Grant v Bird
[2021] VSC 380
•29 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2019 04507
| DARREN GRANT | Plaintiff |
| v | |
| BISHOP PAUL BIRD | Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 March 2021 |
DATE OF JUDGMENT: | 29 June 2021 |
CASE MAY BE CITED AS: | Grant v Bird |
MEDIUM NEUTRAL CITATION: | [2021] VSC 380 |
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INSTITUTIONAL LIABILITY – PRACTICE AND PROCEDURE – Permanent stay – Alleged historical sexual abuse – Plaintiff recalled abuse 20 years after it is alleged to have occurred – Alleged perpetrator and potential eyewitness both deceased – No other allegations of abuse or history of professional misconduct against alleged perpetrator – Delay – Ability of the defendant to participate in a fair trial and test the evidence – Administration of justice – Limitation of Actions Act 1958 (Vic), s 27R – Connellan v Murphy [2017] VSCA 116 – Longman v The Queen (1989) 168 CLR 79 – Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 - Civil Procedure Act 2010 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Gordon | Waller Legal |
| For the Defendant | J T Rush QC with C Morshead | Wotton + Kearney |
HIS HONOUR:
Introduction
The plaintiff alleges that on one occasion in 1980 or 1981, when he was a child aged about eight or nine years, he was sexually abused by Catholic priest Father Daniel O’Brien in the sacristy at St Michael’s Catholic Church, Wycheproof one Sunday after a mass performed by Father O’Brien at which he was an altar boy.
Wycheproof is within the Catholic diocese of Ballarat (‘the Diocese’). The plaintiff claims there was negligence by the Diocese which was a cause of the abuse and resulting injuries suffered by him, and that the Diocese is vicariously liable for the act of sexual abuse perpetrated by Father O’Brien. The defendant is named as a proper defendant pursuant to the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic). The defendant denies that the Diocese was negligent or is vicariously liable.
Father O’Brien died in 1985. The plaintiff first reported the abuse in 2003. The only person identified by the plaintiff as a possible witness to the abuse died in 2010. There is no evidence before the Court of Father O’Brien abusing other children.
The proceeding was initiated in October 2019 and listed for trial on 1 March 2021. On 15 February 2021 the defendant issued a summons, applying to have the proceeding permanently stayed on the ground that it is an abuse of process because the lapse of time since the alleged events occurred, and the death of critical witnesses, mean that a fair trial is not possible. The plaintiff argued that the defendant’s unexplained delay in making the stay application was unjustifiable and will cause him prejudice which cannot be remedied by an order for costs, and the summons should be dismissed because it is an abuse of process and a serious breach of the Civil Procedure Act 2010 (Vic) (‘the CPA’). The plaintiff argued in the alternative that the defendant has not established irremediable prejudice justifying a stay. By agreement the trial date was vacated and the application for a permanent stay was heard on 1 March 2021.
Background
Father O’Brien was born in Ireland in 1898, and was ordained there in 1926. In the same year he migrated to Australia and was appointed a priest in the Diocese. He resigned from the Diocese in 1947, and was reappointed in 1952. It is likely he spent the intervening period in Britain or Ireland. He was the parish priest at Wycheproof from 1957 to 1982, when he retired from the priesthood. In 1984 Father O’Brien returned to Ireland, where he died in 1985.
The plaintiff was born in Wycheproof in April 1972. His family were practising Catholics, and he served as an altar boy at the Wycheproof church.
The act of abuse alleged by the plaintiff is pleaded as follows:
10.In the period, more particularly in about 1980 or 1981, whilst carrying out or purportedly carrying out his priestly duties and functions, O’Brien perpetrated sexual and/or psychological abuse upon the Plaintiff, in the sacristy at St Michael’s.
PARTICULARS
(a)On a Sunday after Mass, O’Brien indicated to the Plaintiff that he needed him to stay back in the sacristy.
(b)O’Brien was sitting down wearing his vestments, which he undid before having the Plaintiff kneel down before him, upon which O’Brien put his penis in the Plaintiff’s mouth;
(c)The Plaintiff complied and after a short time the Plaintiff ran out the door and into the car park.
The defendant does not admit the abuse.
In about 2001 the plaintiff’s memories of the alleged abuse resurfaced during transcendental meditation, following which he accessed counselling support over a 12-month period.
In around November 2003 the plaintiff contacted the Professional Standards Resource Group established by the Catholic church in Victoria, to report the allegation against Father O’Brien. A contact report, signed by the plaintiff, reads in part:
Darren alleges that he was sexually abused by Father Dan O’Brien in the Catholic Church at Wycheproof during either 1980 or 1981. The abuse took place in the sacristy after mass. Father O’Brien asked Darren to stay back after the other boys had left to help him with some important jobs. When Darren had taken off his surplice Father O’Brien, still dressed in his vestments, made him kneel between his knees and perform oral sex on him. Father then sent him off out the door into the empty car park. Darren began making his way home “scared shitless”. He had a sense that someone had appeared at the sacristy door behind him. He told no-one about the incident.
