Lonergan v Trustees of The Sisters of Saint Joseph

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2020 01544

PETER WILLIAM LONERGAN	Plaintiff
v
THE TRUSTEES OF THE SISTERS OF SAINT JOSEPH	First Defendant
and
BISHOP PAUL BIRD AS THE NOMINATED PROPER DEFENDANT IN RESPECT OF THE CATHOLIC DIOCESE OF BALLARAT	Second Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2021
DATE OF RULING:	10, 13 August 2021 (revised, reasons published 7 October 2021)
CASE MAY BE CITED AS:	Lonergan v Trustees of The Sisters of Saint Joseph & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 650

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INSTITUTIONAL LIABILITY – PRACTICE AND PROCEDURE – Application for temporary stay pending outcome in proceeding with defendant in common – Application refused – Admissibility of tendency evidence – Business record exception to the hearsay rule – Whether probative value of hearsay evidence outweighed by danger of unfair prejudice to the defendants – Tucker v Victoria [2021] VSCA 120 – DP (a pseudonym) v Bishop Paul Bird (Ruling) [2021] VSC 453 – Evidence Act 2008 (Vic) s 97.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	L Whalan SC with J Cowen	Ken Cush & Associates; Hunt and Hunt Lawyers
For the First Defendant	JC Hooper	Caroll & O’Dea Lawyers
For the Second Defendant	M Britbart QC with C Morshead	Colin Biggers & Paisley

HIS HONOUR:

The plaintiff alleges that in 1973 and 1974, when he was a pupil at St Joseph’s Primary School and an altar boy at St Joseph’s Church in Ouyen, he was sexually and physically abused by then parish priest Bryan Coffey (‘Coffey’).

The plaintiff brought this proceeding claiming damages for injuries he suffered as a result of the abuse. He alleged there was negligence by the Sisters of Saint Joseph (‘the Sisters’) and the Catholic Diocese of Ballarat (‘the Diocese’) which was a cause of the abuse and his injuries, and that both organisations are vicariously liable for the acts perpetrated by Coffey.

The Sisters managed the school. The Ouyen parish is in the Diocese, and Coffey was appointed to his role as parish priest by the Bishop of Ballarat. The first and second defendants are named as proper defendants under the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic).

The trial was listed to commence before me on 9 August 2021.

There is evidence that Coffey was a prolific offender while he was a Catholic priest in the Diocese. Other victims who allege they were abused by Coffey have brought proceedings in this Court claiming damages from the Diocese. The trial in a proceeding involving allegations of abuse by Coffey, DP (a pseudonym) v Bishop Paul Bird (Case No S ECI 2020 01541) (‘DP v Bishop Bird’), was proceeding before J Forrest J when the trial in this proceeding was due to commence.

The defendants applied for a temporary stay of the proceeding pending the judgment in DP v Bishop Bird, arguing there were questions of fact and law common to both proceedings, the outcome of that case was likely to have a material effect on this proceeding, and the possibility of inconsistent findings should be avoided.

On 10 August 2021 I dismissed the application for a stay and commenced to hear the trial.

The plaintiff sought to tender, under the business records hearsay exception, three documents which contain reports by two persons of abuse by Coffey. The defendants opposed the documents being admitted on the basis that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice to them.[1] The plaintiff also gave notice of his intention to adduce tendency evidence about Coffey’s conduct during the 1960s and 1970s. The defendants argued that, because they had formally admitted that the plaintiff was abused by Coffey, the tendency evidence was not relevant to a fact in issue, and should not be admitted. On 13 August 2021 I ruled that the business records and tendency evidence be admitted.
[1]Evidence Act 2008 (Vic) s 135.

I now provide my reasons for the 10 August 2021 and 13 August 2021 rulings.

Application for a temporary stay
Principles and authorities

The court has a general power to control its own proceedings, including by temporary stay.[2] The relevant principles are set out by the Court of Appeal in Tucker v Victoria (‘Tucker’):
[2]Supreme Court Act 1986 (Vic) s 30.

