D L v The State of Western Australia - [2022] WADC 48

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   D L -v- THE STATE OF WESTERN AUSTRALIA [2022] WADC 48
CORAM:   COMMISSIONER COLLINS
HEARD:   29 MARCH 2022 AND WRITTEN SUBMISSIONS 24 NOVEMBER 2021, 31 JANUARY & 1 MARCH 2022
DELIVERED          :   25 MAY 2022
FILE NO/S:   CIV 1694 of 2020
BETWEEN:   D L
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
AND
MERCY SUPPORT LTD
Second Defendant

Catchwords:

Practice and procedure - Summary judgment application by the second defendant - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s 15A, s 15D
Civil Liability Act Legislation Amendment (Child Sex Abuse Actions) Act 2018 (WA)
Limitation Act 2005 (WA), s 6A
Planning and Development Act 2005 (WA), s 159
Rules of the Supreme Court 1971 (WA), O 16

Result:

Second defendant's application be dismissed

Representation:

Counsel:

Plaintiff	:	Mr R D McCabe
First Defendant	:	Mr T J Palmer SC
Second Defendant	:	Ms B A Mangan

Solicitors:

Plaintiff	:	Rightside Legal
First Defendant	:	State Solicitor's Office
Second Defendant	:	Mills Oakley (NSW)

Case(s) referred to in decision(s):

Everswell Pty Ltd v Beeliar Management Pty Ltd as Trustee for Beeliar Development Trust [2022] WASC 74
Mohammadi v Bethune [2018] WASCA 98
Nu‑Fortune Gold Ltd v Roxbury Trading Pty Ltd [No 4] [2020] WASC 25
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77

COMMISSIONER COLLINS:

Introduction

The second defendant has brought an application for summary judgment under O 16 of the Rules of the Supreme Court 1971 (WA) (RSC). The second defendant requires an extension of time to bring the application; the second defendant's chamber summons seeks that extension. The second defendant's chamber summons also seeks orders dismissing the first defendant's contribution proceedings brought against the second defendant.
The second defendant's application was brought by way of a chamber summons dated 24 November 2021. The application was supported by an affidavit from Pamela Megan Malcolm dated 15 November 2021 together with an outline of written submissions (dated 24 November 2021) and amended submissions (dated 31 January 2022). The plaintiff filed an affidavit from Sara Connor-Stead on 28 February 2022 and an outline of written submissions on 1 March 2022. The first defendant filed an outline of written submissions on 1 March 2022.
I presided over the second defendant's application on 29 March 2022. At the hearing of the application, the central issue involved the proper construction of s 15D of the Civil Liability Act 2002 (WA) (CLA) and its application to the pleaded facts.
For the reasons that follow, while I will extend the time to bring the application, I will dismiss the application itself. These reasons deal with the grounds for dismissing the application.

