Jarmyn v Silk

[2003] VSC 162

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 4934 of 2003

ROSEMARIE ANNIE JARMYN	Plaintiff
V
DAVID SILK (IN HIS CAPACITY AS BISHOP OF THE ANGLICAN DIOCESE OF BALLARAT) & OTHERS	Defendants

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2003
DATE OF RULING:	23 May 2003
CASE MAY BE CITED AS:	Jarmyn v Silk & Ors
MEDIUM NEUTRAL CITATION:	[2003] VSC 162

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TORTS – Limitation of Actions – s.23A Limitation of Actions Act 1958– death of plaintiff

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Burnside QC with Mr J Gordon	Riordan & Partners as agents for Shine Roche McGowan Solicitors
For the First and Second Defendants	Mr JD Merralls QC with Mr RH Smith	Herbert Geer & Rundle
For the Third Defendant	Mr NJ Young QC with Dr MJ Collins	Mallesons Stephen Jaques
For the Fourth Defendant	Mr N Murdoch	Victorian Government Solicitor
For the Proposed Intervener	Mr DMJ Bennett QC Solicitor General for the Commonwealth with Ms S Crennan QC and Mr C Horan	Australian Government Solicitor

HIS HONOUR:

1. This application was made by summons issued on 18 March 2003 seeking leave pursuant to s.23A of the Limitation of Actions Act 1958 for leave to bring proceedings upon an alleged cause of action which is said to have arisen more than six years before the issue of the summons.  The summons was supported by an affidavit sworn by the plaintiff which alleged a history of physical and sexual abuse at the hands of a number of people for whom it is alleged  the first, second and fourth defendants were vicariously liable.

1. These allegations related to events which were extremely old; of the order of 40 years.  No allegation of personal liability was made against either the first or second defendants or their predecessors.  However, affidavit did include a discrete allegation of common law rape against the third defendant, the present Governor-General of Australia and former Anglican Archbishop of Brisbane.

1. The plaintiff, the deponent of that affidavit, died on 22 April of this year. 

1. No material has yet been filed by or on behalf of the defendants going to the plaintiff's allegations but it was abundantly clear that the liability of all the defendants would have been strongly denied had the matter not reached the point it did today.  In particular the third defendant Dr Hollingworth issued a public statement of denial in unequivocal terms, a copy of which is before the Court. 

1. Upon the proceeding being called for directions this morning, Mr Burnside of Queen's Counsel announced an appearance for the family of the now deceased plaintiff and stated that no letters of administration of her estate had been sought, nor would they be sought so as to enable her application to proceed.  In effect he unequivocally abandoned the plaintiff's claim.

1. With respect to the discrete allegation made against the third defendant, Dr Hollingworth, Mr Burnside conceded that, as a matter of forensic reality, that allegation could never be proved.  It necessarily follows from Mr Burnside's concessions that the defendants are each entitled to an order that the proceeding against each of them be dismissed.

1. It is the right of every citizen of this country to bring a civil suit in the courts to vindicate a right which that citizen believes to have been infringed.  This the late plaintiff did.  The fact that her allegations were never proved, and in the case of Dr Hollingworth at least could now never be proved, means that those allegations have no legal consequence whatsoever for any of the defendants including Dr Hollingworth.

1. Mr Merralls of Queen's Counsel for the two Anglican dioceses sought a reservation of the question of his clients’ costs of the proceeding whilst undertaking on behalf of his clients not to pursue any order for costs against the plaintiff's estate or her family.  He pointed to the foolish statements made publicly by the plaintiff's solicitors on the steps of this Court after a prior hearing to the effect that the proceeding would not be abandoned despite its being obvious that the plaintiff's allegation of rape against the Governor-General could never now be proved.

1. Counsel for the other defendants made a similar application to that made by Mr Merralls.  I shall accede to that application in each case. 

1. The Solicitor-General for the Commonwealth, Mr DMJ Bennett QC appeared and stated that he would seek to intervene in the proceeding to seek an order expediting it in the event that that was necessary. Having regard to the events which have occurred, there is no need for the Court to consider Mr Bennett's position or his applications further.

1. The orders of the Court will be as follows: 

1.        That the title of the proceeding be amended by:

(a)substituting the name Rosemarie Annie Jarmyn for the initials BK as plaintiff;

(b)substituting David Silk in his capacity as Bishop of the Anglican Diocese of Ballarat as first defendant;

(c)substituting John Geldart in his capacity as Administrator of the Anglican Diocese of Bendigo as second defendant; and

(d)substituting the name Peter John Hollingworth for the initials AB as third defendant.

2.        That the proceeding be dismissed.

3.        That consideration of the costs of all defendants be reserved.

4.        That there be liberty to apply.

5.That this order be drawn up by the solicitors for the third defendant and signed by a Judge pursuant to RSC r 60.04.

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