Ferguson v The Corporation of the Society of the Missionaries of the Sacred Heart

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2022 00424

BETWEEN:

FIONA FERGUSON	Plaintiff
v
THE CORPORATION OF THE SOCIETY OF THE MISSIONARIES OF THE SACRED HEART	Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2024
DATE OF RULING:	9 September 2024
CASE MAY BE CITED AS:	Ferguson v The Corporation of the Society of the Missionaries of the Sacred Heart
MEDIUM NEUTRAL CITATION:	[2024] VSC 550

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PRACTICE AND PROCEDURE – Application to vacate trial date – Where application is brought after final directions – Where orders sought to join two further defendants – Application refused – Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A Ingram KC	Arnold Thomas & Becker Lawyers
For the Defendant	J Rush KC C Sluiter	Colin Biggers & Paisley Lawyers

HER HONOUR:

This proceeding is fixed for trial on Tuesday, 10 September 2024. By summons dated 5 September 2024 returnable before me as the trial judge allocated in this matter, the plaintiff applied to adjourn the proceeding. The adjournment application would be a necessary consequence of the application to further amend the writ and statement of claim to join two further defendants. I refused the application at hearing and indicated I would provide brief written reasons.
In this matter the plaintiff alleges abuse by a teacher at the school she attended, Monivae College in Hamilton, Victoria. The teacher was at the time a member of the religious order who operated the school.
The identity of the teacher against whom the allegations are made has been known since well before the commencement of this proceeding in 2022. He has produced documents in answer to subpoena and has been subpoenaed to give evidence at the trial. The plaintiff now wishes to join him as a second defendant. The proposed third defendant is the successor in time of the entity that operated Lisa Lodge in Ballarat, Victoria where the plaintiff attended as a resident for a period which, according to the proposed pleading, was from April to May 1983. I am informed from the Bar table that the reason for the admission to that house was for the plaintiff to receive care following a suicide attempt. The documents around that admission indicate that it was at the request of the plaintiff’s mother. The proposed second defendant visited the plaintiff while she was at Lisa Lodge and took her to stay overnight at the home of one of his family members. The plaintiff alleges abuse by the proposed second defendant during this period. Again these circumstances have been known to those advising the plaintiff since before the commencement of this proceeding.
On 1 June 2023, orders were made by Baker JR with the consent of the parties setting the trial date of 10 September 2024 as well as setting the timetable for discovery and interrogatories, Order 42A subpoenas, exchange of expert reports and particulars of loss and damages. Mediation was also ordered to have been occurred by 14 May 2024.
The matter was then listed for a post-mediation directions hearing on 12 July 2024, at which time the parties were required to advise the Court among other matters, whether leave for any amendments to the pleadings was proposed, including the joinder of parties. Orders were made by Baker JR following the hearing at which no such matters were raised and the trial date was confirmed.
On 30 August 2024, the matter was listed for final directions before O’Meara J. At that final directions the parties were expected to, and did, confirm that the proceeding is ready for trial.
On 5 September 2024, subsequent to that final directions hearing, the Court was informed via email that the plaintiff intended to make an application to file and serve a further amended writ and statement of claim joining the two proposed defendants and, as a result thereof, would seek to vacate the hearing date.
The affidavit and further affidavit in support of the applications filed on 5 September 2024 were most striking for what they did not provide to the Court. They did not seek to explain the lateness of the application or the circumstances by which the plaintiff informed the Court on 30 August 2024 without reservation that the matter was ready to proceed nor did they adequately identify or explain why that position had subsequently changed. All that was said by the solicitor who affirmed the affidavits was that the decision to bring the applications was made in the course of a conference on 30 August 2024 that he had with the plaintiff and counsel who had appeared in the final directions hearing earlier that day. Mr Ingram KC, at the hearing, attempted to expand on this from the Bar table, noting that he had only recently come into the matter. Other than the fact of determining a new strategic course at a conference following the final directions hearing, each of the matters identified by the affidavits went only to the question of whether there is a proper basis for joinder of the two proposed defendants.
I accept that there would be a proper basis to join the proposed defendants. Nevertheless, the question remains whether such a late application, causing disruption to an imminent trial date, should be permitted. There are four reasons why, in my view, the application should not be permitted.
First, as between the parties themselves, there is no prejudice to the plaintiff in obtaining a fair and just outcome to the proceeding against the present defendant alone. The case is a conventional one of the liability of a school authority directly and vicariously for the actions of an appointed teacher. There is no real impediment to the plaintiff’s presentation of that case by the absence of the proposed defendants.
Second, there has been no satisfactory explanation for the lateness of the application. Senior Counsel indicated that he had recently come into the matter and took the view that joinder was desirable. However, that identifies nothing more than a different strategic direction based upon previously known material. It could not be said that such questions as joinder had not been considered earlier by experienced counsel in coming to a different view. It was not a case of newly discovered or overlooked material that gave rise to some concrete unfairness. The events surrounding the Lisa Lodge admission are, as was conceded by the plaintiff, only peripherally relevant to the allegations against the defendant and no good reason to delay the real issues in dispute between the present two parties.
Third, the case deals with events occurring over forty years ago. Delay in those circumstances creates its own prejudice to the parties. The defendant has identified eight witnesses aged 67 years or older, including the proposed second defendant. Four of those are aged between 80 and 88. While there is no evidence of specific prejudice arising from the state of the mental or physical health of any particular witness, there is nevertheless a general deterioration in the quality of justice to both parties even if the parties themselves are not aware of a deterioration. McHugh J said as much in the context of a discretionary decision to extend a limitation period.[1] While plaintiffs who bring a case arising from institutional abuse no longer face the hurdle of a limitation period, the question of bringing the cases to trial in a timely fashion remains important for the quality of justice that can be attained. This requires both parties to manage their preparation in accordance with the Civil Procedure Act 2010 (Vic), obliging them to act promptly and minimise delay.[2] If their joinder application was successful, the plaintiff anticipated being ready to proceed at a date not before July 2025.
[1]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
[2]Civil Procedure Act 2010 (Vic) s 25.
Fourth, in exercising a discretion to adjourn a proceeding or permit a course of conduct that inevitably leads to an adjournment, consideration of the broader interests of the administration of justice are also relevant. As was said by French CJ in Aon Risk Services Australia Ltd v Australian National University:[3]
… [the judge] should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed.[4]
And later his Honour said:
The requirement [in the Rules] to avoid a multiplicity of proceedings is to be understood as operating within the framework of an ordered progression to a fixed trial date. It does not oblige the court to accept the addition of new claims at the last moment before trial, on the basis that if they are not allowed there might be subsequent proceedings in which those claims are raised.[5]
[3](2009) 239 CLR 175
[4]Ibid 182 [5] (French CJ).
[5]Ibid 192 [32].
In all the circumstances, the inadequate explanation for the lateness of a substantive application, together with the positive assertion at the final directions hearing that the plaintiff was ready to proceed and the significant further delay that would be occasioned, meant that the application to amend was not allowed. The matter remains listed for trial commencing on 10 September 2024 and has also been referred for judicial mediation.

[2024] VSC 550

9 September 2024