Background to the second defendant's application for summary judgment

By the plaintiff's amended statement of claim (ASOC), the plaintiff has, in broad terms, brought an action against the State of Western Australia (first defendant) and Mercy Support Ltd (second defendant) and Province Leader of the Oceania Province of the Congregation of Christian Brothers (third defendant) for damages for a psychiatric injury suffered after he was sexually abused by Gerald Wasley while a ward of the state and placed into care: ASOC, pars 13, 14, 17 and 20. In August 2021, the plaintiff discontinued its action against the third defendant.
The plaintiff's claim can be briefly stated. At all material times, the office holders of authority in the Sisters of Mercy in Western Australia (office holders) owned, and/or operated the St Joseph's orphanage and/or St Vincent's Foundling Home in Wembley, Western Australia (the orphanages) and had responsibility for the orphanages: ASOC, pars 7(a) and 7(c). I note that the second defendant submitted at the hearing that the plaintiff was at one time, 'in' St Vincent's and not 'in' St Joseph's, however, for the purposes of this application, nothing turns on this (ts 7).
The office holders operated the orphanages by employing and/or appointing and/or were responsible for members of the Sisters of Mercy, nuns, teachers, employees, agents and volunteers who managed and operated the orphanages. Further, the office holders operated the orphanages by directing and controlling the orphanages through a governing authority, managers, and/or Sisters employed by them: ASOC, par 10.
The Sisters who were members of the Sisters of Mercy, nuns, teachers, employees, agents and volunteers at the orphanages who were employed and/or appointed and for whom the office holders were responsible were, amongst other things:
(a)directed, controlled and supervised by the office holders and the orphanages;
(b)subject to ongoing direction, control and supervision by the office holders and the orphanages; and
(c)persons associated with the institution of the orphanages of the Sisters of Mercy within the meaning of that term in s 15D(1)(a) of the CLA: ASOC, par 11.
The office holders and/or the orphanages employed and/or engaged Francis Wasley and Kathleen Wasley (Mr and Mrs Wasley) to perform work at the orphanages, which included gardening work, and engaged in the practice of boarding out, and/or arranging external placements of children in their custody and care outside the institution: ASOC, pars 11A - 11B.
The plaintiff was at all material times, extremely vulnerable to abuse, given his age, and the lack of control over his living arrangements: ASOC, par 12.
In 1962, the plaintiff was placed into care with the orphanages: ASOC, par 14.
In the same year, the plaintiff met Mr and Mrs Wasley whilst they were working in the garden of one of the orphanages. Mr and Mrs Wasley asked the Mother Superior if they could take the plaintiff to stay with them in their home, to which the Mother Superior agreed. The plaintiff was, thereafter, boarded out and placed with Mr and Mrs Wasley for, or on behalf of, the office holders and/or the orphanages: ASOC, par 14A.
Mrs Wasley had adult children including Colin Wasley who also lived with Mr and Mrs Wasley and Gerald Wasley who regularly visited, and occasionally lived with Mr and Mrs Wasley: ASOC, par 14C.
Gerald Wasley occasionally cared for and supervised the plaintiff whilst he was placed with Mr and Mrs Wasley in their home: ASOC, par 14D.
The plaintiff alleges that between 1962 and 1963 while in the care of Mr and Mrs Wasley, Gerald Wasley sexually abused him: ASOC, par 17. And further, that between 1963 and 1972, while in the care of Mr and Mrs Wasley, and then separately, in the care of Mrs Wasley (because Mr Wasley had died sometime between 1964 and 1966), Gerald Wasley sexually abused him: ASOC, par 20.
The plaintiff alleges that at all material times, the first defendant and the office holders and/or the orphanages for whom the second defendant is liable, owed the plaintiff a duty to exercise reasonable care for his welfare and take precautions against foreseeable and not insignificant risks of harm: ASOC, par 24.
In the circumstances of the above, the plaintiff alleges that the first defendant and the office holders and/or the orphanages for whom the second defendant is liable, and their servants and agents were negligent by reference to 18 circumstances. Relevantly and without limitation, they were responsible for allowing the plaintiff to be placed with the Wasleys, which involved an unsuitable and unsafe environment and did not adequately or at all protect the plaintiff from being sexually abused: ASOC, par 31; plaintiff's submissions (PS), par 20.
The plaintiff also alleges further and in the alternative that the office holders and/or the orphanages for whom the second defendant is liable:
(a)owed a non-delegable duty of care to the plaintiff for the harm caused by the abuse the plaintiff suffered whilst in the Wasleys' and/or Mrs Wasley's care and are jointly and severally liable for the harm caused: ASOC, par 33; and/or
(b)are vicariously liable for the harm the plaintiff suffered whilst in Wasleys' and/or Mrs Wasley's care: ASOC, par 34.
The plaintiff claims that the negligence and breaches of statutory duty of the first defendant and the office holders and/or the orphanages for whom the second defendant is liable, caused or materially contributed to the plaintiff suffering injury and damage, being psychiatric injury and leading to chronic substance abuse: ASOC, par 37.
The plaintiff claims that as a result of the above, he has a child sexual abuse cause of action within the meaning of s 15D of the CLA against the second defendant: ASOC, par 36.

