LBE v Perth Diocesan Trustees - [2024] WADC 92

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LBE -v- PERTH DIOCESAN TRUSTEES [2024] WADC 92
CORAM:   PALMER DCJ
HEARD:   20 JUNE 2024 AND WRITTEN SUBMISSIONS DATED 20 & 28 OCTOBER 2024
DELIVERED          :   31 OCTOBER 2024
FILE NO/S:   CIV 5602 of 2023
BETWEEN:   LBE
Plaintiff
AND
PERTH DIOCESAN TRUSTEES
First Defendant
WESTERN AUSTRALIAN CRICKET ASSOCIATION LTD
Second Defendant

FILE NO/S: CIV 2009 of 2023
BETWEEN: DJM
Plaintiff
AND
PERTH DIOCESAN TRUSTEES
First Defendant
WESTERN AUSTRALIAN CRICKET ASSOCIATION LTD
Second Defendant

Catchwords:

Historic child sex abuse case - Application for summary judgment pursuant to Order 16 of the Rules of the Supreme Court 1971 (WA) - Where novel question of law is involved

Legislation:

Country High School Hostels Authority Act 1960 (WA)
Public Sector Management Act 1994 (WA)
Public Service Act 1904 (WA)
Public Service Act 1978 (WA)

Result:

Summary judgment refused
Paragraphs of statement of claim struck out

Representation:

CIV 5602 of 2023

Counsel:

Plaintiff	:	Mr J R C Gordon
First Defendant	:	Mr G P Bourhill SC
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Rightside Legal
First Defendant	:	Wotton + Kearney Lawyers (Perth)
Second Defendant	:	DG Price & Co

CIV 2009 of 2023

Counsel:

Plaintiff	:	Mr J R C Gordon
First Defendant	:	Mr G P Bourhill SC
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Rightside Legal
First Defendant	:	Wotton + Kearney Lawyers (Perth)
Second Defendant	:	DG Price & Co

Case(s) referred to in decision(s):

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82
Barclay v Penberthy [2012] HCA 40
Bryan v Maloney (1995) 182 CLR 609
Caltex Refineries (Qld) Pty Limited Ltd v Stavar [2009] NSWCA 258
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
Healy v Bird [2022] VSC 823
HWC v The Corporation of the Synod of the Diocese of Brisbane [2008] QSC 212
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168
King v Philcox (2015) 255 CLR 304
Kondis v State Transport Authority (1984) 154 CLR 672
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2006] HCA 61; (2006) 205 CLR 254
Osborne Park Commercial Pty Ltd v Miloradovic [2019] WASCA 17
Perre v Apand Pty Ltd [1999] HCA 36
Pyrenees Shire Council v Day (1998) 192 CLR 330
Sullivan v Moody [2001] HCA 59
VMT v The Corporation of the Synod of the Diocese of Brisbane & The State of Queensland (third party) [2007] QSC 219
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16
X and Y (by her Tutor X) v Pal [1991] 23 NSWLR 26
Zaghloul v Bayly [2021] WASCA 125

PALMER DCJ:

Introduction

In these two sets of proceedings the plaintiffs seek compensation from the Perth Diocesan Trustees (the Trustees) and the Western Australian Cricket Association Ltd (WACA) for sexual abuse that they allege they suffered at the hands of Mr Roy Wenlock. Mr Wenlock is not a party to these proceedings.
DJM (the plaintiff in action CIV 2009 of 2023) alleges that between 1991 and 1993 he was sexually abused by Mr Wenlock on multiple occasions. LBE (the plaintiff in action CIV 5602 of 2023) alleges that he was sexually abused by Mr Wenlock in 1993.
The plaintiffs allege that they met Mr Wenlock in the 1990s through their involvement in cricket while he was employed or engaged by the WACA. They allege that the WACA is liable to compensate them for Mr Wenlock's abuse because it negligently failed to conduct adequate checks before employing or engaging him and failed to properly supervise him after he was employed or engaged.
Earlier, between 1963 and 1977, Mr Wenlock was employed by the Trustees as the Warden of St Christopher's Hostel in Northam. The plaintiffs allege that between 1976 and 1977, three complaints were made about Mr Wenlock's conduct to Archdeacon Michael Challen (as he then was) and after the third complaint, Archdeacon Challen invited Mr Wenlock to resign. Archdeacon Challen did not report Mr Wenlock's conduct to anyone else, including any relevant authority.
After Mr Wenlock resigned, Archdeacon Challen made a report to the Anglican Diocese of Perth that spoke about Mr Wenlock in positive terms and made no mention of the complaints against him.
The plaintiffs allege that the Trustees are liable to compensate them because they negligently failed to report Mr Wenlock's conduct to the appropriate authorities, warn the WACA about that conduct and publicly expose him. The plaintiffs also allege that the Trustees breached statutory duties that the Trustees owed them.
As a matter of law, the Trustees would only be liable to compensate the plaintiffs for negligence at common law, if they owed them a legal duty to take reasonable care to protect them from injury. The Trustees contend that they did not owe the plaintiffs such a duty. They argue that the plaintiffs' claims stretch the concept of a duty of care well beyond that which has been recognised by the law.
The Trustees also argue that the statutes that the plaintiffs allege were breached do not create any relevant statutory duties and do not confer any right on the plaintiffs to sue for damages.
The Trustees have applied for summary judgment on the basis that the plaintiffs' claims are doomed to failure.
The question of whether summary judgment should be granted turns upon consideration of whether it is clear at this stage that there is no real question to be tried, such that the plaintiffs' claims should not be allowed to proceed further.

