SDW v Church of Jesus Christ of Latter-Day Saints

[2008] NSWSC 1249

CITATION:	SDW v Church of Jesus Christ of Latter-Day Saints [2008] NSWSC 1249
HEARING DATE(S):	17 November 2008 - 20 November 2008
JUDGMENT DATE :	27 November 2008
JUDGMENT OF:	Simpson J
DECISION:	1. The second further amended summons is dismissed; 2. The plaintiff is to pay the defendant’s costs; 3. (a) I exclude from order 2, any costs associated with the preparation and photocopying and presentation of 7 lever arch folders of documents; (b) I exclude from order 2 the costs associated with the preparation and presentation of the argument that the Constitution of Australia has any bearing on the proceedings, and of the notices pursuant to s 78B of the Judiciary Act 1903.
CATCHWORDS:	LIMITATION OF ACTION - application for extension of time - action for damages for personal injury - material fact of decisive character - plaintiff's means of knowledge - commencement of action occurs upon commencement of substantive proceedings - statement of claim not filed - power of the court to give retrospective effect to orders - orders nunc pro tunc - extent of plaintiff's psychiatric condition - discretionary power to grant extension - plaintiff required to establish duty of care and breach causing injury - Limitation of Actions Act (Qld) s 31, UCPR Pt 36.4(3) - CONSTITUTIONAL LAW - whether the Constitution recognises the free exercise of religion subject to state legislation - whether a law interfering with the confidentiality of religious confession is made invalid by s 116 of the Constitution - PRACTICE AND PROCEDURE - excess documents put before the court - excessive photocopying - delay - cost order
LEGISLATION CITED:	Limitation Act 1969 NSW Limitation of Actions Act 1974 QLD Judiciary Act 1903 Uniform Civil Procedure Rules
CATEGORY:	Principal judgment
CASES CITED:	John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 451 Whisprun Pty Ltd v Sams [2002] NSWCA 394 Sandrin v W & M Riggs Mechanical Repairs [2006] NSWCA 194 Queensland v Stephenson [2006] HCA 20; 80 ALJR 923
PARTIES:	SDW (plaintiff) Church of Jesus Christ of Latter-Day Saints (defendant)
FILE NUMBER(S):	SC 13579/04
COUNSEL:	E G Romaniuk (plaintiff) PT Taylor SC (defendant)
SOLICITORS:	Farrell Lusher (plaintiff) Moray & Agnew (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Thursday 27 November 2008

13579/04 SDW v CHURCH OF JESUS CHRIST
OF LATTER-DAY SAINTS

NON-PUBLICATION ORDER: NO PUBLICATION OF THE PLAINTIFF’S NAME OR OF ANY MATERIAL WHICH COULD DISCLOSE THE PLAINTIFF’S IDENTITY

JUDGMENT

1 HER HONOUR: The originating process in these proceedings is a summons filed on 1 November 2004. An amended summons was filed on 4 July 2005 and a further amended summons on 19 July 2005. A second further amended summons was filed in court by leave on the third day of hearing, 19 November 2008. In essence, in each version of the summons the plaintiff claims orders of the same kind – an extension of time under limitation of action legislation for the commencement of proceedings against the defendant for damages for personal injury. The successive amendments identify different legislative provisions as the source of power to make the order sought. Originally, the plaintiff claimed an order under s 60C of the Limitation Act 1969 NSW (“the NSW Act”). By the first amendment she claimed an order under s 58 and/or s 60G of the NSW Act. By the second amendment she claimed an order under s 58 and/or s 60G of the NSW Act, and/or s 31 of the corresponding Queensland legislation (the Limitation of Actions Act 1974, to which I will refer as “the Queensland Act”).

2 The third amendment (in the second further amended summons) repeated the orders sought in the further amended summons, and introduced a new claim, for:

“2. Orders pursuant to the general law power and/or UCPR Pt 36.4(3) that:

(a) the plaintiff file a statement of claim with 28 days;

(b) the statement of claim so filed has effect:

i. as if filed at the time of the filing of the summons on 28 October 2004 (sic); and
ii. as if proceedings commenced by that statement of claim were commenced on 28 October 2004.”

