Tracy v Bishop Edwards
[2025] VSC 94
•14 March 2025
| 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 defendant has been put on notice from the commencement of this proceeding that the plaintiff was intending to raise vicarious liability and how such claim was being put. Whether there is no reasonable prospect of success in respect of the vicarious liability claim given the recent High Court decision in Bird v DP (a pseudonym),[1] or whether this case can be distinguished from Bird, are matters more appropriately left for another day.
[1](2024) 319 ALR 552.
In support of its application, the defendant relies upon the affidavits of Tushka Sridharan made on 18 October 2024 and 26 February 2025 and the exhibits thereto. The plaintiff, in response, relies on the affidavits of Kim Price made on 19 November 2024, 17 February 2025 and 27 February 2025, and the exhibits thereto.
Legal principles
In an application to transfer a proceeding, there is no onus of proof on either party.[2] In that regard, it is not necessary for the applicant for a transfer ‘to show some good reason for disturbing the plaintiff’s initial choice of venue,’[3] nor is it the case that ‘the plaintiff’s choice of court is to be given weight’:[4]
It is only if both courts are equally appropriate that the initial choice will have significance; if one is more appropriate than the other, however so slightly, a transfer to the more appropriate court is mandatory.[5]
[2]Valceski v Valceski (2007) 70 NSWLR 36, 60 [70] (Brereton J).
[3]Ibid.
[4]Ibid.
[5]Ibid.
Similarly, the High Court stated:
In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court ‘‘shall transfer’’ the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a ‘‘clearly inappropriate’’ forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.[6]
[6]BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 421 [14] (Gleeson CJ, McHugh and Heydon JJ) (‘BHP v Schultz’).
The judicial determination as to whether to transfer or not, has at times been described as a ‘nuts and bolts’ management decision.[7] A wide range of considerations or ‘connecting factors’ may be taken into account so as to identify ‘the most appropriate, or natural, forum’.[8]
[7]BHP v Schultz, 421 [13], quoting Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 714 (Street CJ).
[8]BHP v Schultz, 423 [19].
Those connecting factors include the interests of the parties. However, as the interests of justice are wider than the interests of the parties, the interests of the parties will not necessarily be determinative.[9]
[9]BHP v Schultz, 423 [19]; Irwin v State of Queensland [2011] VSC 291, [14](d) (Robson J).
Relevant connecting factors might include:
(i) In a tort case, the place where the wrong occurred.
(ii)Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.
(iii)The convenience to the parties and witnesses. However in this day and age this factor may not carry substantial weight, because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because of the provision of evidence by audio visual link.
(iv)The law governing the proceeding.
(v)The experience of a particular Court and its ability to provide an efficient and speedy trial, for example a Court with particular evidentiary and procedural rules for hearing particular types of cases.
(vi)The condition of a party, for example, in a personal injury case where the life expectancy of the plaintiff is limited requiring a speedy outcome.[10]
[10]Ewins v BHP Billiton Ltd [2005] VSC 4, [29].
As noted by Gillard J in Ewins v BHP Billiton Ltd:
… it is right to attach importance to the procedural and evidentiary advantages offered to all parties in a particular court. It is relevant to have regard to a particular court’s specialisation and experience in a particular field.[11]
[11]Ewins v BHP Billiton Ltd [2005] VSC 4, [31].
Defendant’s submissions
The defendant submitted that the Supreme Court of New South Wales was the natural and most appropriate forum for this proceeding, including because:
(a) the place where the alleged tortious wrong occurred is New South Wales and, although some of the alleged offending is said to occur in Victoria, such offending involves Fr Kiss going over the border temporarily;
(b) the defendant is located in New South Wales;
(c) the plaintiff has no connection to Victoria and resides in a location which is geographically closer to New South Wales;
(d) the preponderance of potential witnesses are located in New South Wales;
(e) the law governing both the proceeding and a previous deed of release which is relied upon by the defendant is that of New South Wales; and
(f) in terms of speed and efficiency in having the matter heard, the matter could be listed for trial in New South Wales in a similar timeframe to that of Victoria.
The defendant further submitted that:
(a) there has been no delay by the defendant in seeking to transfer the proceeding;
(b) the Court should proceed on the assumption that the plaintiff will give evidence in person, which in turn favours the transfer of the proceeding to New South Wales; and
(c) the passage from Irwin v State of Queensland comparing the ‘full resources of the State’[12] to the resources of an individual plaintiff are irrelevant given the Diocese is not a State.
[12]Irwin v State of Queensland [2011] VSC 291, [23] (Robson J) (‘Irwin’).
Plaintiff’s submissions
The plaintiff submitted that it is inevitable that there would be a delay if the proceeding were transferred to New South Wales. Currently this matter is listed for trial on 25 November 2025 in Victoria. The plaintiff is being assessed by a psychiatrist on 14 July 2025. There are current orders in place to mediate this matter by 5 August 2025. It is critical, given the plaintiff’s advanced age and poor health, that this trial be maintained.