The plaintiffs' claims against the Trustees

The allegations made by the plaintiffs against the Trustees in the statements of claim are as follows.
The plaintiffs allege that they met Mr Wenlock while they were working as drinks boys at cricket matches at the WACA in the early 1990s. They allege that Mr Wenlock was the chief organiser of the volunteer program.
The plaintiffs allege that Mr Wenlock had been employed or engaged by the WACA since 1979. They plead that the WACA was negligent because it failed to conduct adequate checks before employing or engaging Mr Wenlock and by failing to properly supervise him once he was employed or engaged.
The plaintiffs plead that between 1963 and 1977, Mr Wenlock was employed by the Trustees as the Warden of St Christopher's Hostel in Northam. They allege that in the course of that employment, Mr Wenlock engaged in grooming, inappropriate sexualised behaviour and prolific sexual abuse of teenage boys who were residents of the Hostel.
The plaintiffs allege that between 1976 and 1977 three complaints were made to Archdeacon Michael Challen (later Bishop Challen) about Mr Wenlock's conduct. They allege that other than warning Mr Wenlock after the first complaint, Archdeacon Challen failed to take any action. They allege that after the third complaint, Archdeacon Challen invited Mr Wenlock to resign.
With regard to the circumstances in which the plaintiffs allege that Archdeacon Challen invited Mr Wenlock to resign, they relied on evidence that Archdeacon Challen gave to an inquiry into the Hostel conducted by the Honourable Peter Blaxell.
The plaintiffs allege that after Mr Wenlock resigned, Archdeacon Challen wrote a report to the Anglican Diocese of Perth which did not mention the complaints about Mr Wenlock and stated:
In December 1977 the board and St Christopher's boys bid farewell to Mr R Wenlock, who had served the hostel with enthusiasm, determination and dedication for the past 13 years. His imaginative administration brought numerous improvements to St Christopher's. We wish him well in his new field of work.
The plaintiffs allege that by 1985, the Trustees knew that Mr Wenlock had been employed by the WACA.
They allege that in 1990 the Trustees also became aware of a complaint about Mr Wenlock's conduct with a child he met through his employment by the WACA.
The plaintiffs allege that in light of the various matters that the Trustees knew, the Trustees owed them a duty to take reasonable care, to protect them from the risk of harm from the Trustees' acts or omissions and from the acts and omissions of the Trustees' servants or agents.
The plaintiffs allege that the Trustees are liable to compensate them because they negligently failed to report Mr Wenlock's conduct to the appropriate authorities, warn the WACA about his previous conduct and publicly expose him.
The plaintiffs also allege that the Trustees breached statutory duties that they owed to them under the Country High School Hostels Authority Act 1960 (WA), the Public Service Act 1904 (WA), the Public Service Act 1978 (WA) or the Public Sector Management Act1994 (WA).

When summary judgment will be granted

The Trustees seek summary judgment pursuant to Order 16 rule 1(1) of the Rules of the Supreme Court 1971 (WA) (RSC).
The principles to be applied in determining an application for summary judgment are well established and were not in dispute in this application. They were summarized by the Court of Appeal in ZaghloulvBayly[1] as follows:[2]
116The principles to be applied on an application for summary judgment are well established. The critical issue is whether it is clear that there is no real question to be tried. The issue is framed in this manner as it is only in the clearest of cases, where there is a high degree of certainty about the outcome if the proceedings were allowed to go to trial, that summary judgment ought properly to be granted. The exercise of powers to summarily terminate proceedings must always be attended with caution.
117There are cases where the court has considered it appropriate to determine questions of law on a summary judgment application. There should be summary judgment if the facts are undisputed and the law is clear. In general, however, an application for summary judgment is not the occasion to dispose of difficult or substantial questions of law which cannot be determined without full argument. It will usually be appropriate to leave the determination of such questions for trial. (footnotes omitted).
[1] Zaghloul v Bayly [2021] WASCA 125 (Zaghloul).
[2] Zaghloul [116] - [117].
In Zaghloul a District Court judge had entered summary judgment under Order 16 RSC in a case involving the proper construction and application of s 5S of the Civil Liability Act 2002 (WA). The Court of Appeal considered that summary judgment should not have been given because in the circumstances of that case, the question of the proper construction and application of the section involved a substantial and novel question of law.[3]
[3] Zaghloul [127].