The reasons for this amendment will become apparent.

3 The proceedings the plaintiff wishes to bring against the defendant (the Church of Jesus Christ of Latter-Day Saints, to which I will refer as “the Church”) are unusual, even novel.

4 The matter appears to have been listed for hearing in late 2007. On 30 November 2007, the solicitors for the Church gave notice, pursuant to s 78B of the Judiciary Act 1903, that an issue arising under, or involving the interpretation of the Commonwealth, had emerged. I will return to this.

Background

5 The plaintiff alleges that, between November 1986 and October 1989, when she was a teenager, she, her mother, step-father (James Richardson) and other members of her family, who then lived in Queensland, were practising and active members of the Church. In November 1986 (when she was 14) Richardson began sexually assaulting her, and this continued over a period of three years, until October 1989 (when she was 17) when she left home. Sometime after Easter 1988, after about eighteen months of abuse, the abuse was drawn to the attention of senior members of the Church. Just how this happened is not clear on the evidence. A disciplinary tribunal (called a “Church court”), constituted under the Church’s organisational structure according to its internal rules, was convened and Richardson was excommunicated from the Church. Neither the Church, nor any of its members, took any further action.

6 In about April 1989 the family moved to Wagga Wagga where Richardson enlisted in the RAAF. The sexual assaults continued. Eventually the plaintiff reported them to the Wagga Wagga police and made a full statement.

7 At some stage also, the assaults were reported to Queensland police. (When and how this happened was the subject of some controversy.)

8 Charges were laid and prosecuted in Queensland. Richardson was tried on five charges and convicted of two offences, and served a term of imprisonment.

9 Charges were also laid in NSW. However, at a late stage, the plaintiff decided that she did not wish to give evidence. Richardson was never tried on those charges.

10 The plaintiff alleges that, as a consequence of the molestation, she has suffered and continues to suffer serious psychiatric disability. There is medical evidence to support that.

11 So much, for the purpose of the present proceedings, is not in issue.

12 It is not the perpetrator of the abuse, Richardson, against whom she now wishes to bring proceedings. The proceedings she wishes to bring, in respect of which she needs and seeks an extension of time, are against the Church. If granted an extension of time she will file a statement of claim. She will allege that the Church owed her a duty of care; that that duty of care encompassed protecting her against further molestation by Richardson, and that that, in turn, obliged the Church to report what it knew of the molestation to the relevant authorities – either child protection authorities or police. Its failure to do so amounted to a breach of its duty of care to her. She will further allege that that failure resulted in and was the cause of injury, loss and damage, the injury being the psychiatric injury to which I have referred. There is some evidence also of loss and damage of an economic nature, as a result of her asserted incapacity for employment, directly related to a psychiatric condition.

13 On these facts two things about the claim can be discerned. The first is that the breach of duty of care on which the plaintiff seeks to rely occurred on (or arguably from) sometime after Easter in the year 1988. The second is that the breach of duty occurred in Queensland. At one point in the proceedings counsel for the plaintiff sought to argue that, because the Church has its central headquarters in NSW, the fact was committed in this State. There was no evidence that the Church is so headquartered, and the argument was abandoned.

14 On the fourth day of the hearing, during the final address by senior counsel for the Church, counsel for the plaintiff abandoned reliance on any provision in the NSW Act, acknowledging that, by reason of the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503, it is the limitation law of Queensland that governs the application. That is the Queensland Act.

15 The relevant provisions of the Act are:

S 11: by s 11, an action for, inter alia, damages for negligence shall not be brought after the expiration of three years from the date on which the cause of action arose. However, s 29 suspends the running of the period of limitation during which the person is under a disability. By s 29(1), where the person entitled to bring an action is under a disability (as, in the present case, minority), the action may be brought at any time before the expiration of six years from the date on which the person ceased to be under a disability. But by s 29(2)(c), where the action is for damages for personal injury (as here), a period of three years from the date of assertion of disability is allowed.

