Miller v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle

[2018] NSWSC 24

Supreme Court

New South Wales

Medium Neutral Citation:

Miller v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2018] NSWSC 24

Hearing dates:

11 December 2017

Date of orders:

02 February 2018

Decision date:

02 February 2018

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The plaintiff is to forward a new proposed further amended statement of claim to the defendant by 16 February 2018.

 

(2) The defendant is to notify plaintiff of its consent or the reasons for its objections by 2 March 2018.

 

(3) The notices of motion filed 7 August 2017 are stood over to Friday 16 March 2018 before Harrison AsJ at 10.00 am.

 (4) Costs are reserved.

Catchwords:

PROCEDURE – order seeking to strike out paragraphs in proposed further amended statement of claim – whether proposed further amended statement of claim needs clarification – whether proposed further amended statement of claim offends UCPR 14.14 and 14.28 – proposed further amended statement of claim to be repleaded

Legislation Cited:

Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Banque Commerciale SA, En Liquidation v Akhil Holdings Limited [1990] HCA 11; 169 CLR 279
McGuirk v The University of New South Wales [2009] NSWSC 1424
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
S1 v The Trustees of Marist Brothers [2016] NSWSC 970
The Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258

Category:

Procedural and other rulings

Parties:

James Mathew Miller (Plaintiff)
The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (Defendant)

Representation:

Counsel:
JL Harrison (Plaintiff)
L Gyles SC (Defendant)

  Solicitors:
Shine Lawyers (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2017/183365

Publication restriction:

Nil

Judgment

1. HER HONOUR: By notice of motion filed 7 August 2017, the defendant now seeks that paragraph 21 and paragraph 24(a) and (b) that refer to paragraph 21 of the proposed further amended statement of claim (“PFASC”) be struck out.

2. The plaintiff is James Mathew Miller. The defendant is the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle. The defendant relied upon the affidavit of Alexander Kohn dated 8 December 2017.

The relevant Uniform Civil Procedure Rules (“UCPR”)

3. The defendant relied upon Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 14.14 and 14.28. The plaintiff submitted that the PFASC should not be struck out as it does not offend either UCPR 14.14 or 14.28.

4. UCPR 14.14 reads:

14.14 General rule as to matters to be pleaded specifically(cf SCR Part 15, rule 13; DCR Part 9, rule 9)

(1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.

(2) In a defence or subsequent pleading, a party must plead specifically any matter:

(a) that, if not pleaded specifically, may take the opposite party by surprise, or

(b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or

(c) that raises matters of fact not arising out of the preceding pleading.

5. And UCPR 14.28(1) and (2) read that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court. The court may receive evidence on the hearing of an application for an order under subrule (1).

Pleading generally

6. In McGuirk v The University of New South Wales [2009] NSWSC 1424 (“McGuirk”) at [21] to [35], Johnson J set out the function of pleadings. I will only reproduce [30] to [35] of McGuirk as they are relevant here.

“Embarrassing pleadings

30 A pleading is embarrassing where it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Meckiff v Simpson [1968] VR 62 at 70; Gunns Limited v Marr at [14]-[15].

31 In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 at [18], Tamberlin J explained the concept of “embarrassment” with respect to pleadings:

“Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434.”

32 A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at 5-6).

33 Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 at 417-418. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109 at 112-114.

34 Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Limited [1960] VR 473 at 476; H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181 at 186.

35 It is not the function of the Court to draw or settle a party’s pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Limited (1974) 131 CLR 69 at 72, 87-88, 97-98; Gunns Limited v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926 at [55].”

7. Overall, the function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendants. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that is, a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA, En Liquidation v Akhil Holdings Limited [1990] HCA 11; 169 CLR 279 at 286-287 and 302-303.

