Jonathon v Synod of the Dioscese of Adelaide of the Anglican Church of Australia Inc
[2021] SADC 51
•5 May 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
JONATHON v SYNOD OF THE DIOSCESE OF ADELAIDE OF THE ANGLICAN CHURCH OF AUSTRALIA INC. & ANOR
[2021] SADC 51
Reasons for Decision of her Honour Judge Deuter
5 May 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - OTHER MATTERS
The Applicant claims damages for personal injuries, loss and damage suffered by him when he was a resident at two boys' homes for which he alleges the First Respondent was responsible between 1948 and 1965. The Second Respondent is joined in the proceedings as the entity responsible for overseeing the two homes and the Applicant's care.
The Applicant seeks an order for leave to file a Fifth Statement of Claim. The application is opposed.
By the proposed amended pleading, the Applicant seeks to add a cause of action in Vicarious Liability against the First Respondent relative to the two Superintendents at one of the homes where he resided; and seeks to plead further material facts relative to the actions of those two Superintendents, and his plea that the First Respondent breached the duty of care owed to him.
The First Respondent challenges the cause of action in Vicarious Liability upon the basis that no employment relationship between the First Respondent and the two Superintendents is pleaded, and that there is no other material fact pleaded upon which such a cause of action can arise. The First Respondent also argues that the manner in which it was substituted into the Action in place of another First Respondent does not stop it challenging the proposed amendments to the Statement of Claim.
In relation to the further material facts pleaded the first Respondent argues that the proposed amendments do not give fair notice of the case it will be required to meet at trial and therefore does not comply with Uniform Civil Rules 67.2.
Held:
(1) That the proposed Fifth Statement of Claim does not contain a factual basis upon which a cause of action in vicarious liability can be made out against the first respondent.
(2) That the First Respondent is not estopped from challenging the Applicant's application to amend the Fourth Statement of Claim.
(3) That the Court cannot rely upon draft legislation or the practice in other jurisdictions, to prevent the First Respondent from challenging the Applicant's application to amend the Fourth Statement of Claim.
(4) That the proposed pleading of further material facts to establish primary liability against the First Respondent, provide fair notice of the case advanced by the Applicant, such that neither Respondent will be taken by surprise at or in preparation of the matter for trial.
Orders:
1. The Applicant has leave to file and serve the Fifth Statement of Claim subject to:
(a) Removal of the cause of action in Vicarious Liability in Part 1;
(b) Removal of paragraphs 34.1 to 34.16;
(c) The provision of further material facts of paragraph 37 within 21 days.
2. I will hear the parties further on the issue of costs and any consequential orders.
Uniform Civil Rules 2020 (SA) r 67.2, 67.2(2)(a), 67.2(2)(c), 67.3, 67.3(2)(c), 67.6, 67.6(4), 67.6(6), 69.2(1)(b), 70.3(2); Associations Incorporation Act (SA); Royal Commission into Institutional Child Abuse (Royal Commission) (SA); Associations Incorporation Act 1890/1919 (SA); District Court Civil Rules 2006 (SA) (SA) r 100(5); Civil Liability (Institutional Child Abuse Liability) Amendment Bill (2020) (SA), referred to.
PJWI v The State of New South Wales [2020] NSWSC 1235 ; Prince Alfred College Incorporated v ADC [2016] HCA 37 ; Jacobs & Anor v Edwards & Ors (No 6) [2012] SASC 66; Trustees of the Roman Catholic Church v Ellis [2007] NSWCA 117; PPG Developments v Capitano (2016) 126 SASR 307; Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; Tamaya Resources Ltd v Deloitte Touche Tohmatsu (2016) 332 ALR 199; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Nitsche & Ors v Foraco Australia Pty Ltd & Anor [2014] SASC 88; Arthur Young v Tieco (1995) 182 LSJS ; H Stanke & Sons Pty Ltd v O’Meara [2007] 98 SASR 450; Prolift Equipment Pty Ltd v Pronto Software Pty Ltd [2003] SASC 170 ; Iacullo v Iacullo [2013] NSWSC 1517 ; Riverland Fruit Cooperative Pty Ltd v 007 953 380 Pty Ltd [2008] SASC 358 ; Duke Group Ltd. (In Liq.) v Arthur Young (1991) 4 ACSR 355 ; Pope & Ors V Harris Orchard [2010] SASC 354; Scholle Industries v AEP Industries (NZ) Ltd [2007] SASC 322 ; Pavlovic v Commonwealth Bank of Australia (1992) 56 SASR 587; Morgan v Roberts & Ors [2006] SASC 15 ; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572, applied.
JONATHON v SYNOD OF THE DIOSCESE OF ADELAIDE OF THE ANGLICAN CHURCH OF AUSTRALIA INC. & ANOR
[2021] SADC 51
[Civil]
The Application
The applicant, Jonathan, filed an interlocutory application (‘the application’)[1] seeking leave to amend his fourth statement of claim (‘the claim’)[2] pursuant to rule 69.2(1)(b) of the Uniform Civil Rules 2020 (‘UCR’).
[1] FDN 64.
[2] FDN 40.
The amendments sought are set out in the proposed Fifth Statement of Claim (Fifth SOC), being exhibit RTR3 to the affidavit of Riccardo Traini, the solicitor for the applicant, sworn on 1 December 2020.[3]
[3] FDN 63.
The application is opposed by the first and second respondents. The second respondent did not attend the argument nor file any submissions. I make my rulings based upon the submissions of the applicant and the first respondent. The applicant filed a Summary of Argument with the Court on 15 February 2021;[4] and the first respondent filed a Summary of Argument on 24 February 2020 in response.[5]
[4] FDN 70.
[5] FDN 72.
The Claim
The applicant’s claim is one for personal injury and loss suffered as a result of his time as a resident at two boys’ homes said to be the responsibility of the first respondent between 1948 and 1965. The second respondent is joined in the proceedings as the entity responsible for overseeing the homes where the applicant resided.
The lengthy procedural history of this action is set out by Master Rice in his reasons of 19 October 2020 on an application for further and better discovery. I do not replicate those reasons, beyond outlining aspects of the history of the matter that are relevant to the application before me.
On 9 February 2016, the applicant (then listed as the plaintiff) commenced a claim in the Magistrates Court of South Australia, against Anglicare SA Limited (‘Anglicare’) as the first respondent (then listed as the first defendant) and the State of South Australia (‘the State’) as the second respondent (then listed as the second defendant). [6] As Master Rice observed, the claim was as follows:
1.The Plaintiff was born on 9th day of May 1946 and is 69 years of age.[7]
2.The First Defendant ran boys [sic] homes located at St Marys Mission of Hope Children’s Home in Carrington Street, Adelaide between the years 1948 and 1950 and also the Walkerville Boys Home located at Walkerville in the State of South Australia between 1950 until 1964.
3.The Second Defendant was sued pursuant to the Crown Proceedings Act and in relation to its responsibility for the overseeing [of] the homes conducted by the First Defendant.
4.The Plaintiff alleged sexual abuse, psychological abuse and physical abuse at the said homes between 1948 and 1965.
5.Whilst the Plaintiff was resident at the said homes the Defendants and/or either of them owed the Plaintiff a duty of care to take care of his welfare and safety.
6.The acts of sexual assault, physical abuse and psychological abuse occurred as a result of the breach of the duty of care and negligence of the Defendants.
7.That as a result of the sexual abuse, physical abuse and psychological abuse the Plaintiff suffered ongoing loss and damage.
[6] FDN 6.
