MF v Trustees of the Vincentian Fathers

[2025] NSWDC 49

District Court

New South Wales

Medium Neutral Citation:

MF v Trustees of the Vincentian Fathers [2025] NSWDC 49

Hearing dates:

19 February 2025

Date of orders:

19 February 2025

Decision date:

19 February 2025

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

In relation to the Notice of Motion filed on 29 January 2025:

(1) The hearing commencing 3 March 2025 is vacated.

(2) The plaintiff has leave to rely on the expert report of Dr James White dated 22 January 2025.

(3) The defendant is to serve any responsive expert report by 23 April 2025.

(4) The plaintiff is to pay the defendant’s costs of the Notice of Motion and any costs thrown away by the vacation of the hearing date as agreed or assessed.

(5) The matter is listed for hearing on 23 February 2026 with an estimate of 5 days.

(6) The standard orders for hearing are made.

(7) Liberty to apply on 2 business days’ notice.

Catchwords:

PRACTICE AND PROCEDURE – vacation of final hearing date – historical abuse allegations

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Bird v DP (a pseudonym) [2024] HCA 41

HP Mercantile Pty Ltd v Clements [2013] NSWSC 1974

P1 v The Trustees of the Daughters of Our Lady of the Sacred Heart & Ors [2015] NSWSC 698

Category:

Procedural rulings

Parties:

MF (Plaintiff)
Trustees of the Vincentian Fathers (Defendant)

Representation:

Counsel:
R Royle (Plaintiff)
J Tryon (Defendant)

Solicitors:
Beston Macken McManis (Plaintiff)
Makinson & d'Apice Lawyers (Defendant)

File Number(s):

2023/00221637

JUDGMENT – EX TEMPORE

1. Before the Court is a Notice of Motion filed by the plaintiff in the matter of [MF], which is matter number 5 in the list before me today, seeking orders that the hearing date of 3 March 2025 be vacated and, effectively, leave to rely on a report of Dr White.

2. It seems clear that in the event that leave is granted to rely on Dr White’s report, that the hearing date would have to be vacated as sought. Mr Royle, who appears for the plaintiff, read the affidavit of John McManus of 29 January 2025, which attaches a copy of the report of Dr White.

3. Mr Tryon, who appears for the defendant, opposed the vacation of the trial date and the grant of leave, and read the affidavit of Amy Warren of 18 February 2025. It seems clear from the Court record that no order has been made at any time for the filing of expert evidence by the plaintiff. It seems from the evidence before me that the first notice that the plaintiff was intending to rely on an expert report was given to the defendants in November 2024. Mr Tryon submits that that notice should have been given in June 2024 when, according to Mr McManus, the plaintiff initially briefed Dr White, being on 24 June 2024.

4. Mr Tryon, in helpful and extensive submissions, relied on Part 31.19 of the Uniform Civil Procedure Rules 2005 which provides as follows:

“31.19   Parties to seek directions before calling expert witnesses

(1)  Any party—

(a)  intending to adduce expert evidence at trial, or

(b)  to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2)  Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3)  Unless the court otherwise orders, expert evidence may not be adduced at trial—

(a)  unless directions have been sought in accordance with this rule, and

(b)  if any such directions have been given by the court, otherwise than in accordance with those directions.

(4)  This rule does not apply to proceedings with respect to a professional negligence claim.”

5. Mr Tryon submits, in summary, that the plaintiff did not promptly seek directions from the Court in relation to expert evidence, and the plaintiff has the onus under Part 31.19(3) to establish that the Court should “otherwise order”, otherwise the report of Dr White would not be admissible at trial.

6. Mr Tryon relies on:

1. The judgment of Beech-Jones J in P1 v The Trustees of the Daughters of Our Lady of the Sacred Heart & Ors [2015] NSWSC 698; and

2. The comments made by Black J as to ss 56 to 58 of the Civil Procedure Act 2005 (NSW), and in relation to the vacation of hearing dates, set out in HP Mercantile Pty Ltd v Clements [2013] NSWSC 1974 at [26]-[28].

