Davis v Comensoli (No 2)
[2025] VSC 163
•1 April 2025
| 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 |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 March 2025 |
DATE OF RULING: | 1 April 2025 |
CASE MAY BE CITED AS: | Davis v Comensoli (No 2) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 163 (First revision (2 April 2025): coversheet proceeding number) |
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PRACTICE AND PROCEDURE — Admissibility of evidence including reports of the Royal Commission into Institutional Responses to Child Sexual Abuse, evidence submitted to the Royal Commission, sentencing remarks, media articles about alleged offending and other materials — Evidence Act 2008 (Vic) ss 55, 76, 91, 135 and 136.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | D O’Brien and S Finegan | Angela Sdrinis Legal |
| For the First Defendant | M Rich (Solicitor) | Wotton + Kearney |
| For the Second Defendant | F Roughley SC and C Brown SC with D Stamboulakis | Thomson Geer |
HIS HONOUR:
The plaintiffs in this proceeding claim damages against the second defendant for injuries they sustained as a consequence of being sexually assaulted when they were children in around the late 1980s to the early 1990s, by former Catholic priest Michael Glennon. The plaintiffs claim that the second defendant knew or ought to have known that Glennon had previously been convicted on charges of sexually assaulting children and failed to take reasonable care to protect them against the risk of harm he posed, including by dismissing him from the priesthood.
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 pt 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 hearing of the immunity application commenced before me on 17 March 2025. The application was adjourned on 20 March for the completion of final oral submissions on 2 April 2025.
The second defendant objects to the admissibility of many documents which the plaintiffs seek to tender, relying on ss 55, 76, 91, 135 and 136 of the Evidence Act 2008 (Vic) (‘Evidence Act’). Many of the documents sought to be relied on by the plaintiffs are exhibited to an affidavit of solicitor Angela Sdrinis dated 14 March 2025 (‘7th Sdrinis affidavit’).
The documents that the plaintiffs seek to tender and the second defendant’s list of objections to admissibility are both extensive. It has not been possible in the time available before completion of final submissions to rule on the admissibility of every document that the plaintiffs seek to tender. This ruling sets out some limited agreements between the parties with regard to admissibility of certain categories of documents, and deals with some other documents and categories that I have concluded should not be admitted into evidence or should be admitted for a limited specified purpose only.
Documents not referred to in submissions
The parties agreed that where a document was not referred to in submissions, or where there was no pinpoint reference to a part of the document relied on to support a submission, that document should not be admitted into evidence.
Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse (‘Royal Commission’) report
The plaintiffs seek to tender large swathes of the final report of the Royal Commission (‘Royal Commission report’). The following is an example of the use that the plaintiffs seek to make of that report:
The Royal Commission in Volume 16 Book 2 entitled “Religious Institutions: Catholic Church” considered the structure and governance of the Roman Catholic Church worldwide and in Australia.
The plaintiffs referred to some of the recommendations set out in the Royal Commission report and submitted:
These findings become particularly relevant both to questions of causation in the present case and to the waiver/submission to jurisdiction and the actions and inactions of the Holy See taking effect in Australia under the personal injuries exemption, which are considered in further detail below.
The plaintiffs then set out what they submitted was a summary by the Royal Commission of ‘the important roles of popes in the Roman Catholic Church worldwide including Australia’.
For the following reasons, extracts of the Royal Commission report will not be admitted as evidence of the findings of fact or decisions by the Royal Commission.
First, to the extent that the report is evidence of a finding of fact or decision by the Royal Commission, it is excluded by s 91 of the Evidence Act which reads:
(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2)Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
Note
Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.
An ‘Australian proceeding’ means a proceeding in an Australian court.[1] ‘Australian court’ includes ‘a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence’.[2] For the purposes of these definitions and s 91 of the Evidence Act, the Royal Commission was a proceeding in an Australian court.[3] Section 91 does not prevent the Royal Commission report being tendered for a purpose other than to establish the truth of the facts found by the Commission.
[1]Evidence Act s 3.
[2]Ibid.
