Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis

[2007] NSWCA 117

Reported Decision:	63 ACSR 346
Appeal Outcome:	Special leave refused by the High Court - 16 November 2007

New South Wales

Court of Appeal

CITATION:	TRUSTEES OF THE ROMAN CATHOLIC CHURCH v ELLIS & ANOR [2007] NSWCA 117 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11; 12; 13 December 2006
JUDGMENT DATE:	24 May 2007
JUDGMENT OF:	Mason P at 1; Ipp JA at 200; McColl JA at 201
DECISION:	Appeal upheld with costs. Cross-appeal dismissed with costs.
CATCHWORDS:	ASSOCIATIONS AND CLUBS – Rights, liabilities and duties of members – liabilities – generally – unincorporated association – church – tort liability – vicarious liability – where fluctuating membership – where intentional tort committed by a member since deceased – whether current and/or past members liable – whether trustees of association liable – whether archbishop liable - ASSOCIATIONS AND CLUBS – Procedure in actions by and against – who may be sued - CHURCHES AND RELIGIOUS ASSOCIATIONS – General matters – churches – generally – relationship of church and communicant – relationship between members – relationship of trustees to church – relationship of archbishop to church - CORPORATIONS – Types of corporations – corporation sole – whether Roman Catholic Archbishop of Sydney is a corporation sole for purposes of tort liability – where predecessor may have committed a tort - ESTOPPEL – Estoppel by deed – in general – whether draft settlement deed contained representation as to proper defendants in matter – whether defendants estopped from denying that they are not the proper defendants - PROCEDURE – Supreme Court procedure – New South Wales – procedure under rules of court – parties – representative orders – “same interest” – “same liability” – what constitutes – whether requirement that defences need to be the same – order sought against unincorporated association with fluctuating membership – church – Uniform Civil Procedure Rules 2005, r 7.4 - PROCEDURE – Supreme Court procedure – New South Wales – procedure under rules of court – parties – representative orders – unincorporated association – whether a judgment is against the members individually or funds of an association – Uniform Civil Procedure Rules 2005, r 7.5 - STATUTES – Acts of parliament – statutory powers and duties – liability – negligence – particular cases – interpretation – purpose or object underlying Act – whether trustees of church for the purposes of property matters can be subject to all legal claims involving the church – Interpretation Act 1987, s 33
LEGISLATION CITED:	Bankruptcy Act 1966 (Cth) Interpretation Act 1987 Law Reform (Miscellaneous Provisions) Act 1944 Limitation Act 1969 Roman Catholic Church Property Act 1911 (WA) Roman Catholic Church Trust Property Act 1936 Roman Catholic Church Trust Property (Amendment) Act 1986 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005
CASES CITED:	Amey v Fifer [1971] 1 NSWLR 685 Amos Removals and Storage Pty Ltd v Small [1981] 2 NSWLR 525 Attorney General for Victoria v City of Brighton [1964] VR 59 Attorney-General (NSW) v Grant (1976) 135 CLR 587 Attorney-General v Power (1809) 1 Ball & B (lr) 145 B T Australasia Pty Ltd v State of New South Wales [1997] 1553 FCA Baker v Jones [1954] 2 All ER 553 Baldwin v Commissioner of Revenue (1981) 309 NW 2d 750 Banfield v Wells-Eicke [1970] VR 481 Bazley v Currey (1999) 174 DLR (4th) 45 Bradley Egg Farm Ltd v Clifford [1943] 2 All ER 378 Brown v Lewis (1896) 12 TLR 455 Cameron v Hogan (1934) 51 CLR 358 Campbell v Paddington Corporation [1911] 1 KB 869 Campbell v Thompson [1953] 1 QB 445 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58 Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 Case of Suttons Hospital (1613) 10 Co Rep 23a 77 ER 960 Clark v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [1998] 1 Qd R 26 Clarke v Earl of Dunraven and Mount-Earl (the Satanita) [1897] AC 59 Commonwealth v Verwayen (1990) 170 CLR 394 Concrete Constructions (NSW) Pty Ltd v Australian Building Construction Employees’ and Builders Labourers’ Federation (1988) 83 ALR 385 Ellis v Pell [2006] NSWSC 109 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Ex parte Goddard Re Falvey (1946) 46 SR(NSW) 289 Ex parte The Rev George King (1861) 2 Legge 1307 Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd (2005) 63 NSWLR 203 Glebe Administration Board v Commissioner of Pay-Roll Tax (1987) 10 NSWLR 352 Hardie and Lane Ltd v Chilton [1928] 1 KB 663 Healey v Ballarat East Bowling Club [1961] VR 206 Hrybynyuk v Mazur [2004] NSWCA 374 Hubbard Association of Scientologists International v Attorney-General for the State of Victoria [1976] VR 119 Irish Shipping Ltd v Commercial Union Assurance Co Plc [1991] 2 QB 206 Kain v Gibboney (1879) 101 US 362 Kehoe Maher and Mackey v Marquess of Lansdowne [1893] AC 451 Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200 [2007] HCA 6 Lister v Hesley Hall Ltd [2002] 1 AC 215 London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 Long v Bishop of Capetown (1863) 1 Moo PCC (NS) 411 15 ER 756 Mercantile Marine Service Association v Toms [1916] 2 KB 243 Municipality of Ponce v Roman Catholic Apostolic Church in Porto Rico (1908) 210 US 296 New South Wales v Lepore (2003) 212 CLR 511 Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 1) [1999] NSWCA 75 O’Sullivan v Challenger Managed Investments Ltd [2007] NSWSC 383 Overseers of the Poor of the City of Boston v Sears (1839) 22 Pick 128 39 Mass 122 Peckham v Moore [1975] 1 NSWLR 353 Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28 Preston v Star City Pty Ltd (No 3) [2005] NSWSC 1223 Re Lord Bishop of Natal (1864) 3 Moo PCC (NS) 115 16 ER 43 Reid v Barry (1927)112 So 846 Roche v Sherrington [1982] 1 WLR 599 Ryan v Fildes [1938] 3 All ER 517 S v Attorney-General [2003] 3 NZLR 450 Santos v Holy Roman Catholic and Apostolic Church Parish of Tambobong (1909) 212 US 463 Scandrett v Dowling (1992) 27 NSWLR 483 Serbian Orthodox Ecclesiastical School Community “St Nikolas” Queensland v Vlaislavljevic [1970] Qd R 386 Shepherd v Australia and New Zealand Banking Group Ltd (1996) 20 ACSR 81 Smith v Yarnold [1969] 2 NSWR 410 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Sweeney v Boylan Nominees Pty Ltd (2003) 227 ALR 46 Trustees of the Roman Catholic Church for the Diocese of Sydney & Anor v Hogan (2001) 53 NSWLR 343 Wilkins v Jennings (1985) Aust Torts Rep 80-754 Williams v Hursey (1959) 103 CLR 30 Wright v Morgan (1903) 191 US 55 Wylde v Attorney-General for New South Wales (ex rel Ashelford) (1948) 78 CLR 224 Yu v Speirs [2001] NSWCA 373
PARTIES:	THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY (Appellant/2nd Defendant) John Andrew ELLIS (Respondent/ Cross Appellant/ Plaintiff) His Eminence Cardinal George PELL Archbishop of Sydney for and on behalf of the Roman Catholic Church in the Archdiocese of Sydney (Cross Respondent/ 1st Defendant)
FILE NUMBER(S):	CA 40173/2006
COUNSEL:	Appellant: R G McHugh SC/ P W Flynn (Trustees) Respondent: A S Morrison SC/ R Royle (Ellis) Cross Respondent: R G McHugh SC/ P W Flynn (Archbishop Pell)
SOLICITORS:	Appellant: Corrs Chambers Westgarth (Trustees) Respondent: David Begg & Associates (Ellis) Cross Respondent: Corrs Chambers Westgarth (Archbishop Pell)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20308/2004
LOWER COURT JUDICIAL OFFICER:	Patten AJ
LOWER COURT DATE OF DECISION:	3 March 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	NSWSC 109

CA 40173/06

MASON P
IPP J
McCOLL JA

Thursday 24 May 2007

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY v ELLIS & Anor

The plaintiff alleges that, while he was a young altar server, he was sexually abused by an assistant priest in the Bass Hill Parish of the Roman Catholic Church between 1974 and 1979. The plaintiff sued three defendants being His Eminence George Cardinal Pell Archbishop of Sydney for and on behalf of the Roman Catholic Church in the Archdiocese of Sydney (the first defendant); the Trustees of the Roman Catholic Church for the Archdiocese of Sydney (the second defendant); and the alleged abuser (the third defendant).

The third defendant was appointed to the position at Bass Hill by Archbishop Freeman (in office between 1971 and 1983), acting in consultation with the Archdiocesan Council. The Archdiocesan Council is a separate body from the second defendant. The first defendant became the Catholic Archbishop of Sydney in 2001 and had no relevant connection with the Sydney Archdiocese prior to that time.

The proceedings against the third defendant were framed in negligence and assault. The third defendant died in 2004 and the plaintiff indicated that he did not intend to continue the proceedings against the third defendant or his estate.

The plaintiff turned eighteen in 1979 and his claims in tort became statute-barred in 1985 in accordance with ss 11(3), 14 and 52 of the Limitation Act 1969. The plaintiff sought an extension of time against the first and second defendants under either ss 58 or 60G of that Act. Patten AJ held that there was no basis upon which the cause of action in tort could be maintained against the first defendant either personally or as a representative of the members of the Roman Catholic Church in the Archdiocese of Sydney. As against the second defendant, however, the judge held that there was an arguable case that the Trustees were liable in tort because the Trustees constituted the entity that the Roman Catholic Church in the Archdiocese in Sydney adopted as its permanent corporate entity. An order was made extending the limitation period against the second defendant but the motion as against the first defendant was dismissed.

On appeal, the second defendant challenged the order extending time made against it and the plaintiff challenged the dismissal of his claim against the first defendant.

Liability against the first defendant was alleged under various grounds in tort and for a breach of fiduciary duty in equity both directly and vicariously. Liability against the second defendant was alleged under various grounds in tort both directly and vicariously. The plaintiff submitted that the first and second defendants were liable directly or in a representative capacity (representing the unincorporated association known as the Catholic Archdiocese of Sydney) for the wrongdoing of the third defendant. The plaintiff also invoked the legal concepts of a corporation sole as the basis of obtaining damages or compensation against the first defendant.

In the appeal the first and second defendants submitted that they were not the proper defendants in these proceedings. This point had been taken below.

