DP (a pseudonym) v Bishop Bird (Ruling No 2) - [2021] VSC 540

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2020 01541

DP (a pseudonym)	Plaintiff
v
BISHOP PAUL BERNARD BIRD	Defendant

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JUDGE:	J Forrest J
WHERE HELD:	Melbourne
DATES OF HEARING:	27, 28 July, 2, 3, 4, 5, 6, 9, 13 August 2021
DATE OF RULING:	31 August 2021
CASE MAY BE CITED AS:	DP (a pseudonym) v Bishop Bird (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 540

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INSTITUTIONAL LIABILITY – PRACTICE AND PROCEDURE – Admissibility of previous judgments or decisions – Findings of fact in previous judgment or decision admissible for purpose of proof of new fact in issue – Findings of guilt in criminal proceeding relevant to knowledge of defendant in subsequent civil proceeding – Ainsworth v Burden [2005] NSWCA 174 – Stephensen v The Salesian Society [2018] VSC 622 – R v Eastman (No 44) [2018] ACTSC 194 – Linfox Australia Pty Ltd (ACN 004 718 647) v Transport Accident Commission (2016) 78 MVR 177 – Attorney-General (NSW) v Martin [2015] NSWSC 1372 – Evidence Act 2008 ss 55, 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr G Boas with Dr E Kelly, of counsel	Ken Cush & Associates
For the Defendant	Ms R Annesley QC with Ms T Skvortsova, of counsel	Colin, Biggers and Paisley Lawyers

HIS HONOUR:

Introduction

There are two discrete parts to DP’s[1] claim against the Diocese.[2] Each relates to alleged assaults occurring between the early part of 1971 and Boxing Day 1971. The first is that based on vicarious liability for the actions of Father Coffey. If DP demonstrates that the Diocese is vicariously liable for the unlawful assaults allegedly perpetrated by Father Coffey then the Diocese will be held liable.
[1]The plaintiff is referred to by a pseudonym pursuant to an order of Irving JR made on 21 April 2021.
[2]The factual and procedural background of this case is set out in DP (a pseudonym) v Bishop Bird [2021] VSC 453 (‘Ruling No 1’).

That determination will be made independently of the case in negligence against the Diocese.

This second part of the claim — often described as direct liability in an employee/employer claim — is a traditional negligence cause of action. It requires DP to establish the existence of a duty of care by reference to the common law; then questions of breach of duty and causation are determined by the application of the provisions of Part 10 of the Wrongs Act 1958.

As I see it, integral to the direct liability case on breach of duty is the requirement that DP establish that the Diocese knew or ought to have known that Father Coffey posed a ‘not insignificant’ risk of harm[3] (by way of sexual interference) to young Catholic boys who were the children of parishioners.
[3]See Wrongs Act 1958 s 48(1)(b).

In February 1999, Father Coffey was convicted by a jury on 12 counts of indecent assault upon young boys.

To assist in the…

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 DP (a pseudonym) v Bishop Bird (Ruling No 2)

Details

AGLC: DP (a pseudonym) v Bishop Bird (Ruling No 2) [2021] VSC 540
Case: [2021] VSC 540
Decision Date: 31 August 2021

CaseChat Overview and Summary

The case of DP v Bishop Bird (Ruling No 2) involves a dispute over institutional liability, with DP, a pseudonymous plaintiff, alleging negligence against Bishop Bird, the defendant. The case was heard in the Supreme Court of New South Wales. DP brought forward claims based on previous judgments and decisions, seeking to establish facts pertinent to the current proceedings through findings from prior cases.

The primary legal issue before the court was whether findings of fact from a previous judgment could be admissible for the purpose of proving a new fact in issue in a subsequent civil proceeding. Specifically, the court needed to determine if the findings of guilt from a criminal proceeding could be relevant to establishing the defendant's knowledge in the current civil case. This issue was explored in light of precedents such as Ainsworth v Burden, Stephensen v The Salesian Society, and R v Eastman, as well as statutory provisions under the Evidence Act 2008.

The court deliberated on the admissibility of prior judgments and decisions, considering the balance between the probative value and the prejudicial effect of such evidence. It assessed whether the previous findings could provide a reliable basis for determining the current issue of the defendant’s knowledge. The court concluded that the findings from the criminal proceeding were relevant and could be admitted to establish the defendant's knowledge in the present case, following established legal principles and statutory guidance.

The final orders of the court allowed for the admissibility of the findings from the prior criminal proceeding, providing a foundation for the plaintiff's claims. The court emphasised the need to ensure that the probative value of the evidence outweighed any potential prejudicial effects, aligning with legislative intent and judicial precedents.

Orders