Smith v The Roman Catholic Archbishop of Perth - [2001] WASC 86

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SMITH -v- THE ROMAN CATHOLIC ARCHBISHOP OF PERTH & ANOR [2001] WASC 86

CORAM: MASTER SANDERSON

HEARD: 23 MARCH 2001

DELIVERED : 3 APRIL 2001

FILE NO/S: CIV 2588 of 2000

BETWEEN: CARMEL SMITH
Plaintiff
AND
THE ROMAN CATHOLIC ARCHBISHOP OF PERTH
First Defendant
FATHER EDWARD PATRICK HEWITT
Second Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Sexual relationship alleged between priest and parishioner - Claim against Archbishiop who appointed parish priest - Claim alleging breach of duty and breach of fiduciary duty - Relationship between Archbishop and parishioner in relation to appointment

Legislation:

Nil

Result:

Statement of claim struck out
Leave to replead refused
Judgment for first defendant against plaintiff

Representation:

Counsel:

Plaintiff:     Mr E V Gregoriadis
First Defendant             :     Mr J C Yeldon
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Corsers
First Defendant             :     Phillips Fox
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Breen v Williams (1996) 186 CLR 71
Clark v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (1998) 1 Qd R 26
Holgate v Lancashire Mental Hospitals Board (1937) 4 All ER 19
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Smith v Leurs (1945) 70 CLR 256
The Wik Peoples v The State of Queensland (1996) 187 CLR 1
Thorne v Western Australia (1964) WAR 147

Case(s) also cited:

Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384
Brunninghausen v Glavanics (1999) 46 NSWLR 538
Bryan v Maloney (1995) 182 CLR 609
Chapman v Hearse (1961) 106 CLR 112
Cubillo v Commonwealth of Australia (2000) 174 ALR 97
Day v Mead [1987] 2 NZLR 443
Farrington v McBride & Partner [1985] NZLR 83
FWM v Mombourquette and Roman Catholic and Episcopal Corporation of Antigonish (1995) 28 CCLT (2d) 157
Illuzzi v Christian Outreach Centre [1997] QCA 204
Jaensch v Coffey (1984) 155 CLR 549
Moses v The Diocese of Colorado 863 P 2d 310 (Colo 1993)
Paramasivam v Flynn (1998) 160 ALR 203
Tito v Waddell (No 2) [1977] Ch 106
United Dominions Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1