HELD:

Per Mason P, Ipp JA and McColl JA agreeing:

Liability of the Church as an unincorporated association

(1) An unincorporated association cannot (at common law) sue or be sued in its own name because, among other reasons, it does not exist as a juridical entity (at [47]).

Lloyd, Law Relating to Unincorporated Associations (1938) London; Baker v Jones [1954] 2 All ER 553; Wilkins v Jennings (1985) Aust Torts Rep 80-754; Attorney General for Victoria v City of Brighton [1964] VR 59; Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28; London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15; Williams v Hursey (1959) 103 CLR 30; Smith v Yarnold [1969] 2 NSWR 410; referred to.

(2) Persons or groups within an unincorporated association can assume some active or managerial role. If the activity in which they exercise palpable control gives rise to a contractual or tortious claim otherwise recognised by law, they can be held liable as principals (at [49]).

Hrybynyuk v Mazur [2004] NSWCA 374; Fletcher, The Law Relating to Non-Profit Associations in Australia and New Zealand (1986), Sydney; referred to.

(3) However liability remains personal and not representative in nature and liability remains with the members who formed the committee or other controlling body who were in office at the relevant time of the tort. (at [51])

Banfield v Wells-Eicke [1970] VR 481; Peckham v Moore [1975] 1 NSWLR 353; referred to.

(4) The relationship between individual office holders in the Roman Catholic Church (such as an assistant parish priest) and the members of that Church as a whole is too slender and diffuse to establish the members’ liability as principals in contract or their vicarious liability in tort. (at [53]-[54])

Sweeney v Boylan Nominees Pty Ltd (2003) 227 ALR 46, [2006] HCA 19; considered. Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200, [2007] HCA 6; Atiyah, Vicarious Liability in the Law of Torts (1967) Great Britain; Baker v Jones [1954] 2 All ER 553; Attorney-General for Victoria v City of Brighton [1964] VR 59; Wilkins v Jennings (1985) Aust Torts Rep 80-754; referred to.

(5) The evidence does not support an argument that either of the first and second defendants, let alone all of the members of the Church, at the relevant time engaged or employed the third defendant. (at [60]-[61])

Representative Orders

(1) To obtain a representative order it is a requirement that the persons sought to be bound have the same interest in the proceedings at the time the proceedings began. The commonality of interest must be something beyond the plaintiff’s goal of obtaining an enforceable judgment against the whole group of defendants or funds available to be devoted to purposes associated with the association of which they are members. (at [75], [83])

Shepherd v Australia and New Zealand Banking Corporation (1996) 20 ACSR 81 at 96; approved. Roche v Sherrington [1982] 1 WLR 599; followed. Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58; [2006] HCA 41; Attorney General for Victoria v City of Brighton [1964] VR 59; Serbian Orthodox Ecclesiastical School Community “St Nikolas” Queensland v Vlaislavljevic [1970] Qd R 386 referred to. Campbell v Thompson [1953] 1 QB 445; discussed, distinguished. Amos Removals and Storage Pty Ltd v Small [1981] 2 NSWLR 525; Concrete Constructions (NSW) Pty Ltd v Australian Building Construction Employees’ and Builders Labourers’ Federation (1988) 83 ALR 385; discussed.

(2) The suggestion that the Uniform Civil Procedure Rules 2005 r 7.5 implies that a judgment in a representative action is not a real judgment against the individual members of the class cannot be accepted. It goes too far to see r 7.5 as contemplating that no member of the class might be personally liable or providing no more than a basis for access to the ‘funds’ of an unincorporated association. (at [92])

Stoljar, Groups and Entities: An Inquiry into Corporate Theory (1973) Canberra; discussed. Attorney-General for Victoria v City of Brighton [1964] VR 59; referred to. Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58; [2006] HCA 41; discussed.

Obiter: Doubt expressed as to whether a representative order binding defendants sued in tort would necessarily be refused on the basis that different members might have different defences (at [74]).

London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15; Mercantile Marine Service Association v Toms [1916] 2 KB 243; Hardie and Lane Ltd v Chilton [1928] 1 KB 663; Banfield v Wells-Eicke [1970] VR 481; Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398; Irish Shipping Ltd v Commercial Union Assurance Co Plc [1991] 2 QB 206; Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd (2005) 63 NSWLR 203; referred to.

Liability of second defendant

(1) The appointment, management and removal of priests in the Church are not functions that the Roman Catholic Church Trust Property Act 1936 has conferred on the second defendant as a body corporate. The Trustees did not have power to appoint priests under the Act and in fact did not appoint any priests, including the third defendant. (at [111]-[112], [117], [141])

(2) The fact that Trustees hold property for and on behalf of “the Church” cannot be inverted into the proposition that the Trustees (and the funds they administer) can be rendered subject to all legal claims associated with Church activities (at [148]).

Archibishop of Perth v AA to JC inclusive; DC v Trustees of the Christian Brothers (1995) 18 ACSR 333; discussed, followed. John Doe v Bennett [2004] 1 SCR 436; discussed.

Liability of the first defendant as a corporation sole

(1) The first defendant is neither a statutory, nor a common law, corporation sole and does not have perpetual succession. He cannot be made liable for the alleged torts of his deceased predecessor as Archbishop. (at [162], [179], [181])

Wylde v Attorney-General for New South Wales (ex rel Ashelford) (1948) 78 CLR 224; Long v Bishop of Capetown (1863) 1 Moo PCC (NS) 411, 15 ER 756; Re Lord Bishop of Natal (1864) 3 Moo PCC (NS) 115, 16 ER 43; Ex parte The Rev George King (1861) 2 Legge 1307; Attorney-General v Power (1809) 1 Ball & B (lr) 145 at 149; Kehoe, Maher and Mackey v Marquess of Lansdowne [1893] AC 451; Clarke, Constitutional Church Government in the Dominions (1924), Great Britain; Border, Church and State in Australia 1788-1872, (1962), London; O’Farrell, The Catholic Church and Community An Australian History, 3rd ed, (1992), New South Wales; referred to.

Estoppel

(1) The first and second defendants are not estopped from denying that they are the proper defendants to the action. A draft deed of release prepared in the course of ultimately fruitless settlement discussions contained no implied representation as to the parties that the plaintiff could sue if he rejected the settlement offered (at [191]-[192], [197]).

Appeal upheld with costs.

Cross-appeal dismissed with costs.

CA 40173/06

MASON P
IPP J
McCOLL JA

Thursday 24 May 2007

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY v ELLIS & Anor

JUDGMENT

1 MASON P: The plaintiff commenced proceedings in the Common Law Division in 2004 claiming damages arising out of events that occurred between 1974 and 1979. In brief, he was a young altar server during these years in the Bass Hill Parish of the Roman Catholic Church and was (he alleges) sexually abused by the assistant priest at that Parish.

2 The plaintiff sued three defendants, naming them as follows:

• His Eminence George Cardinal Pell Archbishop of Sydney for and on behalf of the Roman Catholic Church in the Archdiocese of Sydney, first defendant;
• The Trustees of the Roman Catholic Church for the Archdiocese of Sydney, second defendant;
• Reverend Aidan Duggan OSB, third defendant.

3 The plaintiff's allegations against the third defendant, the alleged perpetrator of the sexual abuse, are framed in negligence and assault. The third defendant was a priest and a monk in the Order of Saint Benedict. He was an assistant priest at Bass Hill ad experimentum at the relevant time. He died on 5 October 2004 and the plaintiff has indicated that he does not intend to continue the proceedings against him or his estate.

4 A Defence has been filed by the first and second defendants denying liability and contending that they are not the proper parties to the action. The first and second defendants have indicated through their counsel that they do not know and cannot admit the allegations of abuse. However, for the purposes of these interlocutory proceedings, they accept that the plaintiff has filed evidence that establishes an arguable case (as yet entirely untested) that the wrongdoing by the third defendant occurred as alleged. Their main point is that they are not the proper defendants.

5 The plaintiff turned eighteen on 14 March 1979. Accordingly, his pleaded tortious causes of action became statute-barred by 14 March 1985 (Limitation Act 1969, ss11(3), 14, 52). Section 14 of that Act has no application to any claim for equitable relief except as it may be applied by analogy (s23).

6 The plaintiff filed a motion seeking an extension of time against the first and second defendant under s58, alternatively s60G, of that Act. After a lengthy hearing, Patten AJ made orders extending until 30 August 2004 the limitation period for the causes of action pleaded against the second defendant. His Honour dismissed the notice of motion seeking orders under the Act against the first defendant (Ellis v Pell [2006] NSWSC 109).

7 In this Court, the second defendant challenges the order extending time under the Act and the plaintiff challenges the dismissal of his claim against the first defendant. The Court granted leave to appeal and heard full argument.

8 The issues debated in this Court included a lengthy attack on, and defence of, the judge's reasons for concluding that the application for extension of time was made within three years after the plaintiff became aware of, or ought to have become aware of, the nature or extent of the personal injury which he alleges arose from the assaults perpetrated upon him by Father Duggan (Limitation Act ss57B(1)(b)(iv), 58).

9 In my view, the proceedings in their present form are doomed to fail and ought therefore to be dismissed as against the first and second defendants both as regards the claims in tort and the claim of breach of fiduciary duty. The first and second defendants are not liable at law or in equity with respect to the matters alleged. This point was squarely taken below and squarely debated in this Court. It is unnecessary to consider the logically anterior issues touching the application for extension of time to sue. It is pointless if there is no viable cause of action (Yu v Speirs [2001] NSWCA 373)

The grounds upon which the first and second defendants are sued

10 As indicated, the first defendant, Cardinal Pell, is sued "for and on behalf of the Roman Catholic Church in the Archdiocese of Sydney". I accept the plaintiff’s submission that there could not be a more suitable representative of the putative class than the Cardinal Archbishop of Sydney. But it is necessary first to find a class before choosing a representative, as demonstrated below.

11 The second defendant, the Trustees of the Roman Catholic Church for the Archdiocese of Sydney (hereafter the Trustees) is a statutory body corporate with perpetual succession established under the Roman Catholic Church Trust Property Act 1936 (the Trust Property Act). The plaintiff's allegation that the Trustees are trustees of the Church property for the Archdiocese (para 2 of the Amended Statement of Claim), including the premises at Bass Hill, is sufficient to set the scene for describing the bases upon which that body is sued in the proceedings.

12 The first four paragraphs of the Amended Statement of Claim allege:

1. The First Defendant is the person for the time being occupying the office of Archbishop of Sydney for the Roman Catholic Church (“Church”), being a juridical person having perpetual succession established under the Code of Canon Law of the Church to govern the Archdiocese of Sydney (“Archdiocese”) as the particular Church entrusted to him, and in all juridical transactions of the Archdiocese acts in the person of the Archdiocese and is a proper defendant for claims against the Church in the Archdiocese.