Darren’s dissatisfaction with his life led him in August 2001 to undertake Transcendental Meditation. In the course of this, the memory of the incident of abuse by Father O’Brien surfaced in his memory, causing him great distress and a flood of emotion. Prior to this, he had always experienced reactions of revulsion when he read or heard reports of child abuse but had not understood the violence of these feelings. So great was his distress that friends, in whom he confided, recommended that he contact the Association for the Victims of Crime for counselling. He had counselling over a 12 month period, and this has been of great benefit to him. ...
The notification by the plaintiff was dealt with through the Towards Healing procedure. This procedure was the Catholic church response to complaints of abuse made against church personnel.
An arrangement was made for the plaintiff to meet with Bishop Connors, who at the time was bishop of the Diocese and the ultimate decision-maker in respect of outcomes of complaints involving diocesan personnel made through Towards Healing. Bishop Connors prepared an aide-mémoire of the meeting, which includes the following:
I told him that I had read the [contact] report carefully and noted that there was some concern expressed about whether there are other allegations against Father O’Brien. I told him that I had discussed the issue with Bishop Ronald Mulkearns and also Father John McKinnon, who was the successor to Father O’Brien at Wycheproof. Both men had informed me that there were no reports of professional misconduct by Father O’Brien nor were there any allegations made against Father O’Brien.
…
What Darren particularly wanted from me was a letter, written on Diocesan Letterhead, recognising the assault, which Darren had suffered at the hands of Father O’Brien. He would also expect me to apologise on behalf of the Catholic Church and in particular the Diocese of Ballarat. I told him that I was prepared to provide him with such a letter.
…
At no stage was mention made of financial compensation, but I would not be surprised if Darren were to raise this issue in the not too distant future. I should not be surprised if he had taken legal advice before our meeting, e.g. the request for official letterhead. Of course, such a claim would require psychiatrists’ reports and a query about the repressed memory of Darren, which was only brought to the surface by transcendental meditation in the past years. In other words it would be rather difficult to substantiate his claim, particularly as this matter would have to be referred to Catholic Church Insurances. …
The final draft of the letter which the plaintiff requested Bishop Connors send to him reads in part:
I assure you that I have given very careful study and reflection to the complaint which you have lodged against a deceased priest of the diocese of Ballarat, Father Daniel O’Brien.
As Bishop of Ballarat I extend to you a sincere apology and regret for the trauma that you have suffered arising from the assault that you now recall Father O’Brien inflicted upon you when he was the parish priest of the parish of Wycheproof in the diocese of Ballarat.
In an affidavit filed in support of the defendant’s application Bishop Connors explained that while he was bishop of the Diocese investigations were not common as most Towards Healing complaints were, on balance, accepted as true. He said accepting a complaint as true depended on factors, including whether the alleged offender was a well-known offender, the complainant’s description of the allegations matched the known modus operandi of the alleged offender, and records were consistent with the allegations. If an allegation was unusual or improbable Bishop Connors would endeavour to speak to the alleged offender to give them the opportunity to address the matter, and other steps would be taken, including reviewing available records and interviewing available witnesses. Bishop Connors said, in relation to the plaintiff’s complaint, that his understanding, based on the personnel file of Father O’Brien, is that he died in 1985 with no record of professional misconduct or complaints of sexual abuse. Bishop Connors stated that in January 2004 he contacted Bishop Ronald Mulkearns, who was bishop of the Diocese at the time the abuse was alleged to have occurred, and Father John McKinnon, who was Father O’Brien’s immediate successor as parish priest of Wycheproof, and was informed that neither was aware of any complaints, reports, rumours or suggestions of professional misconduct or abuse by Father O’Brien. He said that if the plaintiff had told him when they met in January 2004 that there was an eyewitness to the alleged abuse he would have taken all reasonable steps to make contact with that person for the purpose of attempting to corroborate the allegation.
In October 2016, lawyers for the plaintiff, Waller Legal, wrote to the legal representative of the estate of Bishop Mulkearns advising they acted for the plaintiff in the investigation of a claim against the Diocese in relation to the alleged abuse. In March 2019 Waller Legal was notified that Wotton + Kearney were appointed to act on behalf of the defendant in relation to the plaintiff’s claim.
In March 2019 Waller Legal obtained a medico-legal report from psychiatrist Dr Hacker, who recorded the following history:
Mr Grant said that on the day when the abuse occurred, he said the family attended mass on a Sunday morning and it was out of their general routine. He said that on that day he was an altar boy and remembered the priest having red vestments and a gown on and on this occasion was asked to stay behind to help out.
Mr Grant described the room in which the abuse occurred stating that there was a door leading from the altar to that room and diagonally opposite another door leading into the car park. He said that he was told to go over to Fr O’Brien but had no actual recollection of precisely what was said. He said that Fr O’Brien was seated and pulled up his vestments and had his undergarments near his knees. He said that Mr Grant was required to kneel between Fr O’Brien’s knees and to perform oral sex on him. He said that he had a very clear recollection of a foul taste.