Why the Trustees contended summary judgment should be granted

The Trustees submitted that summary judgment should be granted because the plaintiffs' claims are doomed to failure. The Trustees contended that the facts pleaded in the statement of claim are incapable of establishing that they owed the plaintiffs a duty of care.
The Trustees characterised the plaintiffs' cases as based on the broad proposition that in dealing with Mr Wenlock (upon discovery of his behaviour), it would have been foreseeable to the Trustees that by not reporting him to the Police and not dismissing him, the prospect of him obtaining employment in the future in a position where he could abuse other boys was increased.
The Trustees submitted that there was no relevant relationship between the plaintiffs and the Trustees from which a Court could find that any duty of care was owed by them to the plaintiffs, whether at common law or under any statute. They contend that the plaintiffs' claims stretch the concept of a duty of care well beyond that which has been recognised.
The Trustees referred to the judgment of Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil[4] where he referred to the general rule that no person is under a duty to control another person to prevent them from injuring a third person, absent some special relationship which is the source of such a duty.
[4] Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 (Modbury Triangle).
The Trustees also referred to the judgment of Mason J in Kondis v State Transport Authority[5] where he observed that the relationship between the parties which generates a special responsibility or duty to see that care is taken to arise because the person upon whom it is imposed has undertaken the care, supervision or control of another.
[5] Kondis v State Transport Authority (1984) 154 CLR 672.
The Trustees submitted that the plaintiffs did not contend that the relationship between the Trustees and them was one where a 'special relationship or duty' to see that care is taken arose.
The Trustees argued that as the plaintiffs' cases did not fall within a recognised category it was necessary to consider the 'salient features' of the case to consider whether a duty should be imposed and they referred to the Court of Appeal's decision in Osborne Park Commercial Pty Ltd v Miloradovic[6] as an example of the approach to be adopted. In particular, the Trustees relied upon a passage of that judgment where the Court of Appeal said:[7]
Characteristics of a relationship which in the past have assumed some significance in the determination of the existence and content of a duty of care include: (1) reliance by the plaintiff on the defendant; (2) an assumption of responsibility by the defendant; (3) the defendant's knowledge of and control over the conditions from which the risk of injury arises; (4) the plaintiff's dependence on the defendant to exercise reasonable care in the defendant's undertaking; (5) the vulnerability of the plaintiff to harm from the defendant's conduct; and (6) the physical, geographical, and commercial propinquity of the parties, in the activities of each in which one suffered, and the other caused, the harm. Some of these characteristics have been seen to be overlapping or corollaries of others. Also, there has been some criticism as to the ultimate utility of at least some of these characteristics.
[6] Osborne Park Commercial Pty Ltd v Miloradovic [2019] WASCA 17 (Miloradovic).
[7] Miloradovic [133].
In relation to the salient features of the plaintiffs' claims, the Trustees submitted that:
(a)the Trustees did not take any active step that could be shown to have created the risk of harm from which the plaintiffs' claim the loss;
(b)there is no reliance by the plaintiffs on any aspect of the conduct of the Trustees;
(c)the Trustees did not assume responsibility for the welfare of the plaintiffs;
(d)the Trustees had no knowledge of or control over the conditions under which the alleged risk was created;
(e)the plaintiffs were not dependent on the Trustees to exercise reasonable care (the plaintiffs had never had any connection with the Trustees);
(f)the plaintiffs cannot be said to be dependent on the Trustees to discharge the duty that they allegedly owed them; and
(g)there was no physical, geographical or commercial propinquity between the plaintiffs and the Trustees.
The Trustees submitted that the plaintiffs may argue that they were vulnerable to the situation that they allege was at least in part created by the conduct of the Trustees but the Trustees contended that alone would not overcome the other deficiencies in the action.
The Trustees submitted that the only knowledge that they had of Mr Wenlock working at the WACA was obtained by Archdeacon Challen when he attended a cricket game and heard Mr Wenlock speaking on the public address system. It was contended that that fact would not lead Archdeacon Challen to think that Mr Wenlock was engaged in a capacity where he would be working with boys.
The Trustees submitted that the plaintiffs' claims did not involve an established class of case where a duty will be presumed.
With regard to the plaintiffs' claims for breach of statutory duty, the Trustees submitted that while the plaintiffs identified the fact that the Trustees met the definition of a public official within the meaning of the Public Service Act 1904, the Public Service Act 1978 and the Public Sector Management Act 1994, and were therefore under a statutory obligation to fulfil the responsibilities under those Acts, the only one of those Acts that was in operation at the relevant time was the Public Service Act 1904.
The Trustees submitted that the Public Service Act 1904 did not create any relevant statutory responsibility on a public authority to act in the way the plaintiffs alleged. They contended that neither that Act, nor the Country High School Hostels Authority Act 1960 identified any possible private right of action to recover damages.
The Trustees further submitted that any statutory power that could have been exercised by them did not give them the right to control Mr Wenlock once he had left their employment, nor place on them a responsibility to notify anyone of the concerns they had about him.
The Trustees submitted that the report provided was not a reference.
They contended that an argument that the Trustees' failure to fire Mr Wenlock or report him to the Police contributed to his employment by the WACA was untenable.

