Gaskin v The Geelong Revival Centre Pty Ltd
[2025] VSCA 225
•17 September 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2025 0121 |
| PETER GASKIN | Applicant |
| v | |
| THE GEELONG REVIVAL CENTRE PTY LTD (ACN 107 557 693) | Respondent |
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| JUDGES: | BEACH and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 September 2025 |
| DATE OF JUDGMENT: | 17 September 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 225 |
| JUDGMENT APPEALED FROM: | Peter Gaskin v The Geelong Revival Centre Pty Ltd (Supreme Court of Victoria, Tsalamandris J, 4 September 2025) |
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PRACTICE AND PROCEDURE – Application for leave to appeal interlocutory ruling – Trial judge refused application to vacate trial date – Application brought after final directions – Where application sought orders to join second plaintiff to proceeding and substantially amend statement of claim – Trial imminent – Application for leave to appeal refused – Civil Procedure Act 2010, s 26 – Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175; Pope v Madsen [2016] 1 Qd R 201, considered.
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| Counsel | |||
| Applicant: | Mr ADB Ingram KC with Mr P Haddad | ||
| Respondent: | Mr AD Clements KC with P Santamaria | ||
| Solicitors | |||
| Applicant: | Arnold Thomas & Becker Lawyers | ||
| Respondent: | HWL Ebsworth Lawyers | ||
BEACH JA
KAYE JA:
In June 2024, the applicant commenced proceedings for damages in respect of sexual abuse that had been perpetrated against him between 1987 and 1991 by two persons who were employees or agents of the Geelong Revival Centre (‘the Revival Centre’), a religious organisation that conducted church services and associated activities. The respondent has been nominated as an entity capable of being sued on behalf of the Revival Centre pursuant to s 7 of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic).
The proceeding was set down for hearing in the Geelong circuit of this Court that was due to commence on 1 September last. On 29 August, the applicant applied to adjourn the trial, and to amend his statement of claim to add further allegations to it. On 4 September, Tsalamandris J refused the application to adjourn the trial and refused the applicant’s application to make particular amendments to the statement of claim.
The applicant now seeks leave to appeal her Honour’s decision on three grounds, namely:
(1)The Trial Judge failed to correctly interpret and apply ss 7, 9 and 26 of the Civil Procedure Act 2010.
(2)The Trial Judge erred in refusing amendments which the applicant sought to make to his pleadings in consequence of late discovery.
(3)The Trial Judge failed to provide adequate reasons for the ruling delivered 4 September 2025.
Summary of background circumstances
The proceeding was commenced by a writ dated 20 June 2024. In the statement of claim, the applicant alleged that between 1987 and 1991 he had been ‘groomed and sexually abused’ by Hank DeVries (‘DeVries’) and John Strumpel (‘Strumpel’) who were either employed by, or were agents of, the respondent at the Revival Centre. In the particulars, it was alleged that DeVries and Strumpel began grooming the applicant in 1988 when they would visit the applicant’s home. It was alleged that, on those occasions, Strumpel would sexually assault the applicant in his bedroom, and that those assaults were usually followed by a beating. It was also alleged that DeVries would sexually assault the applicant, both at the applicant’s home and at DeVries’ own home.
The claim for damages was made on two bases. First, it was pleaded that the abuse was caused by the breach by the respondent of a duty of care that it owed to the applicant. Alternatively, it was pleaded that the respondent was vicariously liable for the abuse committed by DeVries and Strumpel.
On 4 September 2024, the proceeding was set down for hearing in the Geelong circuit of this Court, commencing on 1 September last. At a subsequent directions hearing on 20 June 2025, the Court was informed that the applicant would serve a supplementary report, but otherwise no other issues had arisen between the parties. Subsequently, at a callover hearing on 19 August 2025, the parties confirmed to the Court that the matter was ready to proceed to trial on the listed date.