Mr Grant said that there were two other adults very active in the church – the Powell’s – Clem who was thin and Pat who was large. He said that as he was on his knees fellating Fr O’Brien, Clem came to the door and he thought Clem saw what was going on. He said that he jumped up and ran out the back door and was extremely distressed to find that the car park was empty and that there was no one to tell what had happened to him.
Mr Grant said that he was extremely frightened as he walked down the street and saw his parents coming towards him.
Dr Hacker recorded being told by the plaintiff that after the alleged abuse his attitude to mass changed and he attempted to diminish the number of occasions that he was an altar boy, that he became sad, isolated, and by 13 began a pattern of heavy alcohol use. In relation to the plaintiff’s later recollection of the abuse, Dr Hacker recorded:
Mr Grant said that he ceased drinking about a month prior to attending his first transcendental meditation (TM) session. He said that within a month of beginning TM he had a sudden extremely distressing recollection/flashback of the event with Fr O’Brien. He described this as “a convulsion from my abdomen where everything went white and was emotionally clear”. He said that he became tearful and depressed at the time and then began crying at work, feeling extremely angry with his parents for not protecting him from the abuse.
Dr Hacker said in her opinion the plaintiff was suffering a chronic post-traumatic stress disorder with depression and chronic alcohol dependence which had now resolved, and that the abuse by Father O’Brien was a significant causal factor in those conditions. In May 2019 Waller Legal exchanged materials relevant to the plaintiff’s claim with Wotton + Kearney, including Dr Hacker’s report.
The writ and statement of claim was filed to commence this proceeding on 2 October 2019. A defence was filed on 31 October of that year.
In November 2019 Wotton + Kearney obtained a medico-legal report from psychiatrist Dr Adlard, who recorded being told by Mr Grant:
He said after one or two weeks, he was doing the transcendental meditation at home in Ballarat, when he went into a “peaceful place”.
Mr Grant said that he physically felt muscular convulsions around his abdomen and chest, and then he saw a “white light” coming up from his stomach/chest. He said he then had a clear vision of being abused by O’Brien, and he couldn’t stop crying over the following days and weeks.
Specifically, Mr Grant said that he recalled packing up after a church service. He said O’Brien told him to stay back because there was something important he needed to show Mr Grant.
He said that O’Brien was sitting in a chair in a room adjacent to the altar, with one door opening towards the altar and another to the car park. He said that O’Brien was wearing a gown/vestment. He said O’Brien asked him to kneel in front of him, and then O’Brien pulled the gown up and guided Mr Grant’s mouth onto O’Brien’s penis.
Mr Grant said that he had his back to the door facing the altar, but then he heard something and turned around and thinks he saw Clem Powell, a man who was always at the church with his brother Pat. He said this then stopped what O’Brien was doing, and Mr Grant said he ran to the car park. He said the car park was empty and he wondered where his parents were. He said he then began walking along the street, and found them in their car looking for him.
Dr Adlard recorded being told by the plaintiff that he had no specific thoughts about the abuse prior to being involved in transcendental meditation in 2001. Dr Adlard expressed the following opinion:
It is not uncommon for sufferers of childhood sexual abuse to not have clear memories of the full event for some years afterwards, and there is a trigger of some form which brings the full memory of the event to light. In a meditative state, one’s defences are reduced and a clear memory coming at that time is not remarkable. …
Dr Adlard agreed with Dr Hacker’s diagnosis of chronic post-traumatic distress disorder and an alcohol use disorder in remission, and concluded:
I think that Mr Grant’s psycho pathology arises entirely as a result of the childhood sexual abuse event in 1980 or 1981. There are no other traumatic events or incidents contributing to it. There was no evidence of any constitutional or genetic contributor either.
On 20 December 2019, Clayton JR made orders setting a timetable for completion of interlocutory steps and listing the proceeding for trial on 1 March 2021. Interlocutory steps were not completed in accordance with the timetable, and revised orders were made by consent in July 2020.
There was a further delay in confirming arrangements for a mediation to occur. The parties attended a mediation on 22 January 2021, and the matter did not resolve.
A post-mediation directions hearing was held before me on 5 February 2021. At the time, the plaintiff was pressing the defendant for further discovery and answers to interrogatories. That issue was resolved by agreement, and at a final directions hearing on 12 February I ordered that the defendant provide further discovery. At that hearing the solicitor representing the defendant indicated it was likely an application for a permanent stay would be made. I ordered that any such application be filed and served by 15 February, affidavit material in support be filed and served by 18 February, and that the proceeding be listed for further directions on 19 February.
At the directions hearing on 19 February I made orders vacating the trial date of 1 March, and listing the defendant’s application for a permanent stay on that day.
Thomas Ellison, solicitor for the defendant, made two affidavits in support of the stay application. Mr Ellison produced the Diocese personnel file for Father O’Brien and the Towards Healing file relating to the plaintiff’s 2003 complaint, and said:
(a) There is no evidence in the Towards Healing file that the plaintiff identified Mr Powell as a potential eyewitness to the alleged abuse;
(b) After reviewing all records produced by the defendant he had not identified any evidence of any complaint, allegation, suggestion or concern relating to issues of professional misconduct against Father O’Brien, or that Father O’Brien had engaged in behaviour involving sexual abuse prior to his death in Ireland on 23 October 1985.