121.This Court has power to stay a proceeding. In Sterling Pharmaceuticals Pty Ltd v The Boots Co (Australia) Pty Ltd, Lockhart J summarised the considerations to be taken into account in deciding whether to grant a temporary stay of a proceeding pending the determination of a proceeding in another court in the following terms:
•Which proceeding was commenced first.
•Whether the termination of one proceeding is likely to have a material effect on the other.
•The public interest.
•The undesirability of two courts competing to see which of them determines common facts first.
•Consideration of circumstances relating to witnesses.
•Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
•The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
•How far advanced the proceedings are in each court.
•The law should strive against permitting multiplicity of proceedings in relation to similar issues.
•Generally balancing the advantages and disadvantages to each party.

122.In Bella Products Pty Ltd v Creative Designs International Ltd, Finkelstein J stated that the following propositions may be drawn from the factors in Sterling Pharmaceuticals:
(a)it is undesirable that two courts should determine the same dispute; and
(b)practical considerations based on common sense and fairness should dictate which action should proceed first.[3]

[3][2021] VSCA 120 [121]–[122] (citations omitted).

Whether the discretion to grant a stay should be exercised will be determined by the interests of justice, informed by the facts and circumstances of the particular case, and practical considerations based on common sense and fairness. While the outcome of an application for a stay in another case is not determinative, it is worthwhile reviewing why in different circumstances an application for a stay has been granted or refused.

In Sterling Pharmaceuticals Pty Ltd v The Boots Co (Aust) Pty Ltd, Lockhart J granted a stay of a Federal Court proceeding pending determination of an earlier proceeding in the High Court of New Zealand because the applicants and the respondents in the two proceedings were from the same family of companies and there was a substantial identity of the issues central to the outcome of both proceedings.[4]
[4](1992) 34 FCR 287.

Lawrence & Hanson Group Pty Ltd v Young concerned an appeal from a decision to order the removal of a caveat from land owned by the first and second respondents.[5] The appellant sought to temporarily stay the appeal pending determination of its proposed appeal from a decision of the Magistrates’ Court dismissing a claim for a debt allegedly owed by the first respondent. The Court concluded that unless the proposed appeal against the decision of the Magistrate was successful, the current appeal had no utility, because the appellant would be unable to establish a debt supporting the caveatable interest. For that reason, amongst others, a stay was granted.
[5][2016] VSCA 69.

Tucker involved several appeals from a series of decisions in the Trial Division dealing with an employment dispute. The second respondent, the effective employer of the appellant, had investigated allegations against the appellant, which it found were largely substantiated, leading to termination of his employment. Some time after the judgments the subject of the appeals were delivered in the Trial Division, the appellant instituted defamation proceedings against the second respondent and one of its officers in relation to an email which set out some of the allegations against him. The Court of Appeal rejected the appellant’s application for a stay of the appeals pending determination of the defamation proceeding for reasons which included that the appeal proceedings had reached the stage where they could be heard and determined, whereas the defamation proceeding was still in the interlocutory stages; there were threshold issues in the defamation proceeding which may lead to it being dismissed without any adjudication on the merits; the issues in the two proceedings were different; and it was in the interests of the administration of justice that the appeal proceeding be resolved as soon as possible rather than being delayed. The Court concluded a stay of the appeal proceeding would be inconsistent with the overarching purpose of s 7(1) of the Civil Procedure Act 2010 (Vic), which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in a proceeding.

The defendants relied on a decision of Nichols J in Coonwarra Pty Ltd v CornoNero Pty Ltd; GJB Building Pty Ltd v AI & PB Property Ltd (Ruling),[6] which involved consideration of r 9.12 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and the question of whether two proceedings should be tried separately or together. The proceedings concerned the sale and development of land, and connected transactions. The principal individual actors in the relevant events were common to the two proceedings. The proceedings were managed together after the second was instituted, and were mediated together. Her Honour concluded that despite the fact that substantial parts of the second proceeding did not involve the plaintiff in the first proceeding, the intersections between the proceedings, which at their heart concerned the conduct engaged in by the common principal actors, meant it was appropriate the matters be tried together.
[6][2021] VSC 59.

Relevant background and procedural history

Records indicate Coffey was ordained as a priest in the Diocese in July 1960. He served as assistant priest at the parishes of Koroit from 1961, Terang from 1963 and Port Fairy from 1966. He subsequently served as parish priest at Ouyen from 1972, Charlton from 1978, and at other parishes until he was suspended in 1997.