16 Here, the plaintiff, who was born in March 1972, did not attain her majority until March 1990. It was therefore from that date that the limitation period ran.

17 Both counsel agreed that the plaintiff was entitled to bring her action against the Church at any time up to a date in March 1996. I suspect that counsel were in error. As indicated above, by s 29(2)(c), in respect of an action for personal injury, the period is three years. The limitation period expired on the plaintiff’s 21st birthday, in March 1993. The issue is immaterial for present purposes.

18 S 31 is the operative provision. It is relevantly in the following terms:

“31. Ordinary actions
(1) This section applies to actions for damages for negligence … where the damages claimed by the plaintiff for the negligence … consist of or include damages in respect of personal injury to any person …
(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court --
(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
(3) This section applies to an action whether or not the period of limitation for the action has expired --
(a) before the commencement of this Act; or
(b) before an application is made under this section in respect of the right of action.”

19 The effect of s 31 is that, if any material fact of a decisive character was not within the means of knowledge of the plaintiff until after the date in March 1992, a court is empowered to extend the limitation period so that it expires one year from the date of her acquisition of that means of knowledge.

20 In s 30 some of the terms used in s 31 are defined and explained. “Material facts” include relevantly, the fact of the occurrence of negligence; the identity of the person against whom the right of action lies; the fact that the negligence caused personal injury; the nature and extent of the personal injury so caused; and the extent to which the personal injury is caused by the negligence. “Material facts” are of “a decisive character” if, but only if, a reasonable person knowing those facts and having taken the appropriate advice on them, would regard them as showing that an action on the right of action would (apart from the effect of the expiration of the period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action (“a worthwhile cause of action”); and that the person whose means of knowledge is in question ought, in his or her own interest and taking his or her circumstances into account, to bring an action. A fact is not within “the means of knowledge” of a person at a particular time if, but only if, the person does not know that fact at that time, and, insofar as the fact is able to be found out by that person, the person has taken all reasonable steps to find it out before that time. “Appropriate advice” in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.

21 For the simple reasons that follow, I have concluded that the plaintiff’s case must fail.

22 It may be inferred (and was, in any case, on the plaintiff’s behalf accepted) that, at least by a date in 2004, she had actual knowledge of all (or sufficient) material facts of a decisive character. That is, by that date, there was no material fact of a decisive character that was not within her means of knowledge. That can be inferred, if from nothing else, from the fact that the summons was filed on her behalf claiming an extension of time to bring the action. That has the consequence that s 31 would, if the other conditions were met, permit the court to extend the limitation period so that it expires on the corresponding date in 2005. That follows from the way in which s 31 is worded:

“Where … it appears to the court …
(a) that a material fact of a decisive character … was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation …; and
(b) …;
the court may order that the period of limitation be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.” (italics added)

23 The effect of s 31 is to grant to a plaintiff, in strictly limited circumstances, an indulgence at the expense of the defendant. One of the limitations placed upon the grant of the indulgence is the requirement that action be brought (to use the language of s 11) within one year after the material facts of a decisive character have come within the means of knowledge of the applicant. In other words, a would-be plaintiff who belatedly becomes aware that he/she has a cause of action must act with despatch. That is, no doubt, out of fairness to the defendant, who is entitled to order his/her/its affairs on the basis that ancient defaults or breaches or misdeeds will be allowed to die. It is unnecessary to repeat the well-known discussion of these principles by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 451.

24 On the plaintiff’s case, she had all material facts of a decisive character within her means of knowledge by 28 October 2004. That means that s 31 permits the extension of the limitation period – the time to bring the action – to 28 October 2005 – but no later.

