TJ (a pseudonym) v The Bishop of the Roman Catholic Diocese of Wagga Wagga
[2023] VSC 704
•30 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2022 01456
| TJ (a pseudonym) | Plaintiff |
| v | |
| THE BISHOP OF THE ROMAN CATHOLIC DIOCESE OF WAGGA WAGGA MARK EDWARDS | Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 November 2023 |
DATE OF JUDGMENT: | 30 November 2023 |
CASE MAY BE CITED AS: | TJ (a pseudonym) v The Bishop of the Roman Catholic Diocese of Wagga Wagga |
MEDIUM NEUTRAL CITATION: | [2023] VSC 704 |
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PRACTICE AND PROCEDURE – Jury questions directed to exemplary damages – Leave reserved to defendant to move non-obstante veredicto – Jury verdict in favour of the plaintiff – Two bases relied upon in respect of claim for exemplary damages – Whether exemplary damages claim precluded by statute – Forensic choices and common ground – Whether there was no evidence on which a reasonable jury, properly instructed, could return a verdict for the plaintiff – Lamb v Cotogno (1987) 164 CLR 1, King v Amaca Pty Ltd [2011] VSC 422, DIZ18 v Minister for Home Affairs (No 2) [2022] FCA 898 and SR v Trustees of the De La Salle Brothers [2023] NSWSC 66.
PRACTICE AND PROCEDURE – Interest – Past pain and suffering and past economic loss damages – Whether damages in the nature of interest procedural or substantive – Civil Liability Act 2002 (NSW), ss 3A and 21, Civil Procedure Act 2005 (NSW), s 100(1), Supreme Court Act 1986 (Vic), s 60, John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 and Ellis (Executor of the Estate of Cotton (dec)) v South Australia [2006] WASC 270 – Final orders made.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | JP Brett KC with D Seeman | Arnold, Thomas & Becker |
| For the Defendant | RN Annesley KC with C Morshead | Wotton + Kearney |
HIS HONOUR:
A. Introduction
On 27 April 2022, the plaintiff brought proceedings by writ claiming damages as a consequence of the negligence and vicarious liability of the defendant in respect of grooming and sexual abuse by Fr Kiss between 1972 and 1976 (the ‘period’).
The plaintiff’s statement of claim included particulars of the claimed grooming and sexual abuse during the period, most of which was alleged to have occurred in New South Wales. The statement of claim referred to provisions of the Civil Liability Act 2002 (NSW) (‘Civil Liability Act’).
On 21 August 2023, the plaintiff filed and served an amended statement of claim which introduced –
(a) the following further particular in respect of his allegation that, prior to the period, the Bishops of Wagga Wagga knew or ought to have known that Fr Kiss had a propensity to sexually abuse children –
Paul Ryan disclosed that he was abused by Kiss in October or November 1968 to Father Bernie Connell who was the Curate of the St Patrick Parish operated by the Defendant.
(b) a claim for exemplary damages supported by the following single particular –
If the complaint by Paul Ryan is proved at trial the knowledge held by Connell and his failure to prevent Kiss from having contact with children thereafter is attributable to the Defendant and constitutes a contumelious disregard for the Plaintiff’s right[s] and warrants an award of exemplary damages.
On 26 September 2023, in response to the plaintiff’s allegation of grooming and sexual abuse by Fr Kiss during the period, the defendant pleaded as follows –
8In response to paragraph 8:
(a)he admits that Fr Vincent Kiss pleaded guilty to ten counts of indecent assault on a male and three counts of buggery occurring between 1 July 1966 and 31 March 1973 (collectively, the Charges) as detailed in the sentencing judgment in R v Vincent Keirin Kiss (District Court of New South Wales Proceeding No. 02/11/0142) dated 13 September 2002;
(b)he admits that the Charges set out in the subparagraph above included charges in respect of the Plaintiff and three others;
(c)he says further that on or around 13 September 2002, Fr Vincent Kiss was sentenced to 10 years and 6 months’ imprisonment arising from the Charges; and
(d)he otherwise does not admit the allegations in paragraph 8.[1]
[1]This plea was no different to the relevant plea by the defendant earlier in its defence dated 10 June 2022.
The defendant also denied that the plaintiff was entitled to any award of exemplary damages.
On 20 October 2023, which was four days prior to the date on which the proceeding was listed for trial, the defendant filed and served an amended defence which, among other things –
(a) in respect of the allegation of grooming and sexual abuse during the period, stated, among other things –
he admits that Fr Kiss groomed and sexually abused the Plaintiff during the period between 1972 and 7 August 1976 …;
(b) in respect of the allegation concerning the propensity of Kiss, pleaded as follows –
9In response to paragraph 9:
(a)he refers to and repeats his answer to paragraph 8 above;
(b)he admits that in or about 1968 Paul Ryan disclosed that he was abused by Fr Kiss to Fr Bernie Connell (the 1968 Complaint);
(c)he denies that any Bishops of the Diocese knew or ought to have known of the 1968 Complaint during or prior to the abuse of the Plaintiff during the Period; and
(d)he otherwise denies the allegations in paragraph 9.
At that point, the substance of the position was as follows –
(a) the defendant admitted that the abuse of the plaintiff by Fr Kiss during the period was caused by the negligence of the defendant and that the plaintiff had suffered injury, loss and damage as a result of that abuse;
(b) the nature and extent of the injury, loss and damage suffered by the plaintiff as a result of the admitted abuse as well as the damages to be assessed were in issue;
(c) the defendant denied the allegation of vicarious liability as well as the plaintiff’s claim for exemplary damages;
(d) the plaintiff’s proceeding was among four proceedings brought in respect of abuse by Fr Kiss that were, at that point, broadly proposed to run in a sequence of jury trials commencing on 24 October 2023; and
(e) one of those four proceedings was brought by Paul Ryan.
The four proceedings were the subject of judicial mediation on 23 October 2023 and, at some point on that day, two of the proceedings resolved. One of those was the proceeding brought by Paul Ryan.[2]
[2]Ryan v The Bishop of the Roman Catholic Diocese of Wagga Wagga Mark Edwards, S ECI 2022 01587.
That afternoon, a joint memorandum of issues prepared by counsel briefed to appear at the trial was filed with the Court that indicated that the proceeding was affected by the provisions of the Civil Liability Act. In that regard, it was stated –
6.The Plaintiff seeks damages in the form of pain and suffering/non-economic loss damages, past and future medical expenses, past and future loss of earnings (including loss of superannuation benefits) and exemplary damages.
7.The Defendant admits that the Plaintiff has suffered injury, loss and damage as a result of the abuse by Fr Kiss but does not admit the nature or extent of any injury, loss and damage.
8.The Defendant denies that the Plaintiff is entitled to exemplary damages.
9.If the Plaintiff is not successful in establishing vicarious liability then the assessment of damages is impacted by the operation of the Civil Liability Act 2002 (the Act). The Act impacts the assessment in the following ways:
a.pain and suffering/non-economic loss damages are dictated by the operation of section 16 of the Act;
b.pecuniary loss damages are dictated by Part 2 Division 2 of the Act; and
c.No exemplary and aggravated damages can be awarded.
10.If the Plaintiff is successful in establishing vicarious liability then the assessment is at common law (see section 3B(1)(a) and for example SR v Trustees of the De La Salle Brothers [2023] NSWSC 66).
Both parties were represented by experienced senior counsel and it would have been obvious to them that it would have been difficult if not impossible for the trial to proceed before a jury if the assessment of damages were to be affected by the various provisions of the Civil Liability Act.[3]
[3]Cf., Halligan v Curtin [2013] VSC 124.
In that regard, it will be noted that the joint memorandum referred to the recent decision of Cavanagh J of the Supreme Court of New South Wales in SR v Trustees of the De La Salle Brothers (‘SR’).[4]
[4][2023] NSWSC 66 (‘SR’).
SR concerned a claim of historical sexual abuse in which the plaintiff relied upon claims of negligence as well as vicarious liability. Albeit that the defendant did not admit that the plaintiff suffered sexual abuse at the hands of his year 6 teacher, Mr Swain, it admitted breach of duty of care. The defendant denied a separate allegation of vicarious liability.
In that connection, Cavanagh J noted as follows –
13If … I am satisfied that the plaintiff suffered abuse at the hands of Mr Swain, I understand it to be common ground that I would accept that the defendant was negligent (the direct claim) and that damages would be assessed under the Civil Liability Act 2002 (NSW) (“CLA”). No exemplary or aggravated damages could be awarded.