The basis upon which the plaintiffs resisted summary judgment

The plaintiffs submitted that the Trustees' submissions proceeded on a deliberately confined and restricted summary of the plaintiffs' claims. They said that the pleaded case extended beyond the proposition that the Trustees should have dismissed Mr Wenlock and reported him to the Police. The plaintiffs referred to various other matters that were pleaded in the statements of claim. It was contended that the alleged duty of care depended on all of these matters.
The plaintiffs submitted that contrary to the Trustees' submissions, the duty of care is not stated to be a duty owed at large, or to some undefined class of persons. They contended that it was pleaded to be owed to young boys who were in the care, control and supervision of Mr Wenlock, or engaged in activities arranged and conducted by, Mr Wenlock, or by his employer, the WACA.
It was submitted that the foreseeable class at risk would be informed by the Trustees' knowledge of Mr Wenlock's abuse, its decision to conceal that abuse, the Trustees' awareness of Mr Wenlock's employment by the WACA, its awareness that the WACA had made no inquiry about Mr Wenlock and was unaware of the risk he posed, the complaints by the altar boys about Mr Wenlock and the complaint by the boy who claimed to have been sexually abused by Mr Wenlock when he was acting in his employment with the WACA.
The plaintiffs relied on three cases that they contended supported the proposition that the duty of care they alleged existed. Two of those cases were decisions of Lyons J in the Supreme Court of Queensland in relation to whether to extend a limitation period and the third case was a decision of Keogh J of the Supreme Court of Victoria in relation to whether a claim should be struck out as failing to disclose a cause of action.
The first case was VMT v The Corporation of the Synod of the Diocese of Brisbane & The State ofQueensland (third party).[8] That case involved a student who alleged that she had been abused by her teacher. She alleged that there had been a complaint about the teacher when he had been employed in a previous teaching position but his previous employer had accepted his resignation and provided him with a positive reference. The student did not discover the reference until 27 years later and therefore required an extension of the limitation period in order to commence proceedings.
[8] VMT v The Corporation of the Synod of the Diocese of Brisbane & The State of Queensland (third party) [2007] QSC 219 (VMT).
The respondents to the application opposed an extension of time on the basis that the student had no cause of action recognised by the law. As is the case here, they submitted that the student could not establish a duty of care.[9] Amongst other matters, the respondents relied upon the decision in Modbury Triangle in the same way that the Trustees do in this case.[10]
[9] VMT [15] - [21].
[10] VMT [22].

