The Catholic Archdiocese of Melbourne v RWQ (a pseudonym)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0087

THE CATHOLIC ARCHDIOCESE OF MELBOURNE	Applicant
v
RWQ (A PSEUDONYM)	First Respondent
GEORGE PELL	Second Respondent

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JUDGES:	BEACH, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2023
DATE OF JUDGMENT:	25 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 197
JUDGMENT APPEALED FROM:	[2022] VSC 483 (McDonald J)

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STATUTORY INTERPRETATION – Plaintiff’s claim for nervous shock against archdiocese arising from alleged sexual assault of plaintiff’s child – Plaintiff not a ‘primary victim’ of child abuse – Whether Legal Identity of Defendants (Organisational Child Abuse) Act 2018 applies to plaintiff’s claims – Meaning of ‘founded on or arising from child abuse’ – Principle of legality – Legal Identity of Defendants (Organisational Child Abuse) Act 2018, ss 1, 3, 4, 7, 8 – Lee v New South Wales Crime Commission (2013) 251 CLR 196; Stingel v Clark (2006) 226 CLR 442 applied – Leave to appeal refused.

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Counsel
Applicant:		Ms G Costello KC with Ms GF Gray
First Respondent:		Mr AD Clements KC with Mr D Seeman
Second Respondent:		No appearance
Solicitors
Applicant:	Wotton & Kearney
First Respondent:	Shine Lawyers
Second Respondent:	No appearance

BEACH JA
MCLEISH JA
KENNEDY JA:

Introduction

This application concerns a proceeding brought by RWQ against the Catholic Archdiocese of Melbourne (the ‘applicant’). In that proceeding, RWQ seeks damages for mental harm he suffered as a result of being informed of the alleged sexual abuse of his late son by Cardinal George Pell (‘Pell’),[1] and by reason of his son’s death.
[1]Pell was the second defendant to the proceeding, but filed a notice of intention not to respond or contest this application on 3 November 2022.
An issue arose as to the application of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (the ‘Act’) to RWQ’s claims. The Act provides a mechanism for the appointment of a proper defendant to incur liability in respect of claims ‘founded on or arising from’ child abuse. It thereby seeks to prevent unincorporated non‑government organisations (‘NGOs’) from successfully raising an ‘Ellis’[2] defence, on the basis that they lack legal personality for the purpose of being sued. The applicant submitted that the Act does not have application to RWQ’s claims because he was not subjected to child abuse himself, but was a so-called ‘secondary victim’.
[2]Trustees of the Roman Catholic Church v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 (‘Ellis’).
On 24 August 2022, a judge made orders which answered two questions set down for preliminary determination,[3] regarding the proper construction of the Act. He decided that, on a proper construction of ss 4(2) and 7:
(a)the Act applies to RWQ’s claims against the applicant; and
(b)a proper defendant nominated by the applicant would incur any liability arising from RWQ’s claims against the applicant.
[3]Pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015.
The applicant seeks leave to appeal the orders dated 24 August 2022.
For the reasons that follow, we have determined that the judge was correct and that leave to appeal will be refused.

Background

By a further amended statement of claim filed 4 February 2022, RWQ made the following key allegations against the applicant:
(a)that his son (‘AAA’) and a friend (‘BBB’) were abused by Pell sometime between July and December 1996;
(b)that as a result of the abuse AAA’s behaviour deteriorated. He commenced using illicit drugs at the age of 14 and used drugs consistently until his death;
(c)AAA died on 8 April 2014 from a heroin overdose caused by the psychological impact of the abuse;
(d)RWQ was informed of the abuse of AAA by a member of the SANO[4] Task Force on 1 July 2015;
(e)as a result of learning about the abuse of his son, RWQ suffered nervous shock for which he makes a claim at common law and pursuant to Part XI of the Wrongs Act 1958;
(f)the applicant owed RWQ a duty to take care not to cause RWQ pure mental harm;
(g)the applicant breached the duty to RWQ which was a cause of RWQ’s injury;
(h)further and in the alternative, the applicant was vicariously liable, or directly liable, for the abuse of AAA and the injury to RWQ.
[4]The SANO Task Force was established by Victoria Police to investigate historic and new allegations of child sexual abuse.
By its defence, the applicant relevantly admitted that it is an unincorporated NGO within the meaning of s 5 of the Act. However, it denied that the claim made by RWQ is a claim to which the Act applies, as it is not a claim ‘founded on or arising from child abuse.’
By summons dated 23 November 2021, RWQ applied for orders pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 that there be a trial of separate questions relating to the application of the Act.
On 2 February 2022, an associate judge made an order that there be a separate trial of the following questions:
(a)On the proper construction of s 4(2) of the Act, does the Act apply to RWQ’s claims against the applicant?
(b)On the proper construction of s 7 of the Act, would a proper defendant nominated by the applicant incur any liability arising from RWQ’s claims against the applicant?
On 24 August 2022, the judge made orders which answered both questions affirmatively.

Grounds of appeal

The applicant advanced the following grounds of appeal:
1. The judge erred in concluding that:
(a)On the proper construction of s 4(2) of the Act, the Act applies to RWQ’s claims against the applicant; and
(b)On the proper construction of s 7 of the Act, a proper defendant nominated by the applicant would incur any liability arising from RWQ’s claims against the applicant.
2. The judge ought to have concluded that, on the proper construction of ss 4 and 7, the Act does not apply to RWQ’s claims against the applicant.