Statutory liability under s 15D of the Civil Liability Act

Part 2A of the CLA is titled 'Child sexual abuse actions'.
That part of the CLA regulates, amongst others, the liability of incorporated institutions that were unincorporated at the time of the alleged sexual abuse. Under s 15D of the CLA, a plaintiff with an historical child sexual abuse cause of action, must establish the five matters identified in s 15D(1)(a) to s 15D(1)(e).
Section 15D(1) to s 15D(3) is in the following terms:
15D.Liability of incorporated institution that was unincorporated at time of abuse
(1)Subsections (2) and (3) apply if -
(a) a person was subjected to child sexual abuse by a person associated with an institution; and
(b) the person has or had a child sexual abuse cause of action against the holder of an office of authority in the institution (the office holder) founded on the responsibility of the office holder for the associated person and for the institution generally; and
(c) at the time of the accrual of the cause of action, the institution -
(i) exercised care, supervision or authority over children; and
(ii) was not incorporated;
and
(d) the institution is currently incorporated; and
(e) the person is able to maintain an action on the cause of action or would be able to do so if the office holder continued to hold the office.
(2)An action on the cause of action referred to in subsection (1)(b) may be commenced against the institution.
(3)Any liability that the office holder would have had in relation to the cause of action is taken to be held by the institution.
Section 15D incorporates a number of defined terms. Relevantly the terms 'child sexual abuse', 'child sexual abuse action', 'child sexual abuse cause of action' and 'institution' are defined in s 15A as follows:
child sexual abuse has the meaning given in the LimitationAct 2005 section 6A(1);
child sexual abuse action has the meaning given in the Limitation Act 2005 section 6A(1);
child sexual abuse cause of action has the meaning given in the Limitation Act 2005 section 6A(1);
institution means an entity (other than the Crown), organised for some purpose or work, that exercises or exercised care, supervision or authority over children, whether as part of its primary functions or activities or otherwise.

Second defendant's submissions - application for summary judgment

In its written submissions, the second defendant put its case for summary judgment as follows:
(a)the plaintiff has a child sexual abuse cause of action. No limitation period applies: ASOC, par 32;
(b)the basis for the plaintiff's claim is that the office holder was negligent in placing the plaintiff with Mrs Wasley (ASOC, par 31): ASOC, par 33;
(c)the plaintiff's claim is made under s 15D of the CLA: ASOC, par 34;
(d)Gerald Wasley allegedly sexually abused the plaintiff: ASOC, par 35;
(e)Gerald Wasley was not a person associated with the office holder: ASOC, par 36;
(f)the plaintiff was not subjected to child sexual abuse by a person associated with the office holder: ASOC, par 37;
(g)the plaintiff has not and did not have a child sexual abuse cause of action against the office holder founded on the responsibility of the office holder for a person associated with the Sisters of Mercy and for the Sisters of Mercy generally: ASOC, par 38;
(h)the plaintiff is unable to maintain an action on the child sexual abuse cause of action and would not have been able to do so if the office holder continued to hold the office: ASOC, par 39;
(i)the plaintiff's child abuse cause of action may not be commenced against the second defendant: ASOC, par 40; and
(j)the office holder had no liability in relation to the plaintiff's child sexual abuse cause of action which could be taken to be held by the second defendant: ASOC, par 41.
The main thrust of the second defendant's written submissions seems to be that the plaintiff's ASOC did not address the proper requirements of s 15D(1)(a), s 15D(1)(b) and s 15D(1)(e) of the CLA and therefore, should be summarily dismissed.
The gravamen of the second defendant's complaint, as contained in its written submissions, was that the alleged perpetrator of the abuse, Gerald Wasley, was not a person 'associated' with the 'office holder': par 37.
As may be apparent, the second defendant's submission involves the proper construction of s 15D of the CLA, although the particular subsection or subsections were not identified. At the hearing of the second defendant's application, it was not disputed that this section of the CLA had yet to receive judicial scrutiny or be subject to judicial interpretation.
It should also be apparent that the second defendant's submission involves allegations of fact, which of course, ultimately rest on the proper construction of s 15D of the CLA. Again, that was not in dispute at the hearing.
At the hearing of the application, the second defendant's counsel developed her submissions as follows. The second defendant's counsel submitted that s 15D(1) of the CLA only applied if the sexual abuse was perpetrated by a person associated with the institution. In the present case, the plaintiff does not allege that Gerald Wasley was in any way associated with the second defendant (ts 16). In this regard, counsel for the second defendant submitted that s 15D created liability in the institution, not the perpetrator (ts 15).
The second defendant's counsel's oral submissions appeared to move away from the construction of s 15D of the CLA contained in her written submissions. In effect, the second defendant's construction appeared to change from:
(a)the plaintiff was subjected to child sexual abuse by Gerald Wasley, who was not a person 'associated' with the 'office holder'; to
(b)the plaintiff was subjected to child sexual abuse by Gerald Wasley, who was not a person 'associated' with the 'institution' (in this case, the second defendant).
In effect, the second defendant submitted that, as pleaded, the allegation was that Gerald Wasley (the perpetrator) committed the acts of sexual abuse but that he was not a person associated with the institution (in this case, St Vincent's).
Counsel for the second defendant submitted, in effect, that the proper construction of s 15D required there to be a perpetrator who committed the act of sexual abuse, and that perpetrator must be a person associated with the institution (ts 13). In this context, 'associated' meant engaged as an agent, employee, member of the order, congregation or volunteer etc (ts 13). On the facts of the case, the second defendant's counsel submitted that there was no factual basis for suggesting that Gerald Wasley was in any way associated with the second defendant (ts 16). And further, the plaintiff's action was not founded on the responsibility of the office holders for the associated person and for the institution generally (s 15D(1)(b); ts 19).
It seems to me that the second defendant's construction of s 15D(1)(a) was driven, in part, by the way that the plaintiff had pleaded its case.
During exchanges between the second defendant's counsel and the bench, counsel submitted that if Gerald Wasley was replaced with Mr and Mrs Wasley, they might be people 'associated' with the 'institution' on the facts as pleaded. However, they were not the people alleged to have committed the acts of sexual abuse. They may have been negligent in their care of the plaintiff and/or failed to provide a reasonable standard of care to one as vulnerable as the plaintiff, but that did not involve sexual abuse.
In other words, the second defendant's counsel focussed on the first construction, because there was no allegation that the Wasleys' sexually abused the plaintiff. Put differently, if the allegation was to the effect that the plaintiff was subjected to child sexual abuse by the Wasleys, and they were persons associated with the institution, that claim might succeed. In the present case, there was no disclosed nexus between Gerald Wasley and the Sisters of Mercy or the orphanages.
Finally, the second defendant's counsel did not accept that there was a dispute between the parties as to the proper construction of s 15D of the CLA. In contrast to this, both the first defendant's counsel and the plaintiff's counsel submitted that there was a dispute as to how they saw s 15D of the CLA operate, which involved a matter of statutory construction.

