubt that ‑ ‑ ‑
GORDON J: I do not seek to doubt it, I am just stating as a fact.
MR WALKER: I am sorry. Yes, I accept that.
GORDON J: And then 125, there is a conclusion reached that the relationship, because it was governed by this:
strict set of normative rules –
was such that it permitted the Bishop:
to exercise control –
which:
was at least as great as, if not greater than, that enjoyed by an employer.
Then what follows from that finding are, in effect, the facts or matters, circumstances and things that might give rise to the justification for that conclusion.
MR WALKER: Yes.
GORDON J: Do I understand your submission to be that the answer to that is that the canon law is not enforceable as law?
MR WALKER: That is part of my answer – that does not amount to control.
GORDON J: Thank you. And second, that the other facts and matters are themselves not sufficient to justify that conclusion? So, for example, you took us to a person being a representative. You said that it is not sufficient for control. You took us to not acting independently; that is not sufficient for control. Am I right? Is that the way you are putting it?
MR WALKER: Not quite.
GORDON J: Okay.
MR WALKER: Partly. I am not bringing everything home to the notion of “control”. I have actually already said that control is an unreliable marker to be a discrimen between cases where there should be vicarious liability and cases where there should not be. On authority, in our submission, it cannot be the case that control is the deciding feature, for the reasons I have already argued before the adjournment. No, as well as showing that the control in question does not amount to something which should be regarded as “akin to employment”, because it is not akin to employment so much as a result of the ecclesiastical organisation, which is not employment.
BEECH-JONES J: Sorry, do you mean not legal control – not legal rights of control?
MR WALKER: There is no legal right of control.
BEECH-JONES J: Is that the one, and the other one is, it is not the Diocese but the Bishop, or the faith, or the canons of the Church in a wider sense?
MR WALKER: The Bishop, as a servant of the people of the Diocese, has certain ecclesiastical authority, none of which has any civil force. That is the first thing. The second thing is that no more renders the Diocese, most of whose constituent members are not priests, vicariously liable for all and anything that a priest, including the Bishop, may do by way of committing a crime against one of them.
There is a deep inappropriateness about visiting upon the Diocese – which, I stress, is not a cabal of priests – visiting upon the Diocese a vicarious liability on the basis that there is a hierarchy that works for them, that are the servants of the people. Not the sovereigns of the people, the servants of the people.
It is for those reasons that everything said in 128 can be accepted so long as it is understood the language is describing the ecclesiastical organisation, none of which gives legal rights or creates legal obligations concerning the organisation, and where the uneasy equivalence of the Bishop with the Diocese is just plain wrong and produces an unprincipled approach to searching for a reason why to attribute vicarious liability to the Diocese – not to the Bishop, but to the Diocese.
It is for those reasons that language – borrowed, perhaps, from some aspects of constitutional law with which 129 concludes – he being “an emanation of Diocese”, these are, if I may say so, fancy ways of saying he is an assistant priest. And being an assistant priest, of course, cannot be severed from his role in the Diocese or, perhaps more accurately, in the Church, which is organised territorially, relevantly, to include Diocese by reference to the population. So, when one talks about doing “the work of the Diocese”, it is to be understood, in paragraph 129, that that is working with members of the Diocese, including the parents of the respondent.
GLEESON J: Were there findings about the dependence of the assistant priest upon the Diocese?
MR WALKER: For board and lodging ‑ ‑ ‑
GLEESON J: Or anything else.
MR WALKER: ‑ ‑ ‑ there are findings, yes. It is referred to in paragraph 129, the first sentence of 129, and we do not resist it any more than we resist the obvious propositions about what I will call “uniform”, although we do observe there is something really unlikely about drawing parallels with the bicycle couriers in Hollis on account of dress.
Yes, he is an assistant priest, and at appropriate times he will be in vestments or other clerical garb marking him as different from others; that is, different from other members of the Diocese in particular, as well as other members of society. None of that, with respect, provides any footing in the principles one can see in the authorities for seeing a relationship – not employment – which gives rise to the possibility, subject to course of employment considerations, stage two considerations, of vicarious liability of, in this case, a non‑employer.
I stress: a body composed, notwithstanding the fictitious incorporation, still a body actually composed of people far more than the priesthood. Your Honours, we point out that both with respect to what I have tried to deal with concerning stage one, whether the law be reopened or not, and also with turning the same matters to account in stage two, what I will call the course of employment, or course of “akin to employment”, whatever that might mean, in our proposition seven, we have simply and – I hope – appropriately drawn to attention that the malefactor was in the house as a guest of the parents to visit, and that is how it sprang up.
The esteem for members of the priesthood with which the reasons replete is one which is, of course, in order for there to be repeat visits, it operates through the impact on the parents. The five‑year‑old is not doing any inviting, and is not a host. The assistant priest did have a teaching role at the school, which was attended by the plaintiff, but that plays no part in this case, so a relationship of a kind which sadly does give rise to opportunities for this kind of offending is not factually, as we understand it, called in aid. It is about the relationship between the members of the Diocese, parishioners – being his parents – providing an opportunity for him, with their consent, or without their knowledge – one or the other – going off alone with the boy to commit these offences.
None of that, in our submission, can be seen as arising in terms of allocation of task from anything to which one can sensibly say the processes of the Diocese brought this about, provided the occasion. It certainly, in a sine qua non sense, constituted the opportunity. But that is, of course, inadequate, in our submission, on the basis of an understanding of the stage two inquiry with which, as we understand it, no issue was taken at the level of principle by our friends.
In the reasons, could I – in the way in which the Court of Appeal then dealt, starting on page 185 of what I have been calling the stage two matters – could I pick it up at page 190, in paragraph 150. You have again, repetition of certain ideas:
a central part of a priest’s role involved him visiting parishioners . . . Coffey regularly visited . . . in order to counsel and mediate between the respondent’s parents in respect of their matrimonial issues.
Then, that was how “he gained the trust” which he then so egregiously abused. The degree of trust that their Honours are talking about there extends, as they say, apropos the parents, to them:
permitting Coffey . . . to carry the respondent to his bedroom and put him to bed.
So, it is the parents who did that and it cannot sensibly be said that there is anything at all – let alone factually based – that would, as it were, interpose, let alone superimpose, the Diocese by any of its officers – such as the Bishop – in that exercise. It is entirely alien to what is happening when members of the Diocese – being the parents – either permit, or do not know that is something is happening in their house – in the first case, they obviously permitted it – and it somehow said that this is an occasion for which the Diocese is responsible.
No one has ever suggested that it is because the parents were members of the Diocese that the Diocese is liable. That would be grotesque. It is, with respect, not possible to see that the organisational allocation of tasks in such general terms as we have seen to an assistant priest which renders it entirely proper for him to visit families within the Diocese, there is nothing to suggest that that shows anything like the kind of occasion which was mooted in Prince Alfred as distinguishing the general run of schoolmasters from a house master who was actually tasked with putting little boys to bed. In 155, in dealing with some contrary arguments of ours, there is a repetition of another of the themes I wanted to draw to attention – namely, the idea of, in the last sentence, of:
the Diocese, by the Bishop –
investing the assistant priest:
with a degree of power and authority to enable to achieve such intimacy with the respondent’s family –
That is a highly abstract way of describing the fact that parish priests – maybe even Bishops, from time to time – but certainly parish priests and, thus, by delegation, assistant priests, might be expected, pastorally – perhaps by way of evangelising as well – to visit people, not simply to wait for them to come to the church building, to which, in our submission, we say that is a classic demonstration of a mere provision of opportunity, not the creation of the occasion in the way in which the stage two inquiry requires. Those threads are all drawn together in 163 at the foot of page 192, and one sees the way in which the sine qua non sequence is set out:
It is evident that as a result of the appointment . . . of Coffey as an assistant priest –
et cetera, et cetera. Can I remind you, however, we were unsuccessfully sued for negligence comprising the selection and letting loose, so to speak, of Coffey, and it is, in our submission, not enough and comes nowhere near the specifics which distinguish between mere opportunity and occasion to repeat, as their Honours do in paragraph 163, the notion of representing:
maintained in a position in which he represented –
or, for that matter:
did the work of the Diocese –
There is no attempt to do any CML‑style analysis there, and for an obvious reason. There is no principle for an assistant priest who seeks to counsel people about marital difficulties, they are not doing it on behalf of anyone, they are doing it as assistant priest. They are certainly not doing it on behalf of the Diocese. There is, in the middle of paragraph 163, a reference to something which even more obviously provides simply this extended sine qua non causation mere opportunity analysis. You have the:
work necessarily involved and required the priest to develop personal acquaintances, and indeed friendships, with his parishioners.