MASTER SANDERSON: This is the first defendant's application to strike out the plaintiff's statement of claim. During the course of submissions it became apparent that the plaintiff conceded that the statement of claim in its present form was defective and could not stand. The issue was whether the plaintiff should be given leave to replead or whether the action against the first defendant ought be struck out.
The statement of claim alleges that the plaintiff was at all material times a parishioner in the Maddington Parish of the Archdiocese of Perth. The second defendant was appointed by the first defendant as the parish priest at the Maddington Parish. It is pleaded (by par 4.1) that the first defendant "had control over the Second Defendant's employment status and workplace location within the Roman Catholic Church within Western Australia."
It is pleaded that in March of 1994 the plaintiff and her husband were experiencing marital difficulties. The plaintiff sought counselling from the second defendant. It is pleaded that between March of 1994 and November of 1994 numerous counselling sessions took place between the plaintiff and the second defendant. The plaintiff pleads that during this period she was in an emotional state of mind and emotionally vulnerable. It is then pleaded that between September of 1994 and November of 1994 a sexual relationship developed between the plaintiff and the second defendant. This relationship continued, it is pleaded, until January 1996. It is pleaded that as a consequence of this relationship the plaintiff has suffered injury and consequently loss and damage.
The plaintiff's action against the first defendant alleges a breach of a duty of care owed by the first defendant to the plaintiff and a breach of fiduciary duties owed by the first defendant to the plaintiff. This plea is set up by par 16 of the statement of claim. It is in the following terms:
"Further, by virtue of the position of the First Defendant, or alternatively, the relationship between the First Defendant and the Plaintiff, the First Defendant owed to the Plaintiff a duty of care, or alternatively, fiduciary duties."
It is immediately apparent that this pleading is defective. There are no material facts pleaded which could give rise either to a duty of care on the part of the first defendant or a fiduciary duty. There are of course some instances where the actuality of a duty of care or a fiduciary duty is so clear that a pleading of material facts is not strictly necessary. For instance, when a claim is brought by a person injured in a motor vehicle accident it is enough to plead that the driver of a motor vehicle owes a duty of care to pedestrians and other road users. It may, in some circumstances, be necessary to particularise that duty but it is enough to plead the fact of driving to give rise to a duty of care. Similarly, the relationship of solicitor and client, if pleaded, is enough to establish a fiduciary relationship. It may be necessary to plead specific aspects of that fiduciary relationship but it is not, generally speaking, necessary to plead material facts other than the fact of the solicitor/client relationship to establish that a fiduciary relationship exists.
But this is a different situation. The mere fact that the first defendant is the Archbishop of the Diocese of Perth and is responsible for appointing priests to the parish of Maddington could not, in my view, be said to give rise to a duty of care or to a fiduciary duty. Further material facts must be pleaded before such duties could be said to arise.
What is pleaded in par 18 of the statement of claim is that the first defendant was aware "or alternatively, should have been aware" that the first defendant had been convicted of certain offences. These two offences were of wilful exposure, the first in 1986, the second in 1996. Given that it is pleaded that the alleged liaison between the plaintiff and the second defendant took place between November 1994 and January 1996 (see par 10.2.3), it is only the first of these convictions which could possibly be relevant.
Dealing first with the question of the duty of care the relevant factors are these. The first defendant has a responsibility to appoint a priest to a particular parish. The first defendant is undoubtedly aware that as part of his functions as a priest, the appointee may give counselling to persons experiencing matrimonial difficulties. The first defendant must be aware that persons seeking counselling will be emotionally vulnerable. The first defendant was aware that, in the past, the second defendant had engaged in inappropriate behaviour. These are the relevant considerations. Nowhere in the present statement of claim or in the evidence is it suggested there are any more material facts which could be pleaded in support of the existence of a duty of care.
There have been only a limited number of cases where the question of whether or not a duty of care arises as between a parishioner and an Archbishop or Archdiocese has been considered. The most relevant of these is Clark v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (1998) 1 Qd R 26. The facts in that case and the cause of action propounded were materially different from the present. What was alleged against the Archdiocese was that certain representations had been made about ecclesiastical matters which were wrong. The action brought by the plaintiff sought damages for negligent misstatement. Williams J was not satisfied that the pleading (the case involved the return of a pleading summons) disclosed a cause of action. His Honour said (at 35):
"The alleged breach of duty in this case clearly relates to a spiritual matter. All the 'advice' referred to in the proposed statement of claim is advice on a spiritual matter - intercommunion - and necessarily involves the proper construction of the constitution and rules (Canons) of the Catholic Church. There is clearly no common law duty on a Bishop of the Catholic Church to give advice to a communicant on spiritual matters. If any such duty does exist it is derived from Canon law alone; that is undoubtedly why Canon law is incorporated extensive into the proposed pleading.