The plaintiff relied on reports of Dr Lotz and Dr Chester, who opined as follows:
Dr Lotz opined –
In my opinion, moving the court proceedings from Victoria to New South Wales would not be in Mr Tracy’s benefit.
He has been struggling with anxiety related to the unresolved case and ongoing litigation.
Delaying the case further by transferring it interstate, will only exacerbate his psychological condition and worsen his anxiety.
In my opinion, his psychological condition will be exacerbated by any further delay such as transferring the proceedings from Victoria to New South Wales.[13]
[13]Plaintiff, Exhibit KP-2, ‘Supplementary report of Dr Lotz, Psychiatrist’, 14 February 2025, 10.
Dr Chester opined –
If Stephen Tracy’s legal claim is transferred to New South Wales Court [sic], this will no doubt evoke a high level of stress for Stephen. As this has been a long time coming, the delay alone will probably precipitate a decompensation in his mental and consequently physical well-being.
Stephen’s condition is likely to be exacerbated with his anxiety increased and mental health deterioration as a result of a delay created by the transfer of his legal proceedings from the Victoria High Court to New South Wales High Court [sic].[14]
[14]Plaintiff, Exhibit KP-2, ‘Report of Dr Chester, General Practitioner’, 31 January 2025, 8.
The plaintiff further submitted that:
(a) many of the instances of alleged sexual abuse occurred in Victoria;
(b) the legal principles relating to the law of negligence and vicarious liability are indistinguishable as between New South Wales and Victorian law in all material respects;
(c) the operation of the New South Wales provisions[15] with respect to setting aside a prior deed are similar to the Victorian provisions and central to determining whether it is just and reasonable to set aside a deed is whether the limitation period and Ellis defence were factors resulting in a discount to the settlement sum;[16]
(d) there are more witnesses in Victoria than NSW; and
(e) the defendant being an institutional defendant has greater resources to have witnesses travel than the plaintiff.
[15] Civil Liability Act 2000 (NSW), s 7D.
[16]EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490, [175]; Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73 (‘DZY’), [109]; and Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328, [110]-[117].
Consideration
It is clear from the parties’ evidence and submissions that there are connecting factors to both New South Wales and Victoria.
Place where the wrong allegedly occurred
I accept that the tort of negligence occurred in New South Wales and that each of the particularised acts of negligence occurred in New South Wales. However, even accepting this proposition,[17] this is not the end of the matter. The alleged sexual abuse is said to occur not just in New South Wales, but in Victoria at Wodonga, Bethanga, the Hume Weir and Torquay. This provides a relevant connection with Victoria which goes into the mix of relevant considerations.
[17]And even if no regard is had to the vicarious liability claim.
Residence of the parties and related considerations.
The defendant resides in New South Wales. The plaintiff resides in Queensland.
It is not correct that the plaintiff has no connection to Victoria. His solicitors, whilst having an office in Sydney, do not have any permanent staff at that office and primarily operate from Victoria. This is one of many relevant considerations, although not as substantial as the other considerations raised by the parties.
Perhaps more importantly, I do not accept the defendant’s submissions that the ‘Court ought proceed on the assumption that the plaintiff will give evidence in person, which favours the transfer of the proceeding to New South Wales, a jurisdiction significantly closer geographically to the plaintiff’s residence’.[18]
[18]Defendant, ‘Submissions of the Defendant’, 27 February 2025, 28.
The plaintiff placed reliance on a passage from Stanford Barton (a pseudonym) v The State of New South Wales[19] (‘Barton’) that ‘it is preferable that, if possible, the witnesses on liability give their evidence in person’.[20] That passage has little relevance to this case. In Barton, the location of witnesses assumed some relevance because both parties were desirous of their witnesses giving evidence in person and it was inevitable that this could not be accommodated in either Victoria or NSW without either inconveniencing one or other of the parties or utilising an audio visual link.
[19][2025] VSC 57.
[20]Ibid, [2025] VSC 57, [24].
In the current case, the plaintiff does not wish to give evidence in person, nor does he wish to attend court on each day of the hearing. He resides in an aged care facility and suffers from psychiatric injuries and physical health conditions including oesophageal stenosis. He receives assistance for daily self-care and domestic tasks.
In addition, there are good reasons why a court would accede to an application for an audio visual link in a case such as this. In criminal prosecutions for sexual abuse, complainants regularly give evidence via a remote facility[21] without detriment to the interests of justice and in recognition of the fact that:
Victims of sexual assault can experience incredible added stress and trauma as their matters go through the justice system, and giving evidence in court can be devastating, can have long-term effects and can add to the trauma of the original event.[22]
[21]Criminal Procedure Act 2009, s 360.
[22]Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2009, 3652, (Danielle Louise Green, Member for Yan Yean).
Although different statutory provisions govern criminal proceedings, the stress and trauma of giving evidence in person in a court room is similarly present for most plaintiffs in civil cases in which sexual abuse is alleged.