The pleaded case of the plaintiff in DP v Bishop Bird includes that in 1971 Coffey regularly visited the plaintiff’s family home, groomed the plaintiff and his family, and in that context sexually abused the plaintiff. DP alleges the Diocese is both directly and vicariously liable for the assaults and his injuries.

The allegations of abuse made by DP are not admitted, and whether the abuse occurred is a central battleground of the trial.

In this case the plaintiff’s allegations of abuse by Coffey are in three categories. First, that on one occasion Coffey suggested he and other altar boys take off their clothes and be naked beneath their altar boy garment during mass. Second, on numerous occasions Coffey went to the school classroom and requested the plaintiff’s teacher, who was a nun, release the plaintiff from class so that he could attend with Coffey at the presbytery. During those attendances the plaintiff was abused by Coffey. Third, Coffey regularly took groups of schoolchildren, including the plaintiff, on cross-country runs during the school lunch period. The plaintiff alleges he was abused by Coffey when changing back into school clothes after the run at the presbytery.

The plaintiff pleads:

15.During 1973 and 1974, Father Coffey sexually and physically abused the plaintiff while the plaintiff was:
a)a pupil at the school;
b)an altar boy at St Joseph’s Church Ouyen (‘the Church’).

Both defendants admit this broad allegation.

The plaintiff further pleads:

16.The sexual and physical abuse consisted of Father Coffey:
a)directing the plaintiff to pull down his pants and underpants,
b)placing the plaintiff over his knees,
c)touching the plaintiff’s legs, bottom, penis and testicles;
d)spanking the plaintiff;
e)frequently requiring the plaintiff on numerous occasions to undress in his presence and be weighed while naked, following cross country runs;
f)frequently staring at him while naked, following cross country runs;
g)attempting to watch the plaintiff showering, following a cross country run;
h)suggesting to the plaintiff that he go naked under his altar boy robes.

17.The sexual and physical abuse:
a)referred to in paragraph 16(a)-(d) herein occurred on approximately 15 to 20 occasions at Father Coffey`s residence on the school premises and during school hours when he was sent there by his class teacher;
b)referred to in paragraph 16(e)-(g) occurred in the bedroom and ensuite bathroom of Father Coffey`s residence on the school premises and during school hours when the plaintiff was required to go on lunchtime cross country runs;
c)referred to in paragraph 16(h) occurred in the sacristy of the Church when the plaintiff was performing altar boy duties.

The defendants do not admit paragraphs 16 and 17 of the amended statement of claim (‘ASOC’).

In both cases the plaintiffs rely on evidence of Coffey’s conduct towards Catholic children in parishes where he was appointed as priest to establish that the Diocese knew or should have known that he had sexually abused children in the course of his work as a Catholic priest, or that there was a foreseeable risk of him doing so. Significantly, some of Coffey’s conduct relied on by the plaintiff in this proceeding to establish knowledge or foreseeability of risk occurred after and in different circumstances to the abuse alleged by DP.

Defendants’ submissions

The decision in DP v Bishop Bird is likely to have a material effect on the present proceeding due to the overlap in questions of law and fact. While there are differences in the specific circumstances of each case, findings in the earlier case on questions of direct or vicarious liability, and about the credibility and reliability of witnesses, will impact the position the defendant takes in this proceeding, the matters about which witnesses will be required to give evidence, and what matters remain in dispute. The plaintiffs rely on substantially the same evidence in both cases to establish knowledge of the Diocese that Coffey was a risk to children, and the Court in each case will need to decide what to make of that evidence. Both proceedings will require the Court to consider whether the relationship between Coffey and the Diocese can give rise to vicarious liability as a question of legal principle, and whether, as a question of fact, vicarious liability is established. There is a commonality of fact between the two proceedings relevant to Coffey’s priestly duties, status, authority, power and capacity for intimacy with children in the Diocese by virtue of his special role as priest. The substantial risk of inconsistency in the Court’s decisions in a developing area of law should be avoided by this proceeding being temporarily stayed.