Now, that opens up, as it were, the notion that all and anything, anywhere, that happens because of the wickedness of an assistant priest with that obvious aspect of their position as assistant priest is something for which the Diocese should be held liable, which, in our submission, is totally at odds with what can be seen even in the United Kingdom with respect to volunteers and the like.
That is all I wanted to say about that matter. Can I briefly deal – because I have, in response to some of your Honours’ questions, covered some of this material already – with the notice of contention in‑chief. We know that it was not in play in the courts below. We know that the structuring of the case, including the failed claim in negligence against us, was one which in a very familiar way would give rise to consideration of, is this a case of non‑delegable duty, it was not done.
We know that with respect to non‑delegable duty there is, as this Court has tried to maintain in, for example, Kondis – I do not want to go over the authorities we have written about – that there is, in this special duty with its particular and striking attributes, a requirement before it be imposed that has been variously described but which includes the notion of vulnerable, or perhaps particularly vulnerable people – a five‑year‑old child is manifestly one such – being a person whose care, supervision and control has been undertaken by the relevant defendant.
That, in our submission, is bizarrely inappropriate to posit of a little boy in his parents’ home. It is not the case that, with respect to the little boy in his home with his parents, who as hosts, receive this man who goes on to commit these offences – it is not the case that that is an occasion upon which the Diocese had undertaken the care, supervision or control of the person. The special duty has arisen, classically, in cases such as a school where, not irrelevantly, for much of the time in the relevant history, you cannot keep – this may be changing nowadays, but you cannot keep your children at home. You have to send them to school, and the school has – usually statutory, certainly a plethora of common law – obligations that arise by reason of that relationship.
The same can be obviously said, after some bumps in the road, with respect to hospitals, and vulnerability is obvious and the vulnerability is not an abstract continuing status of a person; it is circumstantial. The vulnerability of a child at school, surrounded by perhaps unruly peers or slightly older children in great number, much more than at home, subject to a form of discipline by much larger people – adults, et cetera – that is obviously a paradigm case for the duty to be to ensure that care is taken. The school cannot escape – the school has the child committed to its care, supervision and control and will not escape liability by saying, I had carefully employed a qualified teacher.
BEECH-JONES J: Mr Walker, can I just ask this about this topic. Your client was held vicariously liable for an intentional tort, was it not?
MR WALKER: Yes.
BEECH‑JONES J: Assault. So, when we get to non‑delegable duty ‑ ‑ ‑
MR WALKER: That is the second of the big steps.
BEECH-JONES J: Right, you are coming to that?
MR WALKER: I am coming to that. So, first I am saying this really should not be entertained, Suttor v Gundowda, because it is a different inquiry of fact. You have to see how the undertaking of care, supervision or control of the little boy in his parents’ house came about ‑ ‑ ‑
EDELMAN J: One difficulty with that submission is that both in this country and other countries, the notions of non‑delegable duties, vicarious liabilities, agency, are very often run together.
MR WALKER: Yes.
EDELMAN J: The mere failure to use a label like “non‑delegable duty” cannot be determinative any more than the failure to use the label “agency” if an agency case were run as vicarious liability, for example.
MR WALKER: I will not contest any of that, your Honour. This is not a nomenclature point I am raising.
EDELMAN J: But a lot of the factors that are raised under this heading “vicarious liability” might equally be the same sort of factors that one would be considering under the heading of “non‑delegable duty”. For example, a bailee, which might be regarded as almost a classic example of a non‑delegable duty, a person to whom goods are bailed, is very often analysed under the heading of “vicarious liability”.
MR WALKER: Yes. Your Honour, my heart is not in resistance, but I do note that your Honour has talked about a lot of – and the same sort. Yes, there is very considerable overlap, after all, it is a pretty narrow compass, the narrative of these offences. My point is that for the requisite undertaking of care, supervision and control of a vulnerable other which is necessary, surely – I do not think our opponents resist this – to succeed in a non‑delegable duty case, different approach to factual inquiry and factual testing is significant. Now, I am going to try and get the best of both worlds, because I do say that on the facts before your Honours, these were not occasions upon which the Diocese had undertaken the care, supervision or control of the child.
EDELMAN J: I appreciate that submission. What I am asking more about is: what would you have said differently? What would you have put to any different witness? What witnesses would you have called differently if the label “non‑delegable duty” had been used rather than the label “vicarious liability”?
MR WALKER: Father Dillon is the only one I can supply in answer to that. Questions to Father Dillon concerning the significance of parents being the hosts, rather than the Diocese being present to undertake the care, supervision and control of children in the home of the parents – and that is not explored at all – in a sense because there not having been a case raised of that kind, I assume those at trial were not concerned to worry about it. It is not just labels, but if in the course of making out liability – and breach of non‑delegable duty is, of course, direct liability – in the course of making out such a case, had it ever been mounted, there would have had to have been reference to the Diocese, for whom the Bishop appeared as defendant. The Diocese, having undertaken care, supervision and control of the child at the house.
GLEESON J: Is the conception of undertaking of care, supervision and control that you are describing a factual undertaking? An undertaking of responsibility for a task?
MR WALKER: It can be implied from circumstances, yes.
GLEESON J: Does it require the assumption of a liability?
MR WALKER: It is that which fills the role of assumption of liability or responsibility, yes.
BEECH‑JONES J: Mr Walker, are you saying there could have been a greater emphasis on the relationship between the Diocese and the child, rather than the relationship between the Diocese and the assistant priest?
MR WALKER: That is part of it, but also, because we are talking about the occasion of offending, and all the cases, both in vicarious liability and non‑delegable duty, stress the significance of concrete findings about the actual circumstances.
BEECH‑JONES J: In the home.
MR WALKER: In this case it is in the home, yes.
GORDON J: One of the ways it is possible, I think, picking up the way in which you are putting your argument, is – just for ease of reference – if you took paragraph 23 of Lord Sumption’s judgment in Woodland where he identifies five characteristics, or what he describes as the “defining features” – and you might have some debate about some of them – do I understand that if you took them as a starting block, that at least in respect of some of them you would have adduced other evidence? Is that ‑ ‑ ‑
MR WALKER: The best I can do on that hypothetical is to say Father Dylan was there, and he was a resource to be mined for what might have been regarded as the irresistible propositions that when you are invited into the home of parents with a little child, do you regard yourself as in any way having undertaken the care, supervision, control of the child. The parents are there. In our submission, the answer is yes, there would have been inquiry which would have addressed a number of those ‑ ‑ ‑
GORDON J: I think it is actually given more detail than that, as I understand your argument. I may have it wrong, Mr Walker, but it is not just that factor, it is also identifying with particularity – if one took this five not as a statute, but at least some idea – the focus on the defendant as distinct from the wrongdoer.
