Davis v Comensoli (No 2) - [2025] VSC 163

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…

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.

Continue reading Davis v Comensoli (No 2)

Details

AGLC: Davis v Comensoli (No 2) [2025] VSC 163
Case: [2025] VSC 163
Decision Date: 1 April 2025

CaseChat Overview and Summary

In Davis v Comensoli (No 2), the plaintiffs, Shawnee Davis and Michael Bell, sought to claim damages against the Roman Catholic Church, represented by Archbishop Peter Comensoli, and Pope Francis, for injuries they sustained as children from sexual assaults by former Catholic priest Michael Glennon. The second defendant, Pope Francis, objected to the jurisdiction of the court and sought to have the plaintiffs' claims dismissed on the basis of immunity. Additionally, the second defendant objected to the admissibility of various documents, including the Royal Commission into Institutional Responses to Child Sexual Abuse report, opinion evidence submitted to the Royal Commission, sentencing remarks, and media articles.

The court had to decide whether the plaintiffs could rely on the Royal Commission report to establish facts in issue in the proceeding, and whether the second defendant was entitled to immunity from the jurisdiction of the court. The court also had to rule on the admissibility of opinion evidence submitted to the Royal Commission, sentencing remarks, and media articles.

The court held that the Royal Commission report was not admissible to prove the existence of facts found by the Royal Commission, and that the opinion evidence submitted to the Royal Commission was also inadmissible. The court held that the second defendant was entitled to immunity from the jurisdiction of the court. The court did not rule on the admissibility of the remaining documents before hearing further submissions.

The court's decision means that the plaintiffs cannot rely on the Royal Commission report or opinion evidence submitted to the Royal Commission to establish facts in issue in the proceeding. The court's decision also means that the second defendant is immune from the jurisdiction of the court, and that the plaintiffs' claims against the second defendant will be dismissed. The court will hear further submissions on the admissibility of the remaining documents before making a final ruling.

Orders