25 To my mind, an “action is brought” by the commencement of substantive proceedings on the court action – by filing a statement of claim or other originating process, identifying, at least, the cause of action and a claim for damages. Action is not brought by filing a summons seeking an extension of time in which to do so. Even as at the present time, the plaintiff still has not brought an action. S 31 does not permit an extension of the limitation period to any date beyond 2005.

26 This was drawn to the attention of counsel for the plaintiff on the first day of the hearing. He was given an opportunity to consider his position overnight. It was this that prompted the application to file the second further amended summons, with the additional order claimed. No real argument was directed against the construction of s 31 that I have outlined above. Instead, application was made in the terms set out in the second order sought in the second further amended summons.

27 The argument that was put was that the court has two sources of power to make an order of the kind sought. The first is identified as “the general law power”. In support of this, a number of authorities were cited. These included Whisprun Pty Ltd v Sams [2002] NSWCA 394 and Sandrin v W & M Riggs Mechanical Repairs [2006] NSWCA 194. These cases support the proposition that, in an appropriate case, the court has a common law power to give retrospective effect to its orders – or, to make orders “nunc pro tunc”.

28 Such a power is also expressly conferred on the court by UCPR 36.4(3), which is the second source of power the plaintiff invokes.

29 That such a power exists is uncontroversial. It is, of course, a power to be exercised with care, to the extent that giving an order retrospective effect affects the rights of other parties. But it is here quite unnecessary to deal with the circumstances in which it would, or would not, be appropriate to take that course.

30 What the power, from either source, permits the court to do is to make an order that operates from a time earlier than the time that it is made. It does not enable the court to override the clear terms of a statutory provision. Here the statutory provision is in clear terms: - the court may order that the limitation period be extended so that it expires at the end of one year from the date on which material facts of a decisive character come within the means of knowledge of the plaintiff. That, even accepting the plaintiff’s analysis of the facts, is 28 October 2005. If such an order were made today, it would not matter whether it was specified to operate from today, or from some date in 2004 or 2005; the court is still limited to the one year extension. It is simply not possible to claw back the time that has elapsed since 28 October 2005.

31 Although no similar issue arose in Queensland v Stephenson [2006] HCA 20; 80 ALJR 923, the approach I have taken is consistent with the approach there taken in the joint judgment of Gummow, Hayne and Crennan JJ. At [30] their Honours said:

“The practical result of this construction is that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant’s knowledge would regard the facts as justifying and mandating that an action be brought in the applicant’s own interests (as in s 30(1)(b)). If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time. If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.”

32 For these reasons the second further amended summons must be dismissed.

The substantive application

33 Given the view I have expressed, I propose only very briefly to deal with some of the arguments put in relation to the substantive application. Before coming to that, I make the following observations.

34 A vast amount of documentary material was placed before the court, principally by the Church. Initially, I was told that this amounted to no less than seven lever arch folders that contained, as it turned out, in excess of 3,000 pages. When I protested, this was quickly pared down to one folder. Even so, a good deal of it can be seen to be of only the most marginal, if any, relevance.

35 To my observation, it has become too common a practice for legal practitioners to produce to the court copies of every document that has come into existence associated with the facts the subject matter of the litigation. It denotes, at best, the exercise of no clinical legal judgment and the abdication of the responsibility that lies upon legal practitioners to apply thought and judgment in the selection of the material to be presented to the court. A common example is the photocopying and presentation of hospital files, from which every page is reproduced, and copied multiple times – documents such as histology reports, x-ray reports, nursing notes, and quite irrelevant charts and print outs of complex investigations. This case is no different. The costs to the parties are astronomical. The practice casts immense burdens on the legal representatives of the opposing party, who are obliged to read all of the material, further increasing the costs.

36 The practice must cease. If legal representatives will not voluntarily accept the responsibility of making appropriate selections of the material to be put before the court, then judicial officers must act to ensure that they do. One appropriate sanction, in cases of excess, is an order that, no matter what the outcome of the proceedings, no costs be recoverable from the losing party in respect of the excess, and, further, no costs be recoverable by the solicitor from the client for the excessive copying. I propose to make such an order.

