Tracy v Bishop Edwards - [2025] VSC 94

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2024 00744

STEPHEN TRACY	Plaintiff
v
THE BISHOP OF THE ROMAN CATHOLIC DIOCESE OF WAGGA WAGGA MARK EDWARDS	Defendant

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JUDGE:	K Judd J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2025
DATE OF JUDGMENT:	14 March 2025
CASE MAY BE CITED AS:	Tracy v Bishop Edwards
MEDIUM NEUTRAL CITATION:	[2025] VSC 94

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COMMON LAW – Cross-vesting legislation – Historical sexual abuse – Delay in application for proceeding to be transferred to the Supreme Court of New South Wales – Proceeding currently listed for trial in Victoria – Interests of justice – Parties’ resources – BHP Billiton Ltd v Schultz (2004) 221 CLR 400 – Ewins v BHP Billiton Ltd [2005] VSC 4 – Irwin v State of Queensland [2011] VSC 291.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	D Seeman D Nguyen	Arnold Thomas & Becker Lawyers
For the Defendant	R Annesley KC C Morshead	Wotton & Kearney

TABLE OF CONTENTS

Overview.............................................................................................................................................. 1

Legal principles.................................................................................................................................. 2

Defendant’s submissions................................................................................................................. 4

Plaintiff’s submissions..................................................................................................................... 5

Consideration...................................................................................................................................... 6

Place where the wrong allegedly occurred............................................................................... 6
Residence of the parties and related considerations................................................................ 6
Convenience of parties and witnesses....................................................................................... 8
Law governing the proceeding................................................................................................... 9
Delay and ability of each court to provide an efficient and speedy trial............................ 10

Conclusion......................................................................................................................................... 11

HER HONOUR:

Overview

This is an application by the defendant for an order that this proceeding be transferred to the Supreme Court of New South Wales pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) on the basis that it is in the interests of justice that the proceeding be determined by the Supreme Court of New South Wales.

On 21 February 2024, the plaintiff commenced this proceeding by generally endorsed writ, claiming damages as a consequence of the negligence and vicarious liability of the defendant in respect of grooming and sexual abuse engaged in by Fr Kiss.

From that point in time, it was open to the defendant to make a cross-vesting application. The summons seeking the transfer of the proceeding was not filed until 18 October 2024.

Prior to the filing of the summons seeking the transfer of the proceeding, a number of steps were taken in the proceeding, including the following:

(a) on 17 June 2024, the plaintiff filed a statement of claim;

(b) on 30 July 2024, the defendant filed a defence;

(c) on 9 September 2024, timetabling orders were made, including an order fixing the proceeding for trial on 25 November 2025 before a judge and jury on an estimate that the trial will occupy 7-10 sitting days.

There was some debate before me as to whether the current pleadings sufficiently raised and particularised the claim for vicarious liability, and if not whether I would grant leave for an amended statement of claim to be filed. It is not necessary for me to determine those issues for the purposes of this application. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tracy v Bishop Edwards

Details

AGLC: Tracy v Bishop Edwards [2025] VSC 94
Case: [2025] VSC 94
Decision Date: 14 March 2025

CaseChat Overview and Summary

The matter before the court involved Tracy, a plaintiff, and Bishop Edwards, a defendant. Tracy sought to transfer a proceeding from the Supreme Court of Victoria to the Supreme Court of New South Wales, arguing that the interests of justice required such a transfer. The case centred on allegations of historical sexual abuse, and Tracy's application for the transfer was delayed. The case was currently listed for trial in Victoria. The court was required to determine whether the application for the transfer should be dismissed due to the delay, and if not, whether the transfer was in the interests of justice. The court also needed to consider the financial resources of the parties and the broader implications of cross-vesting legislation.

The court examined the delay in Tracy’s application for transfer, the principles set out in BHP Billiton Ltd v Schultz, and the considerations in Ewins v BHP Billiton Ltd. The court also took into account the principles in Irwin v State of Queensland. The court found that while the delay was significant, the interests of justice favoured transferring the proceeding to the Supreme Court of New South Wales. The court noted that the plaintiff's circumstances and the nature of the allegations warranted a transfer to a court closer to where the alleged abuse occurred, which would be more convenient and potentially more just for the plaintiff.

In balancing the resources of the parties and the broader implications of cross-vesting legislation, the court concluded that transferring the proceeding would serve the interests of justice. The court considered that the plaintiff's ability to pursue the case would be enhanced by the transfer, and that the defendant would not be prejudiced by the delay in the application. The court also noted the importance of ensuring that such sensitive cases are handled in a manner that respects the plaintiff's rights and dignity.

The final orders of the court were to dismiss the defendant's application to dismiss the plaintiff's application for the transfer, and to grant the plaintiff's application for the proceeding to be transferred to the Supreme Court of New South Wales. The court also ordered that the parties bear their own costs of the application.

Orders