1A The First Defendant is a member and the present head of the unincorporated association known as the Catholic Archdiocese of Sydney and the Plaintiff seeks an order that the First Defendant represents that unincorporated association for the purpose of these proceedings.
2. The Second Defendant is a body corporate having perpetual succession established under the Roman Catholic Church Trust Property Act 1936 (NSW) as trustees of the Church property for the Archdiocese and is capable of being sued in its corporate name, and of doing and suffering all such acts and things as a body corporate or a natural person may by law do or suffer.
2A. At all material times, the Second Defendant held the property of the unincorporated association known as the Catholic Archdiocese of Sydney for and on behalf of that association for the use or benefit of or for the purposes of the Church in the Archdiocese and the Plaintiff seeks an order that the Second Defendant represents that unincorporated association for the purpose of these proceedings.

13 The prayers for relief include claims for damages, interest, costs and such other relief as the Court thinks fit. They also contain a claim for:

An order that the First and Second Defendants jointly and severally represent the unincorporated association known as the Catholic Archdiocese of Sydney.

14 The pleading sets out various bases upon which the first and second defendants are said to be liable with respect to the wrongdoing directly alleged against Father Duggan. The first two defendants are said to be exposed to an order to damages because they represent “the unincorporated association known as the Catholic Archdiocese of Sydney”. The pleader does, however, make a number of specific allegations in terms against "the First Defendant" and "the Second Defendant", often in the alternative. Thus, it is alleged that each of those defendants:

• "had the care, control and management" of the Bass Hill Parish (para 3);

• "engaged" Father Duggan as an assistant priest and an Administrator in the Archdiocese (para 4);

• “appointed" Father Duggan to various positions in the Archdiocese where he acted as their "servant, minister or agent" and "in the name of the First Defendant, the Archdiocese and the Church" (para 5. See also paras 9, 9A, 12, 17);

• "owed a duty of care to the Plaintiff to take reasonable measures to protect the Plaintiff from foreseeable harm" , such duty arising from the relationship between the Church and its parishioners; the engagement of the plaintiff as an altar server; and from the supervision, control and responsibility undertaken or assumed by the defendants as regards young altar servers such as the plaintiff (para 8. See also para 10);

• are “jointly and severally vicariously liable for the actions or failures. of” Father Duggan in the roles in which he “acted as the servant, minister or agent” of those defendants “and in the name of the Archbishop of Sydney from time to time” (para 17. See also paras 18, 21).

15 Paragraph 9 also pleads against the first and second defendants that they were negligent "through their priests and other clergy and employees" in the appointment and supervision of Father Duggan, in maintaining "facilities, which included an interconnecting study and bedroom isolated from scrutiny", and in not responding to complaints of misconduct of which they were or ought to have been aware.

16 There is also an allegation in the alternative against "the First Defendant" that (para 14):

because of the special responsibilities conferred on him by the Church and the precepts of Canon Law, the First Defendant was in a fiduciary relationship with the Plaintiff and was liable to ensure the protection of the Plaintiff from abuse.

17 The first defendant is said to have failed in his fiduciary obligations to the plaintiff (para 15). Paragraph 18 also alleges vicarious liability for the actions of Father Duggan in carrying out the fiduciary responsibilities of the first defendant that were entrusted to him as the agent of the first defendant.

18 It is not alleged that the second defendant was liable as an occupier of the properties on which the abuse is said to have occurred.

19 Cardinal Pell became the Catholic Archbishop of Sydney in 2001. He had no relevant connection with the Sydney Archdiocese before that date and there is no suggestion that he had any personal involvement in the matters complained of. When Father Duggan came to the Archdiocese in 1974 the Archbishop was Cardinal Freeman who held that office between 1971 and 1983. Cardinal Freeman died in 1991.

20 Father Duggan was appointed to his position at Bass Hill by the Archbishop Freeman, who in this matter acted in consultation with the Archdiocesan Council (Blue 308-10, 1128-9). Removal from the position could have been effected by the same means. A letter from the Archbishop “confirm[ed] the decision of the Archdiocesan Council” that Father Duggan take up appointment as Assistant Priest in the Parish of Gymea effective as from 1 February 1979 (Blue 310).

21 The Minutes and records of the Diocesan Council are separate from those of the Trustees. It was common ground that the Diocesan Council consisted of the Archbishop and Auxiliary Bishops (CA Tr, 11/12/06, pp44-5). The members of this body were different to the members of the statutory Trustee corporation referred to below, albeit that some individuals were members of each group.

22 The plaintiff argued at first instance that it was irrelevant that Archbishop Pell did not take office until 2001. He submitted (Orange 94):

30. The plaintiff does not sue the first defendant personally, but rather as the proper representative of the Catholic Archdiocese of Sydney and the successor in title to the Archbishops at the time of the abuse. The first defendant together with his College of Consultors are the Trustees of the Roman Catholic Church for the Archdiocese of Sydney, having perpetual succession ( Roman Catholic Church Trust Property Act 1936 No 24 (NSW) , Section 3).
31. It would also be open to the plaintiff (if it were necessary to do so) to establish that the first defendant is a corporation sole at common law. This was expressly left open in Archbishop of Perth v “AA” to “JC”/ DJ v Trustees of the Christian Brothers (1995) 18 ACSR 333 per Cole JA at 355.

23 The learned primary judge held that there was no basis upon which the cause of action in tort could be maintained against Archbishop Pell as he is described in the Amended Statement of Claim. His Honour's reasons were:

54 The liability of the First Defendant is put on alternative bases. Either that he is a corporation sole or that he may properly be appointed to represent (presumably) the members of the Roman Catholic Church in the Archdiocese of Sydney. As to the first submission, it is to be noted that Cardinal Pell, on the face of it, is sued personally. Although it is true that the question of an ecclesiastical corporation sole was left open by the majority (Cole and Meagher JJA) in Archbishop of Perth v AA & Ors (1995) 18 ACSR 333, the question there was whether there exists at common law a corporation sole known as the “Archbishop of Perth”. The Statement of Claim in this case, in my opinion, does not purport to sue the Roman Catholic Archbishop of Sydney as a corporation sole, but rather Cardinal George Pell personally. The addition of the words “Archbishop of Sydney” does no more than describe his present office.

55 Although the Amended Statement of Claim seeks that Cardinal Pell be ordered to represent the “unincorporated association known as the Catholic Archdiocese of Sydney”, that would require an order under rule 7.4 of the Uniform Civil Procedure Rules. The rule, however, requires that there be an identified class of persons having the same interest in the proceedings. It could hardly, I think, be suggested that a person within the Sydney Archdiocese who adheres to the Roman Catholic faith even a regular church goer would have a liability to the Plaintiff for the acts of Father Duggan or for the breaches of duty alleged by the Plaintiff.

24 As against the Trustees, however, the judge held that there was an arguable case that (at [73]):

the Trustees, at all relevant times, constituted the entity which the Roman Catholic Church in the Archdiocese of Sydney adopted and put forward as the permanent corporate entity or interface between the spiritual and temporal sides of the Church legally responsible for the Acts and omissions of the Archbishop and his subordinates in the performance of his role as identified by Dr Austin. In other words, I think the approach taken in Doe v Bennett is at least arguable in NSW.

25 There was no attack on the form of the amended statement of claim in the court below or this Court. For this reason, among others, we should view the pleading benignly. Minor infelicities are obviously capable of correction by amendment. In this spirit, I indicate that I am prepared to treat the allegations of specific acts and omissions of the "First Defendant" concerning the appointment and supervision of Father Duggan and the response to allegations by another alleged victim against him that surfaced in 1983, as if they were allegations of personal conduct against Archbishop Pell's episcopal predecessor or allegations grounding vicarious liability on the part of the former Archbishop. Paragraphs 4, 5, 6, 8, 9, 9A, 10, 11, 14, 15, 17, 18, 19, 21, 22 and 23 fall into this category.

26 It is, however, crystal clear that the proceedings raise no claim for damages against Archbishop Freeman or his estate. On the contrary, the plaintiff invokes the legal concepts of the corporation sole (Amended Statement of Claim, para 1) and of representative proceedings (para 1A) as the means towards his stated goal of obtaining an order for “damages” against Archbishop Pell “for and on behalf of the Roman Catholic Church in the Archdiocese of Sydney”.

27 The pleading is, however, somewhat opaque as to the temporal basis of the claims against the Trustees. On one reading, the Trustees are sued as the present embodiment of the Church in the Archdiocese with respect to the allegations of past breaches of duty by others. On another view of the pleading, the Trustees are sued having regard to the role they occupied in the 1970s.

Vicarious liability for sexual abuse by clergy

28 One of the alternative allegations is that what I shall loosely call "the Church" is liable for the intentional misconduct of Father Duggan notwithstanding the criminal nature of that conduct at the relevant time. This triggered submissions as to the circumstances in which vicarious liability could apply against anyone in that situation (see generally Lister v Hesley Hall Ltd [2002] 1 AC 215; Bazley v Currey (1999) 174 DLR (4th) 45; New South Wales v Lepore (2003) 212 CLR 511; S v Attorney-General [2003] 3 NZLR 450; Preston v Star City Pty Ltd(No 3) [2005] NSWSC 1223 at [61]-[65]).

29 The plaintiff’s sworn testimony relates a disturbing account of prolonged sexual abuse that has had lasting adverse ramifications (Blue 5-8).

30 The primary judge said (at [67]) that there could be no suggestion that Father Duggan was wrongfully performing part of his ecclesiastical duties when he sexually assaulted the plaintiff. Senior counsel for the plaintiff contends otherwise, pointing to the allegations about the particular opportunities for intimacy offered by the respective roles of priest and altar boy and the architecture of the church buildings at the Bass Hill Parish.

31 It is evident that the diocesan bishop had very extensive control over the appointment, removal and day to day activities of an assistant parish priest like Father Duggan (see generally the evidence of Dr Austin at Blue 1199 onwards).

32 Like the primary judge, I do not find it necessary to grapple with this issue at the interlocutory stage. Nor is it necessary to decide whether a priest in the Roman Catholic Church who is appointed to a Parish is an employee in the eye of the law or otherwise in a relationship apt to generate vicarious liability in his superior.

