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
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
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…
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- AGLC
- LBE v Perth Diocesan Trustees [2024] WADC 92
- Case
- [2024] WADC 92
- Decision Date
CaseChat Overview and Summary
The court determined that the issue of whether the applicant could establish a duty of care involved a novel question of law. This was based on the distinction between the positive act of providing a reference and the failure to act in cases like Modbury Triangle. The court also noted that the indeterminacy of the class of potential victims was an issue that needed to be explored at trial. The court found that the application for summary judgment should be dismissed, as the novel question of law required further exploration at a trial. The applicant did not need to establish a prima facie case at this stage but needed to show that there was a reasonable prospect of success on the novel legal issue.
The court held that the applicant did not meet the threshold for summary judgment because the novel question of law required resolution through a trial. The applicant's claim involved a positive act and the indeterminacy of the class of potential victims, which distinguished it from the general rule in Modbury Triangle. The court acknowledged that these issues were complex and needed to be addressed in a full trial. Therefore, the application for summary judgment was dismissed.
The final orders were that the application for summary judgment was dismissed. The court found that the applicant had not demonstrated a reasonable prospect of success on the novel question of law involved in the case. The matter would proceed to a trial to determine whether the applicant could establish a duty of care and to explore the issues of positive acts and indeterminacy of the class of potential victims.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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].