The plaintiff’s evidence

37 The plaintiff’s evidence was given by way of two affidavits, sworn, respectively, 28 October 2004 and 5 July 2005. She was cross-examined.

38 I do not propose to outline the whole of the plaintiff’s evidence. She recounted, in a little more detail, the background and history I have set out above, including the assaults upon her by Richardson. Relevantly to the present application, she said that Richardson was an elder of the Church, a teacher, and he conducted a youth group; and he was employed as a “custodian”, attending to the Church grounds, buildings and garden maintenance. (There is no suggestion, however, of any vicarious liability in the Church, by reason of his employment, for his misconduct.)

39 The plaintiff said that at about Easter 1988 she had a conversation with her mother in which, at her mother’s instigation, she (the plaintiff) told her (her mother) that Richardson had been “touching her”, and had “had sex with me”.

40 Some time after that her mother told her that the Bishop of the Church had been informed, and that “it’s all going to come out and be dealt with”. She understood by this that her mother had reported the matter to the Bishop of the Church, who also happened to be a police officer. Following this, the Bishop approached the plaintiff and asked her if there was anything she wished to tell him. She replied that there was not.

41 Subsequently, the plaintiff was told by her mother that a “Church court” had been convened and a meeting held. Thereafter Richardson ceased working at the Church, ceased wearing his temple garments, and ceased taking the sacrament.

42 Another (female) member of the Church said to the plaintiff:

“I know what happened to you. It must be hard.”

43 Apart from “about Easter 1988”, the plaintiff did not, and was not asked to, fix any of these events in time. However, since the family left Queensland in April 1989, it can be taken to have been before that date. The plaintiff turned 17 in March of that year. This evidence was tendered to show that the Church, through its officials and/or senior members, had knowledge of Richardson’s conduct. That is the first step on the way to establishing the duty of care owed by the Church to the plaintiff, on which the plaintiff’s proposed case depends.

44 In her affidavit, in reference to the conversation with the female Church member, the plaintiff said:

“It was at that time I knew that some Church members were aware of the assaults of me.”

45 She said that she herself was never party to the Church court or excommunication process, and had never been given details of what occurred during the meeting. She did not attend the meeting or give any evidence or statement. She was never interviewed by the Church, police, or anybody else. Neither her mother nor Richardson ever spoke to her about the process.

46 The assaults by Richardson on her continued after the family moved to Wagga Wagga. In March 1999, after she had left home, she reported the assaults to the local police. Richardson was interviewed and charged. In September of that year the plaintiff consulted her present solicitors in respect of a claim for compensation under victim’s compensation legislation, which was ultimately (after appeal) successful. Later, through Queensland solicitors, she made a similar claim under the corresponding Queensland legislation.

47 In about April 2000 the plaintiff gave evidence in committal proceedings against Richardson and he was committed for trial. A trial was fixed in early 2001, but, following intimidating and even threatening approaches to her by Richardson’s daughter, and another person she could not identify, she advised the NSW Director of Public Prosecutions that she did not wish to proceed.

48 In about April 2003 the plaintiff was given a copy of the record of interview in which Richardson had participated. Of this she said:

“I first received a copy of Mr Richardson’s interview in or about April 2003. I have read that interview, in which my stepfather inter alia makes admissions he had sex with me and that he was excommunicated from the Church because of this. It was about this time that I realised the respondent Church had full knowledge of what had happened to me.”

49 In cross-examination she agreed that, on reading the record of the interview, she became aware that Richardson and her mother had claimed to have attended at the Oxley Police Station (in Queensland) in 1988, and said that she had been in the car but did not go with them into the police station. (This was put as going to what steps the Church did in fact take – it was suggested, though the evidence was weak and imprecise, that Richardson had himself notified the police, and that he had done so at the instigation of the Church.)

50 The plaintiff commenced the process of obtaining legal advice in September 2003. (In her later affidavit, she fixed “mid June 2003” as the date on which she did this.) This was in NSW.