[7] The applicant is now aged 74 years.
On 19 January 2017, the applicant sought an extension of time to serve the claim on the respondents. The application was granted, and the proceedings were transferred to this Court on 7 March 2017.[8] Subsequent applications for extensions of time to serve the claim were made by the applicant as he sought evidence to establish his claim given the length of time since the injury and loss had occurred.[9]
[8] FDN 6.
[9] FDN 7; FDN 8; FDN 9; FDN 10; FDN 11; FDN 12; FDN 13; FDN 14; FDN 15; FDN 18; FDN 20.
A second Statement of Claim was filed on 3 September 2018.[10] The second respondent filed their defence and a Contribution Claim in response thereto on 26 October 2018.[11]
[10] FDN 20.
[11] FDN 23.
An important matter on the application before me is an Interlocutory Application filed by the first respondent on 12 December 2018,[12] whereby Anglicare sought an order that they be disjoined from the claim, and that the Synod of the Diocese of Adelaide of the Anglican Church of Australia Incorporated (‘the Synod’) be joined in substitution. An affidavit of Adam Simon Bannister, Solicitor, sworn on 12 December 2018, was filed on behalf of Anglicare and the Synod.[13] Exhibits ASB1, ASB2 and ASB3 were annexed to the affidavit. Exhibit ASB1 is a letter of 7 November 2018 addressed to the applicant’s solicitor from Mr Bannister. This letter began by referring ‘to our telephone discussion on 31 October 2018’ and stating that ‘[our] client seeks in good faith to address your client’s claim in a fair and appropriate manner, which minimises any re-traumatisation of your client’. The letter goes on to state that ‘… there are a number of fundamental difficulties with the inclusion of our client (Anglicare) as the primary defendant to the Proceedings, not least being that’:
[12] FDN 26.
[13] FDN 25.
1.The wrongful conduct alleged by your client is said to have taken place at:
(a)the former St Marys Mission of Hope (St Marys) between 1948 and 1951;
(b)the former Walkerville Boys Home (Walkerville) between 1951 and 1965;
(c)the hands of:
(i) Stephen Savage (the son of Matron Savage) at St Marys;
(ii)Superintendent Mr Sealy-Bell at Walkerville; and
(iii) Superintendent Mr Snaith at Walkerville [sic]
2.While out client is presently the owner of the properties where St Marys and Walkerville were previously operated, it was only:
(a)incorporated under the Associations Incorporation Act on 24 June 2000, some 35 years after your client left Walkerville; and
(b)registered as a Public Company in its current form on 23 May 2014.
3.Without seeking to be unnecessarily adversarial, it follows as a matter of unassailable fact, that:
(a)our client did not own and was not responsible for the St Marys or Walkerville properties at the time when your client was there. Indeed, our client has not ever operated the St Marys and Walkerville properties as children’s homes; and
(b)your client was not at any time in our client’s care.
4.We are further instructed that our client is not aware of having at any time employed, or otherwise been responsible for, the individuals implicated by your client’s Proceedings.
As discussed by telephone last week, our client is concerned that it would not be productive or assist with the resolution of your client’s Proceedings for our client to file a technical defence on grounds including those set out above.
However, you will understand that should our client be required to file a defence, those facts will necessarily form a significant component of its pleaded response to the Second Statement of Claim.
…
… [Our] client is committed to ensuring from its perspective that your client’s claim is meaningfully advanced by communicating with you again prior to the next scheduled directions hearing following the conclusion of its internal enquiries. At the very least, that should result in the identification of the appropriate defendant party.
…
[We] invite you and your client to also give consideration to the matters of substance raised in this letter with a view to exploring your client’s procedural options, which we anticipate may include the possibility of discontinuing the Proceedings against our client, and either:
(a)Substituting a more appropriate defendant of his own motion; or
(b)Availing himself of the National Redress Scheme, which we understand that the Anglican Diocese of Adelaide has agreed, in principle, to participate in, when it becomes available in respect of South Australia (currently reported to be anticipated in early 2019).
…
[emphasis omitted]
On 30 November 2018, Mr Bannister forwarded a subsequent letter to the solicitors for the applicant and the second respondent.[14] From paragraphs 1.2 to 1.4, the following was set out:
[14] FDN 25, Exhibit ASB2.
… [If] Anglicare were to file a defence to the Proceedings, it would be technical in nature, and, in our view, capable of supporting a strike out application.
Our clients are mutually concerned that this approach would be unproductive and will militate against the meaningful advancement of the plaintiff’s claim.
Rather, our clients consider that the Synod is a more appropriate defendant to the Proceedings, noting that the Synod:
(a)is an incorporated association under the Associations Incorporation Act 1985, capable of being sued in its own name as if it were a Company, and is the entity through which the Anglican Diocese of Adelaide currently conducts business;
(b)is preparing to join the National Redress Scheme established following the Royal Commission into Institutional Child Abuse (Royal Commission) on behalf of the Anglican Diocese of Adelaide, and is actively committed to seeking to appropriately address complaints such as that underlying the Proceedings in accordance with the Royal Commission’s recommendations;
(c)maintains the most complete set of archived documents available, given the effluxion of time relating to any predecessor entities and their activities; and
(d)is in the most appropriate position to draw on existing structures to assist in making available a pastoral response to complaints, if appropriate or of assistance, in addition to any financial response which is ultimately found by the Court, or agreed amongst the parties to the Proceedings, to be appropriate; and
For the avoidance of doubt, we confirm that this does not mean that the Synod accepts the validity of the specific relief sought by the plaintiff in the Proceedings. It continues to reserve its rights in that regard, as we submit is only appropriate. However, it does accept that it is the appropriate entity to respond to, and seek to resolve, the Proceedings. Accordingly, a defence filed in due course by the Synod will deal with the substance of the matter and seek to narrow the issues in dispute.
…
[emphasis omitted]
At paragraph 10 of his affidavit,[15] Mr Bannister noted that, on the instructions of the Registrar and Secretary of the Synod, ‘… the Synod is the primary legal body through which the Anglican Church, including associated and subordinate bodies, conducts business in South Australia’.
[15] FDN 25.
With the consent of the applicant the Court granted the first respondent’s application and ordered that Anglicare be disjoined from the proceedings and that the Synod be joined as first respondent, in substitution. Following this order, the applicant filed a Third Statement of Claim on 18 January 2019 substituting the Synod as the first respondent.[16] Other amendments were made to the claim.[17] It is not necessary to outline those amendments in these reasons.
[16] FDN 27.
[17] See paras [16]-[17] of the applicant’s third statement of claim.
A Second Defence in response to the Third Statement of Claim, along with an Amended Contribution Claim, was filed by the second respondent on 19 February 2019.[18] The first respondent filed a defence to the Third Statement of Claim the same day.[19]
[18] FDN 28; FDN 29.
[19] FDN 30.
Fourth Statement of Claim (Fourth SOC)
On 17 December 2019, the applicant filed the Fourth SOC.[20] The amendments included that in the introduction, the applicant included the word ‘serious’ before ‘physical and psychological abuse’. A minor amendment was made to paragraph 1 and paragraph 2 was not changed. The disjoinder of Anglicare and joinder of the Synod as the first respondent was reflected in the amendments made to paragraph 3, as follows:
…
3.The First Defendant, Synod of the Diocese of Adelaide of the Anglican Church of Australia Incorporated (“The Synod”) is the body responsible for the former children’s homes known as St Marys, 222 Halifax Street, Adelaide, and Walkerville located at Walkerville in South Australia.