On 29 August 2025, (that is, two days before the commencement of the circuit hearing in Geelong), the applicant filed a summons seeking that the trial set down in the Geelong circuit commencing 1 September be vacated, and that the matter be listed for a directions hearing. The application was supported by an affidavit of the applicant’s solicitor, Ms Madison Duffy.
Ms Duffy deposed that a number of issues had recently arisen. First, the applicant had only previously had limited contact with his brother, Michael Gaskin, and his mother. Counsel had recently conferred with the applicant’s mother and brother and it was considered that they would both be relevant witnesses in the proceeding. In addition, it was considered that Michael Gaskin should be joined as a plaintiff in the same proceeding in order that he might bring a civil claim for damages for abuse against him. Secondly, Ms Duffy noted that the respondent had recently provided additional discoverable documents, that included the original trust deed that established the Revival Centre and an amended trust deed dated 9 February 1977. Thirdly, Ms Duffy noted that the applicant intended to apply to amend the statement of claim to include a claim for physical abuse that he sustained at the hands of DeVries, Strumpel, Pastor Noel Hollins (‘Hollins’) and Barry Henderson (‘Henderson’), each of whom were members of the Revival Centre. The amended trust deed dated 9 February 1977 noted that the trustees of the Revival Trust (which operated the Revival Centre) were Hollins and Henderson.
The application initially came before her Honour on 2 September. At that time, the parties had filed consent orders agreeing to the adjournment of the proceeding. On return of the matter before the Judge, her Honour expressed concern that the affidavit of Ms Duffy did not justify an adjournment of the proceeding. Her Honour adjourned the directions hearing until 4 September and directed that the foreshadowed amended statement of claim be provided by 4:00pm on 3 September.
In accordance with that direction, the applicant served an amended statement of claim. The amended pleading contained three principal additional claims. First, it sought to add Michael Gaskin as the second plaintiff to the proceeding to claim that he too had been sexually groomed and sexually abused by Hollins and DeVries. Secondly, it sought to add, on behalf of both the applicant and Michael Gaskin, a claim for physical abuse (that is, assault) by DeVries, Strumpel, Hollins and Henderson, to the claims against the respondent both in negligence and vicarious liability. Thirdly, it added a claim against the respondent based on a breach of fiduciary duty by both Hollins and Henderson, which was based on the allegation that the latter had each physically assaulted the applicant and Michael Gaskin in the course of their duties as trustees of the Revival Centre.
On the return of the matter before her Honour on 4 September, the respondent opposed the applications by the applicant to amend the claim and to adjourn the proceeding. Counsel for the respondent noted that the proceeding itself involved two elderly witnesses, including Mr Strumpel who was then aged 94 years of age. Counsel also noted that the application introduced two new protagonists (Hollins and Henderson) who were both deceased. Counsel submitted that the respondent, which was uninsured, was ready to defend the existing claim and that the continued delay in the proceeding was an unreasonable impost on the respondent.
After a short adjournment, the Judge delivered a detailed ex tempore ruling.[1] Her Honour set out in some detail the circumstances in which the application to adjourn the proceeding and amend the statement of claim had occurred. Her Honour noted that, after the proceeding had been set down for trial almost 12 months previously, the matter had twice come before the Court, and on both occasions it was ready to proceed on the listed date. Her Honour also noted that there was no adequate explanation as to why the applicant’s solicitors had not contacted Michael Gaskin and the applicant’s mother at the time at which the proceeding was first issued, or at least at a time well before the listed trial date.
[1]‘The Ruling’.
In considering the applications by the applicant to amend the statement of claim to join Michael Gaskin as a plaintiff, and to add claims for physical abuse by DeVries, Hollins and Henderson, the Judge noted that the Court had allocated four weeks of judicial time and resources for the case to be heard in Geelong, and no explanation had been offered why the original pleading did not include the claims now sought to be made. Her Honour in particular noted that, in considering such an application, it was necessary to take into account the principles of proper case management.