Analysis

For the following reasons I refused the application for a stay of this proceeding. First, a central factual dispute in DP v Bishop Bird is whether the alleged abuse occurred. If that issue is determined against the plaintiff his case will fail, and J Forrest J may not proceed to determine or even consider the factual and legal issues which the defendants say are common between the proceedings. For this reason alone I am not satisfied that the determination of DP v Bishop Bird is likely to have a material effect on this proceeding.

Second, the factual commonality of the proceedings is overstated by the defendants. The alleged offending is separated by two or three years in time, and occurred in different locations and settings. Inquiry into what the defendants in this case knew or should have known as to the risk of harm to children at the school from being in Coffey’s care was significantly impacted by evidence about events which occurred in the period after the alleged offending against DP, and the different circumstances in which the plaintiff and other children at the school were abused by Coffey.

Third, the role alleged to have been assigned to Coffey by the defendants, and the circumstances in which offending against the plaintiff and other Ouyen children is alleged to have occurred will lead to a different factual inquiry in relation to vicarious liability to that required in DP v Bishop Bird. In this case the plaintiff relied on allegations that Coffey was assigned the role of teacher at the school by both defendants. While at a general level both cases required consideration of the principles of vicarious liability, the outcome of that consideration may have been quite different because the alleged abuse in DP v Bishop Bird took place in the plaintiff’s home, and in this proceeding the alleged abuse largely took place in the school setting.

Fourth, the stage of the proceeding at which this application was made is relevant. The order setting this matter down for trial was made in July 2020. The trial date was confirmed by order on 16 July 2021. Interlocutory steps were completed and other necessary orders were made by the Court in the period to the listed date of trial. The application for a stay was made orally at a directions hearing on the business day before the trial was to commence before me. The late stage at which this application was made, combined with the material factual differences between the proceedings to which I have referred, support a conclusion that a stay of the proceeding would be inconsistent with the overarching purpose in s 7(1) of the Civil Procedure Act (Vic).

Fifth, having prepared himself for trial it is likely the plaintiff would have suffered significant disadvantage in having the proceeding adjourned at this late stage. It is likely there would have been further disadvantage to the plaintiff in having the trial adjourned for an indeterminate period, particularly in circumstances where a judgment in DP v Bishop Bird may have no material effect on the conduct or outcome of a trial in this proceeding.

Tendency evidence

The tendency evidence sought to be adduced by the plaintiff comprised a record of an interview of Coffey conducted by Victoria Police in 1997, and statements of witnesses who alleged abuse by Coffey when they were children in parishes where he had been appointed as priest. In the record of interview Coffey admitted the allegations of two altar boys from Port Fairy,[7] both of whom said that on numerous occasions Coffey pulled down their pants, and spanked and rubbed their bare buttocks. Coffey admitted treating six to 10 other boys this way at Port Fairy, from which he said he derived sexual pleasure. A modified version of a table prepared by the plaintiff’s lawyers, which summarises the tendency witness statements, is set out below.
[7]Who I understand to be SK and FGT in the table which follows.