4.The Second Defendant is the State of South Australia. An action is pursued against the Second Defendant pursuant to the Crown Proceedings Act 1992, relating to an alleged breach of statutory duty and/or breach of duty of care owed to the Plaintiff, in its supervision of the Plaintiff’s placements at St Marys and Walkerville between May 1948 and March 1965.
…
[emphasis added]
[20] FDN 40.
The substantive amendments to the claim commence at paragraph 6, where the applicant asserts that: ‘…by 1948 it was common knowledge that children who were cared for by the State of South Australia (and other institutions within the State) were suffering from various forms of abuse’.[21] By reason of this, it is asserted that the respondents were aware that children in care were at risk of suffering abuse whilst in the care of the State and/or its institutions.[22] The crux of the applicant’s claim is that the respondents owed him a duty of care to reduce or limit the amount of harm that he had experienced whilst resident at, and under the care of the St Marys and Walkerville homes. The applicant asserts that this duty extended to the respondents taking precautions to prevent, or mitigate against, harm to the applicant by ensuring that the applicant was properly or adequately supervised and that the staff who worked at those institutions received appropriate training and education. At paragraphs 34 and 35 of the Fourth SOC, the applicant pleads that the respondents breached their duty of care to him. The particulars of the acts or omissions which led to those breaches are set out beneath those paragraphs. I shall not repeat them. I do, however, note that, at paragraph 34 under heading ‘(g)’, the applicant named Mr V R Sealy-Bell as a perpetrator of the abuse that he was allegedly subjected to. The relevance of my notation of this paragraph will become clearer as I set out my reasons below.
[21] See paragraph 6 of the Fourth SOC.
[22] See paragraph 7 of the Fourth SOC.
Amendments were also made to paragraphs 37 and 38:
…
37.The Plaintiff approached the First Defendant or its agent in the period 1997 to 2000 in an attempt to obtain assistance to manage his physical and psychological injuries, the sequelae of childhood institutional abuse and the Plaintiff says the First Defendant, or its agent refused to offer any assistance or recognition of his conditions. The Plaintiff says this constitutes a proper basis for claiming exemplary and/or aggravated damages as the delay further exacerbated the Plaintiff’s physical and psychological injuries.
38.Further, the Plaintiff says that the First Defendant’s or its agent’s delay in identifying the correct entity to be sued has also caused further aggravation to his injuries wherein he put the First Defendant or its agent on notice of this claim as early as 1997 but more particularly in 2016.
…
In response to the Fourth SOC, the second respondent denies the allegations set out from paragraphs 6 to 10.[23] It asserts that the applicant’s parents retained responsibility for him and that it had no knowledge that the applicant was at risk of harm whilst in the care of the first respondent. It denies that it owed the applicant a duty of care, and in the event that it was found that it did, then that duty could not extend to ensuring that the first defendant took certain steps to prevent or mitigate against any harm that may have been caused to the applicant.
[23] FDN 41.
The first respondent filed a Defence in response to the Fourth SOC soon after.[24] The relevant paragraphs are:
[24] FDN 42.
…
1.It admits paragraphs 1 and 2 of the Claim.
2.In response to paragraph 3 of the Claim, says that:
2.1.at all times material to allegations made in the Claim (namely, between 1948 and 1951), St Marys Mission of Hope Incorporated (‘St Marys Inc’);
(a)was an independent entity incorporated under the Associations Incorporation Act 1890/1919 (SA), and governed by committee pursuant to its own prescribed rules and regulations;
(b)was a not-for-profit entity bound to apply all income received in payment of its expenses and promoting and carrying out of its objects; namely, to provide a home, nurture and general and religious education in conformity with the principles of the Church of England for orphan, homeless and neglected children in need;
(c)independently operated and was responsible for the Church of England Home for Pre-School Children, a residential home catering during the relevant time period for children between the ages of 2 and 6, which it ran from premises it owned at 222 Halifax Street, Adelaide (‘St Marys Home’);
(d)charged maintenance fees to parents of children residing in the Home fixed according to circumstances, but also relied on charitable donations in order to meet its expenses and carryon day to day management of St Marys Home; and
(e)operated St Marys Home to the best of its ability and with charitable intent based on community standards and knowledge at the time regarding the care of children in need and within the limits of its available resources.
2.2.at all times material to allegations made in the Claim (namely, between 1951 and 1965), The Church of England Boys’ Home Incorporated (‘COEBH Inc.’):
(a)was an independent entity incorporated under the Associations Incorporations Act 1890/1919 (SA), and governed by committee pursuant to its own prescribed rules and regulations;
(b)was a not-for-profit entity bound to apply all income received in payment of its expenses and promoting and carrying out of its objects; namely, to provide a home, nurture and general and religious education in conformity with the principles of the Church of England for orphan, homeless and neglected boys;
(c)independently operated and was responsible for the residential home for boys of school age which it ran from premises it owned at Smith Street, Walkerville, and which was known as Walkerville Boy’s Home until approximately July 1955, and thereafter as Kennion House (‘Kennion House’);
(d)charged maintenance fees to parents of children residing in the Home fixed according to circumstances, but also relied on charitable donations in order to meet its expenses and carry-on day to day management of Kennion House; and
(e)operated Kennion House to the best of its ability and with charitable intent based on community standards and knowledge at the time regarding the care of children in need and within the limits of its available resources.
2.3.at all times material to allegations made in the Claim, St Marys Home and Kennion House:
(a)had on their governing committees’ representatives of the Synod and the Church of England;
(b)were operated consistent with Church of England beliefs and religious practices;
(c)received support from and interacted with social workers employed by the Church of England Social Welfare Bureau, a Department established by committee within the Synod (Social Welfare Bureau);
(d)were considered ‘units’ within the Synod; and
(e)received visits from and were in communication with the State Children’s Welfare Department from time to time in relation to specific children residing with them, including those children’s home situations and care options, and the payment of their maintenance fees, and including pursuant to sections 37, 38, 50, 147 and 149 of the Maintenance Act 1926 (SA);
2.4.Both St Marys Home and Kennion House ceased to offer residential care in or about 1983, and neither St Marys Inc nor COEBH Inc. remain in existence.
3.[intentionally left blank]
…
[emphasis omitted]
The first respondent proceeds to deny that it owed a duty of care to the applicant. At paragraph 31, the first respondent admitted certain facts as follows:
…
31.In response to paragraph 31 of the Claim, the Synod:
31.1.admits only that:
(a)Mr V R Sealy-Bell was superintendent of Kennion House from 1951 until 1954;
(b)Superintendent Sealy-Bell reported in or about August 1952 having discussed difficulties with the Plaintiff’s behaviour with a Doctor who was reported to have agreed that, if the Plaintiff did not improve, it may be necessary for him to see a psychiatrist;
(c)In or about 1953, COEBH Inc. considered referring the Plaintiff to a home for those with psychological problems or the Minda Home as a result of the Plaintiff’s behaviour;
(d)In or about June 1953, the committee recorded under the heading “Corporal Punishment” that Superintendent Sealy-Bell was to be directed that only “proper punishment” be permitted;
(e)In or about September 1953, Superintendent Sealy-Bell offered his resignation from Kennion House due to a desire to visit England the following year, but the Committee did not accept his resignation and instead granted him two weeks of extra leave to reconsider his decision;
(f)In or about January 1954, the committee recorded an expression of confidence in Superintendent Sealy-Bell and its opinion that undefined allegations made against him were unfounded;
(g)In or about April 1954;
(i)Superintendent Sealy-Bell was granted a 6 month leave of absence from Kennion House, with a right of return, and departed for the United Kingdom;
(ii)Mr Ivor Snaith was appointed and commenced as replacement Superintendent of Kennion House in 1954 on a temporary appointment, with his wife, Mrs Snaith, also resident at the home and providing voluntary assistance;
(h)In or about June 1954, the Committee received a letter from Mr Sealy-Bell advising of his expected date of return. The Committee expressed a preference for a married couple as Superintendents of the home and resolved to dispense with Superintendent Sealy‑Bell’s services and offer him three month’s salary in lieu of notice;
(i)Superintendent Mr Snaith remained in the Superintendent’s position at Kennion House for the balance of the Plaintiff’s time there;
(j)In or about March 1965 Superintendent Mr Snaith expressed concern that the Plaintiff had suffered some kind of breakdown, but the Plaintiff declined to see a doctor.
