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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grant v Bird

Details

AGLC: Grant v Bird [2021] VSC 380
Case: [2021] VSC 380
Decision Date: 29 June 2021

CaseChat Overview and Summary

In the matter of Grant v Bird, the plaintiff, Mr Grant, sought to bring a claim against the defendant, an institution that employed the alleged perpetrator, Mr Bird, 20 years after the alleged sexual abuse had occurred. The plaintiff alleged that he was sexually abused by Mr Bird, who was deceased at the time of the proceedings. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the defendant institution could be held liable for the alleged historical sexual abuse. Additionally, the court had to consider the application of the limitation period under the Limitation of Actions Act 1958 (Vic) and the implications of delay on the fairness of the trial and the ability of the defendant to properly test the evidence. The court also had to consider the administration of justice and the public interest in resolving the matter.

The court examined the relevant statutory provisions and legal precedents, including Connellan v Murphy [2017] VSCA 116, Longman v The Queen (1989) 168 CLR 79, and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. The court also considered the provisions of the Civil Procedure Act 2010 (Vic). In doing so, the court found that the delay in bringing the action and the absence of other allegations of abuse or a history of professional misconduct against the alleged perpetrator, Mr Bird, created significant obstacles to the fairness of the trial and the ability of the defendant institution to adequately defend itself. The court concluded that the public interest in the administration of justice and the resolution of the matter was best served by staying the proceedings permanently.

The court found that the defendant institution could not be held liable for the alleged historical sexual abuse. It was determined that the delay in bringing the action, the death of the alleged perpetrator and potential eyewitnesses, and the absence of corroborating evidence made it impossible for the defendant to participate in a fair trial and properly test the evidence. The court found that the delay in bringing the action and the absence of other allegations of abuse or a history of professional misconduct against Mr Bird created significant obstacles to the fairness of the trial and the ability of the defendant to adequately defend itself. The court granted a permanent stay of the proceedings. The court did not make any orders for costs.

Orders