Statutory framework

Section 1 of the Act concerns the purpose of the Act and provides:
1 Purpose
The main purpose of this Act is to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities.
Section 3 contains various definitions, which include the following definition of ‘child abuse’:
(a)an act or omission in relation to a person when the person is a minor that is physical abuse or sexual abuse; and
(b) psychological abuse (if any) that arises out of that act or omission —
and includes alleged child abuse.
Section 4 is entitled ‘Application of Act’ and states:
(1)This Act applies to any proceeding for a claim founded on or arising from child abuse.
(2) This Act applies to an NGO[5] if—
(a)a plaintiff commences or wishes to commence a claim against an NGO founded on or arising from child abuse; and
(b)but for being unincorporated, the NGO would be capable of being sued and found liable for a claim founded on or arising from child abuse; and
(c) the NGO controls one or more associated trusts.
(3)This Act applies to a claim founded on or arising from child abuse whether the child abuse occurred or occurs before, on or after the commencement of this section.
[5]For the purposes of the Act, an NGO is a non‑government organisation that is an unincorporated association or body. An NGO does not need to have a written constitution or fixed membership, or any other prescribed attribute: ss 3, 5.
Sections 7 and 8 make provision for the appointment of a proper defendant to be sued in relation to a relevant claim as follows:
7 Nomination of proper defendant
(1)An NGO to which this Act applies, in relation to any claim founded on or arising from child abuse, with the consent of the nominee, may nominate an entity that is capable of being sued—
(a)to act as a proper defendant to the claim on behalf of the NGO; and
(b)to incur any liability arising from the claim on behalf of the NGO.
(2)If an NGO nominates a proper defendant under subsection (1), that entity—
(a)is taken to be the defendant in the claim on behalf of the NGO for all purposes; and
(b)incurs any liability arising from that claim on behalf of the NGO as if the NGO had been incorporated and capable of being sued and found liable for child abuse.
(3)Unless the court otherwise orders, a nomination of a proper defendant may occur at any time within 120 days after the commencement of the proceeding for the claim against the NGO.
(4)A court may substantively determine a claim in a proceeding founded on or arising from child abuse for which there is a proper defendant under this section as if the NGO itself were incorporated and capable of being sued and found liable for child abuse in respect of the claim.
(5)The nomination of a proper defendant under this section does not relieve an NGO from any obligations it may have in relation to the conduct of the proceeding, including any interlocutory matters, and for that purpose, the NGO is taken to be incorporated and capable of being sued and found liable for child abuse in respect of the claim.
8 Associated trust to be proper defendant
(1) This section applies to a claim if—
(a)an NGO fails to nominate a proper defendant under section 7 within 120 days from the commencement of the proceeding against the NGO; or
(b)the proper defendant nominated by the NGO is not an entity capable of being sued or does not have sufficient assets or property to meet any judgment or order that may arise in or from the proceeding for the claim.
(2)The plaintiff in a proceeding for a claim to which this section applies may apply to the court for an order that the claim is to proceed against the trustees of an associated trust of an NGO on behalf of the NGO as a proper defendant.
(3)For the purpose of an application under subsection (2), the NGO bears the onus of identifying any associated trust.
(4)On an application under subsection (2), the court may make an order that the claim is to proceed against the trustees of an associated trust of the NGO on behalf of that NGO as a proper defendant.
(5)If the court makes an order under subsection (4), any trustee of the associated trust—
(a)is taken to be the defendant to the claim on behalf of the NGO for all purposes; and
(b)incurs any liability arising from the claim on behalf of the NGO as if the NGO had been incorporated and capable of being sued and found liable for child abuse.
(6)More than one trustee of an associated trust, and more than one associated trust, may be a proper defendant and liability may attach to more than one such trustee or trust.
(7)A court may make any further order under this section that the claim may proceed, or any judgment obtained on that claim be enforced, against the trustees of one or more other associated trusts of an NGO.
(8)A court may substantively determine a claim in a proceeding founded on or arising from child abuse for which there is a proper defendant under this section as if the NGO itself were incorporated and capable of being sued and found liable for child abuse in respect of the claim.
(9)The appointment of a proper defendant under this section does not relieve an NGO from any obligations it may have in relation to the conduct of the proceeding, including any interlocutory matters, and for that purpose, the NGO is taken to be incorporated and capable of being sued and found liable for child abuse in respect of the claim.
Section 9 provides that, despite any law or other instrument (including any trust deed), the trustees of an associated trust may apply any trust property to satisfy any liability by reason of being a proper defendant under the Act and may be indemnified out of trust property.