…
[emphasis omitted]
Further Disclosure and Production
On 21 April 2020, the applicant filed an application seeking further and better discovery from the first respondent in respect of the documents that were listed in exhibit RT1, annexed to the affidavit of Riccardo Simone Traini dated 21 April 2020.[25] As a result of that application the first respondent conducted further detailed searches of archived material relevant to the period that the applicant resided at the homes set out in the pleadings. Some further documents were provided on 9 July 2020. However, there was still argument in relation to other categories of documents and the extent of the searches conducted. As a result of that argument Master Rice made an order for production of documents 19, 24, 25 and 26 (as listed in exhibit RT1) on 19 October 2020.[26]
[25] FDN 45; FDN 46.
[26] FDN 61.
The applicant contends that the further documents discovered, particularly document 16 provided in July 2020 allowed him to ‘…identify conduct, people and action taken at the Walkerville home in 1954’ and, in turn, caused the applicant to seek to amend his Statement of Claim.[27] The applicant’s solicitor attested that as a result of receiving the further documentation he was able to identify and speak to other men who had been residents at the Church of England Boys’ Homes in or around 1954. They provided evidence of behaviours relevant to the applicant’s proceedings especially as they applied to Superintendent Sealy-Bell. In an affidavit of 15 February 2021[28] the applicant’s solicitor set out the detail contained in documents that he said assisted in proving the applicant’s case.
[27] FDN 69.
[28] FDN 69.
Proposed Fifth SOC
The applicant seeks to amend paragraphs 25.1-25.9, 34(j), 34.1-34.16 and 37 of his Statement of Claim to plead as follows:
…
25.The Applicant was at risk of harm due to physical, mental and sexual abuse when he was a resident at Walkerville (“the risk of harm”).
25.1.Between 10 December 1951 and his ultimate removal in 1954, Superintendent Sealy-Bell sexually abused boys at Walkerville.
25.2.In or around early 1954, Walkerville received complaints of childhood sexual abuse against Superintendent Sealy-Bell.
25.3In or around July 1954, Walkerville removed 7 boys from the home on the ground of “homosexual behaviour”.
25.4Walkerville failed to respond appropriately to allegations of child sexual abuse made against Superintendent Sealy-Bell in or around 1954 in that they failed to:
25.5Carry out any or any adequate investigation of the allegations of the child sexual abuse made against Superintendent Sealy-Bell;
25.6Identify all of the children who had been sexually abused by Superintendent Sealy-Bell and provide them with adequate help and support from appropriate agencies;
25.7Report the allegations of child sexual abuse to the police or the appropriate authorities;
25.8Take any or adequate precautions against the risk of the children who had been sexually abused, later becoming perpetrators of sexual abuse against other children.
25.9Walkerville ought to have removed Superintendent Sealy-Bell as soon as it was known that he had been sexually abusing boys.
…
34.The First Respondent breached its duty of care to the Applicant.
Particulars of First Respondent’s negligence
…
(j)Failing to respond appropriately to allegations of child sexual abuse made against Superintendent Sealy-Bell in or around 1954.
In particular:
(i)Removing 6 boys from the home in or around July 1954 on the ground of “homosexual behaviour”; and
failing to:
(ii)Carry out any or any adequate investigation of the allegations of the child sexual abuse made against Superintendent Sealy-Bell;
(iii)Identify all of the children who had been sexually abused by Superintendent Sealy-Bell and provide them with adequate help and support from appropriate agencies;
(iv)Report the allegations of child sexual abuse to the police or the appropriate authorities;
(v)Take any or adequate precautions against the risk of the children who had been sexually abused, later becoming perpetrators of sexual abuse against other children.
…
Vicarious Liability of the First Respondent
Superintendent Sealy-Bell
34.1 In or around December 1951, the Church of England Boys’ Home Incorporated employed, appointed or otherwise engaged Mr Victor Raymond Sealy-Bell to the position of Superintendent at Walkerville.
34.2As Superintendent of Walkerville, Mr Sealy-Bell was invested with day-to-day control of the Applicant, which included supervision of the Applicant when dressing, sleeping, bathing, showering, eating, and in his other day to day activities.
34.3The Church of England Boys’ Home Incorporated thereby placed Mr Sealy- Bell in a position of authority, power, trust and intimacy with respect to the Applicant who was vulnerable to the abuse of such authority, power, trust and intimacy.
34.4Mr Sealy-Bell relied on, took advantage of, and exploited the relationship of authority, power, trust and intimacy which the Church of England Boys’ Home Incorporated had invested in him, to physically, psychologically and sexually abuse the Applicant in Walkerville.
34.5Mr Sealy-Bell’s acts occurred whilst he was performing his duties as superintendent at Walkerville and whilst he and the Church of England Boys’ Home Incorporated were acting in loco parentis for the Applicant.
34.6The acts of Mr Sealy-Bell, set out at paragraphs 32.9, 32.9.1, 32.9.2, 32.9.3 and 33.1, occurred within the course of his employment as superintendent at Walkerville.
34.7The First Respondent is vicariously liable for the acts and omissions of Mr Sealy-Bell, including the serious physical and psychological abuse, and the sexual abuse of the Applicant.
34.8Mr Sealy-Bell was a delegate of the Church of England Boys’ Home Incorporated for the discharge of its duty of care to the Applicant.
Superintendent Mr Ivor Snaith
34.9In or around April 1954, the Church of England Boys’ Home Incorporated employed, appointed or otherwise engaged Mr Ivor Snaith to the position of Superintendent at Walkerville.
34.10As Superintendent of Walkerville, Mr Snaith was invested with day-to-day control of the Applicant, which included supervision of the Applicant when dressing, sleeping, bathing, showering, eating, and in his other day to day activities.
34.11The Church of England Boys’ Home Incorporated thereby placed Mr Snaith in a position of authority, power, trust and intimacy with respect to the Applicant who was vulnerable to the abuse of such authority, power, trust and intimacy.
34.12Mr Snaith relied on, took advantage of, and exploited the relationship of authority, power, trust and intimacy which the Church of England Boys’ Home Incorporated had invested in him, to subject the Applicant to serious physical and psychological abuse at Walkerville.
34.13Mr Snaith’s acts occurred whilst he was performing his duties as Superintendent at Walkerville and whilst he and the Church of England Boys’ Home Incorporated were acting in loco parentis for the Applicant.
34.14The Acts of Mr Snaith, set out at paragraphs 32.12, 32.13, 32.14, 32.15, 32.16, 32.19 and 32.20 occurred within the course of his employment as Superintendent at Walkerville.
34.15The First Respondent is vicariously liable for the acts and omissions of Mr Snaith, including the serious physical and psychological abuse of the Applicant.