Lyons J granted an extension of time.[11] The plaintiffs submitted that the test that she applied in deciding whether to grant that extension was whether the cause of action had 'reasonable prospects of success'. The plaintiffs argued that that was a higher standard than that which applies to the plaintiffs in this application. The plaintiffs drew attention to an observation that Lyons J made about whether the student had established a prima facie case:[12]
The question to be answered in relation to whether leave should be granted is not whether the applicant will be successful, as that is ultimately a question for the trial, the question is whether there is a reasonable prospect of success. It is clear that to determine the question as to whether the question in s 31(2)(b) has been satisfied no more than a prima facie case has to be established. I consider that the giving of the reference by the headmaster in such positive terms given what he had been told about the teacher's conduct is a matter of serious concern. The most likely use to which the reference would be put was to seek employment in a school with the consequent potential risk to students. However the full circumstances surrounding the giving of the reference will ultimately not be fully revealed until the trial.
[11] VMT [27] - [34].
[12] VMT [28].
The plaintiffs referred to what Lyons J said about the significance of the High Court's decision in Modbury Triangle:[13]
... whilst it is clear that the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil, acknowledged the general rule that "one man is under no duty of controlling another man to prevent his doing damage to a third" as that case related to the duty of an occupier, there are arguably some factual distinctions which take it outside of the application of the principle established in that case. In particular in that case the question related to a failure to act in the present case there was a positive act by the headmaster in providing the reference. In relation to the issue of indeterminacy it is important to remember that it is the indeterminacy of the class which is the issue and not the size of the class. Once again these are issues for the trial and cannot be appropriately explored in this application.
(footnotes omitted)
[13] VMT [32].
The second case relied upon by the plaintiffs was a decision of Lyons J in HWC v The Corporation of the Synod of the Diocese of Brisbane.[14] That case also involved an applicant who alleged he was abused by a teacher. In HWC the teacher had been the subject of complaints at two previous schools.
[14] HWC v The Corporation of the Synod of the Diocese of Brisbane [2008] QSC 212 (HWC).
At the first school in South Australia the teacher had been investigated and found guilty of disgraceful and improper conduct by a delegate of the Director-General of Education. The teacher had initially been dismissed but that dismissal was later rescinded and the teacher's resignation accepted instead. The teacher was also provided with a reference.
The teacher then worked at another school where he was asked to leave because of complaints being made that he was teaching the boys how to arouse themselves. The teacher sought a job at a third school. The headmaster at the third school spoke to the headmaster of the second school before employing the teacher and was told why the teacher had been asked to leave the second school. It was while the teacher was employed at the third school that the abuse was alleged to have happened.
The plaintiffs relied upon a passage of Lyons J's reasoning where she said:[15]
In examining whether there is evidence to establish a right of action I consider that the applicant has established that there is some evidence to establish a right of action and that it is arguable that a duty as alleged [exists] ... There was foreseeability of harm and there were positive acts on the part of the respondents which created or increased the risk of injury to pupils who would be taught by Knight irrespective of where he taught them. There was also a vulnerable class, namely, pupils and arguably the respondents should have known the risk of harm to that specific class. Arguably, there was also a power to protect a specific class from harm. Knight was allowed to continue to hold himself out as a registered teacher and he was given references.
[15] HWC [130].
HWC was the subject of an appeal to the Court of Appeal that upheld the decision.[16]
[16] HWC [130]; HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168.
The third case relied upon by the plaintiffs was Healy v Bird.[17]In that case the family of a deceased man who had allegedly been sexually abused by a priest when he was an altar boy, sued the school for nervous shock they allegedly sustained when they found out about the allegations. The defendants applied to strike out the claim as failing to disclose a cause of action.
[17] Healy v Bird [2022] VSC 823 (Healy).
The plaintiffs relied upon comments made by Nettle J in King v Philcox[18] about reasonable foreseeability.[19] They also relied on the following passage of Keogh J's judgment:[20]
There are two answers to the first defendant's submission about the lack of actual or constructive knowledge by the Diocese that the family plaintiffs may suffer harm. First, knowledge is only one consideration in the inclusive list of salient features. Lack of relevant knowledge may not be determinative. Second, while the Diocese could not have known of the family plaintiffs at the time of the abuse, that does not mean they should not have had in contemplation members of Healy's immediate family as a class of persons who might suffer harm if negligence by the Diocese led to the abuse.
[18] King v Philcox (2015) 255 CLR 304 (King).
[19] King [79].
[20] Healy [85].
With regard to salient features, the plaintiffs referred to the judgment of Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar[21] where he observed that the assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility.
[21] Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 [105] - [106].
The plaintiffs submitted that when determining whether a novel duty of care exists, the Court may consider a non-exhaustive list of salient features and is not required to make findings on all possible features.
The plaintiffs contended that a duty of care to warn or take other positive steps to protect against harm from third parties arises because of special vulnerability, on the one hand, and on the other, special knowledge, the assumption of a responsibility or a combination of both. They described their vulnerability as being the key salient feature.
The plaintiffs argued that special vulnerability, special knowledge and control were present in this case and there were no countervailing policy factors at play.
The plaintiffs submitted that the risk of harm posed by Mr Wenlock to children was reasonably foreseeable by 1977 as multiple reports had been made to the Trustees about him, he had made admissions and been asked to resign. It was contended that the Trustees knew that Mr Wenlock was working at the WACA ground because Archdeacon Challen had heard his voice on the public announcement system at a match and Archdeacon Challen knew that no enquiries had been made. They submitted that the knowledge of the risk was reinforced in 1990 when the complaint was made by a boy who claimed to have been abused by Mr Wenlock after meeting him through cricket.
The plaintiffs argued that it was reasonably foreseeable that Mr Wenlock would seek to work with children, would abuse children again and his future employers would not take any precautions to protect children from Mr Wenlock's conduct unless they were on notice of his history of abusing children.
The plaintiffs submitted that the class of persons foreseeably at risk was boys under Mr Wenlock's employment sanctioned supervision, authority or control to whom he had, or could achieve, unsupervised access.
The plaintiffs contended that the touchstone for vulnerability is lack of practical capacity (or limited capacity) for the plaintiffs to protect themselves from the harm.
The plaintiffs argued that the children under Mr Wenlock's care were members of a vulnerable class that could not reasonably be expected to safeguard themselves from the harm.