14On the other hand, if I accept that the defendant is vicariously liable for the conduct of Mr Swain in sexually and/or physically abusing the plaintiff, then damages would be assessed at common law – that is, without the restrictions under the CLA. Further, it would be permissible to award both exemplary and aggravated damages (should I so find that such damages should be awarded in the circumstances of the case).[5]
[5]I note that his Honour was referring to ‘common ground’ between the parties. It is not presently necessary to say anything about whether or not that represents a correct application of the provisions of the Civil Liability Act to the circumstances presented in SR, or, indeed, to the circumstances presented by the present case.
His Honour found the defendant to be vicariously liable for the abuse by Mr Swain. In light of the common ground earlier identified, his Honour proceeded to assess damages at common law; which assessment included awards of interest on past general damages and past loss of income.[6] The plaintiff’s claim for exemplary damages failed, but not because it was precluded by any provision of the Civil Liability Act.[7]
[6]SR (n 4) [252].
[7]Ibid [248]-[251].
On the evening of 23 October 2023, counsel filed an amended joint memorandum of issues in which it was stated that the defendant had admitted vicarious liability.[8]
[8]Compare: Bishop Paul Bernard Bird v DP (a pseudonym) [2023] VSCA 66 and Bird v DP (a pseudonym) [2023] HCATrans 145 (20 October 2023).
Among other things, the amended joint memorandum stated –
4.The Defendant admits that the Plaintiff has suffered injury, loss and damage as a result of the abuse by Fr Kiss but does not admit the nature or extent of any injury, loss and damage.
5.The Defendant denies that the Plaintiff is entitled to exemplary damages.
6.As vicarious liability has been admitted, the assessment is at common law.
In other words, it was common ground between the parties that the trial should proceed before a jury and in a manner reflecting the course adopted in SR; namely, as an assessment of damages ‘at common law’ unaffected by the provisions of the Civil Liability Act.
The following morning, at the commencement of the trial, the plaintiff applied for leave to file and serve a further amended statement of claim.
Some of the proposed amendments were not controversial. However, the defendant objected to a proposed expansion of the plea of exemplary damages to add a claim for aggravated damages as well as to introduce a second particular in respect of both claims. The second particular read as follows –
(b)Failing to admit the fact that the Plaintiff was abused by Kiss, as alleged in paragraph 8 hereof, in circumstances where the Defendant well knew that Kiss had pleaded guilty to criminal offences in relation to conduct alleged, and had consequently been sentenced to and served a term of imprisonment. The Defendant failed to admit the fact that such abuse occurred until 20 October 2023.
In argument, senior counsel for the plaintiff indicated that if leave were granted the issue raised by the proposed second particular would not require ‘any evidence other than the tendering of the defences’.[9]
[9]Transcript (‘T’) 15.
Senior counsel for the defendant pointed to the history of interlocutory orders, the late notice of the proposed amendment, the form of the existing and proposed pleadings and submitted that it was not appropriate that leave be granted. Among other things, she submitted that –
… it is difficult for a defendant, in particular a nominal defendant, to admit facts of which it has no direct knowledge and it not unusual for the defendant in cases such as these to be unable to make admissions in relation to facts of the alleged abuse. The defendant has made that admission in this case in circumstances where it has now had the opportunity to review all the evidence and that includes the other matters, and the other proceedings which have been brought, and as such has, in accordance with its obligations under the Civil Procedure Act, attempted to narrow the issues in dispute, and we say that we did that in a timely manner once all the evidence was gathered.[10]
[10]T17. At that time, although it was not there made unambiguously clear, context suggested that senior counsel’s reference to the ‘Civil Procedure Act’ was a reference to the Civil Procedure Act 2010 (Vic).
The ‘other matters’ and ‘other proceedings’ were those also directed to claims of abuse by Fr Kiss, including the proceeding brought by Mr Ryan.
For reasons delivered ex tempore,[11] leave was granted to the plaintiff to rely upon the further amended statement of claim. Among other things, I observed that –
[11]T51-52.
(a) the defendant had not contended that the second particular was not capable of going to the allegations of aggravated or exemplary damages;
(b) notwithstanding some potential for confusion in its drafted form, the substance of the second particular went, clearly enough, to the alleged ‘failure to admit abuse clearly, and until very recently’; and
(c) it would be open to the defendant to call relevant evidence, address relevant submissions to the jury and, at the very least, point to the sequence of pleadings proposed to be relied upon by the plaintiff.
A jury was empanelled the following day and the proceeding was opened and evidence called by both parties over the course of the following two and a half weeks.
The witnesses for the plaintiff were –
(a) the plaintiff;
(b) his wife, Janine;
(c) a senior professional officer of the Catholic Education Office in New South Wales, Mr Neil McCann;
(d) his treating psychologist, Dr Helen Coote;
(e) a medico-legal psychiatrist, Dr Matthew Tagkalidis; and
(f) a forensic accountant, Mr Mark Thompson.[12]
[12]Prior to empanelment of the jury, the defendant took objection to the proposed evidence of Mr Thompson. I ruled against that objection for reasons delivered ex tempore: T52-59.
Each of the plaintiff’s witnesses was extensively cross-examined by counsel for the defendant.
The witnesses for the defendant were –
(a) a medico-legal psychiatrist, Dr Timothy Entwisle; and
(b) a forensic accountant, Mr Richard Ivey.
A significant volume of documentary evidence was tendered by both parties and therefore placed before the jury.
In the midst of that process, on 1 November 2023, the jury was given five written questions that were explained to be the questions that it would ultimately be necessary for it to answer when delivering its verdict. It was, however, indicated that the third question, concerning medical and like expenses, might come to be agreed and therefore might not require determination. The document included questions directed to the plaintiff’s claim for exemplary damages.[13]
[13]T463-469.
On 3 November 2023, on the brink of the closure of the defendant’s case, senior counsel for the defendant advised that the issue of medical and like expenses had been resolved.[14] At that time, the defendant also applied, in substance, to take the issue of exemplary damages away from the jury.
[14]T719.
I subsequently ruled that, in circumstances that I described as ‘a little vexing’, the defendant’s application should be refused, albeit that leave would be reserved to the defendant to move non obstante veredicto in the event that the answers of the jury to the questions directed to exemplary damages were, relevantly, ‘yes’.[15]
[15]Email from the Court to the parties dated 6 November 2023.
On 8 November 2023, the plaintiff agreed to the course determined,[16] the jury was provided with a re-engrossed version of the questions (comprising four questions; omitting the earlier question directed to medical and like expenses), the defendant’s case was closed after various further documents were tendered into evidence and senior counsel for each of the parties subsequently addressed the jury. Late that day, my charge to the jury commenced and it was completed the following morning.
[16]T757 and T760.
On 10 November 2023, the jury returned its verdict as follows –
ASSOCIATE: How do you find on question 1, ‘In what sum do you assess pain and suffering damages?’
FOREPERSON: 1.1 million dollars.
ASSOCIATE: How do you find on question 2, ‘In what sum, if any, do you assess the plaintiff’s damages for economic loss; (a), past?’
FOREPERSON: $896,000.
ASSOCIATE: And, ‘(b), future?’
FOREPERSON: $69,000.
ASSOCIATE: How do you find on question 3, ‘Having regard to the conduct of the defendant, is the plaintiff entitled to an award of exemplary damages?’.
FOREPERSON: Yes.
ASSOCIATE: How do you find on question 4, ‘If yes to question 3, in what sum do you assess exemplary damages?’
FOREPERSON: 1.3 million dollars.[17]
[17]T928.
Subsequently, senior counsel for the plaintiff indicated that he would move for judgment but that questions arose, including what was described as the defendant’s ‘motion for the exemplary damages to be set aside’.[18] A timetable of orders for written submissions was agreed between the parties and the matter was adjourned to 17 November 2023 in order that any outstanding issues might thereafter be determined.
[18]T929.
The parties subsequently filed and served written submissions directed only to the issue of exemplary damages.
In that connection, the defendant addressed three grounds by reference to which he submitted that a finding of exemplary damages had not been ‘open’ to the jury.[19] Those grounds were, in substance, as follows –
[19]Defendant’s outline of submissions – non obstante veredicto – exemplary damages filed 14 November 2023, [3].