34.16Mr Snaith was a delegate of the Church of England Boys’ Home Incorporated for the discharge of its duty of care to the Applicant.
…
I have not set out the lengthy proposed amendments to paragraph 37 as these were not argued before me. The first respondent did not oppose those amendments, subject to the lack of particularity being cured by the provision of further material facts.[29]
Submissions
[29] Affidavit of Talia Black (FDN 68) at para [16].
The First Respondent
By an affidavit of 2 February 2021,[30] Tania Black a solicitor representing the first respondent submitted that in relation to the proposed amendment to paragraph 34(j) that there were no material facts or particulars pleaded sufficient to disclose a tenable case, as there was no allegation that identified the basis for the Synod to respond to the allegations regarding Mr Sealy-Bell, as there was no employment relationship. It was also submitted that the pleading failed to allege how the Synod should have acted to avoid the injury and loss claimed by the applicant. Paragraph 34(j) therefore fails to give fair notice of the case to be run at trial.
[30] FDN 68.
In relation to the amendments to paragraphs 34.1 to 34.16, the first respondent submitted that the plea of vicarious liability in relation to Mr Sealy- Bell and Mr Snaith could not stand as there were no facts or particulars pleaded that linked their employment to the Synod. It was submitted that the proposed amendments were ‘futile as they would be liable to be struck out or summarily dismissed’. The proposed amendments in paragraphs 34.1 to 34.16 also did not give fair notice of the applicant’s case and would cause the Synod to be taken by surprise at trial.
As I have noted, the Synod did not oppose the proposed amendment to paragraph 37 of the proposed Fifth SOC, subject to further particulars being provided, nor the amendment to paragraph 32.9.
As a result of the affidavit of Ms Black, the applicant further amended the proposed Fifth SOC to address the issue raised in relation to paragraph 34(j). These are the proposed amendments at paragraphs 25.1 to 25.9 set out above. In written submissions and in argument before me, the first respondent argued that these amendments do not address the issue, as there is still no basis set out as to how the Synod could respond to the allegations. There was still no pleading of any fact that suggested that the applicant ever complained to anyone about the alleged abuse he was suffering.
The issue of vicarious liability and the lack of any plea of facts to support that claim in proposed paragraphs 34.1 to 34.16 was also raised by the Synod. It is pleaded in those paragraphs that both Mr Sealy-Bell and Mr Snaith were employed and/or appointed by the Church of England Boys’ Home Incorporated (COEBH Inc.), which placed them both in a position of authority and power in relation to the applicant. However, the Synod submitted that this does not make them vicariously liable for their actions. They submit that this causes the amendments to fall foul of UCR 67.2 as they:
1. do not identify any statutory provision relied on by the applicant to establish his claim;
2. are ‘evasive and ambiguous’; and
3. do not set out sufficient detail to give full notice of the case to be met at trial.
The first respondent argues that the proposed amendment falls foul of the requirement that pleadings should be precise in their detail and specificity particularly in relation to allegations of vicarious liability.[31] Findings of vicarious liability are particularly fact specific[32] and the applicant simply does not set out facts that link the applicant to the Synod (the first respondent). The applicant pleads that both Mr Sealy-Bell and Mr Snaith were employed, appointed, or engaged by the COEBH Inc. but does not plead the link between that incorporated body and the Synod.
[31] PJWI v The State of New South Wales [2020] NSWSC 1235 at [93].
[32] Prince Alfred College Incorporated v ADC [2016] HCA 37 at [39] and [128].
In summary, the first respondent argues that the proposed Fifth SOC does not comply with the UCR as it discloses no viable cause of action against the Synod and gives no notice of the basis of the case against it based in vicarious liability. These deficiencies cannot be rectified simply by the first respondent filing an Amended Defence. The proposed amendments simply do not give fair notice of the applicant’s case as it will be presented at trial. The first respondent submits that neither factual causation nor notice of how a reasonable person in the Synod’s position should have responded to the alleged risk of harm have been addressed by the proposed amendments.
In argument before me the first respondent submitted that their position should not be a surprise to the applicant as in the defence to the Fourth SOC the first respondent did not plead to the allegation in paragraph 3 that the Synod was ‘the body responsible’ for the former children’s homes know as St Marys Mission of Hope Children’s Home (St Marys) and Walkerville Boys Home (Walkerville).[33]
[33] FDN 40.
The first respondent argued that this was therefore a deemed denial of that allegation pursuant to r 100(5) of the District Court Civil Rules 2006 (SA) (‘DCCR’), as then applied. The first respondent was denying that it was responsible for the two homes where the applicant resided. This led to the conclusion that the Synod could not be vicariously liable for the acts and omissions of Mr Sealy-Bell and Mr Snaith, who were employed by COEBH Inc. In denying responsibility for St Marys and Walkerville, the Synod could not be vicariously liable for persons employed by them and not by the Synod. The first respondent submitted this was a difficulty with the proposed Fifth SOC, as paragraph 3 remained the same. The fact would again be denied, and vicarious liability could not logically follow.
It was not disputed by the applicant that the first respondent had not in its defence expressly denied the allegations at paragraph 3 of the Fourth SOC, in relation to their responsibility for the two homes, and that pursuant to the DCCR this amounted to a deemed denial. In Jacobs & Anor v Edwards & Ors (No 6),[34] Lunn J stated:
6R 100(5) deems there to be a denial of any fact pleaded where the defendant does not admit it or state that it does not propose to challenge it at trial.[35]
[34] [2012] SASC 66.
[35] Ibid at [19].
In considering the issue of denial, I note however that the first respondent does not plead a bare denial to paragraph 3 of the Fourth SOC. By paragraph 2 of their defence[36] having said nothing about its responsibility for the two homes, it proceeded to plead an extensive alternative version of facts.
[36] FDN 42.
The applicant submitted that, by the manner in which the negotiations that led to the disjoinder of Anglicare and substitution of the Synod had occurred, as set out in the correspondence of Mr Bannister, the first respondent is required to expressly deny or admit the allegations in the statement of claim.[37] That is that the lawyers who acted for both the first respondent sued (Anglicare) and the current first respondent (the Synod) actively pressed for the substitution, suggesting that the Synod was in the best position to answer the applicant’s claim and provide a pastoral and financial response.[38]
[37] T9.25-36.
[38] FDN 25, Annexure ASB2.
A further submission of the first respondent was that the applicant was not prejudiced by the position being taken by the Synod as he was in no different, or worse position to what he had been before Anglicare was removed as the first respondent. As set out in Exhibit ASB1 to FDN 25, being the letter of the Mr Bannister of 7 November 2018, Anglicare did not exist at the time that the applicant was allegedly abused while a resident at St Marys and/or Walkerville having not been incorporated until June 2000. The applicant’s claim against Anglicare was always doomed to fail and the substitution of the Synod as first respondent did not prejudice the applicant. As counsel for the first respondent submitted the applicant was suing the wrong party to start with and, if he is still suing the wrong party, albeit a different one, he has lost nothing.
Applicant’s submissions
The applicant relies upon the fact that, as set out in the correspondence from Mr Bannister, the first respondent encouraged the applicant to substitute the Synod as the proper first respondent in the proceedings. This encouragement also came by telephone calls to the solicitor then acting for the applicant. It was submitted that the applicant amended his claim to replace Anglicare with the Synod as first respondent, given the assurances in Mr Bannister’s letter of 30 November 2018[39] that the Synod was to ‘stand in the shoes’ of the children’s homes where the applicant had lived,[40] and thereby meet any financial liability ultimately determined by the Court relative to the applicant’s claim. The applicant submitted that the position now being taken by the first respondent in relation to vicarious liability meant that the applicant’s claim was futile and made the substitution of the Synod pointless. This is the same response the defendants invoked in the case of Trustees of the Roman Catholic Church v Ellis.[41]
[39] FDN25, ASB2.