33 Patten AJ observed (at [67]) that Lepore alone would not prevent the Trustees being directly and vicariously liable for a failure to institute and maintain proper systems and controls. I am prepared to proceed on a similar basis, although I would express it slightly differently so as to allow for the argument ventilated in this Court about a limited reading and application of Lepore. I shall therefore assume that there is factually and legally an arguable case that Father Duggan's superiors in the 1970s (including the Archbishop of the day) might on some basis be vicariously accountable for his intentional torts. I shall also assume that members of the Church hierarchy (including the former Archbishop) who were responsible for Father Duggan’s appointment and supervision and for processing complaints of misconduct would arguably have been personally accountable in law for their alleged neglect. See generally Stauffer and Hyde, “The Sins of the Fathers: Vicarious Liability of Churches” (1993) 25 Ottawa Law Rev 561. It is wrong to see holding an ecclesiastical office as necessarily incompatible with a legal relationship capable of giving rise to some incidents of an employment relationship (see generally Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28).

34 The basic question remains: are the first and second defendants within the categories of potentially liable parties?

The nature of "Church" membership

35 The amended statement of claim refers to the Catholic Church in the Archdiocese of Sydney as an unincorporated association. The first prayer for relief claims an order that the first and second defendants jointly and severally represent that body. Neither Archbishop Pell nor the Trustees are themselves said to be the Church in the Archdiocese, although the corporation sole argument builds upon such a notion as regards the Archbishop.

36 The pleading does not identify the date at which the members of the unincorporated association are to be identified. Presumably it seeks to fix upon those members of the Church in the Archdiocese when the proceedings were commenced in 2004. It is, however, possible that the intended embrace is ambulatory, extending to those who will be members when final judgment is entered. Either way, there are insurmountable difficulties for such a claim whether for damages or equitable compensation.

37 The plaintiff relies upon the following “admissions” that were provided by way of particulars to the Defence:

(a) The current membership of the Archdiocese is estimated to be in excess of 580,000, and includes the plaintiff, but its precise extent is unknown;
(b) There is no test for determining, in the case of individuals, membership of the Archdiocese which is of sufficient certainty to afford a criterion of liability at law.

It is difficult to see how this information assists the plaintiff, although it is relied upon to support his submission that a representative order is appropriate because the membership of the class (being the members of the Catholic Archdiocese of Sydney) cannot readily be ascertained (Orange 308).

38 An expert in ecclesiastical law, Dr Rodger Austin, gave the following unchallenged evidence (Blue 1210-1212, footnotes omitted)

17. The teaching of the Church is that the Universal Church is not one single monolithic structure but a communion of individual or particular Churches.

The word Church means, in the second instance, the various individual or particular Churches, also called dioceses, in and from which the Universal Church comes into being.

In this report the word diocese includes archdiocese and the word bishop includes archbishop.

18. The teaching of the Church is that a diocese is a section of the People of God entrusted to a bishop to be shepherded by him with the cooperation of the presbyterium , that is the priests.

Diocesan bishops are not the delegates of the Roman Pontiff but govern the individual or particular Churches assigned to them as the vicars and ambassadors of Christ.

In the diocese entrusted to his pastoral care the diocesan bishop, as of right, possesses all the ordinary, proper and immediate power required for the exercise of his pastoral office, without prejudice to the supreme authority of the Roman Pontiff.

The diocesan bishop’s power is legislative, judicial and executive. [CIC (1917) canons 335 §1, 1519]

19. Every diocese is, in accordance with the law of the Church, established as a legal entity, called in canon law a moral person. [CIC (1917) canons 100 §1, 215 §1]. In the 1983 Code of Canon Law the term used is juridic person . [CIC (1983) canon 113 §2]

With the exception of those Nations with which the Holy See has executed a Concordat whereby dioceses are recognised as legal entities in the civil law, every diocese is obliged to establish a legal entity in accordance with the civil law.

20. In New South Wales each diocese has established such a legal entity pursuant to the provisions of the Roman Catholic Church Trust Property Act of 1936.

For the Archdiocese of Sydney its body corporate is: The Trustees of the Roman Catholic Church for the Archdiocese of Sydney.

The Trustees of the Roman Catholic Church for the Archdiocese of Sydney holds legal title to the real property owned by the Archdiocese of Sydney and by all the parishes within the Archdiocese of Sydney. This land is held for the Church or for the use or benefit or for any purpose of the Church, unless subject to a specific trust.

The Trustees of the Roman Catholic Church for the Archdiocese of Sydney is the legal entity used in all matters relating to contracts as required by the norms of canon law. [ CIC (1917) canon 1529].
21. Within each individual or particular Church, the diocesan bishop of necessity must establish groups of the faithful of which the most important are parishes. Each parish with its own pastor in some way represents the Church constituted throughout the world.
The law of the Church requires that each diocese be divided into distinct parts or parishes. [CIC (1917) canon 216 §§1, 3]

The law of the Church requires that the diocesan bishop assign to each parish a parish priest to whom is entrusted, under the authority of the diocesan bishop, the pastoral care of the parochial community. [CIC (1917) canon 451 §1]

The material in square brackets appears in the original. “CIC” means Codex Iuris Canonici .

39 Additional parts of Dr Austin’s evidence demonstrate that Father Duggan remained closely supervised and controlled in his priestly ministry and that such control resided principally in the Archbishop of the day as the diocesan bishop (Blue 1213).

40 The "People of God entrusted to a bishop" in an area obviously include laity and clergy, adults and infants. The body fluctuates as members depart through death or other reasons and are added through birth (or baptism), arrival within the ecclesiastical jurisdiction or other reasons. I have already observed that Archbishop Pell was not himself a member of the nominated unincorporated association at the time of the putative torts.

41 There are many statements in the cases about unincorporated "Churches" in Australia being voluntary or unincorporated associations (see eg Attorney-General (NSW) v Grant (1976) 135 CLR 587 at 600, Ermogenous at 118[64]). Some denominations or congregations regulate membership and governance by a single Constitution, in the manner of a district sporting club. But the Roman Catholic Church in a particular place would appear to have a much more complex structure.

42 Rules of ecclesiastical law do not translate automatically into contractual, trust or other secular rules (see generally, Scandrett v Dowling (1992) 27 NSWLR 483; and as to the Catholic Church in particular, see Clark v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [1998] 1 Qd R 26 at 33-4). And rules governing the relationship of clergy and other church "workers", whether those rules are ecclesiastical and/or secular, do not automatically touch or regulate the affairs of lay members or confer rights or obligations of a legal nature on such members. In Cameron v Hogan (1934) 51 CLR 358 Rich, Dixon, Evatt and McTiernan JJ referred (at 370-1) to voluntary organizations being:

… for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indications that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract.

43 In the present case, the pleading is oblivious to these complexities. There has been no attempt in the statement of claim to aver a contractual or other basis for the ultimate relief by way of damages that is sought against the two persons nominated to be the object of representative orders. Yet these orders are presumably designed to ground an enforceable judgment issuing from the Supreme Court, by way of execution if required.

44 The pleading does not explain how membership of that body is to be identified.

45 But once again I pause to remind myself that the focus of this application is substantive, not overlooking that apparent pleading deficiencies may reflect substantive problems in a plaintiff's path. At issue are the legal rights of this plaintiff to propound his complaints against his nominated defendants.

The tort liability of unincorporated associations

46 There is a categorical distinction between an incorporated and an unincorporated body as regards amenability to claims to damages. Statute may modify the situation, but nothing is relied upon in the present case apart from the Trust Property Act, which the plaintiff invokes to ground relief against the Trustees as distinct from Archbishop Pell (see below).

47 A corporation has perpetual succession and is liable to sue and be sued. An unincorporated association that is not a partnership is a group of individuals associated together for some lawful purpose other than profit that may or may not have a rigid constitution or a fixed and finite membership. Procedurally, it cannot (at common law) sue or be sued in its own name because, among other reasons, it does not exist as a juridical entity.

48 Almost invariably, persons associated with the body will find it inconvenient to hold "association" property in all of their names, and so will arrange for it to be vested in a limited group of their number (eg, a committee) or a corporation controlled by key stakeholders. The law of charitable trusts can also be used to ensure that property cannot be diverted from stated purposes associated with the “Church” (see generally Glebe Administration Board v Commissioner of Pay-Roll Tax (1987) 10 NSWLR 352 at 357-8). In Percy, Lord Hope said of the Church of Scotland (at 63[117]):

The Church is not a body that has been incorporated by statute. It has, of course, its own distinctive identity and its own constitution, the lawfulness of which was declared by the 1921 Act. But its status in law is that of a voluntary association, of which its adherents, whether they be elders, communicants or baptised persons, are all members. As such, it does not have the capacity in its own name to own any property, whether heritable or moveable, or to enter into contracts in its own name. Its properties and endowments are vested in the Church of Scotland General Trustees, which were incorporated as a body corporate by the Church of Scotland (General Trustees) Order Confirmation Act 1921. In matters spiritual it handles its affairs in the manner set forth in the Declaratory Articles. But it also has to deal with matters where are within the jurisdiction of civil courts. How it chooses to do this is, of course, a matter for the Church itself to decide. The practice has always been for the court to give effect to the choice that a voluntary association makes as to the body in whose name it enters into agreements…

49 Recognising their inability to sue an unincorporated body (as to which see London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 33, 38; Williams v Hursey (1959) 103 CLR 30 at 53-4; Smith v Yarnold [1969] 2 NSWR 410 at 414) plaintiffs have proceeded against persons or groups within the body who have assumed some active or managerial role. The persons sued would have acted on behalf of the body as a whole, but this did not confer upon them some species of derivative immunity. If the activity in which they exercised palpable control gave rise to a contractual or tortious claim otherwise recognised by law, they are held liable as principals (see Hrybynyuk v Mazur [2004] NSWCA 374, (2004) Aust Torts Rep 81-774 and generally Keith L Fletcher, The Law Relating to Non-Profit Associations in Australia and New Zealand, (1986), Sydney, Chapter 8, (Tortious Liability)).

50 By such means, members of a committee of an unincorporated club or society have been found liable in contract (Bradley Egg Farm Ltd v Clifford [1943] 2 All ER 378; Ex parte Goddard; Re Falvey (1946) 46 SR(NSW) 289 at 296; Smith v Yarnold; Peckham v Moore [1975] 1 NSWLR 353) and tort, eg as occupiers of dangerous premises or for conducting or authorising particular activities (Ryan v Fildes [1938] 3 All ER 517; Smith).

51 Nevertheless, care is required to select the members of the committee in office at the relevant time (Banfield v Wells-Eicke [1970] VR 481; Peckham). Liability remains personal not representative in nature.

52 The inability to sue the unincorporated association as such, or (were it possible) all of its members, is more than an impediment based on rules of procedure and difficulties of execution of judgments. The existing principles of vicarious liability are not engaged if a plaintiff can point to no more than that the direct tortfeasor was a fellow member of the association.