First defendant's submissions in opposition to the second defendant's application for summary judgment

The first defendant's submissions can be summarised as follows.
First, s 15D(1)(a) requires a plaintiff to establish that a person was associated with the institution, not that a person was associated with the office holders.
Secondly, the ASOC identified numerous persons associated with the relevant institution, including:
(a)the office holders themselves;
(b)the office holders employed and/or appointed and/or were responsible for sisters, nuns, teachers, employees, agents and volunteers who managed, lived-in, staffed and operated the orphanages;
(c)the governing authority, managers and/or sisters of the orphanages, were persons associated with the institution;
(d)Mr and Mrs Wasley were also persons associated with the orphanages as the office holders and/or the orphanages employed and/or engaged them to perform work at the orphanages; and
(e)those caring for the plaintiff, being the Wasley family, were also associated with the institution.

Thirdly, the plaintiff alleges he was sexually abused by Gerald Wasley. As set out above, the plaintiff alleges that Gerald Wasley was associated with the institution. Insofar as the second defendant disputes that fact and/or that construction of s 15D of the CLA, that is a matter which should be properly resolved at the trial of the matter, instead of a summary hearing of the matter.
Fourthly, the plaintiff contends that he was subjected to sexual abuse by Gerald Wasley, by reason of the omission of persons associated with the institution. In this regard, s 15D(1)(a) extends to omissions by a person associated with an institution which expose a child to sexual abuse. Section 15D(1) was not limited to direct physical acts of abuse perpetrated by a person associated with the institution.
This follows from the definition of 'child sexual abuse', which has the same meaning given in s 6A(1) of the LimitationAct2005 (WA). Section 6A(1) contains the following definition:
child sexual abuse, of a person, means an act or omission in relation to the person, when the person is a child, that is sexual abuse;
(emphasis added)
During the hearing, counsel for the first defendant referred to a dictionary definition of the word 'abuse' to show that it included general maltreatment (which counsel confirmed would need to have some sort of sexual element involved). In effect, an 'omission' could be abuse through maltreatment or neglect.
According to the first defendant, its preferred construction is supported by the second reading speech of the Civil Liability Legislation Amendment (Child Sexual Abuse Actions Bill) 2007 (WA) to the Legislative Assembly on 22 November 2017. In this regard, the Attorney General stated as follows:
A cause of action for child sexual abuse could lie against the actual perpetrator of the abuse or against an institution when an institution was legally responsible for the actions of the perpetrator such as when the institution was negligent and that negligence resulted in the child not being protected from sexual abuse.
(emphasis added)