Overview of the pleading in the PFASC

8. In 1978 and 1979, the plaintiff was enrolled as a student at St Pius X College Adamstown NSW (“the school”) in years 10 and 11. From 1973 Father Thomas Brennan was employed or appointed as a principal and priest at the school. The plaintiff alleges that in 1978, while a student at the school, he was sexually abused on at least five occasions by the principal on school premises during school hours. (“the abuse”). As a result of the abuse, it appears that the plaintiff alleges that he suffered a recognised psychiatric injury. (PFASC [14]). The plaintiff seeks damages, including compensatory, aggravated, exemplary and punitive damages, damages for misleading or deceptive conduct, plus interest and costs (PASC [17]) to [19].

The relevant law

9. The liability of a school authority for injury suffered by a pupil is discussed in TheCommonwealth vIntrovigne [1982] HCA 40; 150 CLR 258 (“Introvigne”). In Introvigne the High Court stated (at 269 and 271):

“The liability of a school authority in negligence for injury suffered by a pupil attending the school is not a purely vicarious liability. A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance. In Carmarthenshire County Council v Lewis [1955] UKHL 2; [1955] AC 549 the House of Lords held that the authority was liable for an injury to a motorist caused by a little child wandering onto the road through an unlocked gate at the school due to the failure of the authority to take reasonable steps to prevent the escape of the child. The Court of Appeal had held that a teacher, Miss Morgan was negligent in allowing the child to escape. However, by majority, the House of Lords held that the teacher was not negligent but that the authority was liable on the footing that it was in breach of duty to the child and to the plaintiff. Lord Reid said at 563:

“However careful the mistresses might be, minor emergencies and distractions were almost certain to occur from time to time so that some child or children would be left alone without supervision for an appreciable time. The actions of a child of this age are unpredictable, and I think that it ought to have been anticipated by the appellants or their responsible officers that in such a case a child might well try to get out onto the street and that if it did a traffic accident was far from improbable. And it would have been very easy to prevent this, and either to lock the gates or, if that was thought undesirable, to make them sufficiently difficult to open to ensure that they could not be opened by a child so young that it could not be trusted alone on the street.”

…

There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. This was the view expressed by Kitto J in Ramsay v Larsen (1964) 111 CLR, at p 28. The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants.

…

By establishing a school which was “maintained” on its behalf at which parents could enrol their children for instruction pursuant to the obligation imposed on them by the Ordinance, the Commonwealth, in my opinion, came under a duty of care to children attending the school. The nature and scope of that duty of care was co-extensive with the duty of care owed by any authority or body conducting a school to pupils attending the school. It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case, in the two respects already mentioned. It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score.”

10. In Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 (“Dederer”) the High Court (per Gummow J) set out the settled legal principles in relation to negligence. They are as follows (at [18]):

“… These principles may be restated shortly. First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.”

11. The provisions of the Civil Liability Act 2002 (NSW) are also relevant, in particular ss 5B and 5C.

12. Senior counsel for the defendant referred to S1 v The Trustees of Marist Brothers [2016] NSWSC 970 (“Marist Brothers”), a strike out application relating to sexual abuse of a student at school run by the Trustees of the Marist Brothers. In paragraphs 24 and 36 I stated:

“24 This paragraph alleges that the defendants either knew or ought to have known of these incidents of sexual abuse that span from 1960 to 1980, the latter being the same year that the plaintiff started at the school. In other words, paragraph [9] sets out what occurred at other Marist Brothers schools across Australia by teachers and/or priests over a period of 20 years from 1960 to 1980.

…

36 I accept that if the school principal (…), the trustees or other teachers of the school were aware of prior sexual abuse at the school, particularly by the teacher in the period of shortly before 1980 and up to 1982 (when the plaintiff left the school), those particulars would be relevant to the scope of the duty of care. Sexual abuse of a pupil at another school from 1960 onwards and after the period when the plaintiff was allegedly sexually abused does not inform the scope of the duty of care owed to the student who attended the school from 1980 to 1982. Hence, paragraphs [2], [9] and [10] are embarrassing. They should be struck out.”

The disputed paragraphs of the PFASC

13. This is the first time that an allegation of sexual abuse had been made against Father Brennan when he was the principal of the school. There had been prior complaints of sexual abuse in relation to Father Denham who taught at the school.