DESCRIPTION OF CONDUCT	DATE	TIME	PLACE	CIRCUMSTANCES	WITNESS
A boy from ages 11 to 12 was sexually abused by Coffey in the presbytery of St Joseph’s Church in Ouyen during School hours. Coffey went on cross country runs with the victim during lunchtimes on school days, after which the victim was required to change in the presbytery and be weighed naked by Coffey near the shower. Coffey stared at the victim while undressed and touched the victim’s bottom. On one occasion Coffey falsely imprisoned the victim in the presbytery bedroom, threw him onto the bed, fondled his genitals and tried to remove his clothes.	1972–74	During school hours	The presbytery of St Joseph’s Church, Ouyen	The victim was required to go on cross country runs, and then to change and shower in Coffey’s bedroom in the presbytery.	CAD
A boy was sexually abused by Coffey at St Joseph’s Church Yambuk in the sacristy, in the shower after football games, and at the boy’s home. He was also physically abused by Coffey during lessons in St Patrick’s Church and in the sacristy. Coffey rubbed his erect penis against the victim, fondled his genitals, bottom and thighs, and struck him. The victim saw Coffey touching other boys in the showers after football.	1965–67	Various	St Joseph’s Church Yambuk, various sports change rooms, the victim’s home in Yambuk	While the victim was engaged in altar boy duties, during Latin lessons held in St Joseph’s Church, and in the showers following football games.	MJG
A boy in year 6 was sexually abused by Coffey at St Patrick’s School, Port Fairy. The victim was directed to meet Coffey in a room at the School, where Coffey spanked his bare bottom, rubbed his backside and anus, and penetrated the victim’s anus with his finger.	1968	During school hours	St Patrick’s School Port Fairy	The victim was directed to meet Coffey in a room at the school for punishment.	PFS
A boy throughout years 3 to 6 was sexually abused by Coffey at St Patrick’s School, Port Fairy and the sacristy of the Port Fairy Church. Coffey grabbed the plaintiff when naked in the shower, fondled and rubbed his penis, and penetrated the victim’s anus with his finger. During altar boy service, Coffey held the victim from behind, placed his hand in the victim’s pants, and fondled his penis and testicles. The victim saw Coffey touching other boys in the showers after football.	1963–67	Various	Sports change rooms, sacristy of the Port Fairy Church	Following school football games, and during altar boy service.	DJ
A girl from ages 12 to 14 was sexually abused by Coffey: • in the presbytery and sacristy of St Joseph’s Church Ouyen; • at her home, including when she was saying night-time prayers; • in her bed when she was ill, under the guise of giving her a blessing; • at an overnight camp; • following lunchtime cross country runs when the girls from St Joseph’s School were required to change and shower in Coffey’s presence in the St Joseph’s Convent. The victim was harassed by Coffey while staying overnight at the St Joseph’s Convent. The sexual abuse consisted of Coffey repeatedly placing his hands up her top and down her pants and touching her sexually, and watching her while showering after cross country runs and when the victim stayed at the Convent.	1972–74	Various	Presbytery and sacristy of St Joseph’s Church Ouyen, at the victim’s home, at a camp at Lake Cullulleraine, in St Joseph’s Convent, Ouyen	The abuse occurred in the course of church youth group activities, pastoral visits, overnight stays by the victim with the Sisters at St Joseph’s Convent, lunchtime cross country runs during school hours at St Joseph’s School and an overnight camp.	BC9
A girl approximately from ages 7 to 9 was sexually abused by Coffey. The sexual abuse consisted of Coffey: • repeatedly placing his hands up her top and down her pants in the course of horseplay; • enclosing her in a sleeping bag, and putting his hands down her pants at her home; • following lunchtime cross country runs when victim and other girls from St Joseph’s School were required to change and shower in Coffey’s presence in the St Joseph’s Convent; • when Coffey took the victim, then aged 8, and her 10 year old sister for a three day visit to his mother’s house in Ballarat. The victim witnessed Coffey physically abuse boys during classes of St Joseph’s School Ouyen held in the presbytery, by pulling down their pants in front of the class and slapping their buttocks for several minutes.	1972–74	Various	Presbytery and sacristy of St Joseph’s Church Ouyen, at the victim’s home, in St Joseph’s Convent, Ouyen during school hours	The abuse occurred in the course of youth group activities, pastoral visits, an overnight stay at Coffey’s mother’s home in Ballarat, and lunchtime cross country runs during school hours at St Joseph’s School.	BC10
A boy from ages 10 to 13 was sexually and physically abused by Coffey at St Joseph’s School, Ouyen. The victim was required to shower and change in Coffey’s bedroom in the presbytery after cross country runs in school hours. Coffey raped the boy on several occasions by inserting his erect penis into the boy’s anus in the presbytery, following the runs. On other occasions Coffey ogled and leered at him, brushed his hand against the victim’s leg and buttock, tried to touch and fondle his penis and rubbed his body against the victim’s body. During altar boy service Coffey rubbed his body against the victim’s body when he was changing. Coffey also physically abused the victim by belting him across the head.	Approx. 1973–76	After cross country runs during school hour, before and after altar boy duties	Presbytery and sacristy of St Joseph’s Church, Ouyen	The abuse occurred following cross country runs and in the course of the victim’s altar boy duties.	B Healy
A boy was sexually abused by Coffey at St Patrick’s School Port Fairy. The boy was directed to meet Coffey in a room at the School, where Coffey put his hand inside the victim’s pants, and fondled his penis and testicles.	1966	During school hours	St Patrick’s School Port Fairy	The victim was directed to meet Coffey in a room at the school.	RJV
A boy was sexually abused by Coffey at the boy’s home during pastoral visits. Coffey fondled the victim’s penis and testicles.	1971	Unknown	The victim’s home	During pastoral visits by Coffey to the victim’s family home.	DP
A boy aged about 8 years was sexually abused by Coffey at the boy’s home. Coffey put his hands down the victim’s pants, pretended to smack him and pushed his finger into the victim’s anus.	1963	Evening	The victim’s home in Terang	In the course of horseplay between Coffey and the boy.	GMP
A boy from ages 6 to 7 years was sexually abused by Coffey at Coffey’s mother’s home, and on a second occasion in the victim’s home during a visit by Coffey. On each occasion Coffey put his hands down the victim’s pants, kneaded his buttocks, and rubbed around his anus.	1960–63	Various	Coffey’s mother’s home in Ballarat, the victim’s home in Ballarat	In the course of horseplay between Coffey and the victim.	TFT
A boy aged 6 years was sexually abused by Coffey at the boy’s home. Coffey put his hands down the victim’s pants, fondled his genitals, and pushed his finger upon the victim’s anus.	1963	Evening	The victim’s home in Terang	In the course of horseplay between Coffey and the boy.	M Glennen
A boy from ages 11 to 14 was sexually abused by Coffey in the sacristy of the Port Fairy Church. Coffey took the victim’s pants down and pretended to smack him, and the victim felt Coffey’s erect penis press against him.	1968–71	Sacristy of the Port Fairy Church	In the course of horseplay during altar boy duties.	SK
A boy was sexually abused by Coffey in the sacristy of the Port Fairy Church. Coffey took off the boy’s pants, put him over his knee and spanked and massaged his bare bottom.	1964–65	During altar boy duties	Sacristy of the Port Fairy Church	The abuse occurred in the course of the victim’s altar boy duties at Port Fairy Church.	FTG
A boy from ages 9 to 14 was sexually abused by Coffey in Noorat. The sexual abuse involved Coffey fondling, touching and rubbing around the victim’s buttocks and genital area.	1960–64	Various	Various places including the sacristy of the Noorat Church, in the victim’s home, at the church and St Joseph’s School Noorat, at sporting events, in Coffey’s car	The abuse occurred in the course of the victim’s altar boy duties at Noorat Church.	FA