The first defendant submitted in its written submissions that the Attorney General's second reading speech demonstrates that the manifest intention behind the section was to broaden the potential ambit of liability to others, who were not the actual direct perpetrators of the alleged sexual abuse. In effect, the facts and legal contentions alleged in the ASOC, if proven at trial, are capable of satisfying the s 15D(1)(a) requirements. And insofar as the second defendant disputes the proper construction of s 15D, that is a matter that should be determined at the trial of the matter, and not in a summary way.
Fifthly, the plaintiff alleges he has a cause of action against the office holders founded on the office holders' responsibility, thus satisfying s 15D(1)(b).
Section 15D(1)(b) refers to a 'child sexual abuse cause of action'. That term is defined in s 15A and is stated to have the same meaning given in s 6A(1) of the Limitation Act. Section 6A of the Limitation Act gives the following definition of that term:
child sexual abuse cause of action means a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from child sexual abuse of the person.
(emphasis added)
The plaintiff's claim is founded on negligence. He pleads numerous duties that were said to be owed by the office holders and he pleads breaches of those duties, either by the office holders, or their servants and agents (including the Wasleys). Finally, he pleads that the negligence of the office holders, amongst others, caused or materially contributed to him suffering injury and damage.
For the plaintiff to rely on s 15D(1)(b), he must show that the office holders were responsible for the associated person and for the institution generally. The pleading alleges that the office holders were responsible for the omissions of the office holders, or their servants and agents, that led to the plaintiff's sexual abuse by Gerald Wasley, being a person associated with the institution. And insofar as the second defendant disputes these matters, that is a matter that should be determined at the trial of the matter.

Plaintiff's submissions in opposition to the second defendant's application for summary judgment

The plaintiff's submissions were broadly similar to those of the first defendant. It is not necessary to repeat them here.
In addition, the plaintiff submitted that the second defendant's construction of s 15D(1)(a) was unduly limited. In effect, the second defendant's restricted interpretation of s 15D(1)(a) limits the operation of that part of the Act to acts of malfeasance, which is contrary to the second reading speech introducing the relevant act, as it included nonfeasance (i.e. a failure to act that results in harm).