Her Honour concluded that she was not persuaded that Michael Gaskin should be permitted to join the claim at that time, as no adequate explanation had been proffered for the joinder not to have taken place earlier. If Michael Gaskin’s claim were added, it would have the effect that the claim for the applicant could not proceed, and that it would be delayed pending investigation of Michael Gaskin’s allegations.
The Judge also considered that if the applicant were permitted to amend the pleading to include the further allegations of physical abuse, any award of damages for the applicant in that respect would be likely to be very modest, if the applicant did succeed on the issue of liability. In the absence of an adequate explanation as to why the physical abuse had not been pleaded earlier, her Honour was not persuaded that the claim should be expanded in that way.
Accordingly, her Honour only granted leave to the applicant to make minor amendments. Otherwise her Honour refused the amendment, and directed that the trial of the matter should commence on 15 September.
As noted, on 12 September, the applicant filed an application for leave to appeal her Honour’s decision, seeking orders that the order by her Honour on 4 September, that the matter be set down, be set aside, and that the trial of the proceeding be adjourned to a date to be fixed. Following the filing of the application for leave to appeal, her Honour made a further order, on 15 September, that the trial of the proceeding be stayed pending the decision of this Court.
Proposed grounds of appeal — principles
Before turning to the proposed grounds of appeal, it is relevant to note two important principles that apply to a consideration of those grounds.
First, the decision by the Judge, to refuse the application by the applicant to adjourn the trial of the proceeding and to amend his statement of claim, was made in the exercise of the discretion of the Judge. It is well recognised that an appellate court should hesitate to interfere with the exercise by a Trial Judge of such a discretion, and should only do so where it is clear that the refusal of the adjournment will occasion a significant injustice to a party to the proceeding.[2]
[2]Bloch v Bloch (1981) 37 ALR 55, 58–9 (Wilson J, with whom Gibbs CJ, Murphy, Aickin JJ agreed); [1981] HCA 56; Re Will of Gilbert (Deceased) (1946) 46 SR (NSW) 318, 323 (Jordan CJ); James v The Owners - Strata Plan No 11478 [2017] NSWCA 166 [27] (McColl JA); McColl v Lehmann [1987] VR 503, 506‑7 (Kaye J).
Secondly, in considering the application for leave to appeal against the exercise by the Judge of that discretion, it was relevant for the Judge to take into account the public interest in the efficient use of court resources, and the potential effect of an adjournment or a delay in the disposition of the proceeding not only upon the parties to the proceeding, but also on the efficient management of the Court, and thus the timely disposition of other litigation in the Court.[3]
[3]Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175, 191 [27] (French CJ), 211‑213 [92]‑[97], 217–18 [111]–[114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2009] HCA 27.
In that second respect, as noted by counsel for the respondent, while the Judge delivered her decision on 4 September, the application for leave to appeal was not filed by the applicant until Friday 12 September, one business day before the trial was due to commence. The applicant has not provided any satisfactory explanation for that aspect of the delay.
Ground 1 — submissions
In support of ground 1, counsel submitted that the Judge erred in failing to properly apply s 26 of the Civil Procedure Act 2010 in respect of the late discovery by the respondent, in particular, of the deed of trust dated 4 August 1972, the amended trust deed dated 9 February 1977 (identifying Henderson as a new trustee of the trust), and the Geelong Revival Centre (Sunday School) Guidelines (‘the Guidelines’). It was submitted that the respondent must have been aware of the existence of those documents, but it only made discovery of them on 27 August 2025, four days before the trial date. Counsel submitted that the new documents so discovered by the respondent impacted on the legal relationship between the applicant and the respondent, and were relevant to the various duties owed by the respondent to the applicant, in addition to forming the basis of an additional claim against it.
In response, counsel for the respondent submitted that the claim for breach of fiduciary duty, now sought to be advanced on behalf of the applicant, is misconceived. The trust established by the deed dated 4 August 1972 is a charitable trust, so that the trustees of the trust did not owe any fiduciary duty to the applicant. Counsel further submitted that no substantial injustice was caused to the applicant by the refusal by the Judge to permit the applicant to amend his statement of claim to include allegations of physical abuse by Hollins and Henderson. The amended pleading does not allege the applicant has suffered any physical injury. The report of the psychiatrist relied on by the applicant focuses solely on the sexual abuse which the applicant alleges that he was subjected.