(a) the Civil Liability Act was said to preclude an award of exemplary damages, specifically s 21;
(b) on the evidence, exemplary damages were not open to be awarded in respect of the claim particularised at paragraph 15(a) of the plaintiff’s further amended statement of claim; and
(c) on the evidence, exemplary damages were not open to be awarded in respect of the claim particularised at paragraph 15(b) of the plaintiff’s further amended statement of claim.
In oral argument on 17 November 2023, senior counsel for the defendant confirmed that –
(a) there was a ‘consensus’ between the parties concerning the principles in respect of the non obstante veredicto application, the awarding of exemplary damages and that, broadly speaking, the provisions of the Civil Liability Act applied;[20]
[20]T932-933.
(b) grounds 1 and 2 were directed to the claim particularised at paragraph 15(a) of the plaintiff’s pleading;
(c) ground 3 was directed to the claim particularised at paragraph 15(b) of the plaintiff’s pleading; and
(d) it was necessary for the defendant to succeed in respect of both claims in order that the verdict of the jury in respect of question 3 (and, in turn, question 4) might be displaced.[21]
[21]T940.
For his part, senior counsel for the plaintiff did not take issue with the general proposition that there had been a consensus that the provisions of the Civil Liability Act applied. However, he submitted that via a combination of ss 3B and 21 of the Civil Liability Act, s 21 is ‘completely excluded’.[22] He otherwise submitted that the verdict of the jury was open on the evidence and should not be disturbed.
[22]T942.
In the course of argument it became apparent that there was a further outstanding issue in respect of interest.[23] In the circumstances, I heard argument in respect of the issue of exemplary damages and made an order for a further exchange of written submissions directed to the issue of interest. Counsel indicated that the parties would be content if all issues were thereafter determined ‘on the papers’.
[23]T932.
The parties subsequently filed and exchanged written submissions directed to the issue of interest; which included competing draft forms of final orders.
B. Applicable principles
As I have indicated, there was no issue between the parties concerning the principles applying to an award of exemplary damages[24] and what senior counsel for the defendant described as the ‘non obstante veredicto application’. The parties were also broadly in agreement that the provisions of the Civil Liability Act had applied.
[24]Cf., Lamb v Cotogno (1987) 164 CLR 1, Coloca v BP Australia Ltd [1992] 2 VR 441, 448, Gray v Motor Accident Commission (1998) 196 CLR 1, [15], Carter v Walker (2010) 32 VR 1, [284] and Lonergan v Trustees of the Sisters of Saint Joseph & Anor [2021] VSC 651, [207].
In respect of the latter, counsel referred in argument to ss 3B(1) and 21 of the Civil Liability Act, which provide as follows –
3B Civil liability excluded from Act
(1)The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows—
(a)civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person—the whole Act except—
(ia) Part 1B (Child abuse—liability of organisations), and
(i)section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), and
(ii)Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and
(iii)Part 2A (Special provisions for offenders in custody).
…
21 Limitation on exemplary, punitive and aggravated damages
In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.
Section 21 appears in Division 6 of Part 2 of the Civil Liability Act. Part 2 is entitled ‘Personal Injury Damages’ and Division 6 is entitled ‘Exemplary and similar damages’.
In that connection, both parties referred to SR.
In respect of non obstante veredicto, the principles were surveyed and explained in Phillips v Ellinson Brothers Pty Ltd,[25] Hayward v Georges Ltd[26] and Herald & Weekly Times Ltd v Popovic;[27] and, in King v Amaca Pty Ltd,[28] Kyrou J summarised the applicable principles as follows –
7In order for a defendant’s application for judgment notwithstanding the jury’s verdict to succeed, the defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.
8Where there is evidence to support the jury’s verdict, the verdict cannot be disregarded even if the trial judge were strongly against the jury’s conclusion.
9A trial judge hearing an application for judgment notwithstanding the jury’s verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.
10A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury’s verdict in the clearest of cases.
[25](1941) 65 CLR 221.
[26][1966] VR 202.
[27](2003) 9 VR 1.
[28][2011] VSC 422 (citations omitted).
That summary was undisturbed on appeal[29] and has subsequently been applied.[30]
[29]Amaca Pty Ltd v King (2011) 35 VR 280.
[30]Hopgood v Wodonga Regional Health Service [2012] VSC 169, [19]; Trkulja v Google (No 5) [2012] VSC 533, [14]; Micheli v Khoushaba [2019] VSC 401, [6].
In respect of pleadings and a claim for aggravated damages, and, it was submitted, correlatively in respect of a claim for exemplary damages, the defendant referred to David Syme & Co Ltd v Mather (‘David Syme’).[31]
[31][1977] VR 516 (‘David Syme’).
In respect of interest, the plaintiff referred to s 18 of the Civil Liability Act, but placed specific reliance upon s 100(1) of the Civil Procedure Act 2005 (NSW) (‘Civil Procedure Act’).
Section 18 of the Civil Liability Act appears in Division 4 of Part 2 (‘Personal Injury Damages’) and states, relevantly –
18 Interest on damages
(1)A court cannot order the payment of interest on damages awarded for any of the following—
(a) non-economic loss,
(b)gratuitous attendant care services as defined in section 15 (other than gratuitous attendant care services to which section 15A applies),
(c)loss of a claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants (as provided by section 15B).
(2)If a court is satisfied that interest is payable on damages (other than damages in respect of which a court cannot order the payment of interest under subsection (1)), the amount of interest is to be calculated—
(a)for the period from when the loss to which the damages relate was first incurred until the date on which the court determines the damages, and
(b)in accordance with the principles ordinarily applied by the court for that purpose, subject to subsection (3).
(3) The rate of interest to be used in any such calculation is—
(a) such interest rate as may be determined by the regulations, or
(b)if no such rate is determined by the regulations—the relevant interest rate as at the date of determination of the damages.
(4) For the purposes of subsection (3), the relevant interest rate is the rate representing the Commonwealth Government 10-year benchmark bond rate as published by the Reserve Bank of Australia in the Reserve Bank of Australia Bulletin (however described) and as applying—
(a)on the first business day of January of each year (in which case the rate is to apply as the relevant interest rate for the period from 1 March until 31 August of that year), or
(b)on the first business day of July of each year (in which case the rate is to apply as the relevant interest rate for the period from 1 September of that year until the last day of February of the following year).
Section 100(1) of the Civil Procedure Act appears in Division 3 of Part 7 and provides as follows –
(1)In proceedings for the recovery of money (including any debt or damages or the value of any goods), the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit—
(a) on the whole or any part of the money, and
(b)for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect.
In that connection, the plaintiff relied upon the reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson (‘Pfeiffer’), particularly the highlighted part of the following passage –
Substance and procedure
97As already indicated, the choice of law rules traditionally distinguish between questions of substance and questions of procedure. There is much history that lies behind the distinction, but search as one may, it is very hard, if not impossible, to identify some unifying principle which would assist in making the distinction in a particular case. But, as the majority said in McKain:
“Though the dividing line is sometimes doubtful or even artificial, the need to distinguish between substantive law and procedural law is clearly recognised for a number of forensic purposes.”
98Some statutes of limitation have traditionally been held to be procedural on the basis that they bar the remedy not the right; other limitation provisions have been held to be substantive. But all limitation provisions can affect whether a plaintiff recovers. Questions of what heads of damage are allowable have been held to be substantive; but questions of quantification of damages have been held to be procedural. But all questions about damages can affect how much a plaintiff recovers and, thus, statutes such as the NSW Compensation Act, which is in issue in this case, alter the rights of plaintiffs and, also, the obligations of defendants.
99Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it. A plaintiff cannot ask that a tribunal which does not exist in the forum (but does in the place where a wrong was committed) should be established to deal, in the forum, with the claim that the plaintiff makes. Similarly, the plaintiff cannot ask that the courts of the forum adopt procedures or give remedies of a kind which their constituting statutes do not contemplate any more than the plaintiff can ask that the court apply any adjectival law other than the laws of the forum. Secondly, matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain, “rules which are directed to governing or regulating the mode or conduct of court proceedings” are procedural and all other provisions or rules are to be classified as substantive.
100These principles may require further elucidation in subsequent decisions but it should be noted that giving effect to them has significant consequences for the kinds of case in which the distinction between substance and procedure has previously been applied. First, the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure (which is the result arrived at by the statutes previously referred to). The application of any limitation period would, therefore, continue to be governed (as that legislation requires) by the lex loci delicti. Secondly, all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti.[32]
[32]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, [97]-[100] (‘Pfeiffer’) (emphasis added; but italics in original).