53 The rationale of vicarious liability awaits definitive exposition. The law has proceeded by halting steps, identifying categories that do (eg employment) and do not (eg independent contractors) attract vicarious liability (see generally Sweeney v Boylan Nominees Pty Ltd (2003) 227 ALR 46, [2006] HCA 19; Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200, [2007] HCA 6). The relationship between members of a Church such as the Roman Catholic Church and individual office holders in that Church is far remote from any category that has been found to entail vicarious liability. In Sweeney, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said at [13]:

Whatever may be the justification for the doctrine [of vicarious liability], it is necessary always to recall that much more often than not, questions of vicarious liability fall to be considered in a context where one person has engaged another (for whose conduct the first is said to be vicariously liable) to do something that is of advantage to, and for the purposes of, that first person. Yet it is clear that the bare fact that the second person’s actions were intended to benefit the first, or were undertaken to advance some purpose of the first person, does not suffice to demonstrate that the first is vicariously liable for the conduct of the second. The whole of the law that has developed on the distinction between employees and independent contractors denies that benefit or advantage to the one will suffice to establish vicarious liability for the conduct of the second. But there is an important, albeit distracting, consequence that follows from the observation that the first person seeks to gain benefit or advantage from engaging the second to perform a task. It is that the relationship is one which invites the application of terms like “representative”, “delegate” or “agent”. The use of those or other similar expressions must not be permitted to obscure the need to examine what exactly are the relationships between the various actors.

54 The relationship between an assistant parish priest and the “members” as a whole is too slender and diffuse to establish agency in contract or vicarious liability in tort (see Atiyah, Vicarious Liability in the Law of Torts, (1967), Great Britain, pp387-9).

55 Professor Lloyd in his Law Relating to Unincorporated Associations, (1938), London, p150 states that since an unincorporated society is not itself an independent legal unit, difficulties about attributing vicarious liability in tort do not arise. “The society’s servants may commit wrongs but they cannot be imputed to the society as such but only (if at all) to the members … [T]he contracts of a voluntary society do not involve any questions of capacity, but only of agency: the position as to such a society’s torts is precisely similar”.

56 In Baker v Jones [1954] 2 All ER 553, questions arose concerning the lawfulness of a resolution by the central council of the British Amateur Weightlifters’ Association, an unincorporated body. Linskey J said (at 559):

The association, being an unincorporated body, could not be liable for the tortious acts either of its officials or council members. The members of the association, individually, would not be liable for such tortious acts, except in so far as they individually authorised such acts.
See also the passage from Attorney-General for Victoria v City of Brighton [1964] VR 59 at 62 quoted below.

57 Wilkins v Jennings (1985) Aust Torts Rep 80-754 is a case bearing some similarities to the present one. A Roman Catholic priest in the Diocese of Bathurst (Wilkins) preached a sermon in which he accused certain politicians of dishonesty and corruption. The sermon attracted media publicity. In response to the publicity, Jennings, the personal private secretary of the Bishop of the diocese at the time, allegedly telephoned the local television station and defamed the plaintiff. Jennings was sued. However, the plaintiff later sought to join an additional defendant, Bishop Doherty, who was the Bishop of the diocese at the time of the proceedings. The plaintiff applied for an order under the New South Wales rule making Bishop Doherty the representative of the Bathurst Diocese of the Roman Catholic Church.

58 Hunt J recognised that there were circumstances in which there could be vicarious responsibility for the statements of Monsignor Jennings. Indeed, his Honour thought that “if there is a vicarious responsibility in the Bathurst Diocese, clearly the Bishop would be the appropriate representative to be appointed” (at 69,518). To establish vicarious liability, the plaintiff relied on evidence of Canon Law of the Roman Catholic Church, including Canon 393 which provided that the Diocesan Bishop acted in the power of the diocese. Hunt J nevertheless refused to make a representative order. His Honour said (at 69,518):

The diocese, however, has not been shown to have the power to carry out any of the functions carried out by the Bishop, or that it has put the Bishop in its place as its agent.
This is made clear by a preceding Canon (number 391) in which it is asserted that the Bishop exercises his own powers – legislative, executive and judicial – personally and that he does not do so as an agent for anyone else. In my view, therefore, both the broader approach and the narrower approach put forward by the plaintiff based upon the Canon Law must fail.

59 His Honour concluded that there was not even an arguable case that the Bathurst diocese could be held to be vicariously responsible for the statements of Monsignor Jennings.

60 It is not suggested in the evidence that Father Duggan was engaged or employed by either named defendant, let alone by all of the members of the Church in the Archdiocese during the relevant years (1974-1979). As indicated below, the evidence shows that the corporate Trustees did not involve itself in such matters. It is arguable that his appointment and licensing by Cardinal Freeman was sufficient to render that now deceased person directly liable (if negligence can be established in failing to vet the appointee) and vicariously liable for the appointee’s torts committed in the course of his engagement as a priest under the control of diocesan authorities, the Archbishop in particular. The plaintiff points to the evidence of Dr Austin summarised above as establishing that the Roman Catholic Church in the Archdiocese operates as a hierarchical, closely controlled system of Church management.

61 As indicated, these propositions do not offer a bridge to a viable claim against the unincorporated association in this matter, being all members of the Catholic Church in the Sydney Archdiocese at the relevant time(s), let alone the first or second defendants. The plaintiff does not suggest that all members of the Church were directly, ie personally, liable for the torts alleged (see Healey v Ballarat East Bowling Club [1961] VR 206).

Representative proceedings

62 The plaintiff invoked Pt 8 r13 of the Supreme Court Rules 1970 (see now Uniform Civil Procedure Rules 2005 r7.4) as the basis of a representative order whereby one person (here Archbishop Pell) might be appointed to represent a wider group (here “the Roman Catholic Church in the Archdiocese of Sydney”). A judgment duly obtained by such procedure will bind all who are represented and may be enforceable against any of them with leave (UCPR r7.5, set out below).

63 Representative proceedings may be brought in tort claims for damages, but only where the basal requirement of showing that the numerous persons have the “same liability” in the proceedings is satisfied. Bryson J remarked in Shepherd v Australia and New Zealand Banking Group Ltd (1996) 20 ACSR 81 at 96 that the New South Wales rule “refers to the effect of proceedings on the rights of a person and not the person’s wish or lack of wish to assert rights”. I agree with this proposition and with the defendants’ submission that it applies to defendants as much as it does to plaintiffs.

64 The plaintiff has not disclosed whether he is seeking to bind all members of the Church in the Sydney Archdiocese at the time of the alleged tort, the time when the proceedings were commenced, or the time of judgment. This significant omission may, in a proper case, be able to be met by confining the terms of a representative order. But in reality it points to difficulties of substance in using representative proceedings in the present case, as well as unsurmountable obstacles to establishing liability against the class or classes aimed at.

65 Patten AJ rejected the claim against Archbishop Pell as a representative party because ([55]):

It could hardly, I think, be suggested that a person within the Sydney Archdiocese who adheres to the Roman Catholic faith even a regular church goer would have a liability to the Plaintiff for the acts of Father Duggan or for the breaches of duty alleged by the Plaintiff.

66 The plaintiff challenges this order by way of cross-appeal, also complaining as to the inadequacy of the reasons provided by the primary judge.

67 One essential condition under the rule for representative orders is the requirement that the numerous persons sought to be bound have the same interest in the proceedings at the time the proceedings begin (see generally Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58; [2006] HCA 41 and O’Sullivan v Challenger Managed Investments Ltd [2007] NSWSC 383). As indicated below, this has proved a stumbling block in tort claims against the members of an association with fluctuating membership unless the court is able (in a proper case) to fashion an order that confines relief so as to bind only the members at the date of an isolated tortious event.

68 The only case of which I am aware in which a representative order was made, in effect against all the members of an unincorporated association other than a trade union, for the purpose of an action in tort, was Campbell v Thompson [1953] 1 QB 445. The plaintiff was employed as a cleaner by the City Livery Club and slipped on greasy stairs in the Club premises. She sued the Assistant Honorary Secretary and the Chairman of the House Committee, both of them members of the Club, and she sought an order that they represent all the other members of the Club. This was a London “members’ club” and counsel for the defendants informed the Court that the Club was insured and that his clients, whoever they might be, had no desire to take any technical point (at 449). The representative order was made by Pilcher J, who emphasised (at 451) that the only members of the Club who could properly be sued by the plaintiff in the proceedings were those persons who were members at the time of the accident. As Gowans J pointed out in Attorney General for Victoria v City of Brighton [1964] VR 59 at 62 (passage set out below), this was “a case of a single circumstance”. Later in these reasons, I explain the narrow proposition for which Campbell is authority, if indeed it is sound law.

69 In Amos Removals and Storage Pty Ltd v Small [1981] 2 NSWLR 525, a representative order was made in an action in tort alleging conspiracy to interfere with contractual relations by persons associated with an unincorporated trade union. The plaintiffs were members of the NSW Road Transport Association. There were nineteen named defendants, being the members of the Committee of Management of the Sydney Shipping Section of the Federated Clerks Union of Australia (NSW) Branch. That Section had 800 members all of whom were shown on the evidence to be refusing to release or accept containers to or from warehouses which were not approved or recognised by them.

70 Hunt J held that a representative order was appropriate given that the liability alleged was that all the members of the class had each personally participated in one of the principal overt acts involved in the conspiracy alleged. His Honour (at 530) distinguished cases involving a class of fluctuating membership such as those considered by the courts when refusing representative orders in Mercantile Marine Service Association v Toms [1916] 2 KB 243 and in Hardie and Lane Ltd v Chilton [1928] 1 KB 663. He indicated that the difficulty involved in those cases would be avoided by limiting the proposed order to those persons who attended a combined stop-work meeting on a named date. Hunt J suggested (at 530) that where a cause of action lay against all the members of a body on the basis that they were vicariously responsible for the actions of their agent, then it was easy to see how each member of the body would have the common interest required.

71 This decision does not assist the plaintiff because he does not plead facts or suggest a basis for inferring that all of the members of the Catholic Church in the Diocese at the time or times of Father Duggan’s alleged misconduct were vicariously liable. Nor does he suggest any basis upon which the members of “the Church” as at the date when these proceedings were commenced were vicariously liable. It is impossible to conceive of any basis for such liability. In reality, the plaintiff is pointing to no more than (current) membership of the fluctuating body as the basis for the representative order that he seeks.