14. I shall now deal with the paragraphs of the PFASC that are in dispute.

15. Paragraph 21 of the PFASC pleads:

“21   From 1976 to April 1978, the Defendant knew, or ought to have known, of matters relevant to the abuse of Brennan on the Plaintiff.

Particulars

a.   Prior to the period 1976 to April 1978, the Defendant know, or ought to have known, that the Defendant’s staff had abused students.

b.   In the period 1976 to April 1978, the Defendant knew, or ought or have known, that the Defendant’s staff had abused students.

c.   In the period 1976 to April 1978, the defendant knew complaints of sexual abuse perpetrated against students at least by Father John Sidney Denham, Father Denis McAlinden and Father James Fletcher.

d.   In a letter dated May 1976 Msgr Patrick Cotter (interim head of Maitland-Newcastle Diocese from 1976 to 1995). Cotter recorded that McAlinden had been interfering with young girls and had an inclination towards younger females.

e.   By failing to prevent that abuse in those periods, the Defendant created an environment where the Defendant’s staff behaved in a predatory manner against students to commit abuse against students.

f.   By failing to prevent that abuse in those periods, the Defendant knew, or ought to have known, that the Defendant’s staff would act in a predatory manner against students to commit abuse against students.

g.   The predatory and abusive conduct should have been prevented by the Defendant by terminating the employment of the staff and reporting the staff to the NSW Police Force.”

16. The pleading in the PFASC continues at paragraphs 22, 23, 24(a) and (b) as follows:

“22   The Defendant ought to have foreseen that a student of normal fortitude might, in the circumstances, suffered a recognised psychiatric illness if reasonable care was not taken.

23.   The Defendant owed a duty of care to the Plaintiff.”

17. Paragraph 24(a) and (b) also refers to paragraph 21. It pleads:

“The Defendant breached its duty of care to the plaintiff.

Particulars

a.   From 1976 to April 1978, there was no proper system at the school for identifying and preventing abuse of the kind perpetrated by Brennan upon the Plaintiff, and no proper system at the school in response to the knowledge referred to in paragraph 21 above.

b.   The Plaintiff repeats paragraph 21 (a)-(g) above.

…”

18. Hence, if paragraph 21 is struck out, once again it follows that paragraphs 24(a) and (b) should also be struck out.

19. There has been correspondence between the parties (Ex A). The objections to paragraph 21 fall into three main categories. They are, the first sentence of 21; sub paragraphs (a) to (d); and, sub paragraphs (e) to (g). The gravamen of the defendant’s complaint in relation to paragraph 21 is that the alleged knowledge of the defendant, the Maitland-Newcastle diocese, goes beyond the knowledge of prior sexual abuse that occurred at the school. The defendant objects to the words “of matters relevant to” in the first sentence of paragraph 21. If the pleading is permitted to include Fathers McAlinden and Fletcher then the first sentence of paragraph 21 should be allowed as they fall into the category “of matters relevant to”.

20. The defendant does not complain about the pleading of the alleged knowledge of the sexual abuse by Father Denham who taught at the school. While his name is pleaded in paragraph 21(c) the pseudonyms of those five students who he sexually abused are not. Those pseudonyms need to be specified as the defendant needs to be aware of the identity of the students who it is alleged that Father Denham abused in order to meet the case brought against them. Hence, paragraph 21(c) needs to be amended.

21. The defendant’s solicitor deposed firstly, that the report of Ms Cunneen SC (portions extracted later in this judgment) runs to approximately 700 pages and there is no mention at all of the school or students at the school; secondly, the Commission dealt with the activities of two priests Father McAlinden and Father Fletcher and as to what knowledge the diocese had; in other words, what the various bishops from time to time knew of their activities; thirdly, a vast number of documents were looked at and witnesses were called; and finally, there were questions about whether or not there had been communications between the police and the diocese, which gave rise to that inquiry.