Mr Ellison said he conducted internet searches and discovered Mr Powell died in 2010. A death notice produced by Mr Ellison shows Mr Powell was 91 years of age when he died, and was survived by his wife. Mr Ellison stated he had conducted general internet searches and a thorough review of the relevant case study of the Royal Commission into Institutional Responses to Childhood Sexual Abuse (‘the Royal Commission’), and the only reference he could find in relation to Father O’Brien was an entry in an appendix to a report by the Parliament of Victoria Family and Community Development Committee. That appendix entry, which was produced by Mr Ellison, records that the Committee was provided with an internal complaint file regarding Father O’Brien. Mr Ellison said he had spoken to four priests who had served as parish priest at Wycheproof since Father O’Brien, including his immediate successor Father McKinnon, none of whom was aware of any complaint, report, rumour or suggestion of professional misconduct or abuse against Father O’Brien, and that he had been unable to speak to five other priests who had served at Wycheproof because two had died, one suffered from dementia, and two had not returned his telephone calls. Mr Ellison said the option of applying for a permanent stay only came into his consideration as solicitor for the defendant at the time of preparation for mediation when all the facts and evidence were being considered, and he obtained instructions to brief senior counsel for the trial.
In an affidavit opposing the application for a stay Mr Grant stated that when he made the Towards Healing complaint he was spoken to by a woman who asked him many questions, and in the course of that discussion he said the incident in which he was abused ended when someone came to the sacristy door. He said had he been asked at the time he would have told the interviewer, or subsequently Bishop Connors, that the person who came to the sacristy door was parishioner Mr Powell. Mr Grant said when he made the Towards Healing complaint he was not seeking to make a compensation claim against the church and that he simply wanted an acknowledgement and apology for the pain and distress he suffered. He understood Bishop Connors believed him and accepted his complaint, and sent him a letter of apology on that basis. He was not contacted again by the Diocese after receiving the letter of apology, and took no further steps until after the Royal Commission. Mr Grant said he was stressed and anxious about the proceedings, and upset that the Diocese was now seeking to stop his claim given that he disclosed the abuse soon after recollecting it, and brought the proceedings as soon as it was made possible by recent legislative changes. He said he was upset and stressed that the stay application had been made just prior to trial.
Submissions
Plaintiff
An application to permanently stay a proceeding should be made promptly.[1] Despite the defendant being aware by May 2019 of all facts relevant to its claim that the proceeding is an abuse of process, the application for a permanent stay was only made on 15 February 2021, two weeks before the scheduled trial date of 1 March. The unjustifiable and unexplained delay has resulted in adjournment of the trial, loss of court time, stress and anxiety to the plaintiff, and further significant costs being incurred. There are three further relevant matters. First, the defendant’s application is founded, at least in part, on delay by the plaintiff and effluxion of time. In those circumstances it must be relevant that the party said to be prejudiced has itself unreasonably and unjustifiably delayed in seeking a remedy. Second, at the post-mediation directions hearing the defendant opposed the plaintiff’s request for further discovery and answers to interrogatories on the basis that if orders sought by the plaintiff were made the trial date would be prejudiced. Third, the defendant’s unexplained delay must raise as a question whether the application is a calculated, tactical and unmeritorious afterthought. A party who delays may lose rights to do things in a proceeding.[2] The defendant’s delay constitutes an abuse of the court’s process, and a serious breach of the CPA, and on that basis the summons seeking a permanent stay should be dismissed.
[1]Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188, [13]–[14].
[2]Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 (‘Batistatos’).
Unlike the claims in Moubarak by his tutor Coorey v Holt[3] and Connellan v Murphy,[4] Father O’Brien is not the defendant in the proceeding, and the cause of action against the Diocese is negligence and vicarious liability rather than assault. The death of Father O’Brien, by itself, does not entitle the defendant to a permanent stay of the proceeding.
[3](2019) 100 NSWLR 218 (‘Moubarak’).
[4][2017] VSCA 116 (‘Connellan’).
