Permanent stay of proceedings granted in NSW historic abuse claim

In brief

The NSW Supreme Court has granted a permanent stay of proceedings in CM v Trustees of the Roman Catholic Church for the Diocese of Armidale; EM v Trustees for the Roman Catholic Church for the Diocese of Armidale [2023] NSWSC 1000 (23 August 2023).

Background

The plaintiffs are brothers who commenced proceedings against the Diocese claiming damages arising from sexual abuse perpetrated by Father Perrett in December 1976. Father Perrett, who died in July 2020, was the parish priest in Armidale and the alleged abuse took place on a camping trip he organised for children living on the Armidale Mission. 

The plaintiffs asserted that the Diocese was directly liable (in negligence) and vicariously liable for the conduct of Father Perrett. The plaintiffs also claimed that the Diocese was vicariously liable for the negligence of Sister Rita, a nun who died in 2003 and may have attended the camp and allegedly failed to protect the plaintiffs.

In 1995, unrelated allegations of sexual abuse were made against Father Perrett and he resigned as a priest. In 2017, Father Perrett was charged with criminal offences relating to abuse of the plaintiffs, however, he died in 2020 before the criminal matter could proceed to trial. The plaintiffs notified the Diocese of their civil claims five months after Father Perrett's passing.

The Court noted that the High Court has reserved its decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (S150/2022) on the issue of permanent stays, however given that one of the plaintiffs is suffering from stage 4 cancer, the Court proceeded with its decision.

Submissions

The Diocese filed a notice of motion seeking a permanent stay of the proceedings, claiming it was unable to receive a fair trial due to the death of Father Perrett and all of the key witnesses, including Sister Rita, the Bishop, members of the College of Consultors, and the Diocesan administrators. 

The plaintiffs submitted that the Diocese had been on notice of potential civil claims relating to abuse by Father Perrett since 1995, and that any prejudice to the Diocese arose from its failure to investigate. Specifically, the plaintiffs claimed that the Diocese had not fully investigated Father Perrett when the 1995 allegations were made and had failed to contact a number of potential witnesses to obtain evidence. Further, they claimed that Father Perrett had been confronted with, and denied, the plaintiffs' allegations in 2017. Although there was no statement or findings to rely on, Father Perrett's instructions to his solicitor were available as evidence in the civil claim.

Findings

The Court granted a permanent stay of proceedings and held that the defendant was unable to have a fair trial due to the unavailability of critical witnesses to provide evidence about the essential issues in dispute.

The Court accepted that the unavailability of all critical witnesses, not just Father Perrett, meant that the Diocese could not meaningfully participate in a trial. Although the Diocese had the benefit of Father Perrett's denial of the allegations (noting this may not have been admissible at trial), the plaintiffs' case was more than an allegation of abuse; it included claims of negligence and vicarious liability involving other members of the Diocese who had never been interviewed about these claims.

The Court accepted that the Diocese had carried out all reasonable enquiries to obtain evidence relevant to the allegations at hand, specifically:

1. Whilst allegations against Father Perrett had been made in 1995, these did not relate to the Armidale Mission or Sister Rita. The plaintiffs' suggestion that an investigation in 1995 would have uncovered evidence about the present matter was "speculative"; 

2. There was no evidence that the Diocese was aware of the two plaintiffs prior to 2020, despite the unrelated criminal charges against Father Perrett. In any event, by that time most of the key witnesses were already deceased and Father Perrett likely would not have engaged with a Diocesan investigation given the active criminal proceedings against him; and

3. It was not sufficient for the plaintiff to merely identify potential witnesses without "some indication as to why such enquiries should have been made and what evidence could have emerged".

This decision confirms that a permanent stay of proceedings remains an exceptional remedy that turns on the facts of each particular case. The findings are an important reminder to defendants to undertake thorough and timely enquiries when notified of civil claims. CBP's institutional risk and liability team discusses five earlier permanent stay cases in NSW, VIC and WA in this article and a recent decision in QLD here.