22. The defendant submitted that there is simply no evidence that Fathers McAlinden and Fletcher had anything to do with the school. As the Maitland-Newcastle diocese is very large the defendant says that it would experience difficulty if general allegations of abuse by any priests of the diocese were pleaded, because in these circumstances the plaintiff’s application for discovery would have to include all documents relating to abuse by any employees of the diocese involving priests and employees (T620-37). In this regard, the defendant referred to s 56 of the Civil Procedure Act 2005 (NSW). Hence, the defendant objects to the references to Father Denis McAlinden and Father James Fletcher on the basis that they were priests in other areas of the Maitland-Newcastle diocese and did not have anything to do with the school.

23. The plaintiff submitted that the actions of Father McAlinden and Father Fletcher are relevant because they are alleged to have committed sexual abuse in their parishes at the same time as the plaintiff’s abuse occurred at the school. Between 1976 and 1978, the diocese was headed by Bishop Clarke. The plaintiff’s case goes further and alleges that Bishop Clarke had knowledge that these two priests sexually abused young people during the same years as the plaintiff was sexually abused at the school and he failed to take any action against those priests, nor did Bishop Clarke introduce any safe systems to protect young persons from sexual abuse in the parishes of those priests and at the school. (T6.2.8).

18. On 17 May 1976, Monsignor Cotter wrote to Bishop Clarke about certain “de sexto” incidents associated with Father McAlinden in the Forster-Tuncurry parish (“the Cother-Clarke letter”). This letter is pleaded as knowledge of the defendant in paragraph 21(c) of the PFASC.

The report

25. Volume 1 of the report entitled “Special Commission of Inquiry into matters relating to the police investigation of certain child sexual abuse allegations in the Catholic Diocese of Maitland-Newcastle”, dated 30 May 2014 (Ex 1) authored by Margaret Cunneen SC refers to the actions of Father McAlinden and Father Fletcher. At 1.13 to 1.17 she reports:

“1.13   Both McAlinden and Fletcher had been incardinated into the Catholic Diocese of Maitland-Newcastle. That Diocese had had a troubled history in connection with child protection and the sexual abuse of children perpetrated by priests attached to the Diocese, among them McAlinden and Fletcher.

1.14   As the Commission’s investigations revealed, McAlinden had a history of sexually abusing children during five decades. He was a chronic paedophile offender. At all times during this period he was a priest incardinated into Maitland-Newcastle Diocese. The earliest reported incident of sexual abuse by him was in 1949 and the latest in 1996.

1.15   McAlinden died in a nursing home in 2005, without having ever been charged with offences in New South Wales. Many individuals have identified themselves as victims of McAlinden. The Diocese’s child protection unit, Zimmerman Services (established in 2007), has had contact with at least 28 such victims, but the total number will never be known. The fact that he spent various periods ‘on loan’ from the Diocese, in remote and overseas locations such as the Philippines and Papua New Guinea where he had access to children, is one reason why the total number of McAlinden victims cannot be determined. Given his prolific offending, it is readily conceivable that the total number of McAlinden’s victims is more than a hundred.

1.16   Fletcher also had an extensive history of sexually abusing children in the Diocese, exclusively abusing young males and particularly altar boys. His offending history dates back at least to the 1970s. The Commission is aware of the identities of at least five victims of Fletcher, each of whom was a child sexually abused by him over a number of months, and often years.

1.17   Fletcher was ultimately convicted and sentenced in New South Wales in 2004, having been found to have committed nine offences relating to the sexual abuse of a minor who had been an altar boy. The sentencing judge described the offences as involving a gross and inexcusable breach of trust. In time, a number of other Fletcher victims came forward. Fletcher died in January 2006 after having suffered a stroke in goal.”

26. Further, under the heading “Term of reference 2”, Ms Cunneen reports:

Overview

1.68   The Commission finds that senior officials of the Catholic Church had information relating to suspected child sexual abuse by McAlinden and Fletcher that would have facilitated and/or assisted a relevant police investigation.