The defendant has not been denied the opportunity to investigate the claim as it now submits. When the plaintiff made an approach through Towards Healing the Diocese should have contemplated the prospect of litigation, and investigated the matter to whatever extent was necessary to be able to defend a claim. This should have included enquiry of the plaintiff to identify Mr Powell as a potential witness to the abuse, and interviewing him to obtain a witness statement. Other steps the Diocese could and should have taken at the time of the Towards Healing complaint, and again when this proceeding commenced, include:
(a) checking whether Catholic Church Insurances had any record of prior allegations of abuse by Father O’Brien;
(b) requesting access to the file of the counselling service attended by the plaintiff in 2001/2002;
(c) review of the ‘curial archives’ to see whether there was any record of allegations regarding Father O’Brien, as was required by the Towards Healing protocols;
(d) accessing the ‘complaint file’ regarding Father O’Brien that was subsequently provided to the Parliament of Victoria Family and Community Development Committee inquiry;
(e) obtaining and preserving a record of interview between the Towards Healing investigator and the plaintiff, as required by the Towards Healing protocols, and interviewing all persons involved in that process;
(f) accessing and preserving parish records of St Michael’s church in Wycheproof;
(g) retrieving and examining Diocesan Consulter records as to why Father O’Brien resigned from the Diocese in 1947;
(h) consulting Bishop Mulkearns’ predecessor as to any awareness of any issues with Father O’Brien;
(i) consulting priests in other parishes occupied by Father O’Brien as to any concerns expressed to them about Father O’Brien;
(j) accessing and reviewing diocesan records containing allegations of abuse or misconduct by diocesan clergy;
(k) interviewing Mr Powell’s widow as to anything relevant he might have said about Father O’Brien.
Given the defendant’s failure to undertake a proper investigation there is no basis for its submission that it is unable to have a fair trial.
The Towards Healing protocols require that to give an apology to a claimant the church authority must be ‘satisfied of the truth of the complaint’. Bishop Connors apologised to the plaintiff on behalf of the Diocese on the basis that he found the complaint to be true. The Diocese cannot now resile from that position.
The defendant is well able to participate in this trial. It can challenge the plaintiff’s recall of the abuse and point to the absence of complaints to cast doubt on the plaintiff’s evidence. It can challenge the case on duty and breach, particularly having regard to what it says is a lack of history of complaints of abuse by Father O’Brien. While the trial may not be perfect, it will be fair.
Defendant
Bishop Connors made appropriate enquiries of Bishop Mulkearns and Father McKinnon in response to the Towards Healing complaint, neither of whom was aware of any complaint, report or rumour about Father O’Brien. The Diocese was not put on notice by the complaint that Mr Powell was a potential witness to the alleged abuse. Had Bishop Connors known there was an eyewitness he would have taken all reasonable steps to contact that person for the purpose of attempting to corroborate the plaintiff’s allegation.
The response by Bishop Connors to the Towards Healing complaint is not an admission, but demonstrates a compassion and concern for the plaintiff as complainant as demanded by the Towards Healing protocols.
There are exceptional circumstances which justify a stay. The alleged perpetrator and the only potential witness are both deceased, and neither had the opportunity to comment on the allegation prior to their deaths. There is no tendency evidence, contemporary documents, or third party reports of the alleged abuse, against which the plaintiff’s allegation can be tested. The plaintiff had no ‘specific thoughts’ of the alleged abuse until transcendental meditation in 2001. The manner in which the plaintiff recalled the alleged abuse is a relevant factor to take into account, particularly in the context of inconsistencies in the histories provided by the plaintiff and having regard to the recognised fallibility of human recollection. In the circumstances the defendant cannot participate in the trial in any meaningful way, or contest the plaintiff’s allegation. The trial process is flawed, unfair and oppressive on the defendant, and would bring the administration of justice into disrepute in the minds of right-thinking people.
Delay in bringing the application for a stay, and the undisputed need for efficient and timely cost-effective resolution of disputes, does not displace the fundamental obligation of courts to safeguard the administration of justice, here by a fair trial. There is no discretion to refuse to stay proceedings that are an abuse of process.[5]
[5]Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776, [29].
In relation to delay by the defendant in making the application, the following matters should be considered:
(a) while the trial has been adjourned, if it is to proceed any delay will be short;
(b) the defendant undertakes to pay the plaintiff’s costs if the application for a stay is successful;
(c) the only irreparable element of unfair prejudice would be forcing the defendant to contest an unfair trial; and
(d) public confidence in the judicial system is more likely to be impacted if the defendant is forced into an unfair trial, than by hearing the defendant’s late application for a stay.
Principles
The Limitation of Actions Act 1958 (Vic) (‘Limitation Act’) was amended in 2015 by inserting div 5 into pt IIA, the effect of which was to remove any limitation period for a cause of action founded on death or personal injury resulting from physical or sexual abuse of a minor. Within div 5, s 27R provides:
Nothing in this Division limits—
(a)in the case of the Supreme Court, the court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or
(b)in the case of a court other than the Supreme Court, the court's implied jurisdiction or statutory jurisdiction; or
(c)any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.
Example
This Division does not limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.
The Explanatory Memorandum[6] to the amending Act reads in part:
The new section 27R safeguards the fundamental rights of parties before a court, including the right to a fair and balanced trial, by expressly stating that it does not limit any existing powers or jurisdiction of the courts. This includes the power or jurisdiction to control or dismiss proceedings where a court determines that the lapse of time has had a burdensome effect on the defendant that is so serious that a fair trial is not possible (for example, where crucial evidence has deteriorated or been lost over time).[7]
[6]Explanatory Memorandum, Limitation of Actions Amendment (Child Abuse) Bill 2015 (Vic).
[7]Ibid 3.
