Griffiths v Salesian Society (Vic) Inc (Ruling)

[2024] VCC 1553

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

INSTITUTIONAL LIABLITY LIST

Case No. CI-23-04807

CLINT GRIFFITHS	Plaintiff
v
SALESIAN SOCIETY (VIC) INC	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2024
DATE OF RULING:	8 October 2024
CASE MAY BE CITED AS:	Griffiths v Salesian Society (Vic) Inc (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1553

RULING
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Subject:INSTITUTIONAL LIABILITY

Catchwords:              Pleadings ꟷ application to amend Statement of Claim – aggravated and exemplary damages

Legislation Cited:      County Court Rules, o23.02; o36

Cases Cited:Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Lamb v Cotongo (1987) 164 CLR 1; Sullivan v Moody (2001) 207 CLR 562; Triggell v Pheeney (1951) 82 CLR 497

Ruling:  Leave granted to amend the Statement of Claim

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gordon	Andrea Sdrinis Legal
For the Defendant	Mr S Moloney	Colin Biggers & Paisely

HER HONOUR:

1This matter was fixed for trial on 9 October 2024; however, the parties agreed that hearing date be vacated and the matter relisted for hearing on a date not before 2 December 2024.

2The parties have also agreed to a judicial mediation on 9 October 2924 and have requested that, prior thereto, the Court rule on the plaintiff’s application by summons dated 17 September 2024 to amend his Statement of Claim to add three further particulars of aggravated and exemplary damages.

3Prior to the mediation, the Court was not asked to rule on the defendant’s summons seeking to strike out paragraph 19(y) of the plaintiff’s Statement of Claim.

4The plaintiff sought to add a number of further particulars of aggravated and exemplary damages set out in a “Further Amended Minute of Amended Statement of Claim” dated 3 October 2024.

5The proposed particular in paragraph 22(e) under the heading “Aggravated Damages” set out:

“The Defendant supported Klep in criminal proceedings brought against him by reason of the plaintiff’s complaints, including by funding his defence when the Defendant knew, by the time of these proceedings in 2014, that Klep was a notorious sexual offender against children in Salesian institutions.  By contrast, the Salesians offered no assistance or support to the Plaintiff in the course of the criminal proceedings in 2014, which the Salesians knew, by reason of their experience in assisting their sex-offending priests and brothers in criminal proceedings, were likely to have been traumatic for the plaintiff.”

6The proposed particular in paragraph 22(f) set out:

“On 1 July 2024 the Defendant made discovery of documents comprising complaints about Klep of 37 other persons, the earliest of which was a complaint made in 2010 in respect of Klep’s abuse of a child in the 1960s.  Several of the complaints detail abuse by Klep, including allegations that there was knowledge among staff members of Salesian College about same.”

7The proposed particular in paragraph 22(g) set out:

“Notwithstanding the Defendant’s knowledge about Klep, it has denied liability for the abuse and denied the Plaintiff is entitled to aggravated damages in these proceedings.”

8These particulars were repeated in identical terms under the heading “Exemplary Damages” in proposed paragraphs 22(h), (j) and (k).

9The defendant opposed the proposed amendment of the Statement of Claim by adding these particulars.

10However, the defendant did not oppose a further amendment under “Exemplary Damages” set out in paragraph 22(i):

“In 1998 whilst police were investigating Klep’s sexual abuse of boys at Rupertswood the defendant sent him to Samoa where he could not be charged with any offence.”

11Both parties made detailed oral submissions in relation to the application to add the other particulars of aggravated and exemplary damages.  The defendant also providing brief written submissions.

12In summary, the defendant’s opposition to the proposed addition of paragraphs 22(e) and (h) focused largely on public policy considerations as to the right to defend criminal proceedings,[1] rather than the Salesian Order funding Klep’s criminal defence.

[1]Sullivan v Moody [2001] HCA 59; Triggell v Pheeney (1951) 82 CLR 497

13In relation to paragraphs 22(f) and (j), counsel for the defendant submitted there was no knowledge in the case alleged against the defendant of the conduct alleged of Klep occurring at or prior to 1978.[2]  In those circumstances, paragraphs 22(g) and (k) should also be struck out.

[2]Lamb v Kotongo (1987) 164 CLR 1 (“Lamb”)

14The proposed amendments are only particulars of aggravated and exemplary damages; different heads of damages to which different principles apply.

15Aggravated damages are to compensate a plaintiff for increased suffering caused by the circumstances and manner of the wrongdoing, that the offender acted with malice or in an insulting or highhanded way, either when the tort was committed or afterwards.”[3]

[3]Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151

16In contrast to exemplary damages, they are compensatory in nature and awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like.[4] 

[4]Lamb at 8

17Exemplary damages are punitive rather than compensatory and may be awarded to denounce a defendant’s conduct and to deter its repetition that a conduct is deliberate, intentional or in reckless disregard of the plaintiff’s rights.

18However, the award of either head of damages ultimately depends on the evidence that is called at trial.

19The proposed amendments do not come within Order 23.02(a)-(d) and therefore the strike out application is refused.

20Of course at the end of the evidence, the defendant is free to make application that these, and any other particulars, not go to the jury. 

21Accordingly, I will grant leave to make the amendments set out in the “Further Amended Minute of Amended Statement of Claim” dated 3 October 2024.