MR WALKER: Yes. Yes, a defendant. I am talking about what is called, alas, the Diocese.
STEWARD J: Can I ask you – you may want to put this on notice, but do you agree with what Lord Sumption has written there in Woodland as the factors one would normally expect to see for a non‑delegable duty in this area? One of them, I note, is that the claimant is:
in the actual custody, charge or care of the defendant –
MR WALKER: Yes, yes.
GORDON J: The reason why I think it might be important, Mr Walker, is twofold. Lord Sumption goes through the Australian cases and comes up with these five which he says at the outset he does not think – he does:
not necessarily subscribe to every dictum in the Australian cases, in my opinion they are broadly correct in their analysis of the factors that have given rise to non‑delegable duties –
And then I think he seeks to summarise them. But secondly, they do have a very particular focus, being the matters I have sought to raise, and now also raised by Justice Steward with you.
MR WALKER: Yes. I do not want to be misunderstood. Lord Sumption, we know, is referring to what he has taken, in particular, from Kondis and Lepore. Those are cases which, as we know, look to concrete facts specific to the defendant against whom a breach of this non‑delegable duty is alleged, at the point of asking: is there a non‑delegable duty? That is, at the time of the harm being suffered by the plaintiff. That is always rooted in the facts.
Woodland v Swimming Teachers is a good vehicle, in a sense, to show that you do not just stop at the idea of the swimming teacher. What is necessary is to show what may arise in some cases only momentarily before the events in question, but it is what Lord Sumption is saying when he talks about an antecedent relationship, because it is that out of which the undertaking to which our cases – the Australian cases – refer rule supreme.
STEWARD J: So, I take it you do embrace what Lord Sumption ‑ ‑ ‑
MR WALKER: Very largely. Can I say this: I should not be taken as commending a checklist approach.
STEWARD J: No, I appreciate that. I do not think his Lordship was thinking that either.
MR WALKER: And I think, with respect, that is correct.
EDELMAN J: The foundation of it is the undertaking.
MR WALKER: Yes.
EDELMAN J: It is very hard to see why intentional wrongdoing would be carved out from non‑delegable duties.
MR WALKER: Now your Honour is going to the next point, which I am happy to come to very soon, but can I say, as to the first part of your Honour’s question, this Court, in our submission, should be content with the undertaking formula as being the criterion for seeing or imposing the non‑delegable duty.
Now, Justice Edelman asks, with great respect, at a level of very serious policy, why would you exclude the more dangerous forms of event, such as crime, from this numinous duty of care, protection and control? I understand the question. My first answer is, if you like, non‑responsive at the level of policy. My first answer is that, for the reasons that might be regarded as policy reasons this Court or members of this Court have raised in Lepore, there should not be what we call this drastic extension under the head of a non‑delegable duty – which is of care, although not straightforwardly – bearing in mind the usual approach of the law to possible liability and negligence – that is, breach of care – for the criminal acts of another.
EDELMAN J: So, do you say that Lord Sumption for the Supreme Court misunderstood the ratio of Lepore in paragraph 21 of Woodland?
MR WALKER: No, that would be bold. More bold than I want to be.
BEECH-JONES J: Mr Walker, just so I am clear, when you are talking “crime”, you mean crime by the servant, not the Modbury Triangle case of crime committed by a third party. Is that right?
MR WALKER: I wish your Honour would not use the word “servant”, but yes.
BEECH-JONES J: Yes. All right. Subject to that word, that is the context you are addressing.
MR WALKER: Yes. Crime by the wrongdoer. It is not just Modbury.
BEECH-JONES J: No.
MR WALKER: But liability and negligence for the criminal acts of another can easily arise – tort and contract, obviously enough – but, in our submission, when one is talking about the imposition of a non‑delegable duty of care, it is triggered by this undertaking – which is not at all reduced in its clarity by later consideration of those authorities in, say, Woodland – that if you have that, we accept that there is another question raised, contra Lepore, should it extend to criminal offending? Our argument is that the reasons to answer that negatively advanced in Lepore should continue to persuade your Honours, and we certainly call in aid that that is the kind of policy or social judgment with, obviously, insurance obligations that should be left to law reform agencies advising parliaments, who will then make legislated decisions.
EDELMAN J: So, as a matter of principle, then, in a case like Morris v Martin, a non‑delegable duty to look after a mink coat is assumed by the bailee, and that duty extends to losing the coat, but it does not extend to deliberately tearing up the coat, ripping up the coat.
MR WALKER: The last, if I may say so, would need to be rephrased, because insofar as the person putatively liable under a non‑delegable duty, if they are the criminal, then none of this debate is necessary. You can just sue them indirectly for trespass or in detinue.
EDELMAN J: The dry‑cleaning company.
MR WALKER: So, we are talking about somebody who can, in the language of the non‑delegable duty area, be said to have failed to ensure that care was taken by another; “non‑delegable” simply serving to say not that you cannot or should not delegate – the conduct of businesses in which such duties arise would be impossible if there were not actual delegation – simply meaning that delegation will not permit you to answer a claim in negligence by saying, I was careful in my choice of delegate or terms of delegation.
Now, lest that become an insurer against harm, there remains, in our submission, an element of – in the verbal slide between a duty to take reasonable care and a duty to ensure that reasonable care is taken, there is nonetheless, in our submission, a mapping or limiting of the province in which this is operating by reference to negligence – that is, lack of care – as opposed to out and out criminality.
GAGELER CJ: One way of looking at it is, if the non‑delegable duty of care is truly a duty to ensure that care is taken, perhaps you need to add a couple of words to that – care is taken to avoid a foreseeable risk of harm.
MR WALKER: Undoubtedly.
GAGELER CJ: Then the question really becomes whether the criminal conduct of another person, whoever it might be, is a foreseeable risk that the reasonable person in the position of the defendant would guard against.
MR WALKER: I think the short answer is yes and, in this case, we are then left with the curiosity that we were directly sued for allowing this man to be there.
EDELMAN J: But non‑delegable duties have never required foreseeability.
MR WALKER: But what the Chief Justice has asked me about concerns whether or not the second duty in the formula, that is, to ensure that care is taken – that is the second duty – by the actor, if you like, the wrongdoer, that must be with respect to foreseeability unless you are turning it into simple insurance as opposed to ensuring. Because the non‑delegable duty, though it has been, for obviously good reasons, described in commentary as in truth and character absolute, nonetheless, stems from and has to do with, a duty of care.
It is imposed on people who have an ordinary duty of care – but wait, there is more, because of the special vulnerability and your undertaking of care, control and supervision, this is a duty of care you cannot discharge by carefully delegating – which, ordinarily, or course, you might be able to do. It is for those reasons, that, in our submission, it is alien to the province covered by this to render people insurers against covert crime, which is what has happened in this case.
STEWARD J: So, do you rely on the finding of the trial judge, at 293, that there was no evidence that was known that there was a risk of Coffey – yes.
MR WALKER: That is right, I will come back that. All this talk about a duty to ensure that reasonable care is taken somehow has to find purchase in the decision of a case in which they sued us for not being careful enough in our letting this man loose – they failed on that. It would be determined on delegable duty into a duty simply to insure. Whatever harm comes, if it happens, that means there has been a failure, you are liable. I am bound to say, the more one reads, the less clear the roots and ramifications of the doctrine appear, I am afraid – non‑delegable duty, if it can be graced with description “doctrine”.