Legal principles - applicable to summary judgment

Justice Allanson recently summarised the relevant principles in Nu‑Fortune Gold Ltd v Roxbury Trading Pty Ltd [No 4] [2020] WASC 25 [36] - [39] with which I agree and respectfully adopt. These principles were not in dispute:
[36]The principles to be applied in an application for summary judgment are well settled. As stated by Beech J in Henderson v Curtis:
The principles relevant to the grant of summary judgement are not in doubt. Summary judgment will be granted only when there is no real question to be tried. Conflicts of evidence on affidavit are not to be determined in the context of an application for summary judgment. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate course of the proceedings if it went to trial that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46].
[37]In Agar v Hyde, the plurality (Gaudron, McHugh, Gummow and Hayne JJ) said:
The test to be applied has been expressed in various ways, but all the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way.
[38]In Webster v Lampard on an appeal arising out of the entry of summary judgment for a defendant, Mason CJ, Deane and Dawson JJ said:
Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact.
[39]The court must proceed on the assumption that the evidence of the party resisting summary judgment, if not inherently incredible, would ultimately be accepted if the matter were to proceed to trial in the ordinary course.
I also refer to a recent judgment of Master Sanderson, where he made some relevant observations about the nature of a summary judgment application and the effects of a decision made on a summary judgment application. In Everswell Pty Ltd v Beeliar Management Pty Ltd as Trustee for Beeliar Development Trust [2022] WASC 74 (Everswell), Master Sanderson stated the following at [2] and [3], with which I agree and respectfully adopt:
[2]Before dealing with the merits of the application, I should make some general comments about a defendant's application for summary judgment brought under O 16. First, the plaintiff's claim as set out in the amended statement of claim is to be taken as pleading all relevant material facts. That is to say, the plaintiff cannot, in resisting a defendant's summary judgment application, go outside the four walls of the pleading. This stands in contrast to an application brought under O 14. A defendant resisting an application for summary judgment by the plaintiff can raise any issue they see as relevant. It may be the issue raised catches the plaintiff by surprise. But even if that is the case, a defendant is not in any way restricted from raising any relevant matter.
[3]Second, a defendant who is unsuccessful in a summary judgment application has a right of appeal. A plaintiff who is unsuccessful in a summary judgment application under O 14 has no such right. It is therefore necessary in determining an application under O 16 to provide reasons which justify the conclusion the application ought be dismissed. However, care must be taken not to decide or purport to decide any issues of fact arising between the parties. Nor is it appropriate to do anything more than identify issues of law which arise and which may be arguable. A final determination of the issues must await trial.

(references omitted)

The principles of statutory construction are well known and were recently canvassed by the Western Australian Court of Appeal in Mohammadi v Bethune [2018] WASCA 98 [31] - [36]. There is no need to repeat those principles here. I respectfully adopt those principles.
Finally, I note that pt 2A of the CLA was a recent amendment to the CLA, arising out of the Civil Liability Act Legislation Amendment (Child Sex Abuse Actions) Act 2018 (WA) (CLLA Act). In Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [165] - [168], the Western Australian Court of Appeal stated that the amending legislation effected by the CLLA Act had a beneficial purpose. In particular, pt 2A of the CLA provides machinery to better effect the purpose and objects served by s 6A's statutory declaration that no limitation period applies in respect of child sexual abuse causes of action.

Issues for determination

The following issues arise for determination:
(a)whether the proper construction of s 15D of the CLA, being an issue of law, should be decided now or await the trial of the matter; and
(b)whether the relevant facts pertaining to the above construction should be decided now, or await the trial of the matter.
Both the plaintiff and first defendant submitted that these issues ought to await the trial of the matter.
The second defendant did not accept that the parties were in disagreement as to the proper construction of s 15D of the CLA. However, the second defendant accepted that if there was a disagreement, then the proper interpretation of s 15D of the CLA should await the trial of the action.

Was the plaintiff subjected to child sexual abuse 'by a person associated with an institution' - s 15D(1)(a)

The plaintiff proposes a broad construction of s 15D of the CLA. The plaintiff's construction extends to omissions by the institution which exposed the plaintiff to sexual abuse. Under this construction of s 15D of the CLA, it is not necessary for the 'person associated with an institution' to be the perpetrator of the sexual abuse.
As set out above, the plaintiff has identified numerous persons associated with an institution, including: the office holders themselves and those whom the office holders employed/appointed or were responsible for, including sisters, nuns, teachers, employees, agents and volunteers who managed, lived-in, staffed and operated the orphanages and including Mr and Mrs Wasley, and Gerald Wasley.
The plaintiff's construction of s 15D(1)(a) extends to omissions which exposed the plaintiff to sexual abuse. To take an example, the plaintiff was subjected to child sexual abuse by the negligence of the Wasleys who were persons associated with the institution by reason of their employment. The plaintiff was subjected to child sexual abuse because the Wasleys' failed to take proper care of the plaintiff, which included leaving the plaintiff in the care of Gerald Wasley in circumstances where the Wasleys' knew that Gerald Wasley was an alcoholic, and violent and aggressive and had (at various times) been an inpatient of the Heathcote Reception Home for a psychiatric illness and had several criminal convictions. In effect, the Wasleys are liable because they were responsible for the plaintiff and did not discharge their duties to care for him properly. In addition, the institution is responsible by reason of negligently entrusting the plaintiff to the Wasleys' care and failing to make proper or ongoing enquires as to his ongoing care thereafter. In my view, such a construction is arguable.
Nothing in s 15D of the CLA states that the 'person associated with an institution' must have perpetuated the harm themselves.
Further, s 15D(1)(b) tends to suggest that that is not necessary, because the liability attaches to the office holder and the institution generally if it can be shown that the office holder and institution were responsible for the associated person.
In my view, this broader construction of s 15D of the CLA is consistent with the beneficial purpose of the legislation, though I am conscious of Master Sanderson's admonition about simply identifying issues of law which may arise, rather than finally determining the issue. The final determination of the issue must await trial.