72 In Concrete Constructions (NSW) Pty Ltd v Australian Building Construction Employees’ and Builders Labourers’ Federation (1988) 83 ALR 385, Morling J made a representative order in aid of injunction proceedings. One group of defendants were related to a union (the federal BLF) that had been deregistered and therefore lost its statutory corporate status. Representatives of that union were engaged in industrial activity that contravened the Trade Practices Act 1974 (Cth). Their conduct was found to have occurred with the knowledge, consent and authority of the federal council of the Union. Morling J (at 400-1) distinguished Attorney-General for Victoria v City of Brighton on the basis that the committee in Brighton was not clothed with relevant authority by the members of the club. By contrast, there was a union rule (Rule 8) that gave the federal council of the Union “supreme control of the Federation” on behalf of all members of the federal Union. The case was therefore similar to Amos Removals because it was alleged and established that the conduct of identified agents was done with the authority of all members of the putative class.

73 In proceedings where a plaintiff invokes the rule against numerous defendants said to have been parties to a legal or equitable wrong the same interest requirement has also translated into one that the plaintiff show that different members of the class could not invoke different defences (see eg London Association for the Protection of Trade at 39; Mercantile Marine Service Association at 246-7; Banfield v Wells-Eicke [1970] VR 481 at 484-5). In Mercantile Marine Service Association, an action for libel was brought in relation to an article published in the journal of the Imperial Merchant Service Guild, an unincorporated body of about 15,000 members. Named defendants who were the chairman, secretary and vice-chairman were sued on their own behalf and on behalf of all other members. An application for an order that the defendants be appointed to represent all other members was dismissed. In the English Court of Appeal Swinfen Eady LJ said (at 246-7):

I have great difficulty in seeing that in this case there are numerous persons having the same interest in this cause or matter within the meaning of the rule. The action is for libel, and the plaintiffs must prove who published the libel, and prima facie only those who have published it either by themselves or by their servants or agents or have authorized its publication are liable. The various members of this association may be in a wholly different position. If the members of the management committee were sued, and if in fact they had authorized the publication of the libel, they could raise such defences as might be open to them. It might be that their defence would be that the words complained of were not capable of the meaning alleged or of any defamatory meaning, or that the words did not refer to the plaintiffs. The other members of the association, if sued, might say that, however defamatory the words complained of might be, they did not authorize their publication; that they were on the high seas and knew nothing about the matter. In my opinion this rule is not intended to apply to such a case as this.

See also Hardie and Lane Ltd .

74 The requirement that each member of the class have identical defences may not be an absolute proposition. I wish to reserve the question whether an application for a representative order binding defendants sued in tort would necessarily be refused on the basis that different members might have different defences. The existence of different defences may be indicative of a lack of common interest but it may not necessarily be conclusive. Recent authority in Australia has recognised that “the jurisdictional” aspects of the rule may not go this far. Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 established that the New South Wales representative procedure rule could be satisfied even if the various persons had separate causes of action in contract or tort. McHugh J suggested (at 427) that a plaintiff and the represented persons would have “the same interest” in legal proceedings when they have a community of interest in the determination of any substantial question of law or fact that arises in the proceedings. Brennan J (at 408) agreed with this test. Toohey and Gaudron JJ said (at 421) that persons would have the same interest in proceedings if there was a significant question common to all members of the class and they stood to be equally affected by the (declaratory) relief sought by the appellants in the instant proceedings. Mason CJ, Deane and Dawson JJ thought (at 404) that the “same interest” requirement “may … [extend] to a significant common interest in the resolution of any question of law or fact arising in the relevant proceedings”. See also Irish Shipping Ltd v Commercial Union Assurance Co Plc [1991] 2 QB 206; Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd (2005) 63 NSWLR 203 at 238[158]-[163].

75 But it would certainly be incumbent upon a plaintiff invoking the rule against numerous defendants to show some matter of commonality beyond the plaintiff’s goal of obtaining an enforceable judgment against the whole group. A plaintiff cannot, by means of a procedural mechanism, such as a representative proceeding, sue defendants against whom he or she has no cause of action. The present claim does not assert any basis beyond Archbishop Pell’s current leadership of the Archdiocese to ground the representative order sought.

76 It might be possible to envisage a voluntary association that (like the trade union in Concrete Constructions) had a rule that X represented all other members for some purpose, such that members joining later were taken to have joined it on the basis of this contractual arrangement (cf Clarke v Earl of Dunraven and Mount-Earl (the Satanita) [1897] AC 59). But nothing in the instant pleading contends for such a proposition. Indeed, the pleader does not grapple with the problem of showing that any contract existed as between the members of this fluctuating unincorporated body. In Amey v Fifer [1971] 1 NSWLR 685, Sugerman P, Mason JA and Taylor AJA agreeing, said that an alleged “contract … with the members for the time being of an unincorporated voluntary association having a fluctuating membership, is in truth no contract at all and imposes no obligation on anyone”. See also Scandrett, Ermogenous at 108[33].

77 I do not mean to infer that the plaintiff will be unable to prove that the Archbishop for the time being was the “head” of the Archdiocese (see eg Blue 543). An affidavit of John Usher filed on behalf of the defendants and read subject to objection (Blue 543ff) refers to Cardinal Freeman, the Archbishop between 1971 and 1983, and a number of Auxiliary Bishops as “the persons within the Archdiocese with canonical/spiritual authority in relation to the Third Defendant in respect of the period” in question (Blue 544-5).

78 The nature of the episcopacy in the Roman Catholic Church is, to my understanding, arguably sufficient to ground a finding that the Archbishop has the capacity to control most activities conducted in the name of the Church in the Archdiocese. My point is that this alone does not translate automatically into a basis for establishing some species of vicarious liability in every member of the Church at any point of time or a basis for finding that the Archbishop is a corporation sole (see below).

79 In Attorney General for Victoria v City of Brighton, Gowans J refused to make a representative order in aid of an injunction sought against all the members of an unincorporated club. There was a claim in nuisance alleging that members of the Brighton Aquatic Club at diverse times, from 1959 – 1961 inclusive, had by various acts mainly associated with the use of powered boats, caused a nuisance to the plaintiffs. Fifteen named persons were sued as the committee of the Club on their own behalf and as representing the members of the Club.

80 Gowans J said (at 62):

Paragraph 51 alleges conduct, “… at divers times from 1959 to 1961 …”. Even if this were designed to embrace each and all of the members at the time of each act during this relatively lengthy period (which is itself an inherently improbably set of circumstances) it would be unreal to assume that the membership remained unchanged throughout. In Wise v Perpetual Trustee Company Limited , [1903] AC 139, at p149, Lord Lindley observed: “Clubs are associations of a peculiar nature. They are societies the members of which are perpetually changing.” If this view of the nature of the present body needs fortifying, I think I am entitled to have regard to the constitution of the club, which has been put in evidence and not challenged. Some members might deny participation at a particular point of time in any such conduct as is alleged; other members might deny participation in any particular form of the conduct alleged at any time. In truth, the form of the common allegation that the members of the club engaged in the conduct alleged obscures the diversity of the allegations put forward. This is not a case of a single circumstance such as existed in Campbell v Thompson , [1953] 1 QB 445; [1953] 1 All ER 831, or a claim against a fund the ownership of which it may be presumed not to have changed, as in Ideal Films v Richards , [1927] 1 KB 374; [1926] All ER Rep 271, discussed in Barker v Allanson , [1937] 1 KB 463; [1937] 1 All ER 75. In my opinion, the plaintiffs are not entitled to sue members of the club guilty of the conduct alleged through a representative party, and the relief claimed by way of and by virtue of a representative order could not be granted on this statement of claim. This conclusion does not rest upon the fact that there is evidence that one of the plaintiffs themselves was himself a member at material times and that the membership of the club could have embraced infants, whatever impediments those circumstances might present to the making of a representative order. It emerges from the nature of the allegations in the pleadings.
…

81 In Serbian Orthodox Ecclesiastical School Community “St Nikolas” Queensland v Vlaislavljevic [1970] Qd R 386, W B Campbell J (at 391) refused to make a representative order in aid of an action for recovery of possession. A member of an association (“the Free Serbians”) sought an order that the defendants as President and Secretary of the Free Serbian Association represent themselves and other members of the Association. Following Attorney-General for Victoria v City of Brighton, the judge held that the rule permitting representative proceedings could be used in cases of tort, but that it must be clear that all persons to be represented as defendants should have the same interest and only the same defences. His Honour did not think that the mere fact of membership of the Free Serbian community meant that each member could be sued in an action for possession. It was not claimed that all of the members had used the land, nor that they had authorised office bearers or the management committee to exclude the plaintiff. His Honour observed (at 391-2) that, according to the rules of the Association, membership extended to persons who were infants in the eyes of the law.

82 In Roche v Sherrington [1982] 1 WLR 599 proceedings were brought to set aside gifts on the grounds of undue influence against defendants representing the present members of Opus Dei, an organisation within the Roman Catholic Church with branches in several countries and separate sections for men and women. Slade J held that the rule in relation to representative proceedings was not engaged because separate defences may be open to some members of the class in question. There could therefore be no common interest within the rule.

83 Despite my reservations about whether the potentiality of separate defences is always an answer to a claim for a representative order against a class of defendants, the reasoning in Roche is applicable to the present case. The myriad of members, young and old, male and female, clergy and lay, who presumably would be recognised by the plaintiff as members of the “Roman Catholic Church in the Archdiocese of Sydney” (according to assumed but unpleaded criteria of membership) would be in many different situations as regards the wrongs complained of. Many of the class were not alive in the 1970s. Most would have had no connection whatever with the Bass Hill Parish, let alone the oversight of the assistant priest there. No basis is or, in my view, could be pleaded to establish any form of personal or vicarious liability against these people. The plaintiff is driven to relying upon nothing more than the fact that they became “members” of “the Church” at some unidentified point of time. This puts the cart before the horse as regards pleading a basis of liability against all members. And it goes no way towards showing a proper basis for invoking the representative order procedure in this Court. As Sackville J pointed out in B T Australasia Pty Ltd v State of New South Wales [1997] 1553 FCA (24 December 1997), (citing the Australian Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46, 1988, par 6):

Although a representative plaintiff who brings proceedings on behalf of a group exposes group members to the risk of their claim being defeated, no personal liability ensues. Proceedings against a representative defendant on the other hand expose defendant group members to the risk of liability being found against them and that they will have to pay damages.

84 Senior counsel for the plaintiff developed an argument to the effect that the common interest of the members of the Church in the Archdiocese is in the preservation of the property of the Church to which they claim adherence. Alternatively, the community of interest was said to lie in an assumed common wish that the Church not be found at fault in some respect.