GORDON J: I do not know about that. I think it might be overstating it just a bit. There are aspects of it which are distinct in terms of the relationship between the parties, because you are looking at different parties as distinct from vicarious liability. So, that is the first distinction which is pretty important. Second, you do have this identification, I think, as you properly put, of the idea that you identify the nature of the undertaking in order to then determine that you have the requisite vulnerability and other matters that we have been talking about.
MR WALKER: Yes.
GORDON J: But I have never understood it to be anything but strict liability.
MR WALKER: It is strict in that sense, yes.
GORDON J: So that I had not understood of that, in response to the Chief Justice, that it had included this element of foreseeability and that since.
MR WALKER: I am putting to your Honours that, in making a jurisprudential choice as to whether – contrary to authority so far – a non‑delegable duty extends to render liable a party when harm has been suffered by crime which, if I may say so, is never felicitously described as harm caused by want of due care, in our submission, the same is true of intentional torts – though, for present purposes, we can enlist the more drastic quality of crime.
It is true that the reasons why some people have described it as “absolute” or “strict” is that the whole point of the doctrine is to deprive the defendant of the answer, I was careful in my selection of – I was about to say “agent” – of the person who acted.
GORDON J: The delegate.
MR WALKER: Yes. A “delegate” is, I suppose, a fair way to put it. But, all the more reason, it having that drastic effect, and, nonetheless, springing from concerns about care – that is, duty of care – all the more reason not to include the uncontrollable outbreak of crime.
EDELMAN J: But if you take one of the most core examples, which is the school authority has non‑delegable duty in relation to school students on the premises during school hours – if, as you say with some force, that the root of that is the undertaking that is given by the school authority that care will be taken, not just that they will take reasonable steps to ensure that care is taken, then how could you construe the undertaking as being an undertaking only to ensure that teachers are not negligent and not to ensure that the most serious instances of abuse do not occur?
MR WALKER: With great respect to your Honour, I understand and have accepted the force of an inquiry which looks to the, in all likelihood, more horrific, perhaps more serious, consequences of crime compared to what I might call casual negligence. I accept what I will call the policy force of that. My answer is in two parts, perhaps one and a half parts. It is an extension beyond the continuing substrate of all of this, which is that you are talking about a defendant who owes a duty of care, and it is an extension because it says but, wait, this is a special duty of care.
It is not something that exists if you did not have a duty of care. It is because you have a duty of care to that kind of person in this kind of circumstance that becomes, as they say, non‑delegable, and because of that continuing character to the policy justification of the common law that it is relevant to ask, well, what does the doctrine say or encourage with respect to deterring – I will call it, neutrally, untoward harm‑causing conduct.
There is a world of difference between making sure you have good systems which your delegate can be checked on, which is ideally an explanation of why the common law has been socially remedial of them by awards of damages, and the world of difference between that and deterring crime, particularly crimes of these kinds, the imposition of that duty does nothing to deter the crime at all. That is the half of an answer.
So, there are reasons why the authorities should not be disturbed. That does not mean that a Parliament could not, for all the policy reasons evident in Justice Edelman’s questions to me, decide to enhance criminal compensation. Now, whether they would do it at the expense of certain people, call them organisations or businesses, as opposed to the expense of all of us through consolidated revenue, are political decisions which should be left to legislatures.
We simply urge that that is a very large extension to insurable risk. It is one with which no doubt the market can deal in a predicable way. It is not one which the facts of this case evidently moved anyone to sue originally – it was never done. If you combine that with our protests that it is unfair to level this against us now, given the forensic circumstances, for those reasons, the notice of contention should be dismissed.
JAGOT J: Mr Walker, you have referred on a number of occasions to the nature of the Diocese. Where is the based underlying evidence of that? Or is it in the – I have tried to look at the pleadings, but I cannot really see the point you are making there, that it consists of the hierarchy plus the parishioners. I am just wondering where that comes from. I do not need it now, you can come to it later.
MR WALKER: I can tell you that your Honour has asked a question that I have also asked. The closest you will find is Father Dillon’s reference – I think his understanding of canon law. It is in the book of further materials at page 181, in transcript page 601, starting in line 26, where you find a reference to:
a diocese being a . . . conglomeration of parishes –
JAGOT J: Sorry, page?
MR WALKER: Further materials page 181, transcript 601, line 26.
JAGOT J: Thanks.
MR WALKER: Now, I am bound to say that that scarcely – that would not pass muster in Wikipedia if you were going to look for an explanation of a Diocese in the Catholic Church.
JAGOT J: And do we know what “parishes” are?
MR WALKER: As a matter of English, I do.
JAGOT J: So do I, but ‑ ‑ ‑
MR WALKER: A parish is a group of people, it is not a priest – hence the description of parish priest.
STEWARD J: I think Father Dillon gives evidence about that.
MR WALKER: Yes. At the further materials 168, transcript 588, partly an answer – although tantalizingly near miss to Justice Jagot’s questions – can be found from about line 14.
JAGOT J: Yes.
GORDON J: What page, please?
MR WALKER: Page 168 of the bundle, 588 of the transcript, line 14 and following. Analogies can be overused – the witness says:
the church operates not unlike – we’ve got a nation, we have states –
I do not think your Honours should think there is federalism, but:
We have municipalities and so on. The parish is a smaller area . . . 210 or so parishes which are really communities –
I think “communities” mean people. That is my point. May it please the Court.
GAGELER CJ: Thank you, Mr Walker. Mr Campbell.
MR CAMPBELL: Thank you, your Honour. Your Honours, could I perhaps, in the interval between now and lunch, take the opportunity to take you to some of the factual references. Firstly, could I ask your Honours to go to page 67 of the core book. Bear with me one moment. In particular, could I take your Honours to:
Coffey’s relationship to DP’s and his family: both generally and at the time of the assaults –
He was unknown to the family prior to his appointment, he:
delivered Mass and taught religious education to DP during his preparatory year at the parish school. DP and his family attended Mass every Sunday which was, at times, officiated by Coffey.
Coffey, as we have seen, regularly visited Catholic families in the parish as part of his pastoral role. DP recalled him visiting the family home on five or six occasions.
DP’s home was only a short distance from the presbytery – about 3 blocks away. DP described Coffey’s visits to the house as follows:
[Around the period 1970-1971] –
Which is the relevant period:
Father Coffey used to visit. When he visited, he used to sit on the end of our beds in mine and my brother’s bedroom –
Each of these boys having separate rooms.
I knew the problem . . . – there were marriage problems. We were never allowed to stay in the room to . . . witness what he was talking about to my parents but . . . that is the best of my knowledge.
Then his Honour observes that:
It is also clear from the evidence of the boys and DP that I have set out that the provision of unsupervised pastoral care to families, including that of DP, was part and parcel of Coffey’s role. It was this position, closely connected to his task as a provider of pastoral care, that Coffey was able to take advantage of, in committing his abuse of young boys, including DP.
The part of the judgment where he sets out the reference to the other boys is at page 24, where there was a tendency evidence‑type chart set out identifying, over three or four pages, some 10 separate instances which also – and I will not dwell on it, but it demonstrates the fact of Coffey interacting at people’s homes and in other social circumstances in the context of his pastoral work in the parish. I will move on to – if I could then take your Honours to paragraph 268:
His parents were experiencing matrimonial problems and it was only natural for Coffey to visit them regularly given the location of their house in relation to the church and the presbytery. Even if his parents had not been experiencing such problems, it is clear that Coffey’s practice was to establish a relationship of intimacy with Catholic families, such as that of DP, within the Diocese.
