Davis v Comensoli - [2024] VSC 668

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2020 04661

SHAWNEE DAVIS	First Plaintiff
and
MICHAEL BELL	Second Plaintiff
v
ARCHBISHOP PETER COMENSOLI (as the proper defendant for the ROMAN CATHOLIC CHURCH (ARCHDIOCESE OF MELBOURNE))	First Defendant
and
HIS HOLINESS, POPE FRANCIS I IN HIS CAPACITY AS THE SUPREME PONTIFF OF THE ROMAN CATHOLIC CHURCH AND AS REPRESENTING HIS PREDECESSOR POPES, INCLUDING POPE BENEDICT XVI AND THE HOLY SEE	Second Defendant

---

JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2024
DATE OF RULING:	31 October 2024
CASE MAY BE CITED AS:	Davis v Comensoli
MEDIUM NEUTRAL CITATION:	[2024] VSC 668 (First revision (2 April 2025): coversheet proceeding number)

---

EVIDENCE — Where plaintiffs seek to rely on expert evidence of domestic law — Where plaintiffs seek to rely on multiple expert reports addressing public international law — Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 — Novartis AG v Pharmacor Pty Ltd [2022] FCAFC 58 — Evidence Act 2008 (Vic) s 192A — Expert evidence on content and application of domestic law inadmissible — Plaintiffs limited to evidence of two experts on public international law.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	F Gerry KC with D O’Brien	Angela Sdrinis Legal
For the First Defendant	B Pappas	Wotton + Kearney
For the Second Defendant	F Roughley SC and C Brown SC	Thomson Geer

HIS HONOUR:

The second defendant objects to the jurisdiction of the Court and claims immunity pursuant to s 9 of the Foreign States Immunities Act 1985 (Cth) (‘FSI Act’); the common law to the extent that Part II of the FSI Act does not apply; and/or s 36(1)(a) of the FSI Act and s 7(1) of the Diplomatic Privileges and Immunities Act 1967 (Cth) and Article 31(1) of the Vienna Convention on Diplomatic Relations 1961. The second defendant has applied for orders setting aside the plaintiffs’ amended writ insofar as it concerns claims against the second defendant, and setting aside service of the writ on the second defendant (‘immunity application’).

The plaintiffs have served reports by four experts in international law on whose evidence they intend to rely at the hearing of the immunity application. The second defendant objects to that expert evidence on grounds that:

(a) it in part pertains to the content and/or application of Australian law, and to that extent is not admissible; and

(b) the plaintiffs should not be permitted to rely on expert evidence that is duplicative.

The second defendant has applied for a ruling pursuant to s 192A of the Evidence Act 2008 (Vic) (‘Evidence Act’) that the plaintiffs’ evidence is not admissible insofar as it falls within subparagraph [2](a) above; and for orders under ss 47(f)(i), 49(3)(d)(iii) and 65H(2)(e) of the Civil Procedure Act 2010 (Vic) (‘CPA’) that the plaintiffs be restricted from relying on more than one expert in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Davis v Comensoli and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] VSC 668
Decision Date: 31 October 2024

CaseChat Overview and Summary

The case of Davis v Comensoli involved the plaintiffs seeking to rely on expert evidence to support their claims against the defendant, which pertained to breaches of statutory duty and negligence. The matter was heard in the Federal Court of Australia. The plaintiffs aimed to present evidence from various experts concerning both domestic and international law, intending to argue that the defendant's conduct violated both sets of laws. The legal issues before the court were whether the plaintiffs could rely on expert evidence regarding domestic law, and if they could present multiple expert reports on public international law. The court had to determine the admissibility of the proposed evidence under the Evidence Act 2008 (Vic) and its rules on expert testimony.

In addressing these issues, the court examined the statutory provisions, particularly section 192A of the Evidence Act 2008 (Vic), which sets out the criteria for the admissibility of expert evidence. The court found that expert evidence on the content and application of domestic law was inadmissible, as it would usurp the court's role in interpreting and applying the law. This conclusion was based on the decision in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6), where the court held that expert evidence on domestic law was not admissible. Furthermore, the court also noted that while expert evidence on public international law was permissible, the plaintiffs were limited to the evidence of two experts in this area. This limitation was supported by the reasoning in Novartis AG v Pharmacor Pty Ltd, which reinforced the court's discretion in controlling the scope and number of expert witnesses.

Consequently, the court ruled that the plaintiffs could not rely on expert evidence concerning domestic law and were restricted to the evidence of two experts on public international law. This decision was pivotal in shaping the direction of the trial, as it significantly impacted the plaintiffs' ability to substantiate their claims with expert testimony. The court's ruling ensured that the proceedings adhered to the statutory framework governing expert evidence, thereby maintaining the integrity of the judicial process. The final orders reflected the court's determination, outlining the specific limitations on the expert evidence that could be presented by the plaintiffs.

Orders