GP as Tutor for LP v The Church of Jesus Christ of the Latter Day Saints

[2023] NSWSC 1103

Supreme Court

New South Wales

Medium Neutral Citation:

GP as Tutor for LP v The Church of Jesus Christ of the Latter Day Saints [2023] NSWSC 1103

Hearing dates:

6 September 2023

Date of orders:

6 September 2023

Decision date:

06 September 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Settlement approved see [11]-[14]

Catchwords:

CIVIL PROCEDURE — application for approval of settlement — allegations of child sexual abuse — church congregation — plaintiff is a minor — consideration of the bests interest of the child — settlement approved

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 76, 77

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Category:

Procedural rulings

Parties:

GP as tutor for LP (Plaintiff)
The Church of Jesus Christ of the Latter Day Saints (Defendant)

Representation:

Counsel:

P Clingan (Plaintiff)
A Macinnis (solicitor) (Defendant)

Solicitors:
Melinda Griffiths Lawyers (Plaintiff)
StevensVuaran Lawyers (Defendant)

File Number(s):

2022/385966

Publication restriction:

Pseudonyms in compliance with the provisions of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

ex tempore JUDGMENT (revised)

1. This is an application for approval under s 76 of the Civil Procedure Act 2005 (NSW) of a settlement in a matter involving child sexual abuse. I have already today made an order directing that the plaintiff and his mother, his tutor, be referred to by a pseudonym in compliance with the provisions of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

2. I have also received and considered the affidavit of Melinda Griffith sworn 29 August 2023. Ms Griffith is the solicitor acting for the plaintiff in these proceedings. To her affidavit, she has attached, amongst other things, the confidential advice of Ms Clingan of counsel concerning the matter. Ms Clingan is appearing before me on the application for approval today. I will direct that Ms Clingan's advice be removed from Ms Griffith's affidavit, placed in an envelope marked "not to be opened or accessed without an order of a judge of the Court".

3. I have also received the benefit of the submissions of Mr Macinnis, solicitor, who is representing the defendant and he has explained to me the issues in the case as seen from the defendant's perspective in a very clear and dispassionate analysis.

4. I should say that the plaintiff, who I will refer to in court by his name of [LP], was born on XX XXXXX X 2010 and obviously remains a minor, currently aged 13. The alleged sexual abuse occurred within the Church's Mudgee congregation broadly during the period 2015 to 2018 when the plaintiff was aged 5 to 8.

5. The perpetrator of the abuse on the plaintiff's case, is a person named Ruecha Takutaza. That person has since been identified as a very notorious paedophile and, indeed, he has been dealt with for a number of his crimes, committed both in South Australia and overseas by Chapman DCJ in the District Court of South Australia, whose sentencing remarks of 17 May 2019 are annexure A to Ms Griffith's affidavit. His offending was very extensive, and he received an appropriately stern sentence, if I may say so, with respect. It was after his arrest in South Australia that the possibility of further abuse in New South Wales came to light. From police investigations, it was detected that LP, and his brother PP, to whom I will refer to later in a separate judgment, may have been among the victims of his abuse.

6. After the commencement of legal proceedings but before it was necessary for the defendant to file its defence, the parties participated in a mediation and the matter has settled. It falls to me to determine whether, in my judgment, the settlement is appropriately in the plaintiff's interests. Without going through all of the circumstances relevant to that matter, I am satisfied both from the confidential advice of Ms Clingan, and from the explanation of the defendant's position given by Mr Macinnis, that there are very significant issues relating to the church's liability to pay damages to LP in respect of any abuse that was perpetrated against him by the paedophile I have named. I will not go through those issues. They are clear from the confidential advice and from the statement of the issues made by Mr Macinnis, which appears on the transcript. I simply repeat, I accept there are very significant issues.

7. There are also, in my judgment, issues in relation to damages. Obviously, in respect of young children, there are difficulties of assessment which have been referred to by the expert retained on behalf of LP, Dr Rickard Bell whose report of 12 April 2022 is annexure B to Ms Griffith's affidavit. It is apparent from a consideration of his report that there is no active psychiatric diagnosis current in LP's case. I draw that conclusion for present purposes from the expert's analysis that LP may suffer from a subclinical Post Traumatic Stress Disorder. He sets out the difficulties in making such assessments in the case of children and his final conclusion is that "the diagnosis is a subclinical post-traumatic stress disorder which may emerge in the future as a full blown post-traumatic stress disorder or expressed in a more subtle way as a form of anxiety or depression".

8. I should say people generally are better informed about the possible long latency of the psychiatric effects of child sexual abuse by the work of McClellan JA's Royal Commission into Institutional Responses to Child Sexual Abuse. I should say that I am satisfied from the evidence generally and also from the affidavit of the tutor, LP's mother, that on the whole, although there are concerns about him, he seems to be well adjusted and has the great benefit of a loving environment as part of a large family headed by caring and loving parents.

9. From Dr Rickard Bell's report, it seems to me that there was little that can be identified currently as being active symptoms. A concern I had in relation to the matter was whether that aspect of long latency was something that was understood by LP's mother when she swore her affidavit; that she understood, that accepting the offer would bring LP's claim to an end and that he will be unable to commence proceedings again even if a clinical condition manifeats itself.

10. The family currently reside in Queensland and, although she has attempted to join the proceedings by AVL link, I am not satisfied that she is able to hear what is happening in court and that is confirmed for me by Ms Clingan who made a phone call to her to ask her some questions when we had trouble raising her in court. I am satisfied that she does understand that there is that long tail of latency which may, as Dr Rickard Bell said in his report, emerge later in life in a full blown diagnosable psychiatric illness. She has assured Ms Clingan that the family are anxious to put this all behind them, and although my concern is different from that of a parent, I think that their concerns and wishes in this regard is a relevant circumstance for me to take into account.

11. Having regard to the liability and damages issues as they presently appear, while the sum is not merely nominal and is of some significance, I accept that it is not the type of figure which might be awarded if the difficulties I have identified were not present or could be overcome. Having said that, I am satisfied it is an appropriate settlement and I am satisfied it is in LP's best interests for me to approve the settlement.

12. In accordance with paragraph 13, in the form of consent order signed by the solicitors for the parties, I approve the settlement pursuant to s 76(4) of the Civil Procedure Act.

13. I make orders and notations as appropriate in accordance with paragraphs 1 to 8 of the consent judgment. I note the agreement of the parties in relation to disclosure contained in paragraph 9, the agreement as to costs in paragraph 10, and the agreements in paragraph 11 and 12 of the consent order.

14. In accordance with paragraph 15, I order in accordance with s 77(2) of the Civil Procedure Act that the judgment sum referred to in paragraph 1 of the consent judgment, less any authorised deductions for which the consent judgment specifically or by necessary implication provides, be paid into Court for payment out thereafter to the New South Wales Trustee and Guardian or as the Court may upon application made pursuant to s 77(3) of the Civil Procedure Act otherwise direct.

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Decision last updated: 11 September 2023