Insofar as the defendant suggests that a video link would be inappropriate as the plaintiff ‘had poor knowledge of electronic audio-visual links’,[23] there is no reason to think that the plaintiff’s lawyers would be unable to ensure compliance with the technical requirements of s 42G of the Evidence (Miscellaneous Provisions) Act 1958.
[23]Defendant, ‘Submissions of the Defendant’, 27 February 2025, 27(a).
It is for the court hearing the trial of this proceeding to determine whether an order will be made permitting the plaintiff to give evidence via an audio visual link. But for the purposes of this application, I do not accept the defendant’s submission that the court should proceed on the basis that the plaintiff will give evidence in person. It follows that I do not accept the defendant’s submission that the plaintiff has a greater connection to New South Wales than Victoria.
Convenience of parties and witnesses
The defendant submitted that there are three primary defence witnesses who reside in New South Wales: Bishop Edwards,[24] Fr Kiss,[25] and Fr Burgess.[26]
[24]The defendant.
[25]The alleged perpetrator.
[26]The assistant priest at North Albury during the relevant period.
The defendant further submitted that it is relevant that Fr Burgess is 92 years of age, frail, in a nursing home and in need of nursing assistance.
There may well be other witnesses, not yet identified, who reside in New South Wales.
The affidavit material filed on behalf of the plaintiff nominates five witnesses who are located in Victoria.
There are other witnesses located in Queensland.
Given the location of the witnesses is split, it is difficult to make any findings that the location of witnesses supports the position of either the plaintiff or the defendant on this application, except in one respect. I am prepared to proceed on the basis that a Diocese has more resources than this individual plaintiff.
The defendant submitted that there is no evidence of the defendant’s financial position and it should not be put into the same category as a defendant with the full resources of the State behind it.[27] However, there is no evidence that the defendant will suffer any financial hardship if the trial were held in Victoria and there is no reason to think that the Diocese could not afford to bring witnesses to Melbourne, if that were necessary.
[27]Such as the defendant in Irwin.
In comparison, the plaintiff ‘was unable to sustain employment and was formally retired in his early 50s’.[28] He receives social security benefits by way of an aged care pension.[29]
[28]Plaintiff, Exhibit KP-1, ‘Report of Dr Lotz, Psychiatrist’, 14 October 2024, 33.
[29]Ibid, 31.
It is not difficult to conclude that a Diocese has more resources than the plaintiff, is well equipped to run an interstate trial and is better placed than the plaintiff to have witnesses travel interstate.
Finally, to the extent that witnesses such as Fr Burgess are unable to travel, audio visual links can be utilised. In any event, a witness such as Fr Burgess may well need to utilise an audio visual link even if the trial were held in a New South Wales court.
Law governing the proceeding
In this proceeding, the law governing the proceeding is primarily the law of New South Wales, although the law of Victoria will apply to the torts that occurred in Victoria with respect to vicarious liability.
Bearing in mind that ‘[t]he law of negligence is part of the common law of Australia rather than of a particular State or Territory’,[30] in most respects the law relevant to this proceeding is indistinguishable between New South Wales and Victoria.
[30]Irwin v State of Queensland [2011] VSC 291, [17] (Robson J).
There are some differences between the two relevant States in respect of the law governing the setting aside of a prior deed of release, but there are also significant similarities. Further the defendant, rightly, accepted that a judge of this court was well placed to interpret and apply New South Wales legislation.
In respect of a potential damages assessment pursuant to the Civil Liability Act 2002 (NSW), judges of the New South Wales Supreme Court are more familiar with these provisions than judges of this Court. Their experience in that regard provides a connecting factor with New South Wales which I take into account in identifying the most natural and appropriate forum.
Delay and ability of each court to provide an efficient and speedy trial
I am of the view that there has been a delay by the defendant in bringing this application. As a result of the delay, the proceeding has advanced to the point that a trial date in Victoria has been fixed.
Perhaps more significantly, I am of the opinion that at this stage of the proceeding the Supreme Court of Victoria is best placed to offer a speedy trial.
I do not accept the defendant’s submissions that a transfer to New South Wales is unlikely to result in delay. If the proceeding were transferred to the New South Wales Supreme Court, a trial date would not be fixed until after mediation and a pre-trial case listing conference. If the trial date were being fixed today, then it might be possible to obtain a trial date in New South Wales in February 2026, but it is impossible to conclude that a February 2026 trial date is a realistic possibility in circumstances where a mediation has not yet taken place.
Added to this is the medical evidence to the effect that a delay will have a prejudicial effect on the plaintiff’s health. I accept that evidence and conclude that losing the trial date which has already been fixed will be detrimental to the plaintiff’s health.
Conclusion
In determining this application, I have carefully considered the competing considerations advanced by the parties.
Weighing all of the matters discussed above, in particular my conclusion that at this stage of the proceeding this Court is best placed to offer a speedy trial, I am ultimately of the view that the most natural and appropriate forum for this proceeding is Victoria.
Accordingly, the application for transfer of the proceeding to the Supreme Court of New South Wales must be dismissed.
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