For his part, the defendant referred to the reasons of Besanko J in Stewart v Australian Crime Commission[33] and contended, principally, that any claim in respect of interest should be calculated pursuant to s 60 of the Supreme Court Act 1986 (Vic) (‘Supreme Court Act’). That provision provides relevantly as follows –
[33](2012) 206 FCR 347, [35].
60 Interest in proceedings for debt or damages
(1)The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.
(2)Nothing in this section—
(a) authorises the granting of interest on interest;
(b)applies in relation to any sum on which interest is recoverable as of right by virtue of any agreement or otherwise;
(c)affects the damages recoverable for the dishonour of a negotiable instrument;
(d)authorises the allowance of any interest otherwise than by consent on any sum for which judgment is entered or given by consent;
(e)applies in relation to any sum on which interest might be awarded by virtue of section 58 or 59; or
(f)limits the operation of any enactment or rule of law which, apart from this section, provides for the award of interest.
(3)If the damages awarded by the Court or jury include or if the Court in its absolute discretion determines that the damages awarded include any amount for—
(a)compensation in respect of liabilities incurred which do not carry interest as against the person claiming interest;
(b)compensation for loss or damage to be incurred or suffered after the date of the award; or
(c)exemplary or punitive damages—
the Court must not allow interest in respect of any amount so included or in respect of so much of the award as in its opinion represents any such damages.
In that connection, the defendant also referred to ss 1 and 33 of the Supreme Court Act.
C. Exemplary damages
The plaintiff ultimately advanced claims for exemplary damages particularised in his further amended statement of claim as follows –
(a)If the complaint by Paul Ryan is proved at trial the knowledge held by Connell and his failure to prevent Kiss from having contact with children thereafter is attributable to the Defendant and constitutes a contumelious disregard for the Plaintiff’s right[s] and warrants an award of exemplary damages.
(b)Failing to admit the fact that the Plaintiff was abused by Kiss, as alleged in paragraph 8 hereof, in circumstances where the Defendant well knew that Kiss had pleaded guilty to criminal offences in relation to conduct alleged, and had consequently been sentenced to and served a term of imprisonment. The Defendant failed to admit the fact that such abuse occurred until 20 October 2023.
As I have noted, the defendant advanced three grounds pursuant to which he submitted, in substance, that the verdicts of the jury in answer to question 3 and consequently also question 4 should be displaced.
Ground 1: Civil Liability Act, s 21
The first ground was advanced with particular reference to s 21 of the Civil Liability Act and the reasoning of Cavanagh J in SR.
The substance of the defendant’s submission was that –
(a) the proceeding ‘falls within the jurisdiction of New South Wales and therefore the [Civil Liability] Act’;[34]
[34]Defendant’s outline of submissions – non obstante veredicto – exemplary damages filed 14 November 2023, [23].
(b) section 21 of the Civil Liability Act precludes any award of exemplary damages where the act or omission was negligence;[35]
[35]Ibid [14].
(c) in SR –
… the approach of the Court was that when considering a claim for exemplary damages in respect of the direct negligence of a Defendant, the Act applies such that a claim is precluded under section 21. Conversely, where there is a finding of vicarious liability, while exemplary damages are permitted under common law, such damages must only be considered by reference to the vicarious liability of the Defendant, as distinct from any other grounds such as direct negligence.[36]
(d) in the present instance, ‘the [p]laintiff does not rely upon a finding of vicarious liability against the [d]efendant for the actions of Kiss to found his claim for exemplary damages’.[37]
[36]Ibid [18].
[37]Defendant’s outline of submissions – non obstante veredicto – exemplary damages filed 14 November 2023, [19].
In address, senior counsel for the defendant submitted as follows –
In our submission, your Honour, the plaintiff ought not to be permitted to go around the provisions of s 21 and say that notwithstanding that vicarious liability of the Diocese for the acts of Kiss is not relied upon to found the claim for exemplary damages and notwithstanding that under the Act exemplary damages are precluded for negligence of the defendant, that he can now claim exemplary damages for the Diocese’s negligence.
To do so, we say, is to make a mockery of the statute that clearly precludes exemplary damages for negligence.[38]
[38]T934-935.
The essential argument, as I understood it, was that –
(a) there was no pleading that exemplary damages should flow as a result of the vicarious liability of the defendant;
(b) the claim particularised at paragraph 15(a) of the further amended statement of claim forms part of the negligence plea and so is precluded by s 21 of the Civil Liability Act;
(c) both particulars – (a) and (b) – could not be ‘referrable’ to the vicarious liability plea; and
(d) in substance, each particular amounted to a claim for exemplary damages as a consequence of the negligence of the defendant and so is precluded by s 21 of the Civil Liability Act.[39]
[39]Defendant’s outline of submissions – non obstante veredicto – exemplary damages filed 14 November 2023, [25]-[26].
In argument, both parties referred to s 3B(1)(a) of the Civil Liability Act. That provision is complex. I was not taken to any authority in respect of s 3B(1)(a) and neither party went to the barricades in respect of it. The defendant simply submitted that, broadly speaking, the Civil Liability Act applies; and the plaintiff did not stoutly resist the general proposition. That is perhaps unsurprising in light of the reference to that Act in the plaintiff’s pleading as well as other aspects of the history to which I earlier referred.
The plaintiff’s real answer to the defendant’s argument was expressed in written submissions as follows –
… the Defendant seems to argue that the complicated provisions of the Civil Liability Act … so operate as to allow exemplary damages only in cases where vicarious liability is established (with which we agree) but further, can only be awarded on the basis of conduct for which the Defendant is vicariously liable – with which we disagree. We submit that once vicarious liability is found, and thus s.21 of the [Civil Liability Act] is excluded from the application, exemplary damages are awarded in accordance with common law principles.[40]
[40]Plaintiff’s submissions regarding exemplary damages filed 16 November 2023, [2].
In my view, the principal answer to the defendant’s present contentions is that they are contrary to the common ground pursuant to which the case was presented for trial.
I have earlier referred to the joint memorandum that referred to SR and the provisions of the Civil Liability Act. It was there specifically stated that ‘if the plaintiff is not successful in establishing vicarious liability then the assessment of damages is impacted by the operation of the Civil Liability Act’. It was also said that ‘no exemplary and aggravated damages can be awarded’ – which was plainly a reference to s 21.
As I have also noted, an amended joint memorandum was later filed in which it was confirmed that vicarious liability was admitted and, consequently, the assessment could and would be ‘at common law’.
In other words, it was ultimately common ground that the trial could proceed before a jury unaffected by the relevant provisions of the Civil Liability Act, including s 21. In adopting that common position, both parties acquired a benefit that very likely would not have been available to them without the forensic choice mutually made; namely, a jury trial. That is precisely what thereafter unfolded.
It follows, in my view, that it is not now open to the defendant to abandon the common position pursuant to which the case was presented for determination by the jury. That common ground disclaimed any reliance upon the relevant provisions of the Civil Liability Act, including and particularly s 21. Accordingly, the defendant may not now raise that or any other such section in answer to the plaintiff’s claims.
In addition to the above, as I have noted, the plaintiff advanced two bases for his claim for exemplary damages.
The first (stated in particular (a)) concerned the failure of the Bishop of Wagga Wagga to act upon the admitted complaint concerning abuse at the hands of Fr Kiss made in 1968 by Paul Ryan to Fr Connell.
That alleged failure was relevant to the way in which the plaintiff’s claim in negligence was pleaded.[41] As I have noted, the negligence claim came to be admitted by the defendant.[42]
[41]See, further amended statement of claim, [11].
[42]Amended defence, [11].
The plaintiff also pleaded a further or alternative claim in vicarious liability.[43] As I have noted, that claim also came to be admitted on the eve of the trial.
[43]Further amended statement of claim, [12].
In that context, in paragraph 15 of the further amended statement of claim, the plaintiff claimed exemplary (and aggravated) damages based in alleged ‘conduct’ of the defendant.
That ‘conduct’ was identified as the failure referred to above (particular (a)) as well as the ‘conduct’ of the defendant in failing promptly and clearly to admit the claimed abuse (particular (b)).
Neither allegation was there linked to any particular cause of action. In my view, it was clear enough that the plaintiff was contending that either or both allegations could and would be relied upon in respect of either or both causes of action, if established.
The second allegation (particular (b)) did not and could not form any part of either of the pleaded causes of action. It was plainly in the nature of a claim based in the defendant’s conduct of the defence in the proceeding.