[3]Thomas v State of New South Wales (2008) 74 NSWLR 34, 37 [8] (Hodgson JA), 47 [49] (Campbell JA); Fodare Pty Ltd v Shearn [2010] NSWSC 737, [47]–[49], [53]–[56].
I reject the plaintiffs’ submission that a Royal Commission is not a proceeding in an Australian court because it does not make binding determinations of fact but instead makes voluntary recommendations that are not binding on any party. The submission is not supported by the text of the definitions of ‘Australian proceeding’ and ‘Australian court’.
I reject the plaintiffs’ attempt to dismiss the reasoning of Hodgson and Campbell JJA in Thomas v State of New South Wales[4] as non-binding obiter dictum on the basis that their Honours were considering the operation of s 69(3) and not s 91 of the Evidence Act. The reasoning of Hodgson and Campbell JJA dealt directly with the relevant definitions that are equally applicable to s 91.
[4](2008) 74 NSWLR 34.
The plaintiffs relied on the decision of the New South Wales Court of Appeal in Feldman v Nationwide News Pty Ltd (‘Feldman’),[5] a defamation proceeding in which the trial judge referred to the contents of the Royal Commission report in the context of making adverse findings against the appellant. The plaintiffs submitted that ‘the trial judge relied upon Royal Commission findings’, and that Bell P approved of the abandonment by the appellant of a ground of appeal based on that reliance. The plaintiffs’ submission does not accurately summarise what occurred in Feldman. Bell P inferred that the appellant abandoned a ground of appeal based on s 91 of the Evidence Act, and observed in relation to the alleged reliance:
I read the primary judge as saying that he reached the same views as had been reached by the Royal Commissioners, rather than drawing on or accepting, in some fact-finding sense, opinions expressed in the Royal Commission report.[6]
[5](2020) 103 NSWLR 307.
[6]Ibid [163].
In Ainsworth v Burden,[7] Hunt AJA (with whom Handley and McColl JJA agreed) said:
It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose — as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant’s allegations were false — they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act. In any event, the facts which the coversheets would have established were that a company associated with the plaintiff had made an application for a gaming licence, the police had objected to the grant of that licence, the terms of the grounds of objection, the rejection of the objection and the grant of the licence. None of the those facts was “a fact that was in issue” in the Licensing Court proceedings, and s 91 did not exclude the coversheets stating those facts.[8]
[7][2005] NSWCA 174.
[8]Ibid [109] (original emphasis). See also Daunt v Daunt [2015] VSCA 58, [57]–[59].
The application of s 91 was also considered by Simpson J in Attorney General of New South Wales v Martin,[9] where his Honour explained:
Whether s 91 operates to exclude the use of any of the decisions and judgments will depend upon an analysis of three things — (i) what facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which the Attorney General seeks to put those judgments — that is, what facts she seeks to prove by their use.[10]
[9][2015] NSWC 1372.
[10]Ibid [13].
The above authorities do not support the plaintiffs’ submission that the only restriction imposed by s 91 is in relation to facts that were somehow in issue between the Royal Commission and the second defendant, ‘these being the issue of celibacy, and the issue of the Seal of Confession’. It is evident from the Royal Commission documents that the plaintiffs seek to tender, and from the submissions they advance based on those documents, that they rely on findings of fact and recommendations by the Royal Commission going to the structure and governance of the Catholic Church and the relevance of canon law to child sexual abuse and the control of priests. The plaintiffs are not entitled to rely on Royal Commission materials to prove the existence of matters of that nature that were in issue before the Royal Commission.
Second, the findings of fact and decisions made in the Royal Commission report would also be inadmissible under the opinion rule in s 76 of the Evidence Act. A finding of fact or determination made by the Royal Commission is almost certainly an opinion. The plaintiffs have not established that the opinions set out in the Royal Commission report come within any exception to the opinion rule in ch 3 pt 3.3 of the Evidence Act.
Third, if my conclusions about the operation of ss 91 and 76 are wrong, then I would exclude evidence of findings of fact or decisions made by the Royal Commission under s 135 of the Evidence Act, or alternatively rule under s 136 of that Act that the evidence may not be used to prove the facts as found by the Royal Commission. There has been no fair opportunity for the second defendant to challenge those aspects of the Royal Commission documents on which the plaintiffs seek to rely. Obviously there is no witness available for cross-examination. Further, the Royal Commission material has not been canvassed in evidence in chief or cross-examination with the canon law experts engaged by the plaintiffs.