So, it is not just a case that he was establishing a relationship with the parents, but also with this young boy as a parishioner, he having been a regular attender at the church, he having also been given religious education at the school by Coffey. If your Honours then go back to 247:
DP said that Coffey had visited the family home on multiple occasions and that the purpose was to give advice to the family –
Not just to the parents:
Coffey did so in the context of DP’s parents’ marital problems.
And it does not take much of an inference‑drawing exercise to assume that this would have been a troubling time for the boy, who knew about his parents’ matrimonial problems, and that the priest would be assisting him in coming to terms with those matters:
When he visited on those occasions, he wore a clerical collar.
At Court of Appeal paragraph 157, which is at page 191 of the bundle:
The short answer to that point is, as we have discussed, the evidence of the respondent demonstrated that Coffey’s visits to the respondent’s family home were an integral part of his pastoral role as a parish priest. It was in the performance of that role that Coffey became involved in providing advice and conciliation to the respondent’s parents in respect of their matrimonial difficulties . . . the performance by Coffey of that function engendered the requisite trust in him by the respondent’s parents which enabled him to have intimate contact, of an unlawful kind, with the respondent. As Father Dillon said, the pastoral role of the priest, and the relationships, and indeed the friendships, that the priest developed with his parishioners, were an integral part of his role. Father Dillon explained that when he was an assistant priest at Geelong he participated in a video named ‘Priests 24/7’, which he considered was appropriate because, as he said, ‘you’re never really off duty in that sense’.
That obviously being an important element of the relationship that he had. At paragraph 83 of the primary judgment:
DP said that on about five or six occasions Coffey had visited DP in his bedroom.
In the Court of Appeal at 150 it is stated – I think my learned friend took your Honours to this this morning. He did not, however, take your Honours to the next paragraph, which was that:
Father Dillon explained that an important part of the function of a parish priest was to involve himself in the family and home lives of his parishioners.
And then sets out what he said, and that his:
connection with the respondent –
which, of course, was DP, not the parents:
derived significantly from the performance by him of his pastoral role as a priest in the local parish.
GORDON J: What paragraph is that, please, that you just took us to?
MR CAMPBELL: Yes, your Honour, that was 152.
GORDON J: Thank you.
MR CAMPBELL: At trial reference 261, the topic of “friend” arises:
It is abundantly clear from the evidence of Father Dillon, DP and the other boys that pastoral visits to Catholic family homes were part of Coffey’s duties as assistant priest. I am satisfied that Coffey made a practice of attending parishioners’ homes as part of his pastoral role and this quite reasonably extended to attending social functions. To suggest otherwise . . . is sheer nonsense.
His Honour said. At Court of Appeal reference 160, the same topic is raised. I will just give your Honours that reference – I will not read that out.
GORDON J: What page of the core appeal book, please?
MR CAMPBELL: I am sorry, your Honour, it is at 192 of the court book. I apologise for not giving you the page number. Then, at 274 and 275 of the first instance decision, which is at page 69, the finding is, at 273:
I am satisfied that on both occasions Coffey was engaged in a pastoral visit.
Merely because the occasion of the first assault was a social gathering does not, as I have just discussed, mean that it was outside Coffey’s pastoral role. To the contrary, the participation in Catholic social life in a rural community was as much a part of a priest’s role as was celebrating Mass.
The same can be said in relation to the second assault. The Diocese contended that there was some significance in the fact that it occurred on Boxing Day . . . This goes nowhere – it was another example of maintaining the relationship of the Church with its parishioners in the context of a pastoral visit.
Finally, it is singular that DP’s parents, quite understandably, permitted Coffey to take DP alone into his room and into the tent. I readily infer that they did so because of their implicit trust in Coffey in his role as a priest of the Church whose teachings and ministry they devotedly adhered to.
Could I then briefly take your Honours to portions of the respondent’s book of further materials, because it contains references to the various canons that have been the subject of some discussion, and the evidence of Father Dillon in relation to those matters. Firstly, if your Honours go to page 48 of the bundle, there is canon 455, and to assist your Honours, I will give you the parallel reference to that to where Father Dillon discusses that. At 184, line 29, Father Dillon gives evidence:
And you said the word bishop; which word means bishop?---Ordinary.
And then a little bit above:
The appointment of parish priests is the right and obligation of the bishop –
Could I then jump forward to canon 476, which is on page 49, which speaks of:
If a pastor because of a multitude of people or from other causes is unable, in the judgment of the Ordinary –
Which is the bishop:
alone conveniently to conduct the care of the parish, one or several vicar –
Which incorporates an assistant priest:
shall be given him –
Father Dillon said, in relation to that, at 188:
if you can you appoint an additional priest to serve as an assistant, and that would’ve been the case –
There is an incorrect reference in that to canon 465. It is a transcript error; it should read 476.
GAGELER CJ: What line were you reading from, please?
MR CAMPBELL: I am sorry your Honour, I had not turned over – I have been reading them off of my notes. I will get the line for your Honour.
GAGELER CJ: I think you said it was page 188?
MR CAMPBELL: It is 188. The reference is at – I have lost it – I will just get my junior to help me with the actual reference, your Honour.
BEECH‑JONES J: Mr Campbell, would you accept the references to “parish” is – as Mr Walker said – to include the collection of parishioners as well as the people such as the Bishop, and so forth?
MR CAMPBELL: No, I do not, your Honour. There is no evidence in the proceedings as to the extension of – the reference to parish is a reference to a physical structure and a boundary in which that particular archdiocese operates.
BEECH‑JONES J: So, that is the location?
MR CAMPBELL: That is the location. It is like we put the map up on the wall, and this is that parish, that parish, and that parish, and there were described to be some hundreds of them in Victoria.
GAGELER CJ: Mr Campbell, over lunch, would it be possible for you to reduce to a piece of paper the cross‑referencing that you wish us to undertake between the ‑ ‑ ‑
MR CAMPBELL: If it would suit your Honours, I actually put these two propositions that I am putting before your Honours on two sheets. I will get a clean copy of those sheets and make them available to your Honours’ associates over the adjournment, if that suits.
GAGELER CJ: I had in mind an A4 piece of paper – that looks like butcher’s paper to me.
MR CAMPBELL: I will get it done in A4, your Honour. It is because of my eyesight.
GORDON J: You might, when you do that over lunch, just check, because I think the reference that you last gave to us was to page 188, and I think it was 187 at line 6 and following.
MR CAMPBELL: Thank you, your Honour.
GORDON J: You might just get someone to crosscheck the document.
MR CAMPBELL: My learned junior, Dr Boas, has pointed that out to me as well. Thank you, your Honour, I appreciate it. I will leave that reading exercise – at what time did your Honour propose to adjourn?
GAGELER CJ: We can take the adjournment now.
MR CAMPBELL: I was hoping to deal with some of the more legalistic points in a fairly short form.
GAGELER CJ: Yes, I understand the position of the parties to be that we will finish comfortably during the day if we resume at 2.15 pm.
MR CAMPBELL: Subject to my learned friend’s reply, I do not expect to – unless I get a lot of questions from your Honours, I do not expect to be probably more than half an hour or so.
GAGELER CJ: We will take the luncheon adjournment, then. Thank you.
AT 12.41 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.14 PM:
GAGELER CJ: Mr Campbell.
MR CAMPBELL: Yes, thank you, your Honour. I think, your Honours, we managed to provide your Honours with hard copies of the two pages I referred to this morning, along with electronic copies as well.
GAGELER CJ: Thank you.
MR CAMPBELL: Unless your Honours wanted me to refer further to those factual matters, I think I have said all I need to say about the canons and the facts.
