Ellis v Trustees of the Roman Catholic Church for the Archdiocese of Sydney

[2007] HCATrans 697

[2007] HCATrans 697

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S325 of 2007

B e t w e e n -

JOHN ANDREW ELLIS

Applicant

and

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY

Respondent

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2007, AT 9.36 AM

Copyright in the High Court of Australia

MR A.S. MORRISON, SC:   May it please the Court, I appear with my learned friend, MR R.W.C. ROYLE, for the applicant.  (instructed by David Begg & Associates)

MR R.G. McHUGH, SC:   May it please the Court, I appear with my learned friend, MS S. MIRZABEGIAN, for the respondent.  (instructed by Corrs Chambers Westgarth)

HAYNE J:   Yes, Mr Morrison.

MR MORRISON:   Your Honours, we say that both the importance of this case and the error of the Court of Appeal are clear.  As a starting point we supported the respondent when they submitted to the Court of Appeal, “The issue as to whether the respondent is a proper defendant to proceedings of this nature raises a question of general importance”.  They have now changed their position and say the question of the respondent’s powers involves a routine question of statutory interpretation of one New South Wales Act.

If the Court of Appeal’s decision is correct, then the Roman Catholic Church in New South Wales and the ACT has so structured itself as to be immune from suit other than in respect of strictly property matters for all claims of abuse, neglect or negligence, including claims against teachers in parochial schools at least prior to 1986.  That immunity, they say, extends to the present day in respect of the parochial duties of priests.  We say that such an immunity would be an outrage to any reasonable sense of justice and we say it is wrong in law.

HAYNE J:   You cast it in terms of immunity.  The question is, who do you sue, is it not?

MR MORRISON:   That is so, but that is the effect of the way they structured them themselves.  The Court would be aware that in matters of sexual and emotional abuse, claims understandably arise many decades after the abuse took place, and the same commonly occurs in respect of claims in negligence against schools where the extent of the damage is not realised till decades later.  The respondent comes here saying this is a straightforward limitation case, but what the Court of Appeal did was to say that the claim was doomed to fail.  They were the words of the learned President.  That was a decision that the Court of Appeal made without benefit of the evidence that would have been available on a full determination of the issue. 

We say that under settled principles – Dey, General Steel – this ought not to have happened.  We should have had our day in court and our opportunity to prove that in fact the Trustees exercised a role both in respect of property and in respect of priests.  The issue before the Court of Appeal was whether the ‑ ‑ ‑

HAYNE J:   What was the role you say it performed in respect of priests?

MR MORRISON:   I need to answer your Honour and I will come back to that.  The issue before the Court of Appeal was whether the primary judge erred in exercising his discretion to allow the applicant an extension of time, but the sole basis upon which the Court of Appeal interfered with the primary judge’s decision was its finding as to the potential liability of the respondent, a matter raised only in relation to discretion.  If we go to the question of statutory construction in respect of the 1936 Act, the President said that the New South Wales Act was comparable with the Western Australian Act in Archbishop of Perth.  We have provided a schedule at the back of the supplementary application book which we suggest shows otherwise. 

The Canadian Supreme Court in an Act much more comparable with the New South Wales 1936 Act unanimously held that it was wide enough to make the Trustees liable.  The Western Australian Act expressly limited the corporation sole to matters in respect of property vested by that Act and the powers in the cognate Roman Catholic Church Communities’ Lands Act.  The difference in the New South Wales Act was the power to do and suffer all such acts and things as bodies corporate may by law do or suffer.  We say that the reading down of that by adding words which limited it to property matters was, firstly, at odds with evidence of how the Church saw its own legislation, evidenced by the activities being conducted by the Trustees which were not limited, we say, to matters involving property. 

Secondly, we are at odds with the explanatory memorandum in the 1986 amendments to the 1936 Act which said that the amendments were only “to make clear” that the Act covered what was already occurring.  We are at odds with the Church’s obligation under canon law to have a legal entity in civil law for all its temporal activities and were contrary to authority and, in particular, that of the Supreme Court of Canada.