The plaintiffs submitted that the Trustees' knowledge put them in a different position from the occupiers in Modbury Triangle. The plaintiffs contended that the Trustees had knowledge of Mr Wenlock's previous abusive conduct and his engagement with children through activities arranged and conducted by the Trustees and the WACA. They argued that the Trustees alone had this knowledge because they alone knew of Mr Wenlock's history.
The plaintiffs contended that the Trustees had substantial control over the conditions of risk as they chose to conceal their knowledge and they were the only entity with that knowledge.
The plaintiffs referred to the judgment of Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan[22] and Gummow J in Perre v Apand Pty Ltd[23] and submitted that the risk that Mr Wenlock would be in a position to abuse children after 1977 was caused by the Trustees' acts or omissions. They submitted that the Trustees created the risk by:
(a)the positive acts of inviting Mr Wenlock to resign and publishing a report that did not disclose the reasons for his resignation and spoke positively about him; and
(b)their omission in not reporting Mr Wenlock to the authorities or anyone else, not taking any step to ensure that Mr Wenlock could not obtain employment which involved access to boys and not informing the WACA of Mr Wenlock's conduct.
[22] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 [149] - [150].
[23] Perre v Apand Pty Ltd [1999] HCA 36 [215] - [216] (Perre).
The plaintiffs alleged that Archdeacon Challen controlled Mr Wenlock's ability to pursue roles involving children.
The plaintiffs referred to the decision in Pyrenees Shire Council v Day.[24] They submitted that in that case the plurality of the High Court found that because the Council had acquired knowledge of the specific risk of harm posed to the plaintiff, it had a duty to exercise its statutory powers to enforce compliance with the fire authorities' recommendations.
[24] Pyrenees Shire Council v Day (1998) 192 CLR 330 (Pyrenees).
The plaintiffs referred to an observation of Gummow J that the tenant's ignorance of the risk 'was itself the product of the incomplete and inadequate course of action taken by the Shire after the first fire.'[25] They also referred to the judgment of Brennan CJ where he said that it was:[26]
… unnecessary to determine whether the Council would have been under a duty itself to rectify the defects in the fireplace if the owners and occupiers all failed or refused to do so. The likelihood is that no more would have been needed to be done than to ensure that the owners and occupiers knew of the danger and to ensure that they knew of the request to remedy the latent defect which [the] inspection had revealed.
[25] Pyrenees [170].
[26] Pyrenees [28].
The plaintiffs argued that the real issue was not the absence of a direct relationship but rather indeterminate liability. They argued that indeterminate liability was not an issue in this case, as the members of the relevant class were easily identifiable by the Trustees.
It was submitted that it has never been the case that a defendant needs to have known, had contact with or have had a relationship with an injured plaintiff, other than that they are a member of a relevant class at risk. The plaintiffs relied upon various decisions of the High Court in this regard. They also submitted that in VMT and HWC it was held that a duty was prima facie arguable when the students affected were unknown to the defendant but within a class potentially affected by its acts or omissions.
The plaintiffs referred to X v Pal[27] and Healy and submitted that in those cases the plaintiffs had not even been born when the acts or omissions occurred which gave rise to the sexual abuse upon which the plaintiffs relied.
[27] X and Y (by her Tutor X) v Pal [1991] 23 NSWLR 26.
The plaintiffs contended that the first time at which the Trustees should have ascertained the class within which they were a member was when the Trustees allowed Mr Wenlock to leave their employment without having taken any steps in relation to his abuse. The plaintiffs contended that the Trustees' obligation did not disappear but continued to exist when they found out about Mr Wenlock's involvement with the WACA.
Alternatively, the plaintiffs argued that if the duty had not previously existed it arose upon the acquisition of each piece of further information that defined the class at risk in the early 1980s, and then in 1990.
The plaintiffs submitted that the assumption of responsibility and reliance are not necessary conditions for the existence of a duty of care.[28] They referred to the judgment of Gaudron J in Modbury Triangle where she observed that:[29]
There are situations in which there is a duty of care to warn or to take other positive steps to protect another against harm from third parties. Usually, a duty of care of that kind arises because of special vulnerability, on the one hand, and on the other, special knowledge, the assumption of a responsibility or a combination of both.
[28] They referred to Perre [124] (McHugh J) citing Bryan v Maloney (1995) 182 CLR 609, 619 (Mason CJ, Deane & Gaudron JJ) and Hawkins v Clayton (1988) 164 CLR 539, 576 (Deane J).
[29] Modbury Triangle [43] (Gaudron J).
The plaintiffs also relied upon the judgment of McHugh J in Perre where McHugh J was of the view that:[30]
… reliance and assumption of responsibility are merely indicators of the plaintiff's vulnerability to harm from the defendant's conduct, and it is the concept of vulnerability rather than these evidentiary indicators which is the relevant criterion for determining whether a duty of care exists.
[30] Perre [124] - [127] (McHugh J).
The plaintiffs contended that this was left open by the plurality in Woolcock Street Investments who observed that the concept of vulnerability might explain earlier cases which relied on notions of assumptions of responsibility and known reliance.[31] The plaintiffs submitted that Kiefel J similarly tied reliance to vulnerability in Barclay v Penberthy, stating:[32]
Knowledge of an individual who is reliant, and therefore vulnerable, is a significant factor in establishing a duty of care, although vulnerability can arise otherwise than by reliance.
[31] Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 [23] - [24] (Gleeson CJ, Gummow, Hayne & Heydon JJ).
[32] Barclay v Penberthy [2012] HCA 40 [174] (Kiefel J), citing Perre [10] (Gleeson CJ).
The plaintiffs submitted that the Trustees assumed responsibility for the class of which they were a member by making a decision about how to conclude Mr Wenlock's employment and because of the Trustees' statutory duties. The plaintiffs also referred to a statement made by the Trustees about their intention to stop child abuse.
The plaintiffs argued that proximity gave little practical guidance in determining whether a duty of care exists and referred to the judgment of Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ in Sullivan v Moody.[33] The plaintiffs contended that there was causal proximity by reason of the foreseeability of the affected class and the absence of proximity was not a reason to foreclose them from arguing for the existence of a duty at trial and they referred to the decisions in VMT, HWC and Healy.
[33] Sullivan v Moody [2001] HCA 59 [48] (Sullivan).
The plaintiffs argued that the fact that the Trustees would not be subject to any conflicting duties arising from other principles of law or statue distinguished this case from Sullivan. They submitted that the imposition of a duty was consistent with the criminal law, laws requiring boarding supervisors and ministers of religion to report child sexual abuse and the laws that have amended the limitation acts.
With regard to the plaintiffs' claim of breach of statutory duty, they relied upon a conclusion reached by the Honourable Peter Blaxell in a report following his enquiry where he observed that he considered that Archdeacon Challen failed to have regard to his statutory obligations when he permitted Mr Wenlock to resign. They submitted that that conclusion was sufficient confirmation that a statutory duty was entirely plausible and sufficiently arguable to defeat any summary judgment application.