Judge’s reasons

After setting out the background and relevant statutory provisions, the judge turned to the applicant’s submissions.
The applicant submitted that the reference in s 4(2)(a) to a ‘plaintiff’ is a reference to a ‘child abuse plaintiff’, which was consistent with the purpose stated in s 1, and with the definition of ‘child abuse’ in s 3. It was on this basis that the applicant contended that the Act only applies to an NGO if a plaintiff commences or wishes to commence a claim against an NGO founded on or arising from child abuse of the plaintiff, that is, where the plaintiff is the child alleged to have been abused. It followed that the Act has no application in respect of RWQ’s claim.[6]
[6]RWQ v The Catholic Archdiocese of Melbourne [2022] VSC 483, [9]–[10] (‘Reasons’).
The judge considered that the starting point for the proper construction of s 4(2) is the words of s 4(2). Further, he held that the plain and ordinary meaning of the words in s 4(2)(a), ‘a claim against an NGO founded on or arising from child abuse’, includes a claim for nervous shock arising from the child abuse of RWQ’s child.[7] The judge stated:
There is no material distinction between the words ‘founded on’ and the words ‘brought in respect of’.[8] The words ‘founded on’ are words of wide import.[9] A claim ‘arising from’ child abuse requires a less proximal causal relationship between the claim and the child abuse than is required for a claim founded on child abuse.[10] The use of ‘or’ in the phrase ‘founded on or arising from’ manifests a legislative intention to extend the application of the Act beyond claims against NGOs founded on child abuse. Absent the phrasing ‘arising from’ it is strongly arguable that a claim by a plaintiff for damages for nervous shock consequent upon the plaintiff being told that their child had been sexually abused, would be a claim founded on child abuse. However, the use of the phrase ‘arising from’ puts the matter beyond doubt. A claim by a plaintiff for damages for nervous shock consequent upon the plaintiff being told that their child had been sexually abused is plainly a claim arising from child abuse.[11]
[7]Ibid [11].
[8]Lew Footwear Holdings Pty Ltd v Madden [2014] VSC 320, [220] (Elliott J).
[9]Brighton Automotive Holdings Pty Ltd v Honda Australia Pty Ltd (2021) 65 VR 146, 159 [32], 160 [37] (Button J); [2021] VSC 757.
[10]Repatriation Commission v Law (1980) 47 FLR 57, 68 (Bowen CJ, Brennan and Lockhart JJ); [1980] FCA 112; Government Insurance Office of New South Wales v RG Green & Lloyd Pty Ltd (1966) 114 CLR 437, 443 (Barwick CJ, McTiernan and Taylor JJ agreeing at 444), 445 (Menzies J), 447 (Windeyer J); [1966] HCA 6 (‘Green’).
[11]Reasons, [12] (citations in original).
The judge noted that all words of a statute must be given meaning unless there is a good reason to the contrary.[12] If, as contended by the applicant, the application of the Act to NGOs is confined to claims brought by primary victims of child abuse (ie children who are alleged to have been abused), the judge reasoned that the words ‘or arising from’ in s 4(2)(a) would be ‘inutile’. This was because a claim against an NGO by a primary victim of child abuse will always be a claim ‘founded on’ child abuse.[13]
[12]Ibid [13], citing Commonwealth v Baume (1905) 2 CLR 405, 414 (Griffith CJ); [1905] HCA 11 (‘Baume’); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 12–13 (Mason CJ); [1992] HCA 64 (‘Chu Kheng Lim’).
[13]Reasons, [13].
The judge recorded that senior counsel for the applicant had accepted that the ordinary meaning of the words in s 4(2)(a) would include RWQ’s claim. However, he submitted that, when considered in context, the Act only applies to a claim by a primary victim. Senior counsel also submitted that the mischief to which the Act is directed is the capacity of an NGO to rely upon the Ellis defence in respect of a claim by a primary victim.[14]
[14]Ibid [14].
The applicant also submitted that various extrinsic materials[15] established that the intended purpose of the Act was to provide ‘survivors’ (defined in the Royal Commission Report and Betrayal of Trust Report as ‘primary victims’ of child abuse) with a proper defendant capable of being found liable for abuse in circumstances where the defendant was an NGO. The applicant also highlighted that:
(a)the Betrayal of Trust Report did not discuss ‘secondary victims’ (ie persons other than the children alleged to have been abused) in the context of civil law reform;
(b)the Royal Commission Report did not make any recommendation for civil law reform in respect of secondary victims;
(c)the second reading speech in respect of the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 (the ‘Bill’) supports a finding that the reference to ‘child abuse plaintiffs’ in the Act is a reference to survivors claiming compensation for child abuse;
(d)the Explanatory Memorandum does not refer to the legislation having application to claims brought by secondary victims.[16]
[15]This included: Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation (Final Report, September 2015) (‘Royal Commission Report’); Parliament of Victoria Family and Community Development Committee, Betrayal of Trust, Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (Report, November 2013) (‘Betrayal of Trust Report’); Victoria, Parliamentary Debates, Legislative Assembly, 7 March 2018 (Martin Pakula, Attorney-General) 594–7 (‘second reading speech’); Explanatory Memorandum, Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 (‘Explanatory Memorandum’).
[16]Reasons, [15]–[18].
The judge accepted that the extracts from the second reading speech cited by the applicant lend support for its contention that references in the speech to ‘survivors’ were references to primary victims. However, other extracts suggest that the references to ‘survivors’ were not so confined.[17] In particular, there were references to litigation brought by Mrs Chrissie Foster and Mr Anthony Foster who had made claims in their own individual capacities for damages arising out of the alleged sexual abuse of their daughters. The judge stated:
The claims brought by Mr and Mrs Foster arising from the alleged sexual abuse of their children were not claims brought as primary victims of institutional child abuse. As with RWQ’s claim, the claims were founded on or arising from the alleged abuse of their children. Nevertheless, Mr and Mrs Foster are referred to in the second reading speech as ‘survivors’. It is inexplicable and improbable[18] that in circumstances where the Attorney-General described Mr and Mrs Foster as survivors and acknowledged their advocacy as having played a significant part in the Bill coming before Parliament, that the Parliament intended to enact legislation which would still have allowed the applicant to rely on the Ellis defence in respect of claims brought by Mr and Mrs Foster arising out of the alleged sexual abuse of their daughters. Nevertheless, if the first defendant’s submissions are accepted, this is the effect of the Act.[19]
[17]Ibid [19].
[18]Cf R v A2 (2019) 269 CLR 507, 524 [46] (Kiefel CJ and Keane J); [2019] HCA 35.
[19]Reasons, [21].
His Honour concluded that, while the second reading speech supports a finding that a ‘principal focus’ of the Act is to ensure that the claims of survivors of institutional child abuse are not frustrated by the absence of a proper defendant, it did not support a finding that Parliament intended that only those plaintiffs who were themselves victims of institutional child abuse should benefit from the Act.[20]
[20]Ibid [22].