[40] Applicant’s Summary of Argument, FDN 70 at para 9.
[41] [2007] NSWCA 117.
The applicant submits that the objection being taken by the Synod is in direct conflict with the Anglican Church of Australia’s submission in response to the Consultation Paper of the Redress and Civil Litigation Report: Royal Commission into Institutional Responses to Child Sexual Abuse that:
Our Royal Commission Working Group accepts that each diocese and agency of the ACA should ensure that there is a corporation or a nominal defendant which can be sued where there is child sexual abuse.[42]
[42] FDN 70 at para [12]-[14].
The applicant argues that a nominated respondent that meets a claim for vicarious liability ‘is now an entirely conventional approach in other jurisdictions’ and is now before the South Australia Parliament as the Civil Liability (Institutional Child Abuse Liability) Amendment Bill (2020). The applicant submits that in the context of these developments the first respondent cannot simply resile from the position taken at the time of substitution and it cannot allow the applicant’s claim to fail simply due to the identity of the perpetrators’ employer.
Amendment of Pleadings
The matters to be considered on an application to amend pleadings were set out in detail by Doyle J in PPG Developments v Capitano[43] where he reviewed the more recent High Court authority and summarised the approach to such an application:
[43] (2016) 126 SASR 307.
[37] This modern approach to the Court’s discretion to grant a party permission to amend has been applied in numerous subsequent authorities. Leading examples include the decisions of the Full Court of the Federal Court in Cement Australia Pty Ltd v Australian Competition and Consumer Commission[44] (in which an application for permission to amend brought during the course of a trial was granted), and Tamaya Resources Ltd v Deloitte Touche Tohmatsu[45] (in which an application for permission to amend brought ahead of trial was refused).
[44] (2010) 187 FCR 261.
[45] (2016) 332 ALR 199.
[38] In this Court, the principles in Aon Risk Services were summarised and applied by the Full Court in Channel Seven Adelaide Pty Ltd v Manock[46]in refusing an application to amend, despite the absence of any impact upon any proposed trial date. However, the significance of the modern approach is often most acute in the context of amendment applications that are likely to result in the postponement or adjournment of a trial.
[46] [2010] SASCFC 59.
[39] By way of summary, the High Court decision in Aon Risk Services, and the authorities that have applied it, have now made it plain that in exercising its discretion upon any application to amend, the court must take into account a number of factors. The factors include:[47]
[47] This list is similar to the list compiled by Bleby J in Channel Seven Adelaide Pty Ltd v Mannock [2010] SASCFC 59 at [46].
·The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.
·The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.
·The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).
·The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.
·Whether the party has had a sufficient opportunity to plead their case earlier.
·The time, cost and inconvenience associated with any delay or disruption of the proceedings.
·The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.
·The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.
·The impact upon the public’s confidence in the just and efficient administration of justice.
This is not a matter where, although there has been delay on the part of the applicant in prosecuting his claim, there is any immediate impact upon the commencement of a trial. The first respondent has not argued any impact of undue delay resulting from the proposed Fifth SOC being filed. In any event I note that the application to amend the claim was made relatively soon after further disclosure of documents was ordered, and after the applicant’s solicitors had acted on information to obtain further evidence to progress his claim.
The applicant’s claim is one regarding alleged historical abuse. It has been found by courts that such claims are difficult to prove, as records are destroyed or missing. The further detail pleaded by the applicant in the proposed Fifth SOC, has resulted from information obtained from more recently provided documents. The proposed amendments raise important ‘new issues of fact’ regarding the alleged perpetrators of the alleged abuse of the applicant, and the extent of the alleged abuse that occurred at Walkerville during the time the applicant was a resident at that boys’ home (paragraph 25). The proposed amendments also raise new issues of law, both as to the liability of the first respondent directly (paragraph 34(j)), and by being vicariously liable for the actions of Mr Sealy-Bell and Mr Sneath (paragraph 34). There is no submission that the applicant had opportunity to plead the new facts or law at an earlier stage in the proceedings.
I find that in the difficult circumstances of obtaining facts to prove a claim of abuse that occurred many years ago, when the applicant was a child, that any delay in the applicant finalising his pleadings is not a factor that militates against the current application to amend his clam. I also find that the proposed amendments do provide significantly more detail and facts regarding what occurred at the Walkerville home over the period the applicant resided there. In a claim such as the applicant’s those additional facts are very important in proving what occurred to him many years ago.
The issues raised by the first respondent in opposing the application go to the second factor listed by Doyle J in relation to the discretion to allow an amendment to a pleading, namely ‘…the merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable’. The first respondent submits that the applicant has a primary obligation to comply with the rules as to pleadings as set out in the UCR. It submits that the amended pleading must set out the affirmative facts relied upon by the applicant to establish his claim;[48] give fair notice of his case,[49] and not contain material that is evasive or ambiguous.[50] The first respondent also argues that leave should not be granted to amend the claim, if the allegations introduced by the amendment would be liable to be struck out.[51]
[48] UCR 67.2(2)(a).
[49] UCR 67.2(2)(c).
[50] UCR 67.3(2)(c).
[51] UCR 70.3(2).
The principles relied upon by the first respondent are relevant to its alleged deemed denial to paragraph 3 of the Fourth SOC, and the fact that the first part of paragraph 3 of the proposed Fifth SOC is in the same terms. This feeds into the argument that with a denial of responsibility for the two homes where the applicant lived, vicarious liability cannot be proved by the applicant against the first respondent for the actions of Mr Sealy-Bell and Mr Snaith on the proposed Fifth SOC. The first respondent argues that the applicant has not pleaded that the first respondent (or the Anglican Church) was the employer of either Mr Sealy- Bell or Mr Snaith. There is simply no basis to bring a claim based on vicarious liability.
The UCR at r 67.2 and r 67.3 in relation to pleadings as identified by the first respondent, reflect what Stanley J set out in Nitsche & Ors v Foraco Australia Pty Ltd & Anor:[52]
[30] A proper pleading will contain the material but not all the facts and will contain sufficient particulars being material facts necessary to give fair notice. Whether the material facts and whether sufficient particulars have been pleaded will depend upon the cause of action, the complexities of the case and the whole of the circumstances of the case.
[31] None of these matters can be considered in isolation any more than each of the paragraphs of the pleading can be considered in isolation.[53]
[32] A pleading must have sufficient precision to allow a proper response by the opposing party.[54]
[33] A proper pleading must contain all material facts and not merely a cause of action based on a hypothesis.[55]
[52] [2014] SASC 88.
[53] Arthur Young v Tieco (1995) 182 LSJS per Lander J; H Stanke & Sons Pty Ltd v O’Meara [2007] 98 SASR 450.
[54] Prolift Equipment Pty Ltd v Pronto Software Pty Ltd [2003] SASC 170 (unreported, Lander J, 6 June 2003); Iacullo v Iacullo [2013] NSWSC 1517 (unreported, Black J, 18 October 2013) at [63].
[55] Riverland Fruit Cooperative Pty Ltd v 007 953 380 Pty Ltd [2008] SASC 358 (unreported, Bleby J, 17 July 2008.