In Connellan v Murphy, a case which involved an application for a permanent stay of proceedings in the context of s 27R of the Limitation Act, the Court of Appeal said:
In determining whether a proceeding should be stayed as an abuse of process, the authorities to which we have already referred disclose the following propositions:
1.In order to justify the grant of a stay, a defendant bears a heavy onus. A stay is ordinarily only granted in exceptional circumstances, because it effectively brings to an end litigation without adjudication.
2.The categories of abuse of process are not closed.
3.In particular, the concept of an abuse of process is not confined to cases in which, if the action were to proceed, the defendant would not receive a fair trial.
4.The fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people.[8]
[8]Connellan (n 4) 21-22 [54] (citations omitted). See also Moubarak (n 3) 233-234 [71].
A fair trial is not synonymous with a perfect trial.[9] Whether the lapse of time, unavailability of a witness or loss of other evidentiary material results in a trial being so manifestly unfair that a stay should be granted will depend on all the circumstances of the case.[10]
[9]Moubarak (n 3) 238 [89].
[10]Ibid; Gorman v McKnight [2020] NSWCA 20, [43]; Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762, 823 [429] (‘Council of Trinity Grammar School’).
The effect of delay on memory was considered by the High Court in Longman v The Queen (‘Longman’),[11] where the accused was charged with two sexual offences which allegedly occurred over 20 years before trial when the complainant was between 6 and 10 years old. McHugh J said:
The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented. The longer the period between an “event” and its recall, the greater the margin for error. Interference with a person's ability to “remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine …
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. …
To the potential for error inherent in the complainant’s evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant’s testimony.[12]
[11](1989) 168 CLR 79.
[12]Ibid 107–8 (citations omitted).
In Brisbane South Regional Health Authority v Taylor,[13] the respondent, who alleged injury as a consequence of negligent medical advice, sought an extension of time to bring proceedings claiming damages. Commenting on the effect of delay on the quality of justice, McHugh J said:
The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.[14]
[13](1996) 186 CLR 541.
[14]Ibid 551 (McHugh J) (citations omitted); see also Moubarak (n 3) 235 [77]–[78] (Bell P).
Whether an absence of evidence which compromises the ability of a party to deal meaningfully with the claim against it justifies granting a stay requires consideration of whether the party has made adequate enquiries to discover evidence, and whether the inability to meet the case put against it is due to that party’s own neglect or default because of a failure to take timely steps to gather evidence.[15]
[15]Council of Trinity Grammar School (n 10) 831 [477], 833 [489], 834 [494].
If it is determined that the proceeding is an abuse of process because a fair trial is not possible, there is no discretion to refuse a stay.[16]
[16]R v Carroll (2002) 213 CLR 635, 657, [73]; Connellan (n 4) 14 [35].
An abuse of process may result from the institution of proceedings, or from any procedural step in the course of proceedings which have been properly instituted.[17] The fundamental question is whether the proceedings, or the procedural step complained of, is manifestly and unjustifiably oppressive to a party or would otherwise bring the administration of justice into disrepute among right-thinking people.[18]
[17]Rogers v The Queen (1994) 181 CLR 251, 286 (McHugh J); Batistatos (n 2) [15]; Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264, [163] (McColl JA).
[18]Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Dean and Dawson JJ); Batistatos (n 2) [6].
There is a tension in the provisions of the CPA which require that the court strike a balance between case management considerations and the need for a fair trial.[19] As Dixon J said in Mercieca v SPI Electricity Pty Ltd (No 3):[20]
The court cannot lose sight of the fundamental requirement that a trial must be conducted fairly and in accordance with the principles of natural justice and procedural fairness.[21]
The achievement of justice in a case may be a significant consideration when determining whether to allow a late application which has the effect of prejudicing the interests of the party against which it is made.[22]
[19]Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No 3) [2011] VSC 272, [32]; Mercieca v SPI Electricity Pty Ltd(No 3) [2012] VSC 6 (‘Mercieca’).
[20]Mercieca (n 19).
[21]Ibid [8].
[22]Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261, 274 [45], 279 [68].
A party to litigation may suffer inconvenience and stress caused by a delay or adjournment which cannot be remedied or adequately compensated for by a costs order.[23] Further, there is an obvious public interest in the efficient use of court time and judicial resources which must be taken into account.[24]
[23]Commonwealth v Verwayen (1990) 170 CLR 394, 448 (Deane J).
[24]Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379, 392.
Analysis
Should the defendant’s application be dismissed?
I accept there has been a significant personal cost to the plaintiff from the stress and anxiety he has suffered as a consequence of involvement in the proceeding. This is particularly so because, as the medico-legal psychiatrists agree, the plaintiff suffers chronic mental ill health. However, the whole of the personal cost to the plaintiff of involvement in this litigation cannot be attributed to the delay by the defendant in bringing the application for a stay. The plaintiff attended for assessment by Dr Hacker some months before the proceeding was commenced, and by Dr Adlard a little more than a month after the writ was filed. Clearly the medico-legal assessments would have taken place whether or not a timely stay application was made by the defendant. The defendant might reasonably have filed a summons seeking a permanent stay of the proceeding in late 2019 or early 2020. However, a timetable to prepare that application for hearing would have included an opportunity for each party to undertake necessary investigations and to file material. It would have been appropriate for discovery and interrogation to occur prior to the application being heard. Having regard to those matters, and listing constraints, it is likely that a good part of 2020 would have been taken in the preparation for, hearing and determination of the stay application. Therefore the additional involvement of the plaintiff in the proceedings caused by the defendant’s delay, assuming the application for a stay is successful, is not two years as the plaintiff submitted, but more like six months.