51 Earlier in 2003, she had consulted Queensland solicitors, who advised her that she had rights against Richardson, but that, because he was impecunious, it was not worth commencing proceedings. She did not then receive advice in relation to bringing proceedings against the Church.

52 On 13 January 2004 she conferred with her present solicitor, Mr Gayler, who advised her, for the first time, that she might have a claim against the Church. She said that upon receiving this advice she:

“… understood for the first time that … there was a connection between my injuries and the Church’s acts and omissions and that that connection was described by Mr Gayler as being negligence by the Church causing damage to be suffered by me.”

53 She said that it was also as a result of that conference that she first became aware that her injuries were of a long-standing type and would continue to cause her loss of earnings and suffering into the future.

* * *

54 Counsel who appeared for the plaintiff had some difficulty in identifying the “material facts of a decisive character” which were claimed not to have been within the plaintiff’s means of knowledge until after March 1992. Initially, in conformity with evidence that had been given by the plaintiff, he put the fact that the reason for Richardson’s excommunication was his treatment of her. That, to my mind, is not a material fact of a decisive character. What may well be a material fact, and probably of a decisive character, is the Church’s knowledge of what Richardson had done to her. But the reason for the excommunication does not have any bearing upon the plaintiff’s proposed cause of action against the Church.

55 In any event, it is plain from her affidavit that she did have that knowledge by April 2003. Even if it could properly be said that the proceedings were commenced (“the action brought”) on the filing of the summons in November 2004, she was out of time.

56 Another fact proposed was:

“The nature of the Church court’s actual orders and dealings … the protocols and procedures of the Church court.”

57 I reject this also as a material fact of a decisive character.

58 The third material fact of a decisive character proposed was:

“… that [Richardson] had admitted his conduct to the Church and that, therefore, the complaint was not challenged, and she was unaware that the Church failed to act in a setting where it had that admission.”

59 I accept that the plaintiff’s awareness that the Church had information about Richardson’s misconduct is a material fact. Whether that came by his admissions, or from some other source, probably does not matter, although, as a fact relevant to the action she seeks to bring, it would be of greater strength if the Church’s knowledge is derived from an admission or confession by Richardson.

60 The final fact proposed was the nature and extent of the plaintiff’s psychiatric condition.

61 In paragraph 85 of the plaintiff’s first affidavit she deposed:

“On or about 18 October 2002 I was diagnosed with post-traumatic stress disorder by Peter Stoker, forensic psychologist. It was during that consultation that Mr Stoker said words to the effect of:
‘You have post-traumatic stress disorder, which is a most common thing to occur after such assaults. This will dominate your every day life and it will affect you for the rest of your life’.”

62 This is sufficient to indicate that, by that date, the plaintiff had sufficient information about the nature and extent of the personal injury she alleges.

63 Even if the plaintiff had filed a statement of claim by 28 October 2005, or when she filed the summons on 1 November 2004, she would face immense difficulties. I am unable to identify a single material fact of a decisive character that was not within her means of knowledge prior to 28 October 2004. For that reason also it would be necessary to dismiss the summons.

64 S 30(1)(b)(i) defines material facts of a decisive character as those which a reasonable person, knowing those facts, and having taken appropriate advice thereon, would regard them as showing (in effect) that he or she had a worthwhile cause of action and ought, in his or her own interests and taking his or her circumstances into account, to bring an action. In other words, it is hypothesised that the person knows the facts, and takes appropriate advice; on that hypothesis the inquiry is whether a reasonable person would regard the facts as disclosing a worthwhile cause of action.

Discretion

65 There are two further circumstances that ought here be mentioned, in the context of the application of s 30(1)(b)(i). The remedy made available by s 31 is discretionary. The plaintiff, were she to bring action against the Church, would have to establish, not only that the Church owed her a duty, (which would not be difficult) but that that duty encompassed reporting to police or other appropriate authorities, what it knew of Richardson’s behaviour. While I would not exclude altogether the possibility that she might succeed in doing this, it would be a very difficult task indeed. There is no precedent for a conclusion that any duty that the Church owed her was so specific in content.

