DP (a pseudonym) v Bishop Paul Bird (Ruling No 3) - [2021] VSC 731

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2020 01541

DP (A PSEUDONYM)	Plaintiff
v
BISHOP PAUL BERNARD BIRD	Defendant

---

JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	27–28 July, 2–6, 13 August, 21–23, 27–28, 30 September 2021
DATE OF RULING:	30 September 2021 (written reasons 11 November 2021)
CASE MAY BE CITED AS:	DP (a pseudonym) v Bishop Paul Bird (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 731

---

INSTITUTIONAL LIABILITY – PRACTICE AND PROCEDURE – Application to tender excerpt from record of interview and psychologist report - Admissibility of evidence –Whether interview conducted in contemplation of reasonable probability of litigation –Finding that probative value of excerpt of record of interview substantially outweighs any prejudice to defendant – Finding that probative value of psychologist report does not substantially outweigh danger of unfair prejudice to defendant – Application granted - ACCC v Advanced Medical Institute (2005) 147 FCR 235 - McHugh v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 385 ALR 405; FCAFC 223 - D.P.P v BB (2010) 29 VR 110 - Bryant v Edenborn Pty Ltd [2020] FCA 715 - R v Suteski (2002) 137 A Crim R 371 - Galvin v The Queen (2006) 161 A Crim R 449 - Evidence Act 2008 ss 55, 69, 135.

---

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:

At the conclusion of viva voce evidence, counsel for DP and the Diocese sought to tender a number of documents as part of their respective cases. The majority were able to be dealt with summarily. Two applications, however, required consideration.

The first concerned the proposed tender by DP of an extract of a typed interview of Gerald Ridsdale (‘Ridsdale’) in June 1994.[1] This application was made pursuant to the business records exception to the hearsay provisions: s 69 of the Evidence Act 2008 (‘the Act’). This was opposed by the Diocese on the basis that the exception was not engaged as there was prospective litigation against the Catholic Church when the interview was conducted.
[1]T1246.

The second related to the proposed tender by the Diocese of a medical report prepared by DP’s treating psychologist in March 2015, apparently at the request of DP’s then solicitor. This was opposed by DP because of the danger that, if admitted, it would be unfairly prejudicial to his case and that would outweigh its probative value: s 135 of the Act.

I gave my decision on the final day of the trial. As promised, but delayed, these are my reasons.

First issue: Can Extracts of the Ridsdale record of interview be tendered by DP?

On 6 June 1994, Ridsdale was interviewed by a representative of Catholic Church Insurances (‘CCI’). It is apparent that the record of interview was reduced…

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 DP (a pseudonym) v Bishop Paul Bird (Ruling No 3) 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: [2021] VSC 731
Decision Date: 30 September 2021 (written reasons 11 November 2021)

CaseChat Overview and Summary

The applicant, identified as DP, sought to tender an excerpt from a record of interview and a psychologist's report in a proceeding against Bishop Paul Bird. The Federal Court was tasked with determining the admissibility of these pieces of evidence, specifically whether the interview was conducted in contemplation of a reasonable probability of litigation and whether the probative value of the psychologist's report outweighed the risk of unfair prejudice to the defendant.

The court had to decide whether the excerpt from the record of interview was admissible under the Evidence Act 2008. The key issue was whether the interview was conducted in contemplation of a reasonable probability of litigation. The court also considered whether the probative value of the psychologist's report outweighed the danger of unfair prejudice to the defendant. The court examined the principles from ACCC v Advanced Medical Institute and McHugh v Minister of Immigration, among others, to assess these issues.

The court found that the probative value of the excerpt from the record of interview substantially outweighed any prejudice to the defendant. Therefore, it was admissible. Conversely, the court determined that the probative value of the psychologist's report did not substantially outweigh the danger of unfair prejudice to the defendant, rendering it inadmissible. The court's reasoning was based on a careful balance of the probative value and prejudicial effect of the evidence in accordance with the relevant statutory provisions and case law.

The court granted the application to tender the excerpt from the record of interview but denied the application for the psychologist's report.

Orders