85 It was argued that a representative order could be framed, so as to allow the plaintiff (if successful) to go against the funds, administered by the Trustees on behalf of the Church, without exposing the individual members to enforcement proceedings against their personal assets. This approach was said to be consistent with the canon law teaching on the topic as disclosed in Dr Austin’s evidence. Dr Morrison SC rested the argument in part upon UCPR r7.5 which states:

(1) A judgment or order made in proceedings in which a party has, by an order under rule 7.4, been appointed to represent a number of persons binds all of those persons, but is not enforceable against any of those persons who is not a party except by leave of the court.
(2) Notice of motion for an application for leave under subrule (1) must be personally served on the person against whom the judgment or order is sought to be enforced.
(3) Subrule (1) does not prevent a person against whom the judgment or order is sought to be enforced from disputing liability by reference to circumstances peculiar to his or her case.

86 It is highly doubtful whether the statement of claim avers facts that could engage this theory, but once again I return to the substance of the problem.

87 This argument bears similarities to that advanced by the late Professor Stoljar in his monograph Groups and Entities: An Inquiry into Corporate Theory, (1973), Canberra.

88 Stoljar argued that cases (such as Brown v Lewis (1896) 12 TLR 455) in which tort liability for occupier negligence was found against the committee of an unincorporated association wrongly emphasised the personal nature of this liability (p165). For “activity” torts, such as libel, Stoljar recognised that the House of Lords in London Association for Protection of Trade held that a representative action could not be brought against an association sued eo nomine because separate defences were open to some members of the association and not others (p166). The learned author nevertheless continued (p167, emphasis in original):

A little reflection shows that these objections were far from relevant. The purpose of the representative action was not to make all members equally liable as joint tortfeasors, for, clearly, no such joint liability could here be established, since the tort in question had been committed by at most some members (the secretary as authorised by the committee), certainly not by all the members acting in concert in a joint tort. The purpose of the representative procedure was thus to reach those members who were not actual tortfeasors, but who could still be said to have a ‘common interest’ in the activities of the association by dint of their membership. Moreover, as these latter members, not being joint tortfeasors, were not jointly and severally liable, their liability could only be a limited one, limited to their subscriptions, that is, an individually diminished liability taking effect collectively or distributively, as we earlier explained. Under these conditions, furthermore, a representative action could only lead to a ‘representative’ judgment against the membership or association as such, with execution issuing against the common fund, but could not issue against any member individually. In short, the members’ ‘common interest’ was meant to identify their common liability through their common fund.

89 Stoljar went on to suggest that Campbell v Thompson (discussed above) supported his analysis. Indeed he suggested (p168) that the Court erred in Campbell in restricting the representative order to those persons who were members at the time of the plaintiff’s injury. The order was unnecessary because “the members were not personally liable anyhow, since … a ‘representative’ judgment would not make the defendants personally liable, but would only attach to the common fund” (p168). Soljar went on to conclude that (p169):

157 The primary judge did not perceive that such an argument was being pressed. His Honour was justified in this stance in light of a statement made by senior counsel for the plaintiff at first instance (Black 324). Nevertheless, the point was squarely debated on appeal and it is appropriate to address it so long as no injustice is thereby done to the defendants having regard to the way they conducted the hearing at first instance. The defendants have faintly invoked Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, claiming that they may have put additional material before the court at first instance had the point not been dropped. It is unnecessary to consider this procedural objection, because the defendants have been afforded that opportunity in this Court, and because I have concluded that the point is hopeless in any event.

158 The ecclesiastical corporation sole emerged in the late middle ages as a concept that outflanked legislation prohibiting perpetual gifts that impaired the feudal profitability of land. Several statutes banned dispositions whereby land came into mortmain, unless the disposition was made with the licence of the feudal lord, usually the king. The word “mortmain” aptly described what was feared because, in Coke’s words, “a dead hand yeeldeth no service” (Coke On Littleton 18th ed, (1823), London, Vol 2.b.). (See generally F W Maitland, “The Corporation Sole” (1900) 16 Law Quarterly Review 335; S J Stoljar, op cit, chapter 9.

159 The institution of the corporation sole emerged “as a way of explaining the firm continuity of [a] gift” of land to a local parson or priest (Stoljar, op cit, p141). The “notion of corporateness also helped to stress the ‘non-private’ nature of endowed to charitable property, as property lying outside personal inheritance” (ibid, p143).

160 This understanding of the concept’s origin and function implies that the focus was upon succession to property rights and the efficient management of property devoted to a special purpose that was intended for the personal enjoyment of the particular incumbent.

161 I shall assume in the plaintiff’s favour the debatable proposition that the existence of an ecclesiastical corporation sole would allow the transmission of liabilities in tort across time and from one office holder to another.

162 The plaintiff points to no statute or Crown grant constituting the Roman Catholic Archbishop of Sydney a corporation sole (cf Hubbard Association of Scientologists International v Attorney-General for the State of Victoria [1976] VR 119 at 124). None exists, for reasons that follow, and the absence of any such grant is fatal to the argument. Neither the common law nor prescription fills the gap as regards the ecclesiastical office held by Archbishop Pell. (In stating the matter thus, I am not inferring that any church official in Australia today is placed in any different position, absent statute.)

163 Blackstone’s Commentaries commences its discussion of corporations in the following terms (17th ed, (1830), London, Vol 1, p467):

We have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.

164 The same authority describes perpetual succession as a necessary and inseparable incident to every corporation, “the very end of its incorporation: for there cannot be a succession for ever without an incorporation” (p474).

165 The early history of “the incorporate person” in the common law is traced in Holdsworth’s History of English Law ((1922-1972), London, vol iii, pp469-482; vol ix, pp45-71). By the time of Coke on Littleton (1st ed, published in 1628) the law recognised a division between “persons natural created of God” and “persons incorporate or politique created by the policy of man … either sole, or aggregate of many” (Coke On Littleton, op cit, 2.a. See also the Case of Suttons Hospital (1613) 10 Co Rep 23a, 77 ER 960 at 968).

166 Professor Maitland described Coke’s classifications of persons as “dogmatic” and the concept of a corporation sole as a “mere ghost of a fiction to a true corporation, a corporation aggregate” (F W Maitland, “The Corporation Sole” (1900) 16 LQR 335 at 337, 353). Maitland could find no case in which the natural man has sued the corporation sole or the corporation sole has sued the natural man (at p354). The learned author nevertheless points to late medieval cases which, for some purposes at least, regarded bishops, abbots and parsons as juridical persons. Those purposes appear to relate to the protection of the assets of the ecclesiastical enterprise.

167 To revert to Blackstone’s Commentaries (p469-470):

Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense the king is a sole corporation; so is a bishop; so are some deans, and prebendaries, distinct from their several chapters; and so is every parson and vicar. And the necessity, or at least use, of this institution will be very apparent, if we consider the case of a parson of a church. At the original endowment of parish churches, the freehold of the church, the church-yard, the parsonage-house, the glebe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompense to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. But how was this to be effected? The freehold was vested in the parson; and if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and incumbrances: or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. The law therefore has wisely ordained, that the parson, quantenus parson shall never die, any more than the king; by making him and his successors a corporation. By which means all the original rights of the parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also.

168 None of this assists the plaintiff. Coke and Blackstone were dealing with traditional ecclesiastical offices in the established Church of England in England, being offices of great antiquity in the common law. No Church is established in Australia. The Roman Catholic Church never was.

169 Early in Henry VIII’s reign Fineux CJ said that corporations might be by grant of the King or Pope, or both, or by act of Parliament, or at common law (Seldon Society Year Book Series, Year Books of Henry VIII, Mich Pl 2, (2002) London, vol 119, pp101-2). The Pope’s jurisdiction did not survive the English Reformation and the law about creation of incorporate persons came to what Holdsworth describes as “the modern rule that a corporation can only by created either mediately or immediately by the crown, or by Act of Parliament” (History of English Law, (1922-1972), London, vol iii, p475. See also James Grant, A Practical Treatise on the Law of Corporations, (1850), London, pp11-13; Hubbard Association at 122-4). The need for the sanction of the State for the creation of a corporation was rooted in public policy (Holdsworth, op cit, vol iii, pp478-9; vol ix, p46).

170 The weight of United States law is to similar effect, on my understanding.

171 Wright v Morgan (1903) 191 US 55 involved a property claim by the Catholic Bishop of Denver. The Opinion of the Court includes a statement (at 59) that:

Apart from statute the law does not recognise the bishop as a corporation sole….

See also Kain v Gibboney (1879) 101 US 362 at 365; Baldwin v Commissioner of Revenue , (1981), 309 NW 2d 750 at 752, cert denied 456 US 729.

172 After judgment was reserved, counsel for the plaintiff by leave forwarded to the Court references to American authorities believed to support his case. These are unpersuasive, in my view. Municipality of Ponce v Roman Catholic Apostolic Church in Porto Rico (1908) 210 US 296 and Santos v Holy Roman Catholic and Apostolic Church, Parish of Tambobong (1909) 212 US 463 were appeals to the United States Supreme Court from the Supreme Court of the Phillippine Islands and Porto Rico respectively. The dicta in them concern Spanish or treaty law and do not relate to the situation under the common law.

173 A “Note and Comment on The Corporation Sole” in (1927-1928) 26 Michigan Law Review 545 refers (at 547) to early decisions in California (Roman Catholic Archbishop of San Francisco (A Sole Corporation) v Shipman 21 P 830 (1889)), Iowa (Rine v Wagner 113 NW 471 (1907)) and Illinois (Chiniquy v The Catholic Bishop of Chicago 41 Ill 148 (1866)) suggesting that Catholic bishops in those jurisdictions are corporations sole without the supplementary aid of a statute. None of the cases indicate the basis of the assumed or found fact that the Archbishop in question was a corporation sole. Indeed, the Illinois case states that the Catholic bishop of Chicago was a corporation sole by virtue of an enactment of 1861. A later decision of the Supreme Court of Florida, Reid v Barry (1927)112 So 846 contains a statement that there was nothing in the Constitution or statutes of that State which either expressly or implicitly repealed the ancient common law institution of the corporation sole. This proposition offers no guidance as to when the common law recognised an ecclesiastical corporation sole and appears to reverse the principles stated categorically by Blackstone. The case, like several others, cites a discussion of the concept by the Supreme Judicial Court of Massachusetts in Overseers of the Poor, of the City of Boston v Sears (1839) 22 Pick 128; 39 Mass 122. The Massachusetts case contemplates that a bishop or parson may be a corporation sole and thereby enjoy the equivalent of perpetual succession as to property, but once again is silent as to when a corporation sole comes into existence.