The judge stated that the task of the Court is to construe the language of the statute. If the meaning of the words in s 4(2) of the Act has a wider application than may have been contemplated by the draftsperson, the Court must give effect to that wider meaning.[21] He drew a parallel with the decision of the High Court in Stingel v Clark[22] which held that the words ‘breach of duty’ in s 5(1A) of the Limitation of Actions Act 1958 were capable of covering intentional torts. This was despite the fact that the extrinsic materials suggested that lung disease was the ‘paradigm case’ to which s 5(1A) was directed.[23]
[21]Ibid [23], citing Stingel v Clark (2006) 226 CLR 442, 458 [26] (Gleeson CJ, Callinan, Heydon and Crennan JJ), 485 [132] (Hayne J agreeing) (‘Stingel’); [2006] HCA 37; Firebird Global Master Fund II Ltd v Nauru (2015) 258 CLR 31, 56 [69] (French CJ and Kiefel J); [2015] HCA 43; Secretary to the Department of Justice and Regulation v Century 21 Australia Pty Ltd (2017) 53 VR 234, 248–9 [48] (Whelan, Beach and Ferguson JJA); [2017] VSCA 205.
[22](2006) 226 CLR 442; [2006] HCA 37.
[23]Ibid 458 [26] (Gleeson CJ, Callinan, Heydon and Crennan JJ).
The judge accepted that, equally, ‘some passages’ in the second reading speech relied upon by the applicant support a finding that ensuring survivors have a proper defendant to sue was a primary focus of s 4(2) of the Act. However, he held that even if the references to ‘survivor’ in the second reading speech are confined to primary victims, the plain meaning of the words in s 4(2) gives the Act wider application. He noted that there is no reference in s 4(2) to ‘survivor’, ‘primary victim’ or ‘secondary victim’ and ‘nothing in the text of s 4(2) which limits its operation to a claim founded on or arising from child abuse of the plaintiff’.[24]
[24]Reasons, [29] (emphasis in original).
Further, the judge did not accept the applicant’s contention that the word ‘plaintiff’ in s 4(2)(a) should be read as ‘child abuse plaintiff’. Such words do not appear in s 4(2) and s 1 contains the only reference to ‘child abuse plaintiff’ in the Act. He considered that a purpose provision expressed in general terms may serve little function as an aid to the construction of a more specific substantive provision. Properly construed, the judge found that ‘child abuse plaintiffs’ in s 1 means plaintiffs who commence or wish to commence a claim against an NGO founded on or arising from child abuse. If he was wrong about this, he held that it still does not follow that the application of the Act is limited to claims by plaintiffs who are the primary victims of child abuse. First, s 4(2) uses the word ‘plaintiff’ rather than ‘child abuse plaintiff.’ Secondly, s 1 provides that the ‘main’ purpose of the Act is to make provision for child abuse plaintiffs. It was not inconsistent with the main purpose if the Act also applied to claims brought by secondary victims.[25]
[25]Ibid [30]–[31].
The judge next turned to the applicant’s submission that ss 7 and 8 support a finding that the application of the Act is limited to claims brought by primary victims. The applicant drew attention to the words ‘capable of being sued and found liable for child abuse in respect of the claim’ in ss 7(4)–(5) and ss 8(8)–(9) and submitted that these words suggested that the claim brought must be a claim which, if successful, results in a finding of liability to the plaintiff for child abuse of the plaintiff (ie abuse of the plaintiff as a child).[26]
[26]Ibid [32].
However, the judge considered that the words in ss 7(4) and (5) must be read in the context of ss 7(1) and (2). Section 7(1) provides that an NGO to which the Act applies in relation to any claim ‘founded on or arising from child abuse’ may nominate an entity capable of being sued to act as a proper defendant and incur any liability arising from the claim on behalf of the NGO. Thus the liability which the proper defendant incurs on behalf of the NGO is liability arising from any claim ‘founded on or arising from child abuse.’ Applying the principle of consistent usage,[27] the judge considered that where[ever] it appears in s 7, the phrase ‘founded on or arising from child abuse’ must be construed consistently with the construction of that phrase where it appears in s 4(2).[28]
[27]Tabcorp Holdings Ltd v Victoria (2016) 90 ALJR 376, 387 [65] (The Court); [2016] HCA 4 (‘Tabcorp’).
[28]Reasons, [33]–[34].
The judge identified that s 7(2)(b) provides that, upon nomination, the proper defendant incurs any liability arising from the claim on behalf of the NGO as if the NGO had been incorporated and found liable for child abuse. However, the relevant claim is not a claim ‘for child abuse’ but a claim ‘founded on or arising from child abuse.’ Thus the right to nominate in s 7(1) is only enlivened if there is a claim ‘founded on or arising from child abuse.’ Hence the words ‘found liable for child abuse in respect of the claim’ in ss 7(4)–(5) and 8(8)–(9) mean ‘found liable for a claim founded on or arising from child abuse.’[29]
[29]Ibid [35].
The judge noted that the words ‘founded on or arising from child abuse’ are used repeatedly throughout the Act, citing ss 4(1), 4(2), 4(3), 7(1), 7(4), 8(8), 12(1) and 13. The repeated use of these words points strongly to the conclusion that the application of the Act to NGOs is not confined to claims by primary victims.[30]
[30]Ibid [36].
In dealing with the purpose of the Act the judge said:
The mischief which the Act was intended to remedy is not limited to the capacity of an NGO such as the first defendant to rely upon the Ellis defence in respect of a claim brought by a primary victim of institutional child abuse. The text of the Act, particularly the repeated use of the words ‘a claim founded on or arising from child abuse’ points to the relevant mischief being the capacity of an NGO to rely on the Ellis defence in respect of a claim founded on or arising from child abuse, irrespective of whether the claim is brought by a primary or secondary victim. The text of a statute is important as it contains the words being construed.[31] The text of s 4(2) is the clearest indicator of the mischief which the Act is intended to remedy.[32]
[31]R v A2 (2019) 269 CLR 507, 522 [36] (Kiefel CJ and Keane J); [2019] HCA 35.
[32]Reasons, [37].
The judge then concluded:
The plain meaning of the words in s 4(2) is that the Act applies to an NGO if a plaintiff commences a claim against an NGO founded on or arising from child abuse. This includes a claim for nervous shock by a plaintiff whose claim is founded on or arises from child abuse of the plaintiff’s child. The contextual matters relied upon by the first defendant do not warrant a departure from the plain meaning of s 4(2). To construe ‘plaintiff’ in s 4(2)(a) as being limited to a plaintiff who is a primary victim of institutional child abuse forecloses the inquiry which the text of s 4(2) demands, namely whether the plaintiff’s claim against an NGO is founded on or arises from child abuse.[33]
[33]Ibid [38].
He therefore answered both questions in the affirmative.