Your Honours, this is not the most critical issue.  Even if the respondent did not have a statutory power to act beyond property matters before 1986, contrary to our submissions, or act in relation to priests at any time, the primary judge found that the applicant had a sufficiently arguable case on the evidence before him to go to trial on the basis that the Church in the archdiocese of Sydney did exercise functions.

HAYNE J:   Sorry, that the Trust’s corporation exercised, that the Church exercised?  We need to be quite precise, do we not?

MR MORRISON:   Yes, your Honours – the Trustees.  The question was whether, first of all, the Act authorised the Trustees to act, and we say the plain words of the Act say so, and, secondly, whether, even if it did not, they in fact exercised powers which went well beyond property matters.  His Honour Justice Mason referred to a couple of instances, an old people’s home and I think an educational institution, but they were not the only examples which were evident and which I will come back to in a moment.

The primary judge had before him some evidence that the respondent in fact acted well beyond property matters.  The deed of release itself included a statement that the respondent owed pastoral obligations to the applicant in relation to conduct prior to 1986 and there was evidence from Dr Austin, the expert in canon law, that canon law required the archdiocese to have a civil legal entity for all its activities.  The respondent itself – and it can be found in the supplementary application book at 65 – unequivocally stated that it is an incorporated diocese and the Trustees is the correct legal name for the legal entity which is known as the Roman Catholic Archdiocese of Sydney. 

What we say is that we had demonstrated sufficiently that further evidence was likely to be available at trial.  Some of that evidence was tendered but rejected on technical grounds.  For example, in the application book at page 249 in a further affidavit from Dr Austin at line 30, he says that the records of the council meeting, which is exhibit 44 and to be found at page 298 of the same book, is in fact a minute of records of the Trustees.  That further affidavit was rejected as both late and unnecessary but not because it would not have been admissible on hearing.

KIEFEL J:   Do you take any issue with the position of law by the President in the Court of Appeal, or is yours a purely evidentiary point about what should have been taken into account?

MR MORRISON:   It is a point about whether the President was entitled to say that the case was doomed to fail and whether he should have said that.

KIEFEL J:   Yes, but do you say that his Honour came to that view on a purely legal viewpoint?  I am just not quite sure what you are saying is the error in his Honour’s reasoning.

MR MORRISON:   The error, we say, in his Honour’s reasoning was firstly in approaching the matter on the basis that his own analysis of the evidence differed from the trial judge and therefore the Court of Appeal was entitled to come to a different conclusion in a matter which was ultimately a discretionary question.

KIEFEL J:   But that viewpoint was driven by a perception of the law relating to unincorporated associations, was it not?  That is what I am really asking you.  Do you take issue with the President’s exposition of the law relating to unincorporated associations?

MR MORRISON:   No, the application we make here relates to the question as to whether or not he was entitled to find that the Trustees were limited by law on a construction of the Act or upon the evidence as to what they actually did in such a way as to doom the application to failure.  In other words, there is a statutory construction point; there is also an evidentiary issue as to what was actually occurring.

HAYNE J:   But is that a point that at its roots is Dey and cases like Dey and General Steel have been misapplied?

MR MORRISON:   Yes, it is, but misapplied in a context where the consequences are very serious not just for this applicant but potentially for many other applicants.

HAYNE J:   But if the point is an evidentiary point, what are the consequences for other cases?

MR MORRISON:   Twofold.  First of all, it would seem that one consequence would be that contrary to Dey you have to adduce all of your evidence upfront on the application, and that is contrary to law.  Secondly, the construction point is of general application, that is, is the Act more comparable to the Canadian Act than it is to the Western Australian Act, as the President found?

HAYNE J:   Can we come at the problem in this way.  Is there a particular passage in the reasons of the Court of Appeal to which you would point as saying here is where the court took its wrong turn, or is the point rather more generally identified than that?

MR MORRISON:   I think we can point to a particular passage, and my learned junior will turn it up for me while I go on.  The President said in unmistakable terms and in a fairly brief passage that the Act did not authorise the activities.  He disagreed with Justice Patten’s views on whether, if the Trustees were acting ultra vires, that of itself would be a sufficient basis and he did not express reasons as to why.

HAYNE J:   Do I misunderstand the underpinning ideas of the Court of Appeal to be or at least to include a distinction between episcopal direction of priests and corporate disposition of property?