66 Additionally, the plaintiff would have to establish a causal link between the breach of duty on the part of the Church and her present psychiatric condition. Given that, even on the plaintiff’s case, the Church came into possession of the relevant knowledge only about 18 months after the commencement of the abuse, it is difficult, if not impossible, to conceive that she could make the necessary causal link. Plainly, the overwhelming probability is that her present problems are the result of the assaults upon her. This was clearly stated by Mr Stoker in the passage quoted by the plaintiff in her affidavit, which I have set out above.

67 It is possible to reason that, had the Church acted, the assaults would have come to an end 18 months earlier than they did. But common sense dictates that the likelihood is by then the damage was done. Whether the plaintiff could establish, by evidence, that a continuation of another period of 18 months exacerbated damage already done is a matter of speculation.

68 These are matters relevant to the exercise of discretion. They would not necessarily militate against an order for extension. They may well be matters proper to be litigated in a final hearing.

The Constitutional Argument

69 One of the reasons for the long delay in the hearing of this application arose because, on behalf of the Church, notice of a Constitutional matter was given to the Attorneys General of the states, territories and Commonwealth under s 78B of the Judiciary Act. Not surprisingly, no Attorney General chose to intervene. The Constitutional questions identified were framed as follows:

“Does s 116 of the Commonwealth Constitution impose, or recognise, the free exercise of religion, subject to State legislation?

and

Is the freedom to make a confidential confession, which is privileged from disclosure, part of the free exercise of religion recognised by s 116?”

70 S116 of the Constitution is in the following terms:

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

71 The questions were raised in the context of the issue of whether the plaintiff would be able to establish a duty of care in the Church of the kind she would plead. If the free exercise of the religion included making confidential confessions, then a legal obligation of disclosure of the content of a religious confession would be, at the least, inconsistent.

72 The argument as put orally was predicated on an assumption that the free exercise of a religion may involve the receipt, by Church members, of confessions of a religious and confidential kind, and that, where a religion’s rules or procedures so provided, s 116 of the Constitution (arguably) prevented state legislation or the application of common law principles from interfering with that confidentiality as any such state or territory (or Commonwealth) law would be unconstitutional.

73 The argument was that a law that interfered with the confidentiality of a religious confession was a law “prohibiting the free exercise of [that religion]” and therefore was invalid by reason of s 116.

74 Whether s 116 is limited to a prohibition on the Commonwealth, or extends to states and territories, is a question that can be put to one side. The argument assumed that an organised church, such as the defendant Church, may be equated with a “religion”.

75 On no view could it be said that a law overriding the confidentiality of religious confession is a law prohibiting the free exercise of religion. If that were not so, religions (or, as the argument was put, churches) would be free to make their own rules, however inconsistent with the laws of states, territories or the Commonwealth, and any attempt to override them would be unconstitutional. One illustration will suffice. Some religions are known to recognise the right to multiple marriages. On the Church’s argument, laws against bigamy would be unconstitutional.

76 The argument is devoid of merit and entirely misconceived. I mention it in this context because, having regard to the view I have taken, it will be necessary to dismiss the second further amended summons, and order that the plaintiff pay the Church’s costs. Significant additional costs (as well as delay) have been incurred by reason of this false issue. I propose to exclude the costs associated with that matter, as well as the costs of excessive photocopying, to which I have earlier referred, from the order I must make for costs in favour of the Church.

77 The orders I make are:

1. the second further amended summons is dismissed;

2. the plaintiff is to pay the defendant’s costs;

3. (a) I exclude from order 2, any costs associated with the preparation and photocopying and presentation of 7 lever arch folders of documents;

(b) I exclude from order 2 the costs associated with the preparation and presentation of the argument that the Constitution of Australia has any bearing on the proceedings, and of the notices pursuant to s 78B of the Judiciary Act 1903.

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