Submissions in this Court

The applicant submitted that the Act does not have application to secondary victims and the judge fell into error in finding otherwise.
The applicant submitted the Act must be considered as a whole, so that all of its provisions are consistent. It focused on s 3, which exhaustively defines the term ‘child abuse’ for the purposes of the Act, and which should be read in conjunction with the sections in question. The applicant contended that the use of the connecting phrase ‘in relation to’ in the definition of ‘child abuse’ in s 3, confines the child abuse to which the Act applies to the abuse of ‘a person’ that occurred when ‘the person’ was a minor. The applicant submitted that such persons who suffered the defined physical or sexual abuse comprise the class of ‘child abuse plaintiffs’ addressed in s 1 of the Act.
The applicant accepted that the ‘plain meaning’ the judge attributed to the phrase ‘founded on or arising from child abuse’ was one of the available meanings for the words. However, it was not the operative meaning once the text is considered in conjunction with the entire Act, its history and extrinsic materials. It submitted that the judge failed to consider, at the first stage, the context of the entire Act, as well as the relevant extrinsic materials.
The applicant submitted that the phrase ‘founded on or arising from child abuse’ operates to identify the type of claim encompassed by the Act, but that s 4(2) alone says nothing about whose claims against an NGO are encompassed by the Act. The judge implicitly or effectively concluded that s 4 is the sole provision that defines the ambit of the Act. Thus, the phrase ‘founded on or arising from child abuse’ in s 4 employs alternatives in respect of the types of claims that victims of child abuse might bring, rather than, as the judge found, extending the operation of the Act to persons other than those who have been the subject of child abuse.
The applicant accepted that, when read alone, the words ‘founded on or arising from’ have wide import in respect of the type of claim. However, the operation of that phrase is affected by its context, and particularly by ss 1, 3, 7 and 8, together with the extrinsic materials.
The applicant submitted that, contrary to the finding of the judge, s 1 is not a generally expressed provision, but a ‘very specific’ purpose provision. While the term ‘child abuse plaintiffs’ in s 1 is not separately defined, its ordinary meaning embraces only those plaintiffs who have suffered ‘child abuse’ (as that term is defined in s 3). Such a construction would see the term ‘child abuse’ dealt with consistently throughout the Act. By way of contrast, the judge’s conclusion (that it means plaintiffs who commence or wish to commence a claim against an NGO) was erroneous and strained.
The applicant also submitted that there was ‘strong support’ for its construction in the extrinsic materials. It submitted that the extrinsic materials as a whole were opposed to the conclusion reached by the judge based on the fleeting references to the Foster family. In particular, it highlighted that the recommendations from the relevant reports did not include broadening avenues of recovery for civil claims to secondary victims, despite secondary victims being the subject of comment in both reports.
The applicant highlighted that ss 7 and 8 were the crux of the scheme created by the Act. However, both ss 7(4) and 8(8) define the power of the court to determine claims under the Act by reference to the fiction ‘as if’ the NGO is incorporated and capable ‘of being sued and found liable for child abuse in respect of the claim’. The applicant submitted that this phrase expressly connects the ‘claim’ made by the relevant plaintiff and a defendant’s exposure to liability for child abuse (as defined in s 3). If the words ‘found liable for child abuse in respect of the claim’ were construed to mean ‘found liable for a claim founded on or arising from child abuse’ (as the judge did), there is no longer a connection between the ‘claim’ made by the plaintiff and a defendant’s exposure to liability for child abuse. Further, so construed, there is not necessarily any exposure to liability for child abuse at all notwithstanding the clear terms of ss 7(4), 7(5), 8(8) and 8(9). The applicant also challenged the judge’s finding that this would foreclose the inquiry demanded by s 4(2) given that, on the applicant’s construction, the ‘claim’ by the ‘child abuse plaintiff’ would still be a claim ‘founded on or arising from child abuse.’ Hence ss 7(4) and 8(8) provide for substantive determination of claims brought by plaintiffs who were subjected to child abuse.
The applicant submitted that RWQ alleges liability for an injury that he has suffered and does not sue in respect of injury suffered by anyone else. If his claims were successful it would not result in a finding of liability ‘for’ child abuse.
In oral submissions, senior counsel for the applicant relied on three matters.
First, she relied upon the ‘principle of legality’,[34] and submitted, that where legislation interferes with pre-existing rights, the intention to do so must be manifest. She submitted that people had ‘organise[d] their affairs’ on assumptions about incorporation and had assumed that an unincorporated association is not liable in law or equity. If Parliament had intended to change that longstanding status quo in respect of family members, not just those subjected to child abuse, it should have said so — but it did not. In so doing she contrasted the express references to ‘secondary victims’ in the Victims of Crime Assistance Act 1996.[35]
[34]Cases cited included Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117, 134–5 [30]–[31] (French CJ, Crennan and Kiefel JJ); [2012] HCA 19 (‘Australian Education Union’); Tabcorp (2016) 90 ALJR 376, 387 [68] (The Court); [2016] HCA 4; Clissold v Perry (1904) 1 CLR 363, 373 (Griffith CJ, Barton and O’Connor JJ agreeing at 378); [1904] HCA 12.
[35]She particularly relied upon pt 2 div 2.
Secondly, she submitted that the terms of the Act ought to be determined purposively such that it has no application to secondary victims. She reiterated reliance on s 1 in supporting this proposition. She also made reference to various other parts of the Act, highlighting the definition of ‘child abuse’ in s 3, and the reference to liability ‘for child abuse’ in s 7(4). The applicant emphasised that the phrase ‘a claim founded on or arising from child abuse’ was intended to give an expansive effect to the type of claims brought by the primary victim. When pressed for the types of cases which would come within the words ‘arising from,’ but not ‘founded on,’ the applicant identified claims based on vicarious liability and estate claims.
Thirdly, it was submitted that the extrinsic materials support the applicant’s construction, including the purpose identified. In particular, counsel made reference to cl 4(1) of the Explanatory Memorandum which provides as follows:[36]
subclause (1) provides that the Bill applies to any proceeding for a claim founded on or arising from child abuse. This means that any claim founded on or arising from child abuse can be brought in reliance on the provisions of the Bill, including negligence, vicarious liability or direct liability.
[36]Explanatory Memorandum, 4.
Senior counsel submitted that the reference in the second sentence to the various causes of action (including negligence and vicarious liability) evidenced the breadth of the claims that primary victims could bring. It was significant that there was no reference to family members or others associated with primary victims.
Counsel also made reference to a number of reports, emphasising that a distinction was drawn between primary and secondary victims. She highlighted that neither the Betrayal of Trust Report, nor the Royal Commission Report, made recommendations to broaden the ambit of recovery so as to include secondary victims.
RWQ submitted that the judge correctly answered both questions and that his construction was correct.