Ground 1 — analysis and conclusion
In our view, there is no substance in ground 1.
In respect of the submissions based on breach of fiduciary duty, four points are relevant.
First, to the extent that the applicant has a viable claim based on fiduciary duty, that claim was always open to him from the commencement of the proceeding. In its defence delivered 20 September 2024, the respondent pleaded that at the relevant time the Revival Centre was operated by an association of trustees of the Revival Trust created by Deed on 4 August 1972. In its affidavit of documents dated 11 November 2024, the respondent discovered the Revival Trust Consolidating Deed dated 24 October 2006. It should have also discovered the original Deed, as pleaded, dated 4 August 1972. However, the applicant has not provided any explanation why he did not seek discovery of the Deed until his sent a letter to that effect to the respondent dated 25 August 2025, that is, seven days before the date upon which the proceedings were listed for trial. The respondent promptly responded to that letter and provided discovery of the Deed dated 4 August 1972. It is clear that if the applicant had followed up the deficiency in the respondent’s original affidavit of documents earlier, it would have led to the discovery of the Deed. The applicant has not provided any explanation why that matter was not addressed in a timely manner.
Secondly, as noted by counsel for the respondent, the Trust, established by the Trust Deed dated 4 August 1972, was a charitable trust. Accordingly, the Trust did not give rise to any fiduciary duty owed by the trustees of the Trust to the applicant.
Thirdly, based on current authority, it is, to say the least, most doubtful that the claim, sought to be pleaded by the applicant based on a breach of fiduciary duty, is based on a justiciable cause of action.
In Pope v Madsen,[4] the respondent commenced an action in the District Court of Queensland against the applicant, her biological father, claiming equitable damages for breach of fiduciary duties, on the basis that she had suffered personal injury in the nature of psychiatric illness due to the applicant’s abusive conduct to her when she was a young child. Mullins J (with whom Holmes JA and Henry J agreed), having extensively reviewed the relevant authorities, including Breen v Williams,[5] Paramasivam v Flynn,[6] and Cubillo v The Commonwealth,[7] concluded that, in the current state of Australian law, the respondent did not have a maintainable cause of action against the applicant for breach of fiduciary duty based on the facts pleaded in the respondent’s statement of claim.[8]
[4][2016] 1 Qd R 201; [2015] QCA 36 (‘Pope’).
[5](1996) 186 CLR 71; [1996] HCA 57.
[6](1998) 90 FCR 489, 505 [26]‑[27] (Gallop J); [1998] FCA 1711.
[7](2001) 112 FCR 455, [466] (Sackville, Weinberg and Hely JJ); FCA 1213.
[8]Pope [2016] 1 Qd R 201, 209 [33] (Mullins J).
Fourthly, and in any event, it is not apparent how a claim based on a fiduciary duty could enhance the position of the applicant. The claim sought to be made against DeVries, Strumpel, Hollins and Henderson, based on breach of fiduciary duty, would (at the least) require the establishment of a relevant and necessary nexus between the alleged fiduciary duties owed by each of those persons, and the conduct in which each of them engaged, in order to demonstrate that in some way the actions alleged against each of them was committed in breach of their fiduciary duties to the applicant. Such a proposition would, we would apprehend, involve greater complexity, and less likelihood of success, than the current claim for damages at common law, based on negligence, and vicarious liability, against the respondent.
Finally, the applicant has not demonstrated how the late discovery by the respondent of the Guidelines in any way has prejudiced his presentation of his case. It is not apparent that the Guidelines would be admissible in evidence, or that they may be appropriately relied on by the applicant in support of his claim against the respondent.
For those reasons, we do not consider that ground 1 of the application for leave to appeal is sustainable. Accordingly, we do not grant the applicant leave to appeal on that ground.