There is always a temptation to say that there is a general duty not to give negligent advice which foreseeably could cause psychiatric injury to the recipient. But as noted above the law still requires the existence of a duty situation before the tort is established. If one were to hold that there was a relevant duty situation recognised by the common law in circumstances such as exist here, one would also have to recognise that such duty situation carried wider implications. If, as the plaintiff asserts here in the proposed statement of claim, the duty encompassed an obligation to direct the plaintiff to particular Canons and a continuing obligation to offer further explanation and clarification of advice previously given, it must follow that the courts would have jurisdiction to enforce those obligations and to grant relief where there was a threatened breach. That would be tantamount to secular courts enforcing Canon law."
What is significant about this case is that the plaintiff seeks to render the first defendant liable for the actions of the second defendant. In other words, it is said that, the first defendant breached his duty to the plaintiff by not controlling the actions of the second defendant. As a general rule, no one is under a duty of controlling another to prevent his doing damage to a third. In Smith v Leurs (1945) 70 CLR 256 Dixon J (as he then was) put the position as follows (at 262):
"The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognised that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of the others to unreasonable danger. Parental control, where it exists, must be exercised with due care to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others. …
The standard of care is that of a reasonably prudent man, and whether it has been fulfilled is to be judged according to all the circumstances including the practices and usages prevailing in the community and the common understanding of what is practicable and what is to be expected."
It is the case that there are situations where a party has a duty to protect third parties from damage by a person over whom the party has control. For instance, a mental hospital that allowed a lunatic with a history of sexual crime to escape and commit an indecent assault was held to have breached its duty of care: see Holgate v Lancashire Mental Hospitals Board (1937) 4 All ER 19. (The report of this case contains only the direction to the jury. Nonetheless, it makes clear the existence of the duty). In this State, it was accepted by Negus J in Thorne v Western Australia (1964) WAR 147 that in certain circumstances the State may have a duty to take special precautions to prevent the escape of a prisoner who had threatened a third party.
But the facts in this case fall well short of the facts in any of the reported cases. It is not entirely clear from the pleading or from the evidence what control the first defendant exercised over the second defendant. It certainly bears no similarity to the relationship between gaoler and prisoner or hospital and inmate. Furthermore, the pleaded facts are not, in my view, sufficient to establish that the first defendant knew of the propensity of the second defendant to engage in a sexual relationship with the plaintiff. Mere knowledge of the conviction of the second defendant of an offence of wilful exposure eight years before the liaison with the plaintiff occurred is not in my view sufficient to give rise to the pleaded duty of care.
Before dealing with the alleged fiduciary duty it is appropriate to consider in what circumstances a fiduciary duty will arise. In Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Mason J noted that the courts have declined to define the concept of a fiduciary relationship, but had rather allowed the relevant law to develop on a case by case basis. His Honour, nonetheless, outlined some of the critical features of such a relationship (at 96 ‑ 97):
The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will effect the interests of that person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position."
The circumstances when a fiduciary duty may arise were considered by the High Court in Breen v Williams (1996) 186 CLR 71 and in TheWik Peoples v The State of Queensland (1996) 187 CLR 1. In this latter case, Brennan CJ put the position as follows (at 95 ‑ 96):
"It is necessary to identify some action or function the doing or performance of which attracts the supposed fiduciary duty to be observed. The doing of the action or the performance of the function must be capable of affecting the interests of the beneficiary and the fiduciary must have so acted that it is reasonable for the beneficiary to believe and expect that the fiduciary will act in the interests of the beneficiary (or, in the case of a partnership or joint venture, in the common interest of the beneficiary and fiduciary) to the exclusion of the interest of any other person or the separate interest of the beneficiary."
Based upon that formulation of the principle it is difficult to see how in the circumstances of the present case a fiduciary duty could arise. Williams J reached a similar conclusion in Clark. It had been pleaded that there was a fiduciary relationship between the plaintiff and the Archdiocese of Brisbane. His Honour said (at 32):
"It has often been said that the categories of fiduciary relationships are not closed and I would add that, in a modern world where human relationships are becoming more complex, what has to be done by a fiduciary in order to avoid censure is constantly changing; the law here is in a state of flux and necessarily so. But despite all of that I can find neither authority nor any proper basis for concluding that the mere relationship of Church and communicant or Bishop and communicant creates an obligation enforceable in equity either to exercise all powers (presumably both spiritual and temporal) conferred upon the former in good faith and in the interests of the latter, or a duty to protect the latter from foreseeable risks of harm (again presumably both spiritual and temporally). … if such duties are not recognised in equity then the claim for breach of fiduciary duty is without foundation."
In my view, the statement of claim in this matter should be struck out. Based upon the presently pleaded parts I can see no basis upon which the claim presently made by the plaintiff against the first defendant could succeed. I would refuse the plaintiff leave to replead against the first defendant. There should be judgment for the first defendant against the plaintiff in the action. The plaintiff should pay the costs of this application and the costs of the action.