Resolution

It is convenient to consider the proposed grounds together, having regard to the usual principles of statutory construction, taking into account the ordinary meaning of the words used, as well as both context and legislative purpose.[37]
[37]Visser v The King [2023] VSCA 10, [100] (Emerton P, Priest, McLeish, T Forrest and Kennedy JJA), citing R v A2 (2019) 269 CLR 507, 520–2 [32]–[37] (Kiefel CJ and Keane J), 545 [124] (Bell and Gageler JJ); [2019] HCA 35.
In this case, the applicant also seeks to rely on the ‘principle of legality.’ That principle applies the assumption that Parliament will use clear language if it intends to overthrow ‘fundamental principles, infringe rights, or depart from the general system of law.’[38] However, the principle needs to be applied with care in circumstances where the legislature has already directed its attention to the question of abrogation of rights and determined that such rights should be abrogated. Hence in Lee v New South Wales Crime Commission,[39] Gageler and Keane JJ stated:
313 The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
314The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.[40]
[38]Australian Education Union (2012) 246 CLR 117, 134–5 [30]; [2012] HCA 19.
[39](2013) 251 CLR 196; [2013] HCA 39.
[40]Ibid 310–11 [313]–[314] (Gageler and Keane JJ); [2013] HCA 39. See also North Australian Aboriginal Justice Agency v Northern Territory (2015) 256 CLR 569, 605–6 [81] (Gageler J); [2015] HCA 41; Roads and Maritime Services v Desane Properties Pty Ltd [2018] 98 NSWLR 820, 856 [193] (Bathurst CJ, Ward and Payne JJA); [2018] NSWCA 196; BMW Australia Ltd v Brewster [2019] 366 ALR 171, 185 [61] (Meagher, Ward and Leeming JJA); [2019] NSWCA 35.
There has also been some debate as to the relative strength of the presumption, depending on whether the right involved is really ‘fundamental’.[41] For example, it has been suggested that the presumption is strong when the right is a fundamental right, but weak when the right is merely one to take or not take a particular course of action.[42]
[41]Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560, 623 [159] (Nettle, Gordon and Edelman JJ); [2019] HCA 32.
[42]Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 284 [36] (McHugh J); [2003] HCA 33, cited in Doughty v Martino Developments Pty Ltd (2010) 27 VR 499, 507 [17] (Nettle JA, Mandie JA agreeing at 511 [35], Emerton AJA agreeing at 511 [37]); [2010] VSCA 121.
Whatever the precise scope of the presumption, it may be accepted that, prior to the introduction of the Act, and consistent with the case of Ellis, people could ‘organise their affairs’ on the basis that unincorporated NGOs could not be sued for child abuse. However, Parliament has clearly determined that the perceived unfairness of the Ellis defence should be addressed. It is hence of ‘little assistance’ in working out the precise scope of the Act to invoke a general presumption against the ‘very thing’ which the legislature has clearly set out to achieve.
In any event, for reasons given below, we are satisfied that the Act clearly and unequivocally applies to RWQ’s claims.
Turning then to the task of construction, we agree with the judge that the logical starting point is the natural and ordinary meaning of the words of s 4, ‘a claim founded on or arising from child abuse.’ It appears to us that the natural meaning of this expansive phrase includes an action for damages based on child abuse perpetrated on a plaintiff’s child.