Ground 2 — submissions
In support of ground 2, counsel for the applicant submitted that the documents, that were discovered by the respondent on 27 August, provided a foundation in evidence for a case on behalf of the applicant in respect of the physical abuse to which he had been subjected, not only by DeVries and Strumpel, but also by Hollins and Henderson. Counsel submitted that the conduct alleged against each of those four persons constituted a failure by them to comply with the respondent’s Guidelines, which were one of the documents only recently discovered by the respondent.
In response, counsel for the respondent submitted that most of the amendments sought to be made by the applicant did not have anything to do with the late discovery of documents by the respondent.
Ground 2 — analysis and conclusion
The submissions made by the applicant under ground 2 fail to grapple with the circumstance that, regardless of whether the Guidelines were available or not, it was open to him, from the date at which the proceeding was issued, to include in it a claim for physical abuse to which he had been subjected, not only by Strumpel, but also by DeVries, Hollins and Henderson. Indeed, the circumstance that the applicant did include in the original pleading a claim for physical abuse against Strumpel makes it clear that he was not reliant on the document such as the Guidelines to enable him to plead, as part of his claim, the physical abuse to which he also alleged he had been subjected by DeVries, Hollins and Henderson. In any event, the relevance of the Guidelines is highly doubtful.
Further, as counsel for the respondent noted, the applicant has not pleaded any physical injury sustained by him as a result of the alleged assaults by DeVries, Hollins and Henderson. Nor, apparently, does the psychiatric evidence, relied on by the applicant, attribute any of his psychological issues to such assaults. Accordingly, the interests of justice do not require that the applicant be permitted to amend his pleading to add an allegation of physical abuse by DeVries, Hollins and Henderson.
It follows that there is no substance to ground 2, and leave to appeal on that ground must be refused.
Ground 3 — submissions
In support of ground 3, counsel submitted that the Judge failed to address substantial and fundamental submissions made on behalf of the applicant. In particular, it was submitted that the Judge failed to address a principal ground on which the applicant relied in seeking an adjournment, namely, that the new documents recently discovered had impacted upon the nature of the legal relationship between the applicant and the respondent and, accordingly, on the duties owed by the respondent to the applicant. Further, it was submitted that the Judge failed to consider and weigh the importance of the proposed amended pleadings which were explained, at least in part, by the late discovery by the respondent. Nor, it was submitted, did the Judge observe that the paramount purpose of the Rules is to ensure the just resolution of the proceedings. Finally, the applicant submitted that the Judge failed to acknowledge that the applicant had one opportunity to prosecute his claim.
In response, counsel for the respondent noted that in oral submissions made before her Honour, the applicant did not refer at all to the ‘late discovery’ of documents by the respondent. Counsel submitted that when evaluated in their context, the reasons of the primary Judge were adequate and appropriate.
Ground 3 – Analysis and conclusion
As we have noted in considering ground 1, we do not consider that there is any substance in the proposition advanced on behalf of the applicant that the documents recently discovered by the respondent have in some way enabled the applicant to seek to rely on a breach of fiduciary duty by the respondent. At the risk of repetition, based on current authority, it is at the least most doubtful that a claim on that basis is justiciable. Further, and in any event, it is not demonstrated how such a claim could in any way advance the position of the applicant in the present proceeding.
In respect of her Honour’s reasons, it is noteworthy that the applicant did not make a reference to the ‘late discovery’ in the course of oral submissions to the Judge. The reasons given by the Judge related to a matter of practice and procedure. In such a case it is recognised that the reasons of a judge are not required to address every fact or matter raised by the losing party.[9] In the present case, the reasons given by the Judge were quite fulsome and detailed, and contained an appropriate explanation of why her Honour did not accede to the applications made on behalf of the applicant.
[9]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48.
Conclusion
For the foregoing reasons, each of the three grounds upon which the applicant seeks to rely are without substance. Accordingly, the application by the applicant for leave to appeal against the decision of Tsalamandris J on 4 September must be refused.
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