GAGELER CJ: Thank you.
MR CAMPBELL: Very briefly stated, your Honours, could I take you, firstly, to the Woodland decision which you were discussing with Mr Walker earlier, and could I go to page 1078 of the case bundles, where paragraph 23 appears. Can I just briefly make reference to the specific elements that are posited by his Lordship. The first item: the claimant is plainly a child and, indeed, a child of tender years and is unquestionably a person who was vulnerable and, we would say:
dependent on the protection of the defendant against the risk of injury.
In the sense that it was a likely event that from time to time the parish priest or assistant parish priest would have occasion – and opportunity, of course – to be with him alone, as he was on five or six occasions when visiting the home for pastoral duties. Secondly, and we say somewhat importantly in this case, there was:
an antecedent relationship between the claimant and the defendant –
in the sense that we have referred to in the factual summaries, and I will not reiterate that:
(i) which places the claimant –
on the occasions in question in the care of the tortfeasor:
and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant.
In that respect, could I just add to the equation – the convenient point where it appears is at page 369 in the decision of Lepore where the Court, the former Chief Justice Gleeson, made reference at paragraph 35 to Kondis.
GORDON J: I am sorry, could you just give me that reference again, please, to Lepore?
MR CAMPBELL: Yes, your Honour, it is at page 369 of the bundle.
GAGELER CJ: Can you give us the Commonwealth Law Reports reference, please?
MR CAMPBELL: Yes, the Commonwealth Law Reports reference is 212 CLR 511 at paragraph 35. At the conclusion of the quote from Kondis, I wanted just take your Honours to where it is said – there are two situations posited:
In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control . . . of another or is so placed in relation to that person . . . as to assume a particular responsibility for his . . . safety, in circumstances where the person affected might reasonably expect that due care will be exercised.
So, we would incorporate that in this analysis that his Lordship was referring to.
GAGELER CJ: Mr Campbell, am I right in understanding that we have moved immediately to your notice of contention?
MR CAMPBELL: I was going to come back to the other bit – I was just going to get rid of the question, because it was the last thing we were talking about – the Woodland reference – which is my notice of contention, yes, your Honour.
GAGELER CJ: And at this point, are you developing the concept of the non‑delegable duty of care?
MR CAMPBELL: Yes, I am.
GAGELER CJ: It would assist me – well, I go back one step – Woodland was a strikeout ‑ ‑ ‑
MR CAMPBELL: Yes.
GAGELER CJ: ‑ ‑ ‑ where the pleading in issue was noted at the beginning of paragraph 2 – a pleading in negligence. If you were to plead the unpleaded case here, what is the duty, precisely? And what is the breach of the duty, precisely?
MR CAMPBELL: In the sense of the pleading of the non‑delegable duty, your Honour?
GAGELER CJ: The way you put it.
MR CAMPBELL: Yes. We would plead it as being – I think, your Honour, the best way to introduce that is to go to the notice of contention itself, at 224 of the core book. So, we would plead it by saying that the respondent, being a parishioner of tender years, a vulnerable person who was exposed to the assistant parish priest in the course of nurturing him as a future and, indeed, present member of the Catholic faith, educating him in religion on the one hand, saying Mass, visiting his home, fostering the relationship, and then providing clerical services in the privacy of his bedroom on multiple occasions, in those circumstances there was control, power, authority, vulnerability, as I have said, opportunity for intimacy, and the way the Church operated in this Diocese, that that was what the priests were expected to do. We would say that that gives rise to the satisfaction of the tests referred to by his Lordship.
GAGELER CJ: That is not what I am asking. I am asking, what is the duty? What is the scope of the duty and what is breach of the duty?
MR CAMPBELL: The scope of the duty is to ensure that the young boy was not exposed to a risk of harm. The breach was causing, or allowing, the servant – if I could use that term – to have unsupervised access to young children without there being any restrictions on supervision, basically. I think that is how I would put it, your Honour.
GAGELER CJ: Thank you.
EDELMAN J: That is really an amalgam between a common law duty of care and a non‑delegable duty.
MR CAMPBELL: There may be cases where the two are, essentially, the same, but you have different indicia in terms of what establishes the existence of the non‑delegable duty.
EDELMAN J: Is that because, as Mr Walker put, the ultimate foundation for non‑delegable duties, as is the case in relation to some duties of care, is the undertaking or ultimate assumption of responsibility ‑ ‑ ‑
MR CAMPBELL: I think that is why I read the last bit of the quote from Kondis, where you are taken to an assumed responsibility.
EDELMAN J: Is that not, then, an intensely fact‑driven question?
MR CAMPBELL: Yes. But they are the same facts that arise for consideration in relation to direct negligence and vicarious liability.
GORDON J: It may not be, in this sense – it comes back to the discussion I had with Mr Walker about identifying what is the undertaking, and so here, the undertaking for the concept of non‑delegable duties, one asks whether it is, who has the custody, charge or care of the child. That is one way of looking at it.
MR CAMPBELL: Yes.
GORDON J: Another way of looking is to pick up your language in Kondis and to ask a different question, which made the slightly different set of facts taken from paragraph 35, which was an undertaking which placed you in a particular responsibility for their safety in circumstances where that person affected might reasonably expect it. Are there different factual inquiries, because they are different aspects of identifying an undertaking?
MR CAMPBELL: Yes, but they are factual inquiries that are necessarily undertaken in the course of the broader pleaded case of vicarious liability and direct negligence.
GORDON J: May not be, and that is the point.
MR CAMPBELL: Well, in the facts of this case, I would submit, because it was clear the ambit of the facts that were adduced in this case clearly led to the purpose of the priest being at the house, as I took you through those factual matters this morning. It was not, as we submitted by the appellant, just because of marital problems concerning the parents, but also to liaise with and counsel the young boy who was aware of the marital issues and who had this antecedent relationship with the priest through his religious education and attendances at church.
All of those facts were played out. The appellant chose to lead no evidence whatsoever about any of these underpinning circumstances and openly accepts the Blatch v Archer issue. They pleaded in their defence, if I perhaps could take you to that, your Honours, in the book of further materials, page 26. By way of further defences, they expressed a non‑admission as to the nature and extent ‑ ‑ ‑
GORDON J: Sorry, which paragraph are we looking at?
MR CAMPBELL: Paragraph 62. My apologies, your Honour.
GORDON J: Thank you.
MR CAMPBELL: Non‑admission of:
the nature and extent of the duties pleaded and otherwise does not admit that any duties owed . . . extended to the facts, matters and circumstances pleaded –
Then they pleaded a generalised denial of any breach of duty caused injuries and then, relevantly:
Further and in addition, the Diocese states that the facts alleged by the plaintiff do not give rise to a positive duty on the part of the defendant, to take positive steps to protect the plaintiff from criminal acts by a third party –
which, with respect, your Honours, is getting very close to, without using the label, addressing what is essentially a non‑delegable duty case.
GLEESON J: Does a non‑delegable duty not require identification of the duty that the Diocese owes to the child? Then there is a question about whether that duty was, in fact, delegated. But, as I have noted it, the duty to ensure that the child is not exposed to a risk of harm does not really identify the duty that we are engaging with that was said to be owed by the Diocese.
MR CAMPBELL: It would be a duty to – we would put it as not expose a child to a risk of harm, but it could also be expressed as a duty to protect the child from harm.
GLEESON J: In the course of exercising some function of the Diocese.
MR CAMPBELL: Or assuming responsibility for the child’s – if I could just call it loosely – “Catholic education”, both in a biblical sense and in a moral development sense, alone.