In a ruling on a similar application in DP v Bishop Bird, J Forrest J set out the conditions which must be met to adduce tendency evidence in a proceeding:

20.For the purpose of the adducing of tendency evidence in a civil proceeding of this type I consider that the following conditions must be met:
•    First, the tendency and the fact (or facts) in issue which it is said to prove must be identified. That evidence, if accepted, must rationally affect the assessment of the probability of the existence of the fact (or facts) in issue.
•    Second, the tendency evidence (which should be viewed as a whole, and not piecemeal, and in light of the other evidence adduced in the case) must be capable of sustaining the conclusion that the relevant person had an identified tendency to:
(a) act in a particular way; and/or
(b) have a particular state of mind.
•    Third, the tendency must be one of some specificity and not at a high level of generality. This means that a feature or features of the tendency evidence must link that evidence with the allegation(s) in the proceeding.
•    Fourth, it is necessary to establish that the tendency evidence is of significant probative value. So it is fundamental that the evidence increases the likelihood of the asserted conduct of the relevant person as alleged to such an extent that it is of significant probative value.
•    Fifth, and for completeness, the common law test for propensity is to be ignored.
•    Finally, if the tendency evidence is shown to have significant probative value, this (in an appropriate case) must not be substantially outweighed by the danger that the evidence might either be unfairly prejudicial to a party; be misleading or confusing; or, cause undue waste of time in the proceeding, such that the court is persuaded to exercise its discretion to exclude the evidence irrespective of its admissibility.[8]

[8][2021] VSC 453 [20] (citations omitted).

The plaintiff asserted the following tendencies in the notice:

(a)the tendency of Coffey, while parish priest of Ouyen, to have a particular state of mind, namely, to have had:
(i)an interest in physical violence toward pupils of the school;
(ii)a sexual interest in children who were pupils at the school;
(iii)an interest in sexual violence towards pupils of the school;
(iv)a sexual interest in altar boys.