Such an allegation is not unknown, particularly in connection with claims for aggravated damages, and may conceptually be based in the proposition that the conduct relied upon in respect of a claim for exemplary damages need not be wholly co-extensive with the conduct relied upon as comprising the pleaded cause of action.
In that regard, in Lamb v Cotogno (‘Lamb’), the plaintiff was injured as a consequence of the defendant’s tortious use of a motor vehicle and an associated award of exemplary damages was directed to the defendant’s act of leaving the plaintiff lying on a darkened road. In that connection, the High Court stated –
… Even if the act of leaving the plaintiff lying on a darkened road, when viewed separately, constituted no compensable wrong, there is no reason why it should be so viewed. Indeed, it is at least arguable that, having caused the plaintiff’s injuries through what was held to be a tortious act, the defendant was under a duty to take reasonable steps to alleviate the effect of his wrongdoing. It was open to the master to regard the conduct of the defendant in abandoning the plaintiff in the manner in which he did as displaying a cruel or reckless disregard for the welfare of the plaintiff and an indifference to his plight and as colouring the whole of the conduct of the defendant, including the assault which was found to have been made upon the plaintiff. So regarded, the tort of which the defendant was guilty was committed in circumstances amounting to an insult to the plaintiff.[44]
[44](1987) 164 CLR 1, 12.
More recently, in DIZ18 (by her litigation representative DJA18) v Minister for Home Affairs (No 2) (‘DIZ18’), Wheelahan J considered a claim for exemplary damages relating to later management of the applicant. His Honour undertook a careful analysis of the relevant authorities and stated –
The applicant’s case is that, by ignoring the medical advice, the respondents denied her that opportunity [to undergo certain medical imaging procedures]. In my view, it is arguable that the respondents’ decision to transfer the applicant to Papua New Guinea is a sequelae to the claimed negligent treatment of the applicant with a sufficiently close factual connection as to support a claim for exemplary damages. … On the assumption that liability is established, the questions whether the applicant’s claim for exemplary damages can succeed, or whether the respondents’ arguments should be accepted, are matters for trial upon an examination of all the facts. In this case, the claim does not fail at the pleading stage.[45]
[45][2022] FCA 898, [27].
Albeit that in Lamb and DIZ18 the conduct relied upon took place after the particular tortious act, the issue in respect of exemplary damages was identified as being one of sufficiency of connection between the claimed conduct and the tort. In neither instance was the principle expressed in a manner that would limit its ambit only to sequelae and, in my view, it may embrace conduct occurring before or after the tort complained of, so long as the conduct concerned is sufficiently connected with it.
In the present instance, it was implicit in the manner in which the particularised ‘conduct’ was pleaded that it would be said that it was closely connected with either or both of the tortious acts complained of.
That was, of course, the manner in which the ‘conduct’ relied upon in connection with the claim for exemplary damages came later to be presented to the jury (albeit that at the commencement of the trial it had been common ground that the only basis for an assessment at common law unaffected by the relevant provisions of the Civil Liability Act was the admitted vicarious liability of the defendant).
In that regard, the failure to act upon the complaint made by Paul Ryan to Fr Connell was essentially said to be connected with Fr Kiss being later able to groom and sexually abuse the plaintiff (for which, of course, the defendant accepted that it was vicariously liable). As senior counsel for the plaintiff put it in address to the jury, ‘… we don’t know what happened to the complaint … [but] it doesn’t seem that anything has happened about it [because the plaintiff was subsequently abused]’.[46]
[46]T845.
Similarly, the failure of the defendant to clearly and promptly admit the abuse by Fr Kiss was essentially said to be part and parcel of the defendant’s conduct of the proceeding concerning the tortious abuse. As senior counsel for the plaintiff put it in address to the jury –
… Words are cheap. … they are still playing word games in 2022 and saying [“]well, all right, all right, he’s pleaded guilty but we still don’t say it happened[”]. Until basically the moment we enter the court door they finally say, “Well, yes, okay, it did happen”.[47]
[47]T847.
It follows that the defendant’s submissions that the pleaded ‘conduct’ was relevant only to the pleaded claim in negligence and not in any way ‘referrable’ to the tortious conduct for which the defendant accepted vicarious liability must be rejected.
Finally, as I have noted, the defendant referred to SR and submitted that ‘where there is a finding of vicarious liability’ exemplary damages ‘must only be considered by reference to the vicarious liability of the Defendant’.
In that connection, in oral address, senior counsel for the defendant also said that the present award of exemplary damages was ‘contrary to the apparently sole authority on this issue, which is SR’.[48]
[48]T934.
As I have indicated, the defendant’s submission does not take account of authority such as Lamb and DIZ18.[49]
[49]See also, DP (a pseudonym) v Bird [2021] VSC 850, [480].
In any event, the whole of what Cavanagh J said in SR concerning the claim for exemplary damages in that case is as follows –
248It is important to observe that an award of exemplary damages in this matter is not based on, for example, the defendant’s failure to do something about Mr Swain when it had knowledge of his activities. If damages were assessed under the CLA and in respect of the defendant’s direct negligence, then there could be no allowance for exemplary damages, as they are precluded under the CLA.
249If Mr Swain were still alive, it would be appropriate to award exemplary damages against him. However, Mr Swain is now dead. Exemplary damages are punitive rather than compensatory. They are awarded to punish the defendant and provide retribution and to act as a deterrent to the defendant and others.
250 As the plaintiff is not entitled to the exemplary damages under the CLA, then the only basis in which the defendant could be liable to pay exemplary damages would be on the basis that it is vicariously liable for the conduct [of] Mr Swain. I am not awarding damages as against Mr Swain. I have already found that damages are payable at common law because the defendant is vicariously liable for the conduct of Mr Swain, but by awarding exemplary damages as against the defendant, I am not punishing or deterring Mr Swain. The defendant is paying damages at common law to the plaintiff because of the conduct of Mr Swain.
251This is not an appropriate case for exemplary damages to be awarded as against the defendant.
It will be evident that the precise basis upon which the plaintiff in SR pleaded and sought to advance his claim for exemplary damages is not there identified. It seems likely that the only basis ultimately put forward was that the defendant was vicariously liable for the conduct of Mr Swain. That claim was correctly rejected for the reasons given by his Honour.
Unlike the present case, no reference is there made to Lamb or DIZ18, and it is not apparent that any conduct relevantly relied upon by the plaintiff in SR was conceived of in the manner articulated and presented in the present case.
In short, even if the defendant were not now precluded from relying upon s 21 of the Civil Liability Act by its own conduct, I do not accept –
(a) that the circumstances are otherwise such that s 21 should operate to displace the verdict of the jury in respect of exemplary damages; or
(b) that the present verdict is ‘contrary to SR’.
It follows that the defendant’s first ground must be rejected.
Ground 2: any evidence in respect of the claim under particular (a)
I have earlier referred to the applicable principles in an application made non obstante veredicto.
In connection with the present issue, senior counsel for the defendant submitted as follows –
… The only evidence in respect of the Ryan complaint was that it was made to Father Connell. There’s no more. There’s no evidence that the Bishop knew of the complaint. There’s no evidence as to the role of Father Connell at all.
There’s no evidence that the defendant had acted in deliberate, reckless or contumelious disregard of the plaintiff’s rights. …
Our submissions set out the principles in respect of inferential reasoning. We say that the mere admission of the complaint without anything more could not properly form a basis for inferential reasoning that the Bishop knew about the complaint or that he failed to act upon it.[50]
[50]T936.
It cannot be accepted that the only relevant evidence was the admission that Paul Ryan complained to Fr Connell.
In that regard, among other things –
(a) the plaintiff gave evidence that –
(i) he had been involved in the Wagga Diocese, including as an altar boy at the ‘main cathedral’;[51]
[51]T104. See also, T204-205.
(ii) he served as an altar boy in masses presided over by Fr Kiss;[52]
[52]T105. See also, T106.
(iii) as an altar boy, he had also got to know Fr O’Keefe;[53]
[53]T218.
(iv) Fr Kiss had been ‘affiliated with Wagga’, particularly in respect of fund raising in ‘all of the various parishes’;[54]
[54]T106.
(v) Wagga was the base parish for Fr Kiss;[55]
[55]Ibid.
(vi) in respect of the Young Christian Student organisation (‘YCS’), Fr Kiss had been ‘coordinating within the Wagga Diocese’;[56]
[56]T108.