BEECH-JONES J: Mr Campbell, you have expressed that in absolute terms. Is it not a duty to ensure that reasonable care was taken to protect?
MR CAMPBELL: Yes, it is. Yes.
BEECH-JONES J: Then, what is the answer? If that is the duty, then what is the answer to the Chief Justice’s question as to what the breach was?
MR CAMPBELL: Taking no steps to have Mr Coffey not allowed to be alone with a child in the privacy of their bedroom. There is no instruction, or guidance, or direction, in terms of that matter.
EDELMAN J: That is not a non‑delegable duty, then. Now you are talking about a duty of care. The non‑delegable duty would be breached simply by proof that reasonable care was not taken by a party in circumstances in which there was an undertaking that reasonable care would be taken.
MR CAMPBELL: But I am saying that the reasonable care that would be taken here is to take steps so as to not allow a young boy to be left alone with this man because of the foreseeable risk of this sort of thing happening.
GLEESON J: In doing what? In performing what function?
MR CAMPBELL: In performing his pastoral duties. It is one thing to be in a classroom with a group of boys, where there are multiple people present. It is another to be in the intimacy and privacy of someone’s bedroom, who is five years old, and there being no suggestion that there is anything wrong with doing that by anybody on the appellant’s side of the table.
GAGELER CJ: I think what this discussion is exposing for me is two things. One is that your duty is not the Woodland duty, that was the subject of the strikeout in Woodland. Second, the way in which this putative duty is framed is by no means clear, nor is the way in which the breach is framed.
MR CAMPBELL: No, I can understand that, your Honour. I do not think I can express it any differently to how I have, and I simply fall back on what we have said in our written submissions in relation to it as well. I think that is all I need to say on that topic, your Honour.
Whilst we have Lepore out, could I return to the vicarious liability point, and just bring to the Court’s attention the reference, because we have Introvigne v The Commonwealth elsewhere, but as we have Lepore open, it is useful, because the Chief Justice discusses that decision in detail here. Could I take your Honours to paragraph 25, at page 366 of the book and page 530 of the Commonwealth Law Reports where it was noted that Justice Mason, as he then was, with whom the Chief Justice agreed, said that:
although the case had been presented by the plaintiff, and dealt with at first instance and in the intermediate appellate court, as one of vicarious liability, the plaintiff was entitled to succeed on a different basis. He did not reject the possibility that the Commonwealth might have been vicariously liable for the negligence of the teachers.
Can I pause there, your Honours. This was a case in which the teachers were employed by the State of New South Wales. It was the Commonwealth education system which was held responsible because it was a Commonwealth school, notwithstanding that the teachers were not employed by the Commonwealth. So, the relationship that gave rise to vicarious liability was not one confined to employer/employee as between plaintiff and defendant. Then he went to say that:
he rested his decision on the ground that “[t]he duty . . . imposed on a school authority is akin to that owed by a hospital to its patient”.
The Court decided that the case could be resolved on the basis of the non‑delegable duty of care, it also having been a case where non‑delegable duty had not been raised in the courts below.
So, I use it for two purposes, the one that I indicated, the relationship beyond employment as between plaintiff and defendant; secondly, that the issue of non‑delegable duty was held to be able to be raised at the final appellate level.
GAGELER CJ: This is a question that is governed by Suttor v Gundowda and many cases.
MR CAMPBELL: It is.
GAGELER CJ: It is very case‑specific.
MR CAMPBELL: I am simply saying that, given the way in which the case was proceeding, given what the issues that were before the Court were, there is no realistic basis that the appellant would have conducted itself differently at the trial, particularly in circumstances where you know they took no steps to lead any evidence whatsoever and they had ample opportunity to ask Father Dillon questions, and did, and the argument that was put this morning was never put to him. That is, about they were there, he was there only because of the parental issue, nothing to do with the boy.
Well, that was plainly relevant to any vicarious liability claim, that line of questioning, and so your Honours should not be persuaded by the argument that Mr Walker made this morning. That is all I want to say on that. I do further emphasise, and it was not the subject of any criticism by the Chief Justice in Lepore. Justice Murphy actually found the decision on the basis of vicarious liability as well as non‑delegable duty of care. The next matter that I wish to briefly refer to, your Honours, is by reference to paragraph 9 of our written submissions.
GORDON J: Is this the written submissions, or the outline of oral argument?
MR CAMPBELL: The written submissions, your Honour. If your Honour could just bear with me for a moment while I find them. I could go straight to paragraph 12, your Honours. I think I can pass over the earlier paragraphs.
We point out that the vicarious liability of a master for the acts of a servant has very ancient roots, and then we say that status has never been wholly displaced by contract. We give your Honours a reference to the decision of Rossato that Mr Walker made reference to this morning. It is not in the folder of cases, but the CFMMEU Case is in there, which – a similar point was discussed by your Honour Justice Gordon at page 178 of the case bundle, CFMMEU is 275 CLR 165. The reference that I wish to take your Honours to is 229, paragraph 172, where it is stated by reference back to Rossato:
“[a] court can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship. In modern times, those legal rights and obligations derive from a contract of employment”. That is because “[t]he employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment”.
Your Honour goes on to say:
Indeed, the evolution of the employment relationship is “a classic illustration of the shift from status (that of master and servant) to that of contract (between employer and employee)”.
The same point was made by your Honour the Chief Justice in Rossato, and if I could remind your Honour, I think it was at paragraph 113 of that decision ‑ ‑ ‑
GAGELER CJ: I might have been on my own there.
MR CAMPBELL: No, the majority at 58 made a similar observation. The point that we want to make out of all of this is there has been a shift towards contractual relationships for the purposes of employment in the modern word. The Church has decided not to move with the same pace from the status relationship and that gives the warrant for this Court to follow the English line of authority in relation to “akin to employment” by reference to what is a non‑contractual relationship.
STEWARD J: Was that in existence in 1971?
MR CAMPBELL: Yes. But, your Honour, the shift had started probably late 19th century, when contracts started to determine worker‑employer relationships in the main. But that does not mean they are exclusive, and there is no room for this additional circumstance which the English courts of recent times have embraced. We would respectfully submit that there is no line of authority in Australia that would preclude this Court from reaching a similar view.
My final point is therefore one – to take up the words of your Honour the Chief Justice and Justice Gordon – at the heel of the decision in Prince Alfred College from 127 onwards – I do not need to restate it, because I know you all know it very well – where:
Judges make and develop the common law, as distinct from discovering and declaring it. Identification, modification or even clarification of some general principle or test requires that judgments be made. Those judgments are best made in the context of, and by reference to, contestable and contested questions.
This vehicle has given rise to these contestable and contested questions, and we invite your Honours, to the extent necessary, to identify, modify or clarify the general principles that are at play. Your Honours were also at pains to emphasise that the overseas decisions:
expose a difficulty in undertaking any analysis by reference to generalised “kinds” of case. Why? Because the “[s]exual abuse of children may be facilitated in a number of different circumstances”.
GAGELER CJ: If we were to adopt the notion of a relationship “akin to employment”, what kind of relationship, apart from a relationship between a priest and a diocese, would fall within that conception?
MR CAMPBELL: Perhaps I should also pick up the comment your Honour and Justice Gordon made, that the exercise is very fact‑specific when we are dealing with this area. So, one would need to hesitate to consider relationships beyond the factual circumstances presently before the Court.
GAGELER CJ: Part of what is put against you is that there is a floodgates problem here ‑ ‑ ‑
MR CAMPBELL: The English courts ‑ ‑ ‑
GAGELER CJ: ‑ ‑ ‑ what about the volunteer firefighter; what about many other relationships?