174 According to American Jurisprudence 2d, (2006), Massachusetts, Vol 18, “Corporations” §28 (citations omitted):

The corporation sole is a venerable creation of the common law and may be well established under the common law of a state which has legitimized the tradition and regulates the formalities attendant on the creation and continued existence of the corporation sole.
The recognition of a corporation sole is now dependent on specific statutory authorization, and though such an entity, generally speaking, is approaching obsolescence, it may still be applicable in a particular jurisdiction. Where, however, there is no statute authorizing the creation of corporations sole, such a corporation is not recognised in the state, however, where so recognized, a corporation sole has the same civil rights and duties as other corporations; the powers of the corporation sole are limited by statute.

175 As Dixon J pointed out in his discussions about the Church of England in Australia in Wylde (at 285), in 1835 the colonies of New South Wales and Van Diemens Land were dissevered from the Diocese and See of Calcutta and shortly afterwards those colonies and that of Western Australia were by Letters Patent under the Great Seal constituted a Bishop’s See or Diocese styled the Bishopric of Australia. The Letters Patent granted by William IV the following year appointing Archdeacon Broughton as bishop included the following:

We will and grant by these presents that the said Bishop of Australia shall be a body corporate, and do ordain, make, and constitute him to be a perpetual corporation, and to have perpetual succession, and that he and his successors be for ever hereafter called and known by the name of the Bishop of Australia, and that he and his successors by the name aforesaid shall be able and capable in the law, and have full power to purchase, have, take, hold, and enjoy, manors, messuages, lands, rents, tenements, annuities, and hereditaments, of what nature or kind soever, in fee and in perpetuity, or for a term of life or years, and also all manner of goods, chattels, and things personal whatsoever, of what nature or value soever; and that he and his successors, by and under the said name, may prosecute, claim, plead, and be impleaded, defend and be defended, answer and be answered, in all manner of courts of Us, Our heirs and successors, and elsewhere, in and upon all and singular causes, actions, suits, writs, and demands, real and personal, and mixed, as well spiritual as temporal, and in all other things, causes, and matters whatsoever;…

See Clarke, Constitutional Church Government in the Dominions, (1924), Great Britain, p38. A similar grant was made by Queen Victoria in 1847 when the See of Sydney was constituted ( id , p42).

176 The Letters Patent defined the area of the bishopric, made the bishop subject to the Archbishop of Canterbury and had other clauses unlikely to have been palatable to non-Anglicans. According to Ross Border, Church and State in Australia 1788-1872, (1962), London, p85:

They treated the Episcopal appointment as if it were a government post: they purported to give the bishop “the right of resignation”, and, mirabile dictu, the Crown purported to hold “the power of revocation”.

177 In 1863 the Privy Council decided that after constitutional government had been granted to a colony, the Crown, by letters patent appointing a bishop, could no longer grant any coercive ecclesiastical jurisdiction to him (Long v Bishop of Capetown (1863) 1 Moo PCC (NS) 411, 15 ER 756; Re Lord Bishop of Natal (1864) 3 Moo PCC (NS) 115, 16 ER 43; Wylde at 286. After that date no further letters patent were issued appointing bishops in Australia (Wylde at 286; Clarke, op cit, p33). See also Ex parte The Rev George King (1861) 2 Legge 1307 as to the absence of any prerogative right to vest secular powers in a bishop of the (Church of England) in New South Wales and as to the non-applicability of ecclesiastical law in the colony.

178 Roman Catholics would not have been offered the “privileges” of Crown appointment of bishops in the early nineteenth century. The Crown was not involved in the appointment of Catholic bishops. The idea that letters patent would have been issued so as to regulate episcopal affairs or confer secular or religious authority on Catholic bishops in the early nineteenth century is historically unthinkable.

179 There is no evidence that letters patent were ever issued to a Roman Catholic bishop in Australia. Given the fact that that Church was never regarded as established in this country it is inconceivable that such a grant would have been made. Catholics were at times cautiously tolerated, at times discriminated against in the early days of the colony of New South Wales. The first two Catholic chaplains arrived in Sydney in 1820. Catholics were first allowed to hold government offices in 1829. The early clergy struggled with slender resources and official indifference, or worse (see generally Patrick O’Farrell, The Catholic Church and Community An Australian History, 3rd ed, (1992), New South Wales, chapters 1-2).

180 There are dicta in an Irish Case of 1809 and a decision of the House of Lords in 1893 to the effect that a Roman Catholic bishop in Ireland was not a corporation sole (Attorney-General v Power (1809) 1 Ball & B (lr) 145 at 149; Kehoe, Maher and Mackey v Marquess of Lansdowne [1893] AC 451 at 457). Halsbury’s Laws of England views the cases as authority for the proposition that a Roman Catholic bishop is not a corporation sole (4th ed, Vol 9: Corporations §1207 fn 8.)

181 There is nothing to suggest that Roman Catholics in Australia have ever conducted their property affairs on the basis of the bishop of a diocese being a corporation sole at common law. Rather, they have used the law of charitable trusts and, latterly, statutory trust corporations like the Trustees. In the context of the Trust Property Act, the late emergence of an episcopal corporation sole in whom property devoted to Roman Catholic purposes in the Archdiocese of Sydney was vested would not only be unnecessary, it would be a positive embarrassment.

Estoppel

182 The plaintiff pleaded by way of Reply that “the First and Second Defendants” are estopped from denying that they are the proper defendants to the action. The alleged estoppel is based upon the defendants having made implied representations on the matter. These were said to have been made when the plaintiff was presented with the Deed of Release referred to above and in a Church publication Towards Healing in which advice was given relevant to alleged victims’ decision to exercise their right to commence legal proceedings against “Church authorities” (including bishops). The plaintiff also relies upon the filing of an appearance in the proceedings and the fact that the proper party issue was not raised until the Defence was filed on 15 June 2005.

183 The plaintiff first consulted his solicitor, Mr Begg, on 15 July 2004 (Black 228).

184 The plaintiff gave evidence that a representative of the Church, Mr Raymond Brazil, told him on 19 July 2004 in effect that the Church was willing to settle his claim for $30,000 conditional upon him signing the proffered deed. The plaintiff declined to do so, stating (Blue 518):

I have legal advice that I should not sign the deed. I am advised that I have a substantial claim.

185 The plaintiff, himself a solicitor, rejected the settlement offer and declined to sign the deed of release. He commenced these proceedings on 30 August 2004. He said in an affidavit (Blue 518):

Prior to commencing the proceedings, I was aware that the Second Defendant and similar bodies corporate had been the respondent to proceedings for damages arising out of negligence by employees and minister of the Catholic Church. That knowledge came from my own researches and from information I was aware of from the media and from discussions with my lawyers.

186 Further evidence was given orally. The plaintiff said that he “took the parties straight from the deed essentially” (Black 214). He showed his solicitor a copy of the deed and sought his advice as to who the parties should be (Black 214-5). The plaintiff said that he made the decision to sue, based upon specialist advice from his own solicitor that he had a viable cause of action for a substantial amount (Black 217).

187 The plaintiff was challenged in cross-examination about his reliance upon the draft deed of release. He knew that the deed contained an express non-admission of legal liability (Blue 36, Black 225). The plaintiff understood that the Archbishop and the Trustees wanted the finality and security of a release before they were going to give him money (Black 226). He agreed that his subsequent decision about whom to sue was made on the advice of his solicitor Mr Begg (Black 227, 229). He also relied upon his own researches that disclosed that the Trustees had been defendants in proceedings for damages arising out of negligence by employees and ministers of the Catholic Church (Black 227).

188 The primary judge implicitly rejected the estoppel argument when he held (at [56]) that there was no basis upon which the cause of action could be maintained against Archbishop Pell, as he is described in the Amended Statement of Claim.

189 The plaintiff’s grounds of cross-appeal include complaint about the primary judge’s failure to make findings on the estoppel issue. It is further submitted that there is at least a viable claim against the first defendant on the basis of estoppel.

190 I agree that the judge ought to have addressed this issue in terms. It had been the subject of extensive written submissions and oral argument. But, taking the plaintiff’s evidence at its highest, the estoppel claim was untenable, in my opinion.

191 The draft deed of release contains no implied representation as to the parties that the plaintiff ought to sue if he rejected the settlement. The deed expressly denies legal liability. The fact that the “Church’s”

legal advisers thought fit to seek a release in favour of Archbishop Pell and Trustees is understandable, but this carried no implicit representation as to parties in as yet uncommenced legal proceedings and no waiver of the rights of prospective defendants.

192 The representation argument also fails because the deed is entirely silent about the status of the party the plaintiff has now chosen to sue as first defendant, ie “His Eminence George Cardinal Pell Archbishop of Sydney for and on behalf of the Roman Catholic Church in the Archdiocese of Sydney”.

193 Towards Healing is a publication of the Australian Catholic Bishop’s Conference and the Australian Conference of Leaders of Religious Institutions (Blue 52). Its subtitle is:

Principles and procedures in responding to complaints of abuse against personnel of the Catholic Church Australia December 2000

194 The plaintiff has not pointed to any part of this publication that contains statements as to the correct defendant(s) to sue in the event that a complaint of sexual abuse remains unresolved.

195 There is no evidence that the plaintiff was induced to reject the settlement on the basis of the representations now alleged. On the contrary, the evidence shows that the settlement was rejected because the plaintiff with the assistance of his own legal adviser considered the sum offered to be too low. The plaintiff turned to his own legal advisor, a specialist in the area, and decided to bring the proceedings in the form he did.

196 The time that elapsed between commencement of the proceedings and the proper parties point being taken did not generate a right based on waiver or estoppel. Unlike the situation in Commonwealth v Verwayen (1990) 170 CLR 394, no limitation bar arose during the relevant period. The filing of an appearance evinced no representation. The point was taken squarely at the first proper occasion, ie when the Defence was filed.

197 In short, there was no unequivocal representation and no detrimental reliance. It is unnecessary to consider other arguments raised by the first defendant on the estoppel issue.

Disposition

198 Grounds of cross-appeal filed by the plaintiff complaining about the limited costs order made at first instance fall away in the circumstances.

199 I propose the following orders:

1. Appeal upheld with costs.

2. Cross appeal dismissed with costs.

3. Set aside orders made by Patten AJ on 3 February 2006.

4. Proceedings dismissed with costs.

5. Plaintiff to have a certificate under the Suitors’ Fund Act 1951 , if qualified.

200 IPP JA: I agree with Mason P.

201 McCOLL JA: I agree with Mason P.

**********

25/01/2008 - Incomplete text - Paragraph(s) 1-174