(b)the tendency of Coffey, while a priest of the Diocese of Ballarat, to have had a particular state of mind, namely, to have had:
(i)a sexual interest in children within the parishes in which he operated;
(ii)a sexual interest in children within the schools in the parishes in which he operated;
(iii)an interest in sexual violence towards boys within the parishes in which he operated;
(iv)an interest in sexual violence towards boys within the schools in the parishes in which he operated.

(c)the tendency of Coffey to act in a particular way, namely, to engage in acts of physical and sexual abuse of children, and in particular to;
(i)create situations in which children were required to be undressed in his presence;
(ii)require children to shower naked in his presence;
(iii)require children to be weighed naked in his presence;
(iv)stare at and/or touch children while undressing and naked;
(v)touch and/or fondle children’s genitals;
(vi)penetrate and/or attempt to penetrate boy’s anuses;
(vii)sexually penetrate children;
(viii)engage in physical violence towards children;
(ix)engage in excessive and/or inappropriate corporal punishment of children.

The plaintiff submitted the tendency evidence was relevant to the following facts in issue:

(a) That Coffey abused the plaintiff as alleged in paragraphs 16 and 17 of the ASOC.

(b) That the defendants knew or should have known, by the time the plaintiff was abused by Coffey, that he had a character, reputation and conduct of or tendency for physically and sexually abusing children.

(c) That the defendants knew or should have known there was a non-insignificant risk of sexual or physical abuse at the school and in the church.

The defendants submitted that because they have admitted paragraph 15 of the ASOC the question of whether the plaintiff was abused by Coffey is no longer a fact in issue, the tendency evidence could not be admitted to prove the abuse alleged, and the wide-ranging nature of abuse alleged in the tendency statements could not support the level of detail pleaded in paragraphs 16 and 17 of the ASOC.

For the following reasons I disagree. The admission by the defendants is limited to the general allegation of abuse pleaded in paragraph 15 of the ASOC, and is not a concession that each of the many instances of abuse alleged in paragraph 17 occurred. The non-admission of the allegations in paragraph 17 meant the plaintiff was obliged to prove those facts at trial. In other words, despite the admission at paragraph 15 by the defendants, the plaintiff was required to prove he was sexually and physically abused on 15 to 20 occasions in the presbytery as alleged in paragraph 17(a); on the occasions after lunchtime cross-country runs in the bedroom and ensuite of the presbytery as alleged in paragraph 17(b); and on the one occasion in the sacristy of the church when performing altar boy duties as alleged in paragraph 17(c).

In DP v Bishop Bird, J Forrest J considered that the tendency statements relied on in that proceeding demonstrated two common features of Coffey’s alleged conduct as a priest appointed to parishes in the Diocese:

25.First, his sexual interest in young Catholic boys who came into his orbit whilst a serving priest in the Western District of Victoria. Secondly, his conduct in acting on that desire by physically interacting with, to the point of assaulting, young Catholic boys in the Western District.[9]

Subject to changing Catholic boys to Catholic children, I am satisfied that those two features are also common to the record of interview and witness statements attached to the tendency notice served by the plaintiff in this proceeding. The tendencies demonstrated by that evidence, if it is accepted, are relevant to the determination of whether each instance of abuse alleged by the plaintiff in paragraph 17 of the ASOC occurred, and are of significant probative value. As J Forrest J said in DP v Bishop Bird:
30.The putative evidence of these nine tendency witnesses strongly enhances the case of DP, as a review of the allegations of DP and comparison with the evidence summarised in the first column of the table at [17] demonstrates.[10]

I have reached the same conclusion on the tendency evidence relied on by the plaintiff in this proceeding. On that basis, the plaintiff has satisfied the requirements of s 97 of the Evidence Act 2008 (Vic) (‘the Act’) for admission of the evidence.

[9]Ibid [25].

[10]Ibid [30].