7. I should state at the outset that there is a factual matter in contention between the two solicitors on the affidavits as to whether the plaintiff, through his solicitor, requested documents held by the defendant, informally from the defendant, through the defendant’s solicitor, without success, and only then eventually subpoenaed the defendant on 12 November 2024 for the relevant documents. Ms Warren, in her affidavit, sets out in some detail in paragraph 21 that there was no recollection of any conversation to that effect, and that she has also made inquiries with other relevant persons, including her supervising partner, as to any such request without any recollection being held of it.

8. It is difficult for the Court, in the absence of a contested cross-examination, to determine that issue, which is generally inappropriate in an interlocutory hearing in any case.

9. On balance, I am inclined to prefer the position of the defendant, having regard to the inquiries that are set out in paragraph 21 of Ms Warren’s affidavit, but there may have been some miscommunication or misunderstanding. It is surprising that the plaintiff’s solicitor, having been told immediately by Dr White that he needed certain documents, would wait until November 2024 to issue a subpoena, but that is the factual scenario that we are faced with.

10. The listing of a hearing date is a serious matter in this Court. A good reason must be given to warrant the vacation of a hearing date. In particular, I take into account the comments of Black J in the HP Mercantile case, in the context of the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. In that case, the High Court emphasised the relevance of prejudice arising from delay in dealing with applications. The case involved the amendment of a pleading after a hearing had commenced. I take those comments into account, and in particular, the overriding purpose set out in s 56 of the Civil Procedure Act, which is to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings, and in the exercise of powers, the relevance of delay.

11. This matter involves alleged sexual abuse of the plaintiff as a school student between the ages of 13 to 15 by a Priest. That is set out in some detail in the Statement of Claim filed on 12 July 2023. In a Defence filed on 11 June 2024, whilst it is accepted that the Priest in question was appointed as a priest at the relevant school, it is put in issue as to whether he was an employee. There is a denial of vicarious liability and a denial of negligence. This application and the timing of it has to be seen in the light of the High Court decision in Bird v DP (a pseudonym) [2024] HCA 41, which placed particular difficulties in the face of a plaintiff alleging vicarious liability for a Catholic diocese for the actions of a Priest, and also limited the concept of agency.

12. It seems clear, after that decision, that a plaintiff would have great difficulty establishing a vicarious liability because of the limitations in the High Court judgment. Therefore there must usually be established a direct form of liability. It is to that issue that the expert’s report of Dr White appears to go. Obviously, the timing of the High Court decision is important, although, as Mr Tryon submits, the issue of negligence as a direct liability was extant on the pleadings from the June 2024 Defence.

13. The onus rests on the plaintiff to establish that the Court should “otherwise order”. Mr Royle, in frank submissions, accepted that the plaintiff’s solicitor should have acted earlier. He said the need for a report was raised on the first occasion before the Court after the trial date was fixed, and that appears to be the case from the Court record. However, in my view the plaintiff’s solicitor should have re-listed the matter and sought directions for the filing of expert evidence, and notified the defendant of that course. It is commonly seen, before this Court, that legal representatives delay in taking steps such as this until they actually have the report. The dangers of that are shown in the approach the Court may take in deciding that the vacation of a hearing date may not be appropriate in balancing the prejudice to the parties.

14. I particularly take into account the comments of his Honour Beech‑Jones J in P1. These comments were given in his Honour’s then role as a puisne judge of the Supreme Court. I give them even greater weight, having regard to his Honour’s current position on the High Court of Australia. I take the comments particularly into account of his Honour in paragraph 46 and following.

15. There is a distinction between that case and this case. In P1, neither party sought the vacation of the trial date. Both parties seemed to seek the retention of the current trial date that was ordered. That should be compared to the position in the current case, where the plaintiff has accepted the need for there to be a vacation of the trial date.