1.69   In brief, the Commission’s principal findings in connection with McAlinden are as follows:

•   Bishop Leo Clarke, head of the Maitland-Newcastle Diocese from 1976 to 1996, was aware from 1976 that McAlinden had admitted to sexually abusing children. In 1993 Clarke was told that McAlinden had admitted to instances of sexually abusing children. From 1976 onwards the Diocese, though Clarke, had information that would have facilitated a police investigation of McAlinden.

Throughout the 20 years he was bishop, Clarke failed to report McAlinden to the police or to any church outsiders. A motivating factor in this failure was concern that such reporting would bring scandal on the Church.

In view of his involvement with matters relating to McAlinden since 1976, Clarke was well placed to appreciate the continuing risk McAlinden posed to children and the apparently intractable nature of his offending. Clarke was in receipt of reports about sexual offending by McAlinden from multiple complainants, in disparate locations and over an extended period.

Additionally, in 2003, when Detective Chief Inspector Fox interviewed him, Clarke had information in relation to a number of past allegations and incidents that would have been of material interest to police, but he did not provide that information to Fox.

During the period of inaction by the Diocese of Clarke, McAlinden continued to sexually abuse children, in the late 1970s, the 1980s and into the 1990s. Clarke retired in 1995 and died in 2006.

Clarke’s conduct – and thus also that of the “Diocese of which he was head – was inexcusable.

…

Knowledge of McAlinden’s propensity for child sexual abuse

1.74   A substantial body of evidence before the Commission confirmed that senior Diocesan officials were aware at various times of reports or complaints that McAlinden had sexually abused children, the first instance of reported abuse occurring in 1954 and involving victim AE. It took more than 4 years, however, for the Diocese to report to police any aspect of McAlinden’s offending history (such reporting ultimately occurring through Malone in August 1999). The evidence reveals a disturbing story of repeated inaction and failure on the part of church officials to report McAlinden to police. The Commission’s principal findings in this regard follow.

The ‘Cotter-Clarke letter’, 1976

1.75   On 17 May 1976 Monsignor Patrick Cotter, then vicar capitulars, wrote to Bishop Leo Clarke, then bishop elect, about certain ‘de sexto’ incidents associated with McAlinden in Forster-Tuncurry parish. In the letter Cotter noted that McAlinden had ‘an inclination to interfere (touching only) with young girls aged 7-12’ and also said that after a long session with him (Cotter) McAlinden ‘slowly, very slowly … admitted to some indiscretions but then agreed that it was a condition that had been with him for many years’. Cotter added, ‘… knowing Father Mac, as we do, we think …[the condition] cannot be real serious, nor do we believe that there is any danger of development into assault or rape’. In the letter Cotter also endorsed a proposal by McAlinden to cover up the circumstances relating to Foster-Tuncurry complaints and his immediate ‘resignation’ as a consequence, by sending him to Western Australia for ‘one or two years’, after which time he would return to the Diocese.

1.76   This letter confirms that senior officials of the Diocese – being at least Cotter, as vicar capitular, and Bishop Clarke – were aware of serious complaints about McAlinden’s behaviour with children as well as his admission to ‘indiscretions’. The information contained in the letter would undoubtedly have facilitated a police investigation of McAlinden (and, if disclosed, would have assisted the police investigation of McAlinden that was in fact initiated in 1999). The failure of Diocesan officials in particular, Cotter and Clarke – to report McAlinden’s conduct to police at that time or subsequently was inexcusable.

1.77   Following the failure to report him to police, McAlinden continued to sexually abuse children in the late 1970s, 1980s and 1990s.”

27. The pleading in this current PFASC is narrower than the pleading contained in the statement of claim set out in Marist Brothers. The pleading in this current PFASC is confined to sexual abuse that occurred within the Newcastle-Maitland diocese namely from 1976 to April 1978 during the period of time that the plaintiff alleges he was sexually abused at the school. During this time it is alleged that Bishop Clarke had knowledge Father McAlinden and Father Fletcher had been sexually abusing children in their parishes and he had failed to take any action.