As the judge stated, the words ‘founded on’ are words of wide import. In such circumstances, it may well be arguable that RWQ’s claim is a claim ‘founded on’ child abuse, as the judge also observed. However, the Act also applies to a claim ‘arising from’ child abuse. The concept of ‘arising from’ requires a less proximate relationship than would be required by the term ‘founded on’, and is broader even than a requirement of causation.[43] We agree with the judge that the use of the phrase ‘arising from’ puts the matter beyond doubt.
[43]RBK v Montague (2022) 67 VR 545, 552–7 [28]–[39] (Beach, Niall and Macaulay JJA); [2022] VSCA 183 and cases cited therein: Fawcett v BHP By‑Products Pty Ltd (1960) 104 CLR 80; [1960] HCA 59; Green (1966) 114 CLR 437; [1966] HCA 6; Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500; [1987] HCA 49; Lamont v Motor Accidents Board [1983] 1 VR 88; Transport Accident Commission v Hoffman [1989] VR 197; May v Transport Accident Commission [1989] VR 981; State Insurance Office v Jura Concrete Pumping [1990] VR 331. See also Walsh v Department of Human Services (2014) 44 VR 244, 276–7 [118]–[119] (Tate JA, Nettle JA agreeing at 245 [1], Hansen JA agreeing at 246 [10]); [2014] VSCA 244.
Consistent with the judge’s finding, the applicant also acknowledges that the judge’s construction was one of the available meanings of the words. However, it submitted that it was not the operative meaning when considered in conjunction with the entire Act, particularly ss 1, 3, 7, and 8, as well as the extrinsic materials.
In relation to s 1, we do not find the short‑hand reference to ‘child abuse plaintiffs’ to be of assistance. The concept is undefined. Further, given that s 4 defines the circumstances in which the Act applies, the judge’s finding — that it means plaintiffs who commence or wish to commence a claim ‘founded on or arising from child abuse’— is neither ‘erroneous’ nor ‘strained’. However, even if the concept of ‘child abuse plaintiffs’ in s 1 is intended to be restricted to primary victims, this does not assist the applicant. First, s 1 only uses the phrase in respect of the ‘main purpose’ of the Act. It does not exclude the application of the Act to other plaintiffs. Secondly, it is significant that the phrase, ‘child abuse plaintiffs’, does not appear elsewhere in the Act. In particular, the phrase ‘child abuse plaintiffs’, does not appear in the definition of ‘child abuse’ in s 3, nor in s 4.
Turning to the critical provision, s 4, not only is there no reference to ‘child abuse plaintiffs,’ there is no reference to any particular individual or category of individuals at all. Although s 4(2) makes reference to a ‘plaintiff’ it also does not purport to limit such persons to ‘child abuse plaintiffs’, ‘primary victims’, or ‘survivors’. The sole limitation found in s 4(2)(a) is that found in s 4(1), ie, that the claim be ‘founded on or arising from child abuse.’ The applicant acknowledged that s 4 says nothing about whose claims are encompassed by the Act. This is also consistent with the use of the indefinite article in s 4(1). Thus, s 4(1) refers simply to ‘any’ proceeding for ‘a’ claim, provided only that the claim is ‘founded on or arising from child abuse.’
In relation to the definition of ‘child abuse’ in s 3, the Act defines the relevant act or omission constituting the abuse in relation to a minor ‘person’. The applicant places some emphasis on this provision. However, if Parliament had really intended to restrict the categories of plaintiffs to primary victims it could readily have defined ‘child abuse’ in s 3 by reference to a ‘child abuse plaintiff’, or even a ‘plaintiff’. The failure to do so suggests that there is no intention to limit the categories of plaintiffs to primary victims, as the applicant claims.
A key submission of the applicant was that the use of the expression, ‘found liable for child abuse in respect of the claim’ in ss 7(4) and 8(8)[44] suggests that the claim must be brought by someone the subject of child abuse. Otherwise there would be no connection between the claim and a defendant’s exposure to liability ‘for’ child abuse (as that term is defined in s 3).
[44]The expression is also found in ss 7(2)(b), 7(5), 8(5)(b) and 8(9).
However, ss 7(4) and 8(8) define the relevant claim which the court may substantively determine as a claim ‘founded on or arising from child abuse.’ As the judge observed, s 7(1) also provides that the right to nominate is only enlivened in relation to a claim ‘founded on or arising from child abuse.’ The references to being liable for child abuse in respect of ‘the claim’ (in ss 7(4) and 8(8)) are hence clearly referable to a claim ‘founded on or arising from child abuse.’ In other words, a person is ‘liable for child abuse’ if they are liable for a claim founded on or arising from child abuse. This also ensures that there is consistency as to the scope of a claim which is the subject of the Act.[45]