In addition, any proposed amendment to a pleading should not be allowed in circumstances where, if pleaded initially, the pleading could have been struck out as setting out no cause of action.[56] A proposed amendment to a Statement of Claim must accordingly set out a reasonably arguable claim in law and fact,[57] and should not be allowed if the court is required to order further material facts be pleaded.[58] However, it has been found that whether the proposed amendment discloses a reasonably arguable case is to be decided on the assumption that an applicant will prove the facts alleged in the proposed amended claim.[59]
[56] Duke Group Ltd. (In Liq.) v Arthur Young (1991) 4 ACSR 355 at 382; Pope & Ors V Harris Orchard [2010] SASC 354.
[57] Scholle Industries v AEP Industries (NZ) Ltd [2007] SASC 322 at [15]; Pavlovic v Commonwealth Bank of Australia (1992) 56 SASR 587.
[58] Morgan v Roberts & Ors [2006] SASC 15 at [1].
[59] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572.
The Plea of Vicarious Liability
The applicant pleaded at paragraph 3 of the Fourth SOC that the Synod is the body ‘responsible’ for St Marys and Walkerville. This pleading remains in paragraph 3 of the proposed Fifth SOC. As set out above the first respondent did not specifically plead to the allegation of ‘responsibility’ for the two homes in paragraph 2 of its Defence. This is a deemed denial of that fact.[60]
[60] Rule 67(6) of the UCR, as will apply to the first respondent’s defence to any amended claim.
The first respondent in paragraph 2 of its Defence, in response to paragraph 3 of the Fourth SOC, sets out a set of detailed alternative facts. These set out the legal structure and management of each of St Marys and Walkerville, particularly pleading that each residential home was operated by an independent, incorporated entity. At paragraph 2.3(a), (b) and (c) of the Defence the following facts are pleaded:
1.that the governing committees of each of the St Marys and Walkerville homes included representatives of the Synod (the first respondent);
2.that St Marys and Walkerville ‘received support from and interacted with social workers employed by’ a Church of England department established by a committee within the Synod; and
3.that St Marys and Walkerville were considered ‘units’ within the Synod.
No further detail or facts are pleaded to set out what a ‘unit’ within the Synod means.
By the proposed Fifth SOC the applicant pleads more detail regarding his risk of harm upon placement at Walkerville from December 1951 until March 1965,[61] and in particular the actions of the two superintendents at Walkerville over that period, Mr Sealy-Bell and Mr Snaith.[62] As a result of this further detail the applicant pleads a further cause of action in relation to each Superintendent, alleging that the first respondent is vicariously liable for the pleaded acts and omissions of both Mr Sealy-Bell and Mr Snaith.[63]
[61] Proposed Fifth SOC at paragraph 25.
[62] Proposed Fifth SOC at paragraph 32.9, 34(j) and 34.1 – 24.16.
[63] Proposed Fifth SOC at Introduction and paragraphs 34.7 and 34.15.
In setting out the cause of action in vicarious liability the applicant pleads that ‘… the Church of England Boys’ Home Incorporated (COEBH Inc.) employed, appointed or otherwise engaged …’. Mr Sealy-Bell and later Mr Snaith as superintendent at Walkerville.[64] The COEBH Inc., is the corporate entity pleaded by the first respondent as being responsible for Walkerville between 1951 and 1965 in its Defence.[65]
[64] Proposed Fifth SOC at paragraphs 34.1 and 34.9.
[65] FDN 42 at para 2.2.
By the proposed Fifth SOC, the applicant appears to have accepted the first respondent’s factual pleading in its Defence and pleaded himself that it was the COEBH Inc. which employed and/or appointed both of Mr Sealy-Bell and Mr Snaith. This is very relevant to the argument before me, as at paragraph 2.2(a) of its Defence the first respondent pleads that at all material times the COEBH Inc.:
(a)was an independent entity incorporated under the Associations Incorporations Act 1890/1919 (SA), and governed by committee, pursuant to its own prescribed rules and regulations.
….
(c)independently operated and was responsible for the residential home for boys of school age which it ran from premises it owned at …. [Walkerville].
By his proposed Fifth SOC the applicant does not plead that either Mr Sealy- Bell or Mr Snaith were employed by the first respondent. In relation to each proposed plea of vicarious liability he specifically pleads that the COEBH Inc. was the entity that placed each man into a position of authority, power, trust an intimacy with respect to him; and that each of Mr Sealy-Bell and Mr Snaith took advantage of their authority and power granted to them by the COEBH Inc.[66] It is also pleaded that both Mr Sealy-ell and Mr Snaith were a ‘delegate’ of the COEBH Inc. for the discharge of its duty of care to the applicant.[67]
[66] Proposed Fifth SOC at paragraphs 34.3, 34.4, 34.11 and 34.12.
[67] Proposed Fifth SOC at paragraphs 34.8 and 34.16.
The applicant’s plea in vicarious liability therefore relies upon his plea at paragraph 3 that the Synod was the ‘body responsible’ for Walkerville. However, the applicant does not explain or plead detail of the relationship between the Synod and the COEBH Inc., seeming to ignore it. It is not pleaded that COEBH Inc. was a unit of the Synod. It is not pleaded that Walkerville was a unit of the Synod.
Principles of Law
Vicarious Liability imposes liability on an entity for the wrongs of another, in circumstances where proof of fault is not required.[68]
[68] Prince Alfred College Inc. v ADC [2016] HCA 37 page [39].
On the factual scenario in the case before me, there is no plea that either of Mr Snaith or Mr Sealy-Bell were employed by the first respondent. Rather, it is explicitly pleaded that they were employed, appointed, or engaged by another corporate entity, namely COEBH Inc., who is not a respondent in the proceedings.
The first respondent denies (by deeming) that it was the body responsible for Walkerville (and St Marys). By his proposed Fifth SOC, and in the face of that denial, the applicant has not pleaded any further facts to establish the plea that the first respondent was responsible for Walkerville. The extent of the responsibility for Walkerville can be the only basis of a cause of action in vicarious liability against the first respondent.
In Trustees of the Roman Church v Ellis,[69] a claim in vicarious liability by the plaintiff of sexual abuse by an assistant Priest, was rejected by the NSW Court of Appeal, leading to great difficulty for victims of institutional abuse to succeed in claims in damages and led to changes in the law in some states. The plaintiff in that case had been a young altar server at the time. The priest was appointed by the then Archbishop acting in consultation with the Archdiocesan Council, being a separate body from the Trustees (the defendant). The evidence was that the Diocesan Bishop had extensive control over the appointment, removal and day-to-day activities of an assistant Parish Priest. The Trustees however held and controlled the church property. It was ultimately found that the Trustees were not responsible for the conduct of priests, and in fact there was no legal entity available to be sued in respect of their misconduct apart from the priests themselves.
[69] [2007] NSWCA 177.
In regard to vicarious liability, Mason P stated:[70]
The relationship between an assistant parish priest and the ‘members’ as a whole is too slender and diffuse to establish agency in contract or vicarious liability in tort …
[70] Ibid at [54].
In reviewing the issue of vicarious liability, it is not clear that the pleaded acts of Mr Sealy-Bell and Mr Snaith relative to the applicant were criminal acts and therefore the issues raised by the High Court in New South Wales v Lepore[71] and Prince Alfred College Inc. v ADC[72] regarding vicarious responsibility for such acts do not apply. In Prince Alfred College v ADC, French CJ, Kiefel J, Bell J, Keane J and Nettle J, described vicarious liability as follows:[73]
Vicarious liability has not to date been regarded as a form of absolute liability, although policy choices, and the questions posed for the determination of vicarious liability, can lead in that direction. The traditional method of the common law of confirming liability, in order to reflect some balance between competing interests, is the requirement that the employee’s wrongful act be committed in the course of employment. At the least this provides an objective, rational basis for liability and its parameters.
