Healy v Bird

Case [2022] VSC 823


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2021 2370

THE ESTATE OF THE LATE BERNARD LESLIE HEALY
SANDRA JOY PORTER
LUKE HEALY-PORTER
NIKI JAYNE PORTER
Plaintiffs
v
BISHOP PAUL BERNARD BIRD
THE TRUSTEES OF THE SISTERS OF ST JOSEPH
Defendants

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JUDGE:

Keogh J

WHERE HELD:

Melbourne

DATE OF HEARING:

15 December 2022

DATE OF RULING:

28 December 2022

CASE MAY BE CITED AS:

Healy & Ors v Bird & Anor

MEDIUM NEUTRAL CITATION:

[2022] VSC 823 (First revision 8 February 2023)

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INSTITUTIONAL LIABILITY — Strike out application — Whether fiduciary relationship between Diocese and child parishioner — Claim for damages for personal injury by the first plaintiff— Whether pleaded fiduciary duty claim certain to fail — Content of duty alleged — Whether compensation for personal injury available for breach of fiduciary duty — Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 — Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 — Breen v Williams (1996) 186 CLR 71 — Paramasivam v Flynn (1998) 90 FCR 489 — Williams v Minister, Aboriginal Land Rights Act 1983 [1999] NSWSC 843 — Cubillo v Commonwealth of Australia (2001) 112 FCR 455 — Duty of care to secondary victims — No relationship with secondary victims at time of allegedly tortious act — Availability of aggravated damages — Availability of exemplary damages — Tame v New South Wales (2002) 211 CLR 317 — Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649 — King v Philcox (2015) 255 CLR 304 — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 4.02, 23.02.

PRACTICE AND PROCEDURE — Trial of preliminary questions relating to duty owed to secondary victims — Where finding of facts necessary — Overlap in evidence to be led — Interests of justice — Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.04 — Civil Procedure Act 2010 (Vic) s 49.

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APPEARANCES:

Counsel Solicitors
For the Plaintiffs S Brenker Ken Cush & Associates
For the First Defendant R Annesley KC
C Morshead
Colin Biggers & Paisley
For the Second Defendant B House Carroll & O’Dea Lawyers

HIS HONOUR:

  1. The plaintiffs allege that in the mid-1970s, Bernard Healy was sexually assaulted on multiple occasions by Bryan Coffey (‘abuse’).  At the time of the alleged abuse, Healy was a student at St Joseph’s Primary School, Ouyen and an altar boy at the local Catholic Church, and Coffey was the parish priest.

  1. Healy died in 2018.  His estate is named as first plaintiff.  The second plaintiff was Healy’s partner from the mid-1980s.  The third and fourth plaintiffs are the children of Healy and the second plaintiff, who were born in 1989 and 1990 respectively. 

  1. Ouyen is in the Catholic Diocese of Ballarat (‘Diocese’).  Coffey was appointed to the position of parish priest by then Bishop of Ballarat, Ronald Mulkearns.  The Sisters of St Joseph of the Sacred Heart (‘Sisters’) had a role…

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Healy v Bird [2022] VSC 823
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[2022] VSC 823
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CaseChat Overview and Summary

The case of Healy v Bird involved a dispute between the plaintiffs, who were former parishioners of the Diocese of Sale, and the defendants, including the Diocese and other related entities. The plaintiffs sought damages for personal injuries allegedly suffered as a result of abuse by clergy members. The legal issues before the court centred on whether a fiduciary relationship existed between the Diocese and the child parishioner, the content of any such duty, and whether compensation for personal injury was available for a breach of fiduciary duty. The plaintiffs argued that the Diocese owed a fiduciary duty to them as child parishioners and that this duty was breached, resulting in their injuries.

The court examined the nature of the fiduciary duty, considering authorities such as Hospital Products Ltd v United States Surgical Corp, Williams v Minister, Aboriginal Land Rights Act 1983, Breen v Williams, Paramasivam v Flynn, and Cubillo v Commonwealth of Australia. The court found that while a fiduciary relationship could be established in certain circumstances, the plaintiffs' claims did not meet the threshold for a certain breach of fiduciary duty. The court further considered whether compensation for personal injury was available for a breach of fiduciary duty, ultimately concluding that such compensation was not available in this case.

In addition to the fiduciary duty issues, the court addressed the availability of damages for secondary victims, such as the plaintiffs, who had no direct relationship with the defendants at the time of the allegedly tortious acts. The court referred to cases like Tame v New South Wales, Caltex Refineries (Qld) Pty Limited v Stavar, and King v Philcox to determine the availability of aggravated and exemplary damages. The court found that the plaintiffs were not entitled to aggravated or exemplary damages as they were not secondary victims under the relevant law.

The court ultimately dismissed the plaintiffs' claims for damages on the basis that they were not certain to succeed. The court noted that the plaintiffs had not established a sufficient basis for the claims of fiduciary duty and personal injury compensation. The court ordered the plaintiffs' claims to be struck out in their entirety, as they were not likely to succeed and there were no other compelling reasons to allow them to proceed.

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Background

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Evidence

Evidence Before The Court

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