The second defendant proposed a narrower construction of s 15D of the Civil Liability Act

The second defendant's construction of s 15D(1)(a) of the CLA requires the plaintiff to establish that he was subject to child sexual abuse by a person 'associated with an institution' and that the person was the perpetrator of the sexual abuse. This construction of s 15D(1)(a) seems to involve reading the section literally, and giving a more restricted meaning to its purpose and object. Similarly, the words 'or omission' in the definition of 'child sexual abuse' would seem to have little work to do on this construction. As set out above, the plaintiff has pleaded facts to support a narrower construction of s 15D(1)(a) and s 15D(1)(b) of the CLA as well.
Under this construction, the plaintiff was subjected to child sexual abuse by Gerald Wasley, who was not associated with an institution, even though his parents were employees and carers for the plaintiff. A question may arise as to the meaning of 'associated' and whether that term should be read narrowly or broadly. The second defendant's counsel submitted that 'associated' would have to involve some sort of responsibility between the office holders and/or the institution and the perpetrator and that that was not pleaded. In effect, as a matter of fact and as a question of law (by reason of the proper construction of s 15D(1)), the office holders and the institution had no responsibility for the acts or omissions of Gerald Wasley. On this construction, there needed to be a direct nexus between the institution's negligence, the harm caused and the alleged perpetrator.
I observe here that during exchanges between the bench and the second defendant's counsel, counsel accepted that there might be circumstances where the 'person associated with an institution' was not the perpetrator of the sexual abuse, but remained responsible under s 15D(1)(a) (e.g. ts 50). Once that concession was made, and rightly so in my view, then the proffered construction that required the 'person associated with an institution' to be the perpetrator was untenable.
A narrow construction of s 15D of the CLA would seem inconsistent with its express beneficial objects and purposes that it was intended to serve. Further, it is also not clear to me how a narrow construction could accommodate omissions as intended by the Act.

Conclusion

I am satisfied that the second defendant's application for summary judgment should be dismissed and that the issues raised should await the trial of the matter. I summarise my brief reasons below.
First, it seems to me that s 15D of the CLA (and its constituent elements) is capable of several possible interpretations which affect the breadth of the Act and to whom and in what situations it applies. That question involves an issue of law, which should await the trial of the matter.
Secondly, in the present case, the plaintiff has pleaded facts which bear on the construction of s 15D of the CLA, albeit the plaintiff did not set these out succinctly in a single location in the ASOC.
Thirdly, the preferred construction will have implications for the facts necessary to prove the cause of action. It seems to me that that question should also await the trial of the matter.
Fourthly, this is not a case where there is a high degree of certainty about the ultimate course of the proceedings if the issue went to trial.
Fifthly, I note that in Everswell at [9] - [11], Master Sanderson dealt with a summary judgment application which turned on the meaning of the word 'access' in s 159 of the Planning and Development Act 2005 (WA). In that case, Master Sanderson identified the relevant constructions put forward, and determined that the alternatives were arguable and thereafter, dismissed the application. In my view, the analogy is apposite here.
Finally, in its chamber summons, the second defendant also sought orders dismissing the first defendant's contribution proceedings brought against the second defendant. As I understood the second defendant's submissions, that order rested on the second defendant succeeding in its summary judgment application. Given what I have found above, this part of the second defendant's application too should be dismissed.
My preliminary view is that costs should follow the event. If there is a dispute about the costs orders that should be made, then the parties should file short submissions with respect to costs (if costs cannot be agreed) within seven days of the publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SZ
Associate to Commissioner Collins
24 MAY 2022