(vii) he had ended up running the YCS in the Wagga parish;[57]
[57]Ibid.
(viii) in August 2002, Fr Kiss had pleaded guilty to offences involving the plaintiff as well as others, including Paul Ryan;[58]
[58]T135.
(ix)he had only recently learned of the complaint to Fr Connell made by Paul Ryan in respect of abuse suffered ‘a number of years earlier’;[59]
[59]T135.
(x) he became ‘very, very angry’ when he heard that Paul Ryan had complained to Fr Connell as it was –
… another situation where the church knew and did nothing. And this guy went on to become a director of youth after, long after the complaint from Paul. And they did nothing.[60]
[60]T163.
(xi)to his knowledge, there had been no restraint on Fr Kiss in his dealings with the plaintiff or in YCS;[61]
[61]T135.
(xii) he had received compensation from the Diocese in respect of the abuse by Fr Kiss and, in that connection, had been assessed by a psychiatrist in 2004;[62]
[62]T180. See also, T228-229.
(xiii) the Diocese had also paid for him to receive treatment between 2017 and 2019;[63] and
(b) the defendant admitted breach of a duty of care as well as vicarious liability.[64]
[63]T312-313. See also, T323-324 and T354.
[64]See, T68 and, later, in the charge, at T857.
In circumstances where, on the evidence –
(a) the plaintiff had been heavily involved in the Wagga Diocese where Fr Kiss had been based or affiliated;
(b) Paul Ryan had earlier complained about abuse by Fr Kiss;
(c) the plaintiff had subsequently learned of the complaint involving specifically Fr Connell (whom he did not claim not to have known nor known of) and became angry and described it as a situation in which the church ‘knew and did nothing’;
(d) the Diocese had subsequently paid him compensation; and
(e) the defendant had admitted negligence and vicarious liability –
it seems to me to have been well open to the jury to infer that there had been some kind of significant failure of the Bishop in the handling of the Ryan complaint.
That deficiency could have been in failing to act upon the complaint, if the Bishop had learned of it, but could equally have been in failing to require priests such as Fr Connell to report and act upon such complaints if made. Either way, it seems to me to have been open to the jury to conclude, on the evidence, that the Bishop had failed to take any action in respect of the complaint by Paul Ryan to Fr Connell and thereby created the circumstances where Fr Kiss had later groomed and abused the plaintiff and for which the defendant now admitted he was vicariously liable. Whether that conduct was, in the circumstances, sufficiently reprehensible to warrant an award of exemplary damages was a matter for the jury.
I should say that the relevant evidence was not limited to that to which I have referred. One should not overlook the defendant’s own evidence in respect of the issue of exemplary damages. Senior counsel for the defendant referred to that ‘huge bundle of documents’ extensively in the course of her address to the jury.[65]
[65]T811-818.
Although that material was introduced into evidence by the defendant for other purposes, it contained many statements that may well have been received by the jury as considered statements relevant to the present issue.
In particular, the Bishop of Wagga Wagga made a statement in response to the Royal Commission into Institutional Responses to Child Sexual Abuse that included the following –
The leaders of the Catholic Church in Australia recognise and acknowledge the devastating harm caused to people by the crime of child sexual abuse.
We take this opportunity to state:
1.Sexual abuse of a child by a priest or religious is a crime under Australian law and under canon law.
2. Sexual abuse of a child by any Church personnel, whenever it occurred, was then and is now indefensible.
3.That such abuse has occurred at all, and the extent to which it has occurred, are facts of which the whole Church in Australia is deeply ashamed.
4.The Church fully and unreservedly acknowledges the devastating, deep and ongoing impact of sexual abuse on the lives of the victims and their families.
5.The Church acknowledges that many victims were not believed when they should have been.
6.The Church is also ashamed to acknowledge that, in some cases, those in positions of authority concealed or covered up what they knew of the facts, moved perpetrators to another place, thereby enabling them to offend again, or failed to report matters to the police when they should have. That behaviour too is indefensible.
7.Too often in the past it is clear some Church leaders gave too high a priority to protecting the reputation of the Church, its priests, religious and other personnel, over the protection of children and their families, and over compassion and concern for those who suffered at the hands of Church personnel. That too was and is inexcusable.
8.In such ways, Church leaders betrayed the trust of their own people and the expectations of the wider community.
9. For all these things the Church is deeply sorry. It apologises to all those who have been harmed and betrayed. It humbly asks for forgiveness. The leaders of the Catholic Church in Australia commit ourselves to endeavour to repair the wrongs of the past, to listen to and hear victims, to put their needs first, and to do everything we can to ensure a safer future for children.
As a Church we fully and unreservedly acknowledge the devastating, deep and ongoing impact of sexual abuse on the lives of the victims and their families. Sadly, many victims were not believed when they should have been.[66]
[66]Exhibit D20.
In short, the Bishop of Wagga Wagga and other leaders of ‘the Catholic Church’ acknowledged that –
(a) sexual abuse of a child ‘was then and is now indefensible’;
(b) such abuse has had a ‘devastating, deep and ongoing impact’;
(c) ‘many victims were not believed when they should have been’;
(d) ‘those in positions of authority concealed or covered up what they knew of the facts’, which was also indefensible; and
(e) ‘some Church leaders’ had given ‘too high a priority to protecting the reputation of the Church, its priests, religious and other personnel’.
In circumstances, in which, at the very least, it was admitted that Paul Ryan had complained to Fr Connell and that the duty of care owed to the plaintiff had been breached together with vicarious liability for the abuse by Fr Kiss, the relevance and potency of that further evidence is plain; and there were, of course, further documents tendered into evidence by the defendant that were to a broadly similar effect.
Further, while senior counsel for the defendant was strongly critical of what she described as the ‘vice’ of counsel for the plaintiff in referring to ‘the Catholic Church’,[67] that very expression appears in the statement of the Bishop of Wagga Wagga.
[67]T937.
For present purposes, it is sufficient to say that, in circumstances where the Court is required to take a very cautious approach, the submission of the defendant that the ‘only’ relevant evidence comprised the complaint made by Paul Ryan to Fr Connell, and that there was ‘no evidence’ upon which a jury, properly instructed, might have answered ‘yes’ to question 3 in respect of the claim advanced by the plaintiff with reference to particular (a), must be rejected.
Ground 3: any evidence in respect of the claim under particular (b)
Ground 3 also engages the principles in respect of non obstante veredicto.
In that connection, senior counsel for the defendant submitted that –
(a) ‘I do not admit’ is ‘I do not know’ and is ‘not the same as a denial’;[68]
[68]T945.
(b) a non-admission is a ‘standard form of defence … in personal injury cases’ in respect of allegations such as date of birth;[69]
[69]T945.
(c) the plaintiff’s submission that the defendant had engaged in ‘word games’ was ‘extraordinary’;[70]
(d) there was, in fact, no evidence of lack of bona fides in the defendant merely putting the plaintiff to his proof;[71] and
(e) the plaintiff seeks to exploit the defendant’s bona fide pleading, which should not be allowed.[72]
[70]T938.
[71]T939.
[72]T940.
In so doing, senior counsel referred to David Syme.[73] Senior counsel acknowledged that David Syme concerned a claim for aggravated damages, but said that the reasoning was ‘analogous’.[74]
[73]David Syme (n 31).
[74]T939.
David Syme was a defamation case in which The Age had published an article that erroneously included defamatory features that might be thought to have identified the plaintiff rather than his son. The defendant did not admit that the article was defamatory and did not admit that it referred to the plaintiff. Those matters came later to be admitted by counsel for the defendant in final address to the jury. In that case, there was no claim for exemplary damages.
In the Full Court, the leading judgment was given by Lush J. Starke J and Kaye J agreed, but published further observations of their own.
All members of the Full Court agreed that, as Lush J described it, the defendant’s non-admissions were ‘incapable of being used in aggravation of damages, either by [themselves] or in conjunction with other circumstances of the case’. His Honour considered the pleading to have been ’a purely technical document which no pleader could possibly have regarded as improper or unjustified’.[75]
[75]David Syme (n 31) 527-528.
In argument, senior counsel for the defendant referred to statements to similar effect in the reasons of Kaye J.
At least in tone, the submissions of senior counsel for the defendant tended to suggest that the statements to which I have referred established that a non-admission could rarely or perhaps never sponsor a claim for aggravated (or exemplary) damages.[76]
[76]T939-940.