The trial proceeded after I ruled in favour of admitting the tendency evidence. The conclusion I have reached is reinforced by the defendants’ final submission that the plaintiff’s reliability and credit had been significantly undermined, and important aspects of the evidence he gave about Coffey’s alleged conduct in paragraphs 16 and 17 of the ASOC should not be accepted. Those submissions were directed to whether abuse which occurred in the kitchen at the presbytery included genital fondling, and to the frequency of abuse. The nature of the attack on the plaintiff was something the plaintiff was entitled to anticipate and take steps to meet, including by having the tendency evidence admitted.

I agree with the conclusion of J Forrest J in DP v Bishop Bird that the more precise tendencies set out in the tendency notice cannot be sustained in the detail asserted. I add that many of the tendencies are not significantly probative of a fact in issue, including those relating to violence and sexual penetration, which appear to have a limited relationship to the particulars in paragraphs 16 and 17 of the ASOC.

The plaintiff has not satisfied the requirements of s 97 of the Act in relation to the other facts in issue, being knowledge of Coffey’s conduct and foreseeability of risk. Ultimately the plaintiff relied on the openness, brazenness and frequency of Coffey’s sexual abuse of Catholic children whilst serving as a priest in the Western District of Victoria as evidence relevant to knowledge. The difficulty faced by the plaintiff was that there was no other evidence supporting an inference of knowledge, and by itself the tendency evidence was not significantly probative of that fact. In the absence of knowledge, the asserted tendencies were not relevant to the issue of foreseeability.

Business records

The plaintiff sought to tender as business records what are in effect witness statements of BC9 and BC10, details of which are included in the table set out in paragraph 24 above.

Defendants’ submissions

While the requirements of s 69 of the Act have been satisfied, the documents should be excluded under s 135 of the Act because of the danger that the evidence would be unfairly prejudicial to the defendants. It was relevant to consider the purpose of exclusions in s 69(3) of the Act, which was to exclude material which might have a self-serving motivation.[11] The hearsay exception in s 69 of the Act is directed to allowing the tender of business records which have an element of neutrality to them. The documents which the plaintiff seeks to tender are statements by witnesses made in the context of claims for compensation. The defendants submitted that while the plaintiff has satisfied the requirements of s 69 of the Act, the purpose to which that exception is directed is an important factor in considering whether the documents should be excluded under s 135 of the Act.
[11]Walsh v Walgett Shire Council [2014] NSWSC 812 [15]; Lewincamp v ACP Magazines Ltd [2008] ATCSC 69 [106], app 2 [29]; Averkin v Insurance Australia Ltd [2016] NSWCA 122 [18]; Thomas v State of Victoria (Ruling No 1) [2019] VSC 276 [26]; Charan v Nationwide News Pty Ltd [2018] VSC 3 [473].

Analysis

The statements of BC9 and BC10 were made in the context of the Towards Healing process adopted by the Diocese to deal with complaints by victims of abuse by clergy and other religious. The contact reports made by BC9 and BC10 record that, amongst other things, each witness was seeking financial recompense through Towards Healing for the consequences of Coffey’s abuse.

For the following reasons I reject the defendants’ submissions. First, it is accepted the plaintiff has satisfied the requirements of s 69 of the Act, and on that basis the statements are admissible. As I concluded above, the evidence of BC9 and BC10, taken together with the other tendency evidence, is significantly probative of matters alleged in paragraph 17 of the ASOC. Further, the contact report of BC9 is evidence of what is said to be a breach by the Diocesan bishop of the confidentiality term of an earlier settlement agreement between the plaintiff and the defendants in respect of Coffey’s abuse. That evidence is directly relevant to the issue of whether compensation paid under the earlier agreement should be set off against an award of damages to the plaintiff in this proceeding.

Second, the defendants bear a heavy onus seeking to exclude the evidence on the basis that its probative value is substantially outweighed by the danger of unfair prejudice.

Third, the mode of trial reduced the potential for unfair prejudice to the defendants.

Fourth, while I accept there was an aspect of self-interest in the contact reports made by BC9 and BC10, it is relevant that other Towards Healing documents show the Diocese found the complaints by BC9 and BC10 of Coffey’s abuse were substantiated.

I am not satisfied that the probative value of the evidence in the witness statements of BC9 and BC10 is substantially outweighed by the danger of unfair prejudice to the defendants if they are admitted into evidence.

[2021] VSC 650

7 October 2021