MR MORRISON:   That seemed to be the distinction that the learned President was drawing.  What we say is that if we look at even the very limited material which was available in the court, that is a distinction which ought not properly to have been drawn in the conclusive way the Court of Appeal did but rather approached in the way Justice Patten did of saying there is sufficient to allow this issue to go to trial and for all the evidence to be adduced.  It should be borne in mind that the way this arose was that something like 40 days before hearing the issue was first squarely raised by an amended defence.  The respondent’s position moved during the trial from not liable as a matter of law relying on Archbishop of Perth to not in fact an operating entity and only functions to hold property.  Their final position was an operating entity but no evidence of involvement in appointing priests.

Can I take your Honours very briefly to a couple of pages which we say contradict their position.  If your Honours go to the application book at 294, this is a meeting of the diocesan consultors.  We know that the consultors are under the Act, sections 2 and 3, identical with the Trustees in membership.  At about point 3 on the page they are spending money on extensions to a parish school but at point 5 on the page the consultors are making appointments to parishes.  If we go then to 296 – this is back in 1972, so it is the relevant period – again diocesan consultors at point 2 are making appointments, but from about point 7 to the bottom of the page they are dealing with matters, some of which are property expenditure.  For example, the last item on the page at about point 9, $37,000 on additions to a presbytery and church, although the item above, library for a girls high school, is not strictly a property matter.

We say there was evidence of mixed functions and evidence of identical membership between the three bodies; Trustees, consultors and council.  If, for example, we go to 303, now we have a council meeting of the archdiocesan council.  At line 21 we have appointment of a parish priest, one of a number.  By the time we get down to about line 46 we are dealing with expenditures on property.  So we know that the Trustees, the consultors and the council deal with both appointments and with property matters and indeed seem to get down to the detail of things like a girls school library.

In those circumstances, what is the response from the Trustees?  They do not put on any evidence themselves.  The records that were produced were produced on the second‑last day of a 10‑day trial and were incomplete on their own admission.  True it is there are separate records of Trustees but the reality is, we say, that there is sufficient there to show that in fact what happened was there was one meeting by the same body dealing with these matters.  That can be seen, for example, in the application book at 301.  There the archdiocesan council is involved in the appointment of

the particular parish priest who is the subject of complaint in this matter, Father Duggan.  At 305 the consultors are involved in the same appointment. 

We say that the Church has, with essentially the same body with identical membership, simply been doing an operation where the Trustees arguably are in fact the civil entity of the Church and doing all of those things which Dr Austin says canon law requires a civil legal entity to do.  We say that that is wholly consistent with the literal interpretation of the words in the 1936 Act and we say that in those circumstances, for us not to have the opportunity to go to trial and for us not to have the opportunity to adduce the whole of the evidence, including the evidence from experts in canon law as to the way in which the Church operates, does us a manifest injustice and potentially an injustice to many other litigants because if this decision stands, it is not just this litigant that fails; this decision says that the Church in effect is not amenable to suit.  That is the effect on it except in respect of strictly property matters at least prior to 1986.

As far as we are aware, this is the first case in which any diocese in New South Wales has taken this blanket defence to a primary judge, let alone the Court of Appeal.  We would submit that the determination of this issue, that is, whether or not the Act authorised and, secondly, whether or not the Trustees were acting ultra vires, does not turn on the particular facts of this claim for damages.  Allowing the matter to go to a full hearing on its merits will resolve an important question for the largest church in New South Wales and in Australia and for a large number presumably of potential litigants, including children in Catholic systemic schools who might be injured as a result of negligence by teachers prior to 1986.  May it please the Court.

HAYNE J:   Thank you, Dr Morrison.  We will not trouble you, Mr McHugh.

The points which the applicant seeks to agitate in this Court turn in critical respects upon the application of established principles to the particular facts as revealed in the evidence adduced in the case.  We are not persuaded that an appeal would enjoy sufficient prospects of success to warrant a grant of special leave.  Special leave is accordingly refused.

We will adjourn to reconstitute.

AT 9.57 AM THE MATTER WAS CONCLUDED