Whether summary judgment should be granted

The grant of summary judgment in relation to the plaintiffs' common law claims for negligence would necessarily require me to determine a novel question of law, namely whether the Trustees owed the plaintiffs a duty of care in the circumstances they allege.
As far as I am aware, the question of whether or not a person in the position of the Trustees might owe a duty of care to someone in the position of the plaintiffs has not been subject to previous judicial determination.
The question of whether or not a duty might be owed where a reference is provided was considered in VMT and HWC but that consideration was limited to consideration of questions of evidence relating to the claimed right of action. Lyons J indicated that the relevant statutory provisions meant it was not necessary for her to be satisfied that the right of action existed, or to consider the precise boundaries of any cause of action.[34]
[34] VMT [33]; HWC [128].
Further, in both VMT and HWC a reference was provided. The plaintiffs in the present cases seek to argue that the report that was made by Archdeacon Challen was akin to a reference but they fail to plead the WACA saw that report, or relied upon it in any way
Healy relevantly involved a claim for nervous shock made by the family of a person who alleged he was abused. Such a claim is quite different to the claims made by the plaintiffs in the present cases.
The Trustees seem to accept that the plaintiffs' claims were novel. Their argument was that those claims were hopeless because they stretched the concept of a duty of care well beyond that which has been recognised in any common law country.
As the Trustees have submitted, the principle articulated by the High Court in Modbury Triangle that no one has a duty to control another to prevent injury to a third, is likely to weigh against the acceptance of the duties alleged by the plaintiffs. There are features of the present cases that distinguish them from Modbury Triangle, however.
While Modbury Triangle involved an omission, in this case the plaintiffs allege the Trustees (through Archdeacon Challen) took the positive act of inviting Mr Wenlock to resign (as resignation would assist him to obtain future employment).
The plaintiffs also rely upon the act of Archdeacon Challen providing a positive report about Mr Wenlock. Although as I have mentioned, the plaintiffs do not plead that the WACA saw the report or relied upon it, these proceedings are still at an early stage and the WACA is yet to give discovery.
Further, Modbury Triangle involved an assault perpetrated by unknown third parties. At the time that Mr Wenlock was asked to resign he was an employee of the Trustees.
It seems to me that given the differences between the present cases and Modbury Triangle, the latter case is not determinative of the plaintiffs' claims.
The question of whether the Trustees owed the plaintiffs a duty of care requires consideration of the salient features of the case. The plaintiffs rely upon salient features that have been recognised as being indicative of the presence of a duty of care: control, knowledge and vulnerability. The plaintiffs also argue that the present cases are not cases in which indeterminate liability would prevent the imposition of a duty, as there was a clearly identifiable class.