This ruling does not prevent the plaintiffs from seeking to tender and rely on the Royal Commission materials to the extent that any part of the materials is admissible for another purpose. However, any Royal Commission material that is admitted for another purpose cannot be used as proof of a fact found by the Royal Commission that is in issue in this proceeding.
Opinion evidence submitted to Royal Commission
The plaintiffs seek to tender documents submitted to the Royal Commission that contain opinion evidence. One example is a 53-page report prepared by Dr Rodger Austin dated 28 November 2016, that deals in substantial detail with analysis of canon law and associated matters. Austin’s qualifications are not set out in the report.
Case management orders have been made in this proceeding to govern the service and exchange of expert evidence in relation to the immunity application. Both parties engaged canon law experts to give evidence in relation to the immunity application. The plaintiffs obtained reports from Dr Thomas Doyle dated 21 October 2021 and 29 August 2024. The second defendant obtained a report from Professor Michele Riondino which was updated on 12 February 2025. Doyle and Riondino gave evidence concurrently in the hearing before me on topics agreed to by the parties.
The plaintiffs did not file an expert report of Austin. Neither Doyle nor Riondino was asked to address opinions expressed by Austin in their evidence in chief or in cross-examination.
The plaintiffs filed and served reports by four international law experts. On 31 October 2024, I ruled that the plaintiffs were not entitled to rely on the evidence of more than one expert in international law.[11] Allowing the plaintiffs to tender and rely on the opinion of Austin may have the effect of subverting my earlier ruling and ride roughshod over the case management of expert evidence that has occurred to date.
[11]Davis v Comensoli [2024] VSC 668.
The second defendant may be prejudiced if Austin’s report is admitted into evidence. There has been no opportunity for the second defendant to directly challenge Austin by cross-examination. Further, the second defendant was not on notice of the need to address this opinion evidence as the report was only exhibited to the 7th Sdrinis affidavit, which was made after the date of preparation and filing of the Court Book.
Austin has not met the requirements in r 44 of the Supreme Court (General Civil Procedure) Rules 2015 for giving expert evidence.
Following the admissibility argument on 28 March, the plaintiffs significantly reduced the scope of Royal Commission opinion evidence upon which they seek to rely and the use they make of that evidence. It may be that some limited use can be made by the plaintiffs of the additional opinion evidence without causing undue prejudice to the second defendant. I will give further consideration to this issue during final submissions on 2 April.
Sentencing remarks
Glennon was sentenced on a number of occasions for convictions of sexually assaulting children both before and after he assaulted the plaintiffs. Findings of fact and decisions that form part of the sentencing reasons are excluded by operation of s 91 of the Evidence Act.[12] As far as I am aware, the plaintiffs do not seek to rely on the sentencing remarks for any other purpose.
[12]Osborne v Butler (pseudonym) (2024) 73 VR 386, [30]–[31].
Media reports and articles
As I understand it, the plaintiffs no longer seek to tender media reports and articles that purport to set out details of Glennon’s history as a Catholic priest and of the offences he committed against children.
Materials identified in Appendices A and B to the plaintiffs’ outline of submissions
The plaintiffs’ submissions include the following documents:
(a) Appendix A – ‘Background Facts’; and
(b) Appendix B — ‘Roles and Legal Identity Act History’.
There are 140 and 183 footnotes to appendices A and B respectively. Many of those footnotes are to multiple documents.
The second defendant objected to tender many of the documents.
There are quite fundamental differences between the parties about the findings required to be made in order to determine the immunity application. I concluded during the hearing of the application, and the parties agreed, that relevance objections made by the second defendant should be considered as part of my ruling on the application.
The plaintiffs have now greatly reduced the number of documents that they seek to tender. The remaining documents that are controversial and the propositions which the plaintiffs submit those documents support were not the subject of the admissibility argument that occurred on 28 March. In the circumstances, I am not in a position to rule on the admissibility of those remaining documents before hearing further submissions.
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