28. In paragraph 24(a) it is alleged that the defendant breached its duty of care from 1976 to April 1978 because there was no proper system at the school for identifying and preventing abuse of the kind perpetrated by Father Brennan upon the plaintiff. Further, there was no proper system at the school in response to the knowledge referred to in paragraph 21.

29. In other words, the first part of the plaintiff’s case is founded upon there being no proper system at the school at the relevant time. While it is alleged that the Bishop at the time had knowledge of two priests sexually assaulting children of their parishes, the system that should have been employed in relation to the priests’ parishes would differ in some respects from the system that allegedly should have been in place at the school. As in Marist Brothers, I accept that the trustees and teachers or staff and students who were aware of the sexual abuse in the school, during the period between 1976 to April 1978 inform the scope of the duty of care. In this PFASC, the reference seems to be confined to one teacher, Father Denham at the school. This need to be clarified.

30. It is at least arguable that in the light of the knowledge allegedly possessed by Bishop Clarke, that he should have put proper systems in place to ensure the safety of children from sexual assault regardless of whether it occurred by the two identified offending parish priests that had been identified to him and Father Fletcher who was teaching at the school. As the alleged knowledge currently pleaded is limited to the same period of time and involves two other priests in the diocese aside from Father Denham at the school, in my view discovery would not be an onerous process as it concerned three identified priests for a relatively short period of time from 1976 to 1978. What was or was not done in response to the relevant knowledge possessed by Bishop Clarke is also outlined in the report. Whether or not this pleading will be ultimately successful at trial is not a matter for me to canvas. Paragraphs 21(a) and (d) should be repleaded in the manner outlined above. The words “at least” should be removed so that the pleading is specific.

31. As previously stated, the defendant also objects to paragraphs 21(e) to (g). In paragraph 21 the plaintiff pleads that by failing to prevent that abuse in those periods “the defendant created an environment where the defendant’s staff behaved in a predatory manner against students to commit abuse against students.”

32. The defendant submitted that they have requested particulars as to the identity of staff the plaintiff is talking about, what students and what conduct the plaintiff is relying upon and these requests have gone unanswered. According to the defendant, if the plaintiff is alleging that because no action was taken in relation to Father Brennan and there was no proper system in place and there was knowledge of the sexual abuse by Father Denham that also resulted in no action being taken against him, there was a risk that further sexual abuse of students would occur.

33. The defendant also submitted that sub paragraphs (e) and (f) do not plead material facts and the plaintiff should plead that the school had knowledge of certain matters. According to the defendant it should be done properly and he should not make unspecified allegations about the staff being predators without identifying who they are.

34. So far as paragraphs 21(e) to (g) are concerned, the plaintiff articulated, his pleading more specifically his claim in an answer to particulars dated 8 December 2017 where he says:

“13 The defendant knew of Denham’s prior abuse via complaints by victims to Brennan. The defendant’s failure to respond to Denham’s prior abuse increased the risk of future abuse occurring.

14 Future perpetrators may have expected that there would be no repercussions in relation to future abuse just as there had been no repercussions for Denham.”

35. The answer to particulars is better than the pleading but still makes unspecified allegations. Paragraphs 21(e) to (g) should be repleaded.

36. The result is that paragraph 21, 24(a) and (b) of the PFASC should be repleaded. The onus is on the plaintiff to replead these paragraphs. It is not for this Court to attempt to draft them. The plaintiff is to forward a new PFASC to the defendant within 14 days. The defendant is to notify the plaintiff of its consent or the reasons for its objections within 14 days. The notices of motion filed 7 August 2017 are stood over to Friday 16 March 2018 before Harrison AsJ at 10.00 am.

37. Costs are reserved.

The Court orders that:

1. The plaintiff is to forward a new proposed further amended statement of claim to the defendant by 16 February 2018.

2. The defendant is to notify plaintiff of its consent or the reasons for its objections by 2 March 2018.

3. The notices of motion filed 7 August 2017 are stood over to Friday 16 March 2018 before Harrison AsJ at 10.00 am.

4. Costs are reserved.

**********

Decision last updated: 02 February 2018