The most significant cost to the plaintiff of the late application for a stay arises from it being made shortly prior to trial, resulting in the loss of the trial date for which the plaintiff had no doubt prepared himself. While that personal cost is irremediable, it has already been suffered. Further, there is no need for a lengthy adjournment. The trial could occur in the next few months if required. The eventual trial date was likely to be similar if there had been no delay in making the stay application.
Court resources have been wasted because of the defendant’s delay. Time was set aside for the trial commencing on 1 March 2021. If the stay application had been heard in 2020, and the defendant was successful, court time and resources dedicated to the proceeding since that time would have been saved.
For reasons which follow, the defendant’s application for a stay has merit. The application raises the fundamental issues of whether a fair trial is possible, and whether allowing a trial to proceed would bring the administration of justice into disrepute.
A costs order will not remedy the stress and anxiety suffered by the plaintiff as a consequence of the defendant’s delay and the loss of time and court resources. However, I conclude:
(a) The circumstances do not establish that the late application for a stay is an abuse of process;
(b) The administration of justice is more likely to be brought into disrepute by allowing a trial which is manifestly unfair to the defendant to proceed; and
(c) The fundamental requirement that a trial must be fairly conducted means the defendant’s application for a permanent stay must be determined on the merits.
Permanent stay
The issue raised by the plaintiff’s pleading on which the defendant argues it cannot have a fair trial is whether the abuse occurred. Determination of that issue is central to the outcome of the proceeding.
The defendant has no opportunity to call direct evidence about the alleged abuse. Father O’Brien was in his early eighties when the abuse is alleged to have occurred. He retired in early 1982, and died in 1985. He was not confronted with the plaintiff’s allegation of abuse during his lifetime, and the defendant cannot know what his response would have been. Mr Powell, the only person identified as a potential witness to the abuse, is also deceased.
The plaintiff first reported the alleged abuse more than 20 years after he said it occurred. Because decades had already passed the defendant could not investigate the alleged abuse and surrounding circumstances at a time when memories were fresher and could be expected to be more reliable. That difficulty is compounded by the vagueness of the plaintiff’s allegation that the abuse occurred in about 1980 or 1981. The combination of delay and the uncertain timing mean there is no opportunity for the defendant to explore the surrounding circumstances of the alleged abuse and determine whether those circumstances contradict or corroborate the plaintiff’s allegation.
The plaintiff may have an honest recollection of the alleged abuse. However, as the judgment of McHugh J in Longman demonstrates, that honest recollection may not be reliable. There are three reasons for this. First is the lapse of time between the alleged abuse and the plaintiff’s recall of the event in 2001, and the further lapse of time until trial. Second, the plaintiff’s recollection of an event which occurred when he was a child may be particularly susceptible to error. Third is the plaintiff’s recall of the alleged abuse during transcendental meditation after having no specific thoughts of it for about 20 years.
Dr Hacker and Dr Adlard accept the plaintiff’s explanation of recall of the abuse. Their evidence supports the plaintiff’s case, which compounds, or at least demonstrates, the difficulty faced by the defendant. Quite reasonably Dr Hacker and Dr Adlard base their reports and opinions on the unchallenged account of the plaintiff. Because of the lapse of time and loss of evidence the defendant does not have the opportunity to challenge the allegation of abuse, or to uncover and examine details of the plaintiff’s history since 1981 which may be relevant to the opinions expressed by the psychiatrists.
I accept the defendant’s submission that Bishop Connors’ letter to the plaintiff including the Towards Healing process is not an admission that the abuse occurred.
Because it cannot now know what Father O’Brien or Mr Powell would say in response to the allegation of abuse, or test the allegation by timely investigation of surrounding circumstances, the defendant cannot effectively defend the case brought by the plaintiff. The most the defendant can hope to achieve is to challenge the plaintiff’s account because he did not report the abuse for over two decades, only recalled it during transcendental meditation, and has given histories which the defendant argues are materially inconsistent. The defendant has no real opportunity to participate in the hearing by contesting the allegation of abuse, or admitting it on an informed basis.[25]
[25]Batistatos (n 2) 277–8 [54].
Prejudice to the defendant extends beyond the issue of whether the abuse occurred.[26] The defendant will also face difficulties, because of the lapse of time, investigating and contesting at trial the allegations of breach of duty, the claim based on vicarious liability, causation of the plaintiff’s mental health conditions, and assessment of damages.