The imposition of a duty in the circumstances alleged by the plaintiffs would seem to me to involve a significant extension of the present law. Whether the salient features alleged by the plaintiffs were present and, if so, whether they would be sufficient to give rise to a duty of care might reasonably be disputed.
As the Court of Appeal observed in Zaghloul, however, an application for summary judgment is not the occasion to dispose of difficult or substantial questions of law which cannot be determined without full argument.
Despite the difficulties with the plaintiffs' claims, I am satisfied that they have sufficient substance to give rise to a difficult or substantial question of law. In Zaghloul the Court of Appeal said that it will usually be appropriate to leave the determination of such questions for trial. It seems to me that that is the correct approach to adopt in this case.
The merits of the plaintiffs' arguments that the Trustees owed them a duty of care are best considered at trial upon all of the relevant evidence (and after discovery has been given). In this regard, I am mindful of the observation of the majority in Agar v Hyde[35] that:
The result is that frequently the conventional form of pleading in an action of negligence will not reveal the alleged duty with sufficient clarity for a court considering an application for summary termination of the proceeding to be sure that all of the possible nuances of a plaintiff's case are revealed by the pleading. Further, and no less importantly, any finding about duty of care will often depend upon the evidence which is given at trial.
[35] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [64] (Gaudron, McHugh, Gummow & Hayne JJ).

The claims for breach of statutory duty should be struck out with leave to re-plead

The current pleading of the plaintiffs' claims for breach of statutory duty obscures the precise nature of the claims being made. It is therefore difficult to make any proper assessment of whether or not those claims warrant trial.
The paragraphs of the statement of claim that plead these claims fail to properly identify the particular statutory duties that it is alleged that the Trustees owed, or the relevant provisions of the statutes that it is alleged give rise to those duties.
The plaintiffs' submissions relied heavily upon the conclusion of the Honourable Peter Blaxell in his report. That conclusion did not identify any particular statutory duties as being owed or the relevant provisions of the statutes alleged to give rise to those duties. Nor did the report conclude that the breach of any duty conferred a private right to sue for damages. Further, while the Honourable Peter Blaxell is a respected jurist (and was a member of this Court for 14 years) his conclusions have no binding effect on this Court.
I am not satisfied that the fact that the Honourable Peter Blaxell reached the conclusion that he did, is sufficient reason to conclude that there is a real question to be determined in relation to the plaintiffs' claim for breach of statutory duty.
I am reluctant to grant summary judgment in relation to this aspect of the plaintiffs' claims without a better understanding of the precise nature of the claims being made.
It seems to me however, that the plaintiffs' claims for breach of statutory duty cannot proceed on the basis of the present pleading. The pleadings fail to perform the basic function of a pleading. In failing to properly identify the particular statutory duties that it is alleged that the Trustees owed, or the relevant provisions of the statutes that it is alleged give rise to those duties, they fail to inform the Trustees of the case that they must meet. It seems to me that the present pleadings obscure rather than elucidate the plaintiffs' claims.
I consider that the relevant paragraphs of the statement of claim are liable to be struck out pursuant to Order 20 rule 19(1)(c) RSC as they would be likely to prejudice, embarrass or delay the fair trial of the action.
The plaintiffs submitted that the pleadings should not be struck out as they could be amended. They relied upon the observations made by Martin CJ in Barclay MowlemConstruction Ltd v Dampier Port Authority[36] and submitted that the court should not be drawn into a lengthy pleadings dispute.
[36] Barclay MowlemConstruction Ltd v Dampier Port Authority (2006) 33 WAR 82 (Barclay Mowlem).
The applicability of Martin CJ's observations in Barclay Mowlem in a court where evidence in chief is not given by witness statement (as in this court) might be doubted. In any event, the fact that the pleadings could be amended, does not alter the fact that the present pleadings are deficient.
I agree that the court should not engage in a lengthy pleadings dispute but it seems to me that deferring striking out the relevant paragraphs of the statements of claim risks lengthening the dispute, rather than shortening it. The most efficient course is to strike out the relevant paragraphs of the statements of claim with leave to re-plead.
The Trustees submitted that leave to re-plead should not be given. They contended that giving the plaintiffs such leave is unnecessary because the plaintiffs also make common law claims. Further, the Trustees contended that allowing the plaintiffs to re-plead would unduly delay the action and prejudice the Trustees' application for summary judgment.
I do not consider granting leave to re-plead would prejudice the Trustees' application for summary judgment, or unduly delay the matter. It does not seem to me that the fact that the plaintiffs also make common law claims is sufficient reason to preclude them from re‑pleading on this occasion.
I will therefore strike out the relevant paragraphs of the statement of claim with leave to re-plead.

Conclusion

I will refuse summary judgment but I will strike out the paragraphs of the statement of claim that plead the plaintiffs' claims for breach of statutory duty.
I will hear from the parties on the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
GS
Associate
31 OCTOBER 2024