However, it is clear enough from the reasons of all members of the Full Court in David Syme that the various relevant observations were significantly influenced by the circumstances of the case. For example, Kaye J prefaced his own observations with the expression ‘generally speaking’ and later stated –
Moreover, in my opinion, there were no circumstances connected with the negative defences as pleaded from which the jury could have properly concluded that the pleas were not made legitimately for the purpose of the defendant’s protection.[77]
[77]David Syme (n 31) 536.
In my view, David Syme certainly does not support any broad proposition to the effect that a non-admission can never comprise a part of the foundation for a claim for aggravated or exemplary damages; particularly if there are circumstances connected with the plea from which a finder of fact could properly conclude that the plea was not made ‘legitimately’.
I have earlier referred to the form of the defendant’s original plea in response to the plaintiff’s simple allegation that, during the period, he was groomed and sexually abused by Fr Kiss. As the defendant’s original plea is complicated, it is convenient to repeat it –
8In response to paragraph 8:
(a)he admits that Fr Vincent Kiss pleaded guilty to ten counts of indecent assault on a male and three counts of buggery occurring between 1 July 1966 and 31 March 1973 (collectively, the Charges) as detailed in the sentencing judgment in R v Vincent Keirin Kiss (District Court of New South Wales Proceeding No. 02/11/0142) dated 13 September 2002;
(b)he admits that the Charges set out in the subparagraph above included charges in respect of the Plaintiff and three others;
(c)he says further that on or around 13 September 2002, Fr Vincent Kiss was sentenced to 10 years and 6 months’ imprisonment arising from the Charges; and
(d)he otherwise does not admit the allegations in paragraph 8.
It will be evident that the defendant’s plea is not a simple non-admission. It also has some distinctly curious features –
(a) it does not directly address the simple allegation made by the plaintiff;
(b) in that regard, it introduces admissions concerning guilty pleas made by Fr Kiss and his sentence; and
(c) in that connection, it distinctly admits that the charges to which Fr Kiss pleaded guilty ‘included charges in respect of the plaintiff’.
In order to have admitted that Fr Kiss had pleaded guilty and been sentenced to charges concerning the plaintiff, the defendant is very likely to have known the formal description of and even the particulars relating to the charges. Even if he only knew the formal description of the charges, it is not at all clear why the abuse suffered by the plaintiff in respect of those charges could not have been admitted. Indeed, it is not clear why the defendant could not have admitted the simple allegation against it, at least in respect of a more confined period.[78]
[78]I should say that I do not accept that the defendant was prevented from making any such admissions by ss 91 and 92 of the Evidence Act 2008 (Vic); after all, those provisions did not prevent the defendant from later making a full admission.
The real problem, however, is that there were a range of other circumstances that, in my view, entitled the jury to question whether the defendant’s curiously indirect and reticent form of plea had been legitimate.
In that regard, the ‘huge bundle of documents’ tendered into evidence by the defendant disclosed that ‘the Church’ had a long and extensive history of failing to deal appropriately with victims of historical sexual abuse. Among other things, as I have earlier noted, the Bishop of Wagga Wagga had acknowledged that –
(a) many victims had not been believed ‘when they should have been’;
(b) those in ‘positions of authority’ had concealed or covered up what they knew of the facts; and
(c) the ‘Catholic Church in Australia’ had committed ‘to repair the wrongs of the past, to listen to and hear victims, to put their needs first’.[79]
[79]Exhibit D20.
In that context, there was evidence that –
(a) the plaintiff had complained to the Diocese about the abuse by Fr Kiss as long ago as 2004 and, in that connection, had made a statement and been examined by a psychiatrist;[80]
(b) in that connection, he had been compensated by the Diocese (and, accordingly, his complaint of abuse by Fr Kiss must have been accepted);[81] and
(c) between 2017 and 2019 the Diocese had also paid for him to have counselling in respect of the abuse by Fr Kiss.[82]
[80]T180 and T228.
[81]T180.
[82]T312-313 and T354.
In short –
(a) the evidence included acknowledgements that past conduct of ‘the Church’ had lacked bona fides;
(b) ‘the Church’ had also committed to ‘right the wrongs of the past’;
(c) in the present case, the plaintiff had long ago told his story to the Diocese and received compensation (which would suggest that his story had been believed);
(d) however, the defendant had apparently held back from any kind of a simple admission concerning the abuse suffered by the plaintiff – only later to proffer it, without explanation, when faced with the inevitability of a trial.
At the time at which leave had been granted to the plaintiff to rely upon particular (b) to the plea for exemplary damages, I noted that the defendant might, in due course, determine to call relevant evidence. However, the defendant ultimately sought to counter the above (which, as I have noted, was based in the evidence) via various assertions made by senior counsel for the defendant in the course of her final address to the jury. In particular, senior counsel submitted –
You may ask yourself the question as to why Bishop Edwards admitted the guilty plea and conviction but not the full circumstances of the abuse. We say there is a simple and inoffensive explanation for this. That is, it was not a matter that Bishop Edwards or any one of his predecessors as Bishops of the Diocese knew.
When making a plea in a formal court document a party must plead the facts within its knowledge truthfully. Neither Bishop Edwards nor any of his predecessors knew exactly what occurred between the plaintiff and Kiss, indeed, there has been no suggestion that there were any witnesses to the abuse by Kiss of the plaintiff.
However, Bishop Edwards did know that Kiss had pleaded guilty and been convicted of the abuse of the plaintiff. This was therefore acknowledged by and accepted in his defence. Beyond that, Bishop Edwards simply stated that he did not admit the allegations which is akin to saying, ‘I do not know.’
It is very different, we say, from any denial, it is not a, ‘It didn’t happen’, it is just, ‘I do not know.’ At no stage in the proceedings has Bishop Edwards denied the abuse.
…
So why then choose to admit closer to trial? Every party in a proceeding is under a legal obligation to narrow the issues in dispute. There is an Act of Parliament called the Civil Procedure Act which puts obligations on lawyers, on parties, everybody, to narrow the issues in dispute.
Now, as this got closer to trial, as there has been more medical evidence, as other evidence came through and other documents came through Bishop Edwards made the decision to admit the abuse and we say that’s perfectly acceptable and nothing in his conduct warrants an award of exemplary damages. It certainly does not warrant punishment, it is not done in contumelious disregard for the plaintiff’s rights.
Further, we say you can take into account that the Diocese has previously provided compensation and support to the plaintiff over a number of years prior to the present proceedings and that is recognition of the fact that the plaintiff had been abused, notwithstanding that the bishop did not know the full facts.[83]
[83]T809-810.
The jury was not bound to accept those assertions – particularly as they were not based on any evidence given at the trial. In that regard, the jury was instructed, in the usual way, that the comments of counsel from the Bar table were not evidence in the case and could be disregarded if they were not considered to be of assistance.
In any event, in the circumstances it will be evident that, again adopting the cautious approach required by authority, there was evidence upon which a jury properly instructed could have returned a verdict for the plaintiff in respect of particular (b).
It follows that the defendant’s ground 3 must be rejected.
D. Interest
As I have indicated, the issue of interest and the precise form of final orders was not dealt with in any detail during the first round of post-verdict written submissions or at the subsequent hearing. The parties agreed that the issue could be dealt with via a further round of written submissions[84] and subsequently on the papers.
[84]Plaintiff’s supplementary submissions regarding interest filed 22 November 2023 and Defendant’s outline of submissions – interest filed 22 November 2023.
The plaintiff referred to Pfeiffer and submitted that interest was a substantive issue governed by the law of the place of the wrong and, consequently, should be calculated by reference to s 100(1) of the Civil Procedure Act. In that regard, the plaintiff referred to practice and authority and, among other things, relied upon the calculation of interest on past loss of earnings performed by Mr Thompson.[85]
[85]Cf., MBP (SA) Pty Ltd vGogic (1991) 171 CLR 657 and Beckett v State of New South Wales [2015] NSWSC 1500.
For his part, the defendant submitted that –
(a) the Civil Procedure Act has ‘no application in the Supreme Court of Victoria’ and ‘the laws of Victoria govern the calculation of interest’;[86]
[86]Defendant’s outline of submissions – interest filed 22 November 2023, [6].
(b) in that regard –
The plaintiff’s reliance now upon the law of NSW is contrary to his approach at trial which was that the common law in Victoria applied to the assessment of damages. For example, if this case was run in NSW, the Court would have had reference to and indeed submissions would have been made, as to awards of damages in similar cases. The plaintiff now seeks to forum shop in respect of the calculation of interest, which the defendant says ought not to be allowed.[87]
[87]Ibid [11].