[45]Tabcorp (2016) 90 ALJR 376, 387 [65] (The Court); [2016] HCA 4.
It is also relevant that, as acknowledged by the applicant, ss 7 and 8 effectively create a fictional result ‘as if’ the NGO has certain characteristics and such that it is ‘taken’ to have those characteristics (that the NGO is incorporated, capable of being sued and found ‘liable for child abuse’). The fiction created by the application and operation of the Act (including liability ‘for child abuse’) does not govern the actual scope of ‘the claim’ to which the Act is intended to apply.
There is therefore no merit in the suggestion that other provisions somehow qualify the ordinary meaning of the phrase ‘founded on or arising from child abuse.’
There are also two other reasons to reject the applicant’s construction.
First, we agree with the judge that the repeated use of the phrase, ‘founded on or arising from child abuse’, points strongly to the conclusion that the application of the Act is not confined to claims brought by primary victims. As highlighted by RWQ, this includes the use of the phrase four times within s 4 itself.
Secondly, the applicant’s construction means that the words, ‘arising from’ are rendered meaningless. If the applicant is correct, the Act would only have application to primary victims. However, given that any such claims would be clearly ‘founded on’ child abuse, this would leave the words ‘arising from’ with no work to do. As indicated already, the applicant sought to suggest that estate claims and claims based on vicarious liability would ‘arise from’ abuse, but not be ‘founded on’ such abuse. However, the essential nature of an estate claim would not alter even after the death of the primary victim. Given that the entire Act is concerned with the liability of organisations (as opposed to individual perpetrators of abuse) a claim brought by a primary victim based on vicarious liability must also have been in clear contemplation and readily classified as a claim ‘founded on’ child abuse. The applicant ultimately submitted that, given a choice, we should prefer the applicant’s construction, even if some words were otiose, to interference with the status quo. However, we do not consider that any such choice arises given the clear and unambiguous language used. Instead, as the judge stated, all words of a statute should be given meaning.[46]
[46]Baume (1905) 2 CLR 405, 414 (Griffith CJ); [1905] HCA 11; Chu Kheng Lim (1992) 176 CLR 1, 12–13 (Mason CJ); [1992] HCA 64.
We also consider that the judge’s construction is consistent with the evident purpose of the Act. That purpose is clearly directed to overcome the perceived unfairness of the Ellis defence which prevented legal redress in respect of child sexual abuse. There is no sound reason why Parliament would address this issue for one group of plaintiffs (those who had suffered abuse), but not others (those who suffered mental harm as a result of the abuse of their children). For reasons given already, the reference to (undefined) ‘child abuse plaintiffs’ in s 1 does not evince such an intention. The Explanatory Memorandum also took the matter no further given it largely reproduced the language of the Act. The references to the Fosters in the second reading speech also weigh against the applicant’s construction. Hence, we agree with the judge that it is improbable that, in circumstances where the Attorney-General expressly acknowledged the Fosters as survivors and advocates, that Parliament intended to enact legislation which would allow the applicant to rely on the Ellis defence in respect of claims brought by the Fosters arising from the alleged sexual abuse of their daughters.
Even considering the extrinsic materials in a way most favourable to the applicant, they might suggest that the main focus of the legislation was directed to primary victims. However, this does not mean that secondary victims were to be excluded, particularly when there is no support for that result in the text of the legislation. Consistent with the case of Stingel,[47] it is the text of the legislation which is to be applied, and which is the surest guide to legislative intention. Extrinsic materials and legislative history cannot be relied on to displace the clear meaning of that text.[48]
[47](2006) 226 CLR 442; [2006] HCA 37.
[48]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, 47 [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41.
Having considered the words, context and purpose of the Act, we therefore consider that the judge’s construction was correct. More particularly, we are satisfied that the judge correctly concluded that, on the proper construction of ss 4 and 7, the Act applies to RWQ’s claims against the applicant.
Conclusion
Leave to appeal will be refused.
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[2023] VSCA 197

25 August 2023