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

[2023] NSWSC 1105

Supreme Court

New South Wales

Medium Neutral Citation:

GP as Tutor for PP v The Church of Jesus Christ of the Latter Day Saints [2023] NSWSC 1105

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 [7]-[8]

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 PP (Plaintiff)
The Church of Jesus Christ of the Latter Day Saints (Defendant)

Representation:

Counsel:

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

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

File Number(s):

2022/386071

Publication restriction:

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

JUDGMENT

1. This is an application for approval of a settlement for a child under s 76 of the Civil Procedure Act 2005 (NSW). The plaintiff, who in these reasons I will refer to by his name of [PP], was born XXXXX X 2014 and he is now accordingly 9 years of age.

2. The case brought on behalf of PP relates to child sexual abuse which allegedly occurred at the defendant's Church at Mudgee. I have earlier today given a judgment approving a settlement proposed in his brother LP's case, and some of my comments made in that case are apposite to the present case. In particular, in the transcript of the hearing of LP's case, I have recorded Mr Macinnis's submissions in relation to the liability issues from the defendant's point of view. I have also received, as part of the evidence read in the present case, the confidential advice of Ms Clingan of counsel, who appears before me today, dealing with liability and damages issues, and other pertinent aspects referable to the exercise of my discretion under s 76 of the Civil Procedure Act.

3. From the affidavit of PP’s mother, I am satisfied that she does have a full appreciation that if I approve the settlement it will operate in full and final settlement of all of PP’s rights for damages arising out of the alleged tort. I find from the information provided to me by Ms Clingan from the bar table at my invitation, that PP's mother has a full appreciation of the sometimes-long latency of the emergence of adverse psychological or psychiatric effects of child sexual abuse. She appreciates that my approval of the settlement means that if such an untoward long-term consequence arises in PP’s case, he will have no redress for that.

4. Having said that, I am satisfied from Mr Macinnis' submissions and from Ms Clingan's advice that there are real issues as to liability in this case and that it could not be said that the prospects of a successful outcome were very high. I am expressing myself somewhat euphemistically.

5. I am also satisfied that there are issues in relation to damages. There are some additional aspects in this case that did not affect LP's case. In particular, Dr Rickard Bell, whose report of 12 April 2022 is annexure B to Ms Griffith's affidavit, points out that the alleged abuse in PP's case occurred, if at all, while he was a toddler, commencing at about 18 months of age. Dr Rickard Bell explains that children are amnesic to about the age of 3, and it is to be hoped therefore, I will add, that the effects of any abuse on him will never emerge.

6. There is a complication in this case, as in LP's case, in that as part of the modus of the perpetrator, who has been dealt with severely in an appropriate way in South Australia, pictures of the abuse in which he participated were shared with other like-minded deviants on the internet. There is a concern that there could be a psychological backlash if those images emerge and come to PP's attention later in life.

7. Having said that, Dr Rickard Bell's opinion is that PP has a subclinical presentation of Post-Traumatic Stress Disorder. In his report he sets out the criteria for making that diagnosis in children. However, my understanding of the subclinical aspect of the diagnosis is that it is not symptomatically active or adversely affecting him at the moment, although it could emerge as a full blown clinical entity in the future.

8. Bearing that risk in mind and having regard to what I have said however about the liability issues, I am satisfied that the sum proposed for settlement is an appropriate settlement, having regard to the issues and it is in PP's best interests and I propose to approve it under s 76 of the Civil Procedure Act.

9. I approve the settlement in accordance with order 13 of the consent orders. I make orders and notations in accordance with the orders recited, and the notations and agreements likewise recited, in paragraphs 1 to 12 of the form of consent order. In accordance with 15 of the form of consent order, I order that the judgment sum referred to in paragraph 1 be paid into Court for payment out to the New South Wales Trustee and Guardian or as the Court may otherwise direct upon application pursuant to s 77(3) of the Act.

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Decision last updated: 11 September 2023