[26]R v Jacobi (2012) 114 SASR 227, 253 [104] (Nicholson J).
For the following reasons I reject the plaintiff’s submission that the Diocese is responsible for the difficulties it may face at trial because it failed to undertake reasonable investigations when put on notice by the Towards Healing complaint made in late 2003. First, Bishop Connors reviewed Father O’Brien’s diocesan file and spoke to Bishop Mulkearns and Father McKinnon, but found nothing to substantiate the allegation or point to the need for further investigation. Second, when he made the Towards Healing complaint the plaintiff did not indicate an intention to pursue compensation, and signed a document stating that he did not wish to take his complaint to the police. While Bishop Connors suspected the plaintiff had taken legal advice and would raise the issue of financial compensation ‘in the not too distant future’, the Towards Healing procedure was finalised by the letter from Bishop Connors to the plaintiff in early 2004, and nothing further was heard from the plaintiff until after he instructed solicitors in 2016. I do not accept that acting reasonably Bishop Connors should have undertaken a more comprehensive investigation of the allegation which the plaintiff made in 2003. Third, there are significant differences between the information recorded in the contact report, and the histories about the alleged incident obtained by Dr Hacker and Dr Adlard. I repeat the relevant part of the contact report:
Father then sent him off out the door into the empty car park. Darren began making his way home “scared shitless”. He had a sense that someone had appeared at the sacristy door behind him.
As is evident from the materials, there are two sacristy doors, one leading to the body of the church, the other to the car park. The contact report does not suggest the plaintiff saw the person appear at the sacristy door, or record which of the two doors he was referring to. The sequence in which the event is recorded suggests the person appeared after the alleged abuse had concluded. There is no indication in the contact report that the plaintiff could identify the person who appeared, and there is no reference to Mr Powell. It is tempting in retrospect, knowing of the references to Mr Powell in the histories recorded by Dr Hacker and Dr Adlard, and the fact that he died in 2010, to conclude that Bishop Connors should have pursued the matter further in 2013. However, given the material available to him, and the context in which he was considering it, I do not accept there was any unreasonable failure by Bishop Connors to investigate the complaint with which he was dealing. Fourth, even if I accepted that Bishop Connors was sufficiently on notice that he should have made further enquiries of the plaintiff to discover the identity of the potential witness, it is now completely uncertain whether in early 2004 Mr Powell would have had any relevant recollection to assist the defendant to contest the allegation or admit it on an informed basis. Further, over 20 years had passed when the allegation of abuse was first reported to the Diocese, and its opportunity to investigate and defend any claim made by the plaintiff was already significantly compromised.
The plaintiff submitted that after becoming aware that Mr Powell was a potential witness, the defendant should have sought to obtain a statement from his widow as to anything Mr Powell told her about the alleged abuse before his death. Mr Powell was almost 92 years old when he died in 2010. The possibility that Mr Powell witnessed matters relevant to the alleged abuse and told his wife about it, and that she is now in a position to give evidence of his observations relevant to whether the abuse occurred some 40 years ago so as to put the defendant in a position to effectively participate in the trial in relation to that issue, is remote.
Most of the further enquiries that the plaintiff submitted should have been made by the Diocese at the time of the Towards Healing complaint and again after the proceeding was commenced, are directed to the issue of whether there was a relevant history of offending by Father O’Brien. While the plaintiff has pleaded that the Diocese knew or ought to have known of Father O’Brien’s propensity to behave dangerously and inappropriately with minors, no particulars of the alleged propensity have been provided. I accept that the complaint file referred to in the appendix to the Betrayal of Trust report is likely to be the complaint by the plaintiff through Towards Healing. There is no suggestion from the enquiries that have been made, or from documents discovered by the defendants, that Father O’Brien had a history of sexually abusing or behaving in an inappropriate manner towards children. Correspondence from Father O’Brien’s personnel file suggests an innocent explanation for his resignation from the Diocese in 1947. No material was tendered by the plaintiff showing that enquiries of Mr Powell’s family, searches of the records of the Diocese and Catholic Church Insurances, or interviewing other former priests from the Diocese were likely to uncover relevant evidence. It is not necessary, in order for the defendant to discharge the heavy burden of establishing that a stay should be granted, that it undertake every investigation pointed to by the plaintiff no matter how remote the possibility it will bear fruit.[27] I conclude the defendant’s inability to make the case brought by the plaintiff does not result from a failure to undertake reasonable investigations.
[27]Council of Trinity Grammar School (n 10) 833 [489] (Bathurst CJ).
I conclude, having regard to the effect on the quality of justice and the reliability of memory of the lapse of time since the alleged abuse occurred, the death of Father O’Brien before he was confronted by the allegation of abuse, the death of the only potential witness Mr Powell, the vagueness of the date on which the abuse is alleged to have occurred and the absence of evidence of surrounding circumstances against which the allegation can be tested, that it is manifestly and unjustifiably unfair to require the defendant to meet the case brought against him by the plaintiff.
I will grant the defendant’s application for a permanent stay. I will hear from the parties as to the form of any consequential orders.
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