(c) it follows that interest should be calculated pursuant to s 60 of the Supreme Court Act;
(d) alternative figures may apply in respect of a calculation directed to past pain and suffering damages (namely, $31,096 or $41,955) and any calculation directed to past economic loss should be in the sum of $130,155;
(e) further and alternative calculations should be made if the Civil Procedure Act applies; and
(f) in that event, however, among other things, s 18(1)(a) of the Civil Liability Act would preclude any award of interest on damages for non-economic loss.
The present issue is the calculation of damages in the nature of interest; which is available only as a consequence of and by reference to statute.[88]
[88]Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520, [23] and Lonergan v The Trustees of the Sisters of Saint Joseph [2022] VSCA 208, [98].
As I have noted, the plaintiff relies upon Pfeiffer and, in particular, the statement of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ that –
… all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti.[89]
[89]Pfeiffer (n 32) [100] (emphasis in original).
I note that immediately prior to the paragraph in which that passage appears, their Honours stated that a plaintiff cannot ask a court of the forum to ‘adopt procedures or give remedies of a kind which their constituting statutes do not contemplate’.[90]
[90]Pfeiffer (n 32) [99].
In the present instance, of course, interest is a kind of damages and therefore substantive.[91] In that regard, there are plainly differences between s 100(1) of the Civil Procedure Act and s 60 of the Supreme Court Act. That said, interest is a remedy contemplated in both statutes and is, therefore, not beyond contemplation in the Supreme Court of Victoria.
[91]Ibid [97]-[100].
The authors of Luntz and Harder, Assessment of Damages for Personal Injury and Death state that it was settled by Pfeiffer that the availability and rate of pre-judgment interest is substantive and that –
[i]n interstate cases, it is now common practice to apply the law on pre-judgment interest of the jurisdiction whose law governs the substance of the claim.[92]
[92]Harold Luntz and Sirko Harder, Assessment of Damages for Personal Injury and Death (LexisNexis, 5th ed), [12.2.18] (footnote omitted).
Many of the authorities cited in support of that statement in Luntz and Harder include little or no analysis of the practice: it is simply done.
However, in Ellis, Executor of the Estate of Paul Steven Cotton (Dec) v The State of South Australia & Ors (‘Ellis’), EM Heenan J was more expansive than the apparent norm. His Honour referred to Pfeiffer, and other relevant cases, and stated relevantly as follows –
… laws which previously may have been regarded as procedural, such as the discount rate to be applied for the assessment of damages involving further occurring economic loss, and indeed whether a component of interest may be added to an award of damages, or parts of it, and if so for what period and at what rates, should now be related as being matters of substantive law to be governed by the operative provisions of the lex loci delicti …[93]
[93][2006] WASC 270, [19].
Ellis, of course, went all the way to the High Court. Along the way, the correctness of the statement to which I have referred was not considered or doubted.[94]
[94]Cf., South Australia v Ellis (2008) 37 WAR 1 and Amaca Pty Ltd v Ellis (2010) 240 CLR 111.
I have noted the submission of the defendant that the law of New South Wales does not apply. In particular, the defendant points to the fact that the Civil Procedure Act refers to ‘the Supreme Court’ in a context which would suggest that it is a reference to the Supreme Court of New South Wales. The defendant also submits that ss 1 and 33 of the Supreme Court Act require the Court to apply s 60.
I do not accept either submission. Among other things, s 100(1) of the Civil Procedure Act is part of the substantive law of New South Wales.[95] In the present instance, subject to a point to which I will shortly come, the Court is required to apply the substantive law of New South Wales.
[95]The fact that the Civil Procedure Act might largely concern matters of procedure does not mean that all of its provisions should be regarded as procedural: cf., Commonwealth v Crothall Hospital Services (Aust) Ltd (1981) 54 FLR 439.
For completeness, I should address the defendant’s submissions that –
(a) the ‘approach at trial … was that the common law in Victoria applied to the assessment of damages’; and
(b) the plaintiff is now seeking to ‘forum shop’.
I have earlier referred to the common ground pursuant to which the proceeding was presented in a form in which it could be and was conducted before a jury. That involved no mention of the ‘common law in Victoria’ and, indeed, the common ground was plainly enough that, as in SR, damages would be assessed by reference to the substantive law of New South Wales, including the common law, but not ‘impacted’ by the relevant provisions of the Civil Liability Act. Further, it has long been the position that there is simply ‘one common law in Australia’.[96] It follows that the submissions to the effect that the plaintiff is now seeking to ‘forum shop’ must be rejected.
[96]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563. See, more recently, Rizeq v Western Australia (2017) 262 CLR 1, [78] and [114].
In light of the above, I conclude that damages in the nature of interest should relevantly be assessed by reference to s 100 of the Civil Procedure Act.
In that regard, like Cavanagh J in SR, the plaintiff approaches the issue of interest for past pain and suffering damages with reference to established authority.[97] In that connection, the plaintiff attributes $800,000 of the verdict of $1,100,000 to the past, and applies half of the conventional rate of 4% across a past period of 47 years to reach the figure of $752,000.
[97]MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. Cf., SR (n 4) [244].
For his part, the defendant advances various assertions – most of which are not based on any evidence given at trial. Some of that would require that the defendant be given the indirect benefit of a deed of release that has not impeded the present verdict.
As I have noted, the defendant also contends that any award of interest on damages for non-economic loss would be precluded by s 18(1) of the Civil Liability Act. That submission is, however, also precluded by the common ground pursuant to which the case was conducted. In that regard, I note that, in SR, Cavanagh J assessed interest in respect of both past general damages and loss of income.[98]
[98]SR (n 4) [252].
In the circumstances, I accept that, broadly speaking, it is presently appropriate to assess interest on past pain and suffering damages in the ‘ordinary’ way, albeit adjusted to take account of the fact, correctly acknowledged by the plaintiff, that ‘the loss was not evenly spread’.[99]
[99]Plaintiff’s supplementary submissions regarding interest filed 22 November 2023, [8].
The plaintiff’s figure of $800,000 is slightly more than 70% of the verdict. I would accept that it is appropriate to attribute 70% of the verdict to the past, which is $770,000.
In my view, to simply apply 2% to that part of the verdict across 47 years does not sufficiently acknowledge the evidence that, as the plaintiff acknowledges, ‘the loss was not evenly spread’. On the other hand, the dimension of the verdict suggests that the jury accepted that the plaintiff suffered outside the particular period of about 1992 to 2017 or 2019 in which his symptoms seem to have been most acute.
In my view, it is more appropriate to discount the figure of $770,000 by 40% in order to take account of the variation in the suffering of the plaintiff over time as well as the plaintiff’s evidence in respect of periods in which he does not seem to have suffered.[100] In the circumstances, I would assess the figure for damages in the nature of interest on past pain and suffering damages at $462,000.
[100]T202-203.
As to past loss of earnings, the plaintiff submits that the jury’s award ‘included acceptance of the plaintiff’s submissions and more’ and that it would be appropriate to accept at least the calculation proffered by Mr Thompson (in respect of a figure lower than the verdict). The plaintiff also submits that such a figure would be consistent with authority and practice in New South Wales.[101]
[101]Plaintiff’s supplementary submissions regarding interest filed 22 November 2023, [5]-[7].
The foundation for the defendant’s submission in respect of interest on past economic loss is essentially the same as that advanced in respect of past pain and suffering. It will be evident that I do not consider those features to be persuasive nor appropriate. That said, the figure proffered by the defendant is not greatly different to that proffered by the plaintiff.
In my view it is appropriate to adopt the figure proffered by the plaintiff; largely for the reasons advanced by the plaintiff in submissions. Accordingly, I assess the figure for damages in the nature of interest on past economic loss at $390,353.
E. Conclusion
Final orders will be made to give effect to the verdict of the jury in light of the further matters addressed and determined above.
I should add that there seems to have been a minor issue between the parties concerning the rate of fees to be certified for counsel as well as the number of days of preparation that should be allowed. No written submissions were directed to the issue.
In respect to the seemingly contested parts of those proposed orders, I would certify for the fees of senior counsel at $8,800 per day with junior counsel at 50% and allow for three days of preparation (inclusive of conferences).
For completeness, I should note that both parties agreed that a prior settlement sum of $90,000 should be deducted from the damages ordered.
Final orders will be provided to the parties together with these reasons.
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