[71] (2003) 212 CLR 511.
[72] [2016] HCA 37.
[73] Ibid page [39].
The five judges went on to note that at common law, an essential requirement for vicarious liability is that the wrongdoing occurs in the course or scope of employment.[74]
[74] Ibid page [41].
I find that neither Mr Sealy-Bell nor Mr Snaith were employed by the first respondent. I find that the applicant does not plead a factual basis whereby it can be argued that the first respondent’s responsibility for Mr Sealy-Bell and Mr Snaith’s employer, namely the COEBH Inc., results in an employment relationship between Mr Sealy-Bell, Mr Snaith and the first respondent. There is therefore no factual basis upon which a cause of action in vicarious liability can be made out against the first respondent. The proposed pleading of vicarious liability is not arguable and could likely be struct out for setting out not cause of action.
Estoppel argument
I have considered in detail the letters of Mr Bannister regarding the substitution of the Synod as the first respondent. By the letter of 7 November 2018,[75] the fundamental difficulties of the applicant proceeding against Anglicare are set out. Anglicare was simply not in existence over the period the alleged abuse against the applicant occurred. By the letter of 7 November 2018 while the issue of an alternate respondent is raised, there is no statement that liability would be admitted, if substitution occurred. The context of the letter was an understanding of the principles of the recommendations of the Royal Commission into Institutional Child Abuse (‘Royal Commission’) and an attempt to minimise stress for the applicant.
[75] Exhibit ASB1 to FDN 25.
Two weeks later in his letter of 30 November 2018,[76] Mr Bannister offers up the Synod as an alternative respondent to Anglicare for the reasons I have already set out. It was never suggested that the Synod was part of the factual basis of the applicant’s claim. It was specifically stated in the letter that the Synod did not accept the validity of the ‘specific relief sought by the plaintiff in the proceedings’ and continued ‘to reserve its rights in that regard’.[77] The letter stated that the Synod was the best entity to respond to the applicant’s claim by providing any pastoral and financial response. That was all.
[76] Exhibit ASB2 to FDN 25.
[77] Exhibit ASB2 to FDN 25 at para 1.5.
After the Synod was substituted as the first respondent, the Fourth SOC was filed, and a Defence filed on 14 February 2020. There was no objection to the terms of that defence by the applicant, even though there was a deemed denial of the relationship between the Synod and the two boys’ homes. It is only with the objection to parts of the proposed Fifth SOC that the applicant has raised that the first respondent should not be able to object to the terms of the further draft pleadings, due to the correspondence of Mr Bannister that led to the Synod being substituted.
I do not accept that the terms of the letters from Mr Bannister prevent the first respondent from challenging the amendments to the SOC. No admissions of liability were made in that correspondence. In fact, the Synod’s rights were reserved. The Synod has never admitted responsibility for St Marys and/or Walkerville and filed a defence with a deemed denial in that regard. The first respondent is not estopped from raising legal defences to the applicant’s claim.
I also do not agree that the court can rely upon draft legislation yet to be passed by the South Australia Parliament or the practice in other jurisdictions to prevent the first respondent from challenging the terms of the proposed Fifth SOC.
For these reasons, I disallow paragraphs 34.1 to 34.16 of the proposed Fifth SOC.
Paragraphs 25.1 to 25.9 and 34(j)
By paragraphs 25.1 to 25.9 of the proposed Fifth SOC the applicant sets out material facts upon which he relies to establish the existing plea at paragraph 25 that:
The applicant was at risk of harm due to physical, mental and sexual abuse when he was a resident at Walkerville (‘the risk of harm’).
The nine material facts pleaded are set out at paragraph [22] above. In summary they allege that Mr Sealy-Bell sexually abused boys at Walkerville between 1951 and 1954; that Walkerville received complaints of sexual abuse by Mr Sealy-Bell; and that Walkerville did not adequately investigate or action the complaints nor remove Mr Sealy-Bell from his position at Walkerville.
In objecting to proposed paragraphs 25.1 to 25.9, the first respondent complains that there is no proposed pleading that the applicant complained to anyone about what was happening to him. In my view this is a complete irrelevancy. A child is clearly at risk of harm if sexual abuse is occurring to others at the residential home he has the misfortune of living in. The criminal courts are full of prosecutions involving historical sexual abuse where a complaint is not made for many years after the abuse has occurred. This does not and cannot lead to an assumption the abuse did not occur, nor that complaints from others were not received.
As set out in the applicant’s submissions the factual basis for the proposed amendment is contained in a document produced by was of the order of Master Rice for further and better discovery, which document identified conduct, people and action taken at Walkerville in 1954. This document and others[78] provide the factual basis and detail to support the proposed amendment.
[78] Documents annexed to Affidavit of Riccardo Traini of 13 February 2021 (FDN 69) at RT01-RT03.
I am of the view that paragraphs 25.1 to 25.9 of the proposed Fifth SOC give fair notice of the applicant’s case and any evidence led at trial to prove the facts pleaded should not take the respondents by surprise.
Paragraph 34(j) of the proposed Fifth SOC contains a plea that the first respondent was negligent and breached its duty of care to the applicant in:
Failing to respond appropriately to allegations of child abuse made against Superintendent Sealy-Bell in or around 1954.
Particulars of that failure to respond are pleaded at paragraph 34(j)(1) to (v). This plea ducktails into the amended plea at paragraphs 25.1 to 25.6, and the factual basis again arises from the documents produced by further and better discovery.
Again, I am of the view that the matters pleaded under paragraph 34(j) give fair notice of the applicant’s case and that any evidence led at trial will not take the respondents by surprise.
I do not agree that it is necessary for the applicant to plead facts to prove that he complained to anyone about what was happening to enable liability to be established, nor to set out how he says the first respondent should have responded to allegations. In my view these are matters for trial. I allow the amendments to paragraphs 25.1-25.9 and 34(j).
Paragraph 37
The first respondent does not oppose this amendment to the Fourth SOC subject to a lack of particularity being cured by the provision of further material facts.
The amended paragraph 37 deals with an alleged complaint made by the Applicant to Anglicare as agent of the respondent, in December 1999. It is alleged that Anglicare (and thereby the first respondent) did not follow 1994 Synod Guidelines relating to the Applicant’s complaint of sexual abuse during his time at St Marys and Walkerville.
The first respondent in February 2021 confirmed it would not oppose this amendment,[79] subject to further particulars being provided. At the hearing before me, counsel submitted that the further particulars required include how the alleged failures of the first respondent’s agent in 1999 caused the applicant further psychological harm; what the further psychological harm was; and how the respondent is entitled to exemplary and/or aggravated damages.
[79] Affidavit of Talia Black (FDN 68) at para [16].
I agree that without those further particulars the case that the first respondent faces at trial is not clear. I therefore allow the amendment upon the basis that further material facts of paragraph 37 are provided within 21 days.
Conclusion
I give permission to the applicant to file and serve the Fifth SOC in the form exhibited to the Affidavit of Riccardo Trani (FDN 63) subject to:
1. Removal of the cause of action in Vicarious Liability in Part 1.
2. Removal of paragraphs 34.1 to 34.16.
3.The provision of further material facts of paragraph 37 by the applicant within 21 days.
I will hear the parties further as to the question of costs and any other consequential orders.
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