16. I refer in particular to paragraph 26 of Beech-Jones J’s judgment. In that paragraph, his Honour makes clear that the critical factors are the prejudice that would be occasioned to the plaintiffs by the Court to otherwise order against the consideration of the prejudice that would be occasioned to the defendants by so ordering. His Honour made clear that the assessment in that case had to be undertaken in a context where neither party seeks an adjournment of the hearing commencing on 9 June 2015. As I said, here, the plaintiff accepts that the vacation of a hearing date must occur.

17. Mr Tryon also relies on the fact that any costs order in the defendant’s favour would unlikely be of value, having regard to the fact, as appears to be accepted, that the plaintiff is currently in prison. There is no evidence before me of the plaintiff’s financial position. It is possible that there is force in Mr Tryon’s submission.

18. The Court takes into account:

1. The history of the pleadings, which I have indicated;

2. The fact that on 5 June 2024 the Judicial Registrar ordered a hearing on 3 March 2025 for five days;

3. The fact that there will be a considerable delay if the hearing date is vacated; and

4. The fact that the first indication was given by the plaintiff at the directions hearing on 20 November 2024 in relation to a further report.

19. The Court also takes into account the position of both parties in deciding whether the vacation order should be given. In particular, the Court notes:

1. The fact that the defendant reasonably has prepared for the hearing which is only some two weeks away;

2. The desire of the defendant to have an early determination of the factual issues in the case;

3. The desire of the plaintiff to be able to rely on expert evidence in support of its claim at any trial, whenever date it occurs;

4. The potential difficulties of the defendant in obtaining an expert report. There was some reference to this in the P1 case. There is no evidence before me of a compelling nature here on this issue;

5. The possibility of difficulty in enforcing any costs judgment, although if the plaintiff was successful, there may be issues of set-off in relation to the costs;

6. The decision of the High Court in Bird, and the difficulties now facing a plaintiff in a situation similar to the present. Mr Royle submits that the Court would be persuaded that the plaintiff’s task would be immeasurably difficult in establishing any case in the absence of an expert report;

7. That the motion was filed soon after the receipt of the report.

20. As I indicated, the onus rests on the plaintiff. I balance all of the matters I have referred to. The submissions of Mr Tryon were comprehensive, and pointed to the difficulties which face the defendant in the present situation.

21. Taking into account all of the matters which I have indicated and set out above, on balance I am persuaded that a vacation of the hearing date with appropriate costs order is appropriate. Although there will be considerable delay in that, the defendant will have a full opportunity to obtain an expert’s report in response to that of Dr White. Unlike in the P1 case, I was not asked to formally consider the admissibility of the White report, but on its face there are some challenges to aspects of either its admissibility or the weight which a Court would give to it. That is a matter ultimately for determination by the trial judge.

22. However, I do think there is force in Mr Royle’s submission that in absence of the plaintiff being able to rely on the report, he would face real difficulties in proving his case. I also take into account the difficulties facing a person who alleges institutional sexual abuse, and the fact that that person is in prison. In saying that I do not suggest that there is any force in the plaintiff’s allegations. They remain allegations to be determined at the trial. However, in my view, that serious allegation is a factor to be taken into account in ensuring that there is a proper opportunity for parties to present their case. That is not a decisive factor but, in my view, it is a factor to be taken into account.

[His Honour then made orders.]

In relation to the Notice of Motion filed on 29 January 2025:

1. The hearing commencing 3 March 2025 is vacated.

2. The plaintiff has leave to rely on the expert report of Dr James White dated 22 January 2025.

3. The defendant is to serve any responsive expert report by 23 April 2025.

4. The plaintiff is to pay the defendant’s costs of the Notice of Motion and any costs thrown away by the vacation of the hearing date as agreed or assessed.

5. The matter is listed for hearing on 23 February 2026 with an estimate of 5 days.

6. The standard orders for hearing are made.

7. Liberty to apply on 2 business days’ notice.

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Decision last updated: 14 March 2025