MR CAMPBELL: I did not mean to talk over your Honour, I am sorry. But the English courts seem to have addressed that. They originally started out with it being a bit too broad and then brought it back. But I emphasise what I have said before – we do not know the specific facts of these other relationships and circumstances subsisting in connection with them.
This would be a fact‑specific decision concerning a particular relationship. Questions concerning those matters would need to abide another day when the Court is fully seized of all of the relevant indicia concerning that relationship. That is the modification, adaptation and implementation of a common law. I think that is – I do not propose to, as it were, get drawn into trying to say whether or not it would extend to a volunteering type of relationship of that kind, because that is not what this is.
Unless there is something further I can assist your Honours with, those would be our submissions in reply to those of my learned friend.
GAGELER CJ: Yes, thank you, Mr Campbell.
MR CAMPBELL: Thank you.
GAGELER CJ: Mr Walker, do you have anything in reply?
MR WALKER: Briefly, please, your Honours. Your Honours, this morning I was asked about paragraph 23 in Woodlands. I do not want to revisit the answer I gave to that, but I think I should draw to attention that in the lead‑up paragraph 21, Lord Sumption gives a very potted summary of Lepore. It may not be the most – at least in one aspect of it – accurate way of describing the majority ruling in Lepore. It is best to rely upon what this Court described, by way of summary, in paragraph 3 of the reasons in Prince Alfred College concerning Lepore. It is not a large point, but we would draw to attention that when you look at the reasons of Justices Gummow and Hayne, in paragraphs 265 and 270 of Lepore, Lord Sumption’s summary may not be fully accurate.
I was asked concerning questions of the nature of a diocese or parish and my learned friend responded to Justice Beech‑Jones on a basis that leads to a real puzzle in this case that, yes, it is true in ordinary English – you only have to look at a map – a parish is a description of a defined area of land, as is a diocese, but my client the Bishop is not a nominated defendant on behalf of a defined piece of land.
We, for an unincorporated association, must be – the association is of people and, as I had understood Justice Beech‑Jones’ question to my friend, it really meant was, and what is the extent of the people? Do you include the members of the Church who comprise the parishioners in the membership of the Diocese, as I assert one does. I have already given two references. May I add just a couple of others on that point. In paragraph 240 of the trial judgment in the core appeal book at page 63, you will see this expression:
a general or widely-held expectation by the Port Fairy Catholic community, indeed all lay members of the Diocese, about the conduct of priests –
et cetera. In the next paragraph, 241, there is, as it were, a kind of striking metonymy achieved:
To the people engaging the services of Coffey, he and Father O’Dowd were the Diocese –
Now, that is obviously not to be taken literally. On no view was ‑ ‑ ‑
GORDON J: Sorry, where was that, Mr Walker?
MR WALKER: Paragraph 241 at core appeal book page 63.
GORDON J: Thank you.
MR WALKER: What we draw to attention is, of course the Diocese has members who are the laity. On any view of it – without it being giving evidence from the Bar table – they are the people who matter. Something understood by Father Dillon, who disarmingly disavows expertise as a canon lawyer but, nonetheless, if you looked at the book of further materials, it is page 204, transcript page 624, starting at line 25. The question was:
when you talk about the Church, as I understand it, any Catholic is the Church; correct?‑‑‑That’s correct, yes.
. . . There’s the Church and the – and the institution of the Church . . .
. . .
Well, the Church is just an association of people –
et cetera. So those are two more elements making good the proposition that of course the Diocese is certainly not just the Bishop; it is certainly not just the assistant priest, it is certainly not just the clergy.
With respect to the matters that my learned friend provided in answer to some questions this afternoon, in our submission, whether by way of a supposed pleading to advance the notice of contention non‑delegable duty case, or by way of formulating – whether by way of a pleading or otherwise – the duty – that is, its scope and content – which was non‑delegable, none of the answers my learned friend gave, in our submission, makes out any of the matters needed for the respondent in that regard, starting with the appropriateness of entertaining the notice of contention at all, moving, of course, to treating this as an appropriate vehicle to open up the current understanding that non‑delegable duty is not something, breach of which can extend to liability for harm caused by a crime.
More particularly, the answers – which included the variant of ensuring that the boy was not exposed to any risk of harm – would appear to be the very kind of unspecific insuring, rather than ensuring, to which the passages which we have already drawn to attention in Lepore would rather suggest, at the moment, is not open on authority. A variant, namely, to protect – that must mean positively to protect the child – and then an expression which we, with great respect, do not see as advancing the matter concerning scope or content of duty, namely, a Catholic education. Presumably, to provide a Catholic education.
None of these, with respect, have any purchase in the idea of the antecedent circumstances or relationship from which one can spell on the defendant’s part an undertaking for the care, control and supervision of the vulnerable child. Worse, in our submission, the case simply comes back by the next variation of words my friend gave to nothing other than the very case that was run in negligence and failed, namely, causing or allowing the servant to have unsupervised access to young children without restriction. Well, that is what was alleged, and would fail, that provides absolutely no footing for the entertainment of the re‑presentation under different nomenclature of exactly the same complaint that failed.
We would say this about any attempt to spell out the requisite undertaking in the way in which our friends have put it, that it is almost impossible to see why it is not something that springs into existence and then follows the fate of the child anywhere, anyhow and any time the child is present and, in our submission, that completely disturbs the policy and principal footing of this particularly rigorous duty, the duty to ensure reasonable care is taken, which has to be specific to the situation in which the harm sued for occurred, otherwise absurdities of a kind such as the blameless tripping in the schoolyard will naturally follow.
It is for those reasons, in our submission, that even if you were to consider the contention, the facts of this case do not support the existence of an undertaking for the care, control and supervision of the child in the child’s own house while the child was in the care and custody of the parents.
My learned friend really is speculating, we would submit, with respect, implausibly, about the Church somehow having dawdled in catching up with a shift from supposed mediaeval concentration on status to mercantile modern concern with contract. For a start, and I intend this seriously, one should not suppose that the Church is bereft of sophisticated legal and historical assistance.
Second, there are all sorts of reasons, I have touched on some of them in‑chief, as to why, even if you have the capacity or an easy facility to create by contract an employment of diocese and clerical officers by a diocese, even if you had it, there are reasons why that notion of “employment” would be rejected within the ecclesiastic establishment as much as it has been rejected in the military and police establishment.
The invitation, however, which that rather bleak view of the Church’s modernity invites you to, is this notion that the Church somehow,
having neglected to regularise things by civilly enforceable contract, nonetheless that which we know exists because of particular forms of rights and obligations, namely, the employment relationship, should be treated as being approached – that is, “akin to employment” – by a state of affairs in which there is nothing civilly enforceable, nothing in terms of rights and obligations, without including, in answer to the Chief Justice, indicating what are the features about the ecclesiastical position which would render it either a one‑off extension of the law or, as we would put it, instead a Trojan Horse by which all manner of things not expected will spring into action if this be admitted.
If that is a floodgate, so be it. It is a test, in our submission, of the propriety of an incremental change in the common law that not only is justified by policy and not contrary to principle, not only is it an occasion which justifies moving beyond stare decisis, but it is also something which will produce some merits such as greater predictability or ease of application. None of that is held out by this amorphous prospect of “akin to employment” where you know you start the inquiry by saying, we know it is not employment, including as to the most fundamental element of employment, namely, that it is enforceable as to rights and obligations.
May it please the Court.
GAGELER CJ: Thank you, Mr Walker. The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.
AT 2.56 PM THE MATTER WAS ADJOURNED
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