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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Patten AJ
3 March 2006
No 20308 of 2004
John Andrew Ellis - Plaintiff
v
His Eminence Cardinal George 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
JUDGMENT
Introduction:
1 By his Amended Motion filed in court on
25 July 2005, the Plaintiff seeks relief under s58 of the Limitation Act
(the Act) or, alternatively, under s60G.
2 The Plaintiff was born on 14 March 1961.
His Statement of Claim filed 30 August 2004 alleges that from 1974 when
he was 13 years of age, until 1979 when he was 18, he was engaged as an
altar server in the Roman Catholic parish known as Christ the King at
Bass Hill. While so engaged, so the Plaintiff claims, he was subjected
to frequent sexual assaults by a priest, Aidan Duggan (Father Duggan),
joined in these proceedings as Third Defendant. The Plaintiff attained
the age of 18 on 14 March1979.
3 Accordingly, s14 of the Act, in
combination with s52, would have the effect of barring the Plaintiff on
14 March 1985 from commencing an action founded on a tort committed
prior to 14 March 1979. This action was commenced more than 19 years
after 14 March 1985, a very considerable period.
4 It should be recorded at this stage that
the Statement of Claim in amended form filed, by leave, on 25 August
2005, in addition to pleading causes of action in tort at common law,
sought equitable damages for breach of fiduciary duty. Section 14 of
the Act has no application to the Plaintiff’s claim for equitable relief
except as it may be applied by analogy (s23). This factor founded an
argument by the Plaintiff to which I will need to return. Apart from
that argument, the motion not only raised questions as to the
applicability of sections 58 and 60G of the Act to the Plaintiff’s
circumstances but also as to whether there is evidence to establish a
cause or causes of action in tort, given that the Plaintiff no longer
seeks to pursue the action against the Third Defendant who died on 5
October 2004.
5 As to the first two defendants,
(hereafter “the Defendants”) Cardinal Pell was not appointed to the
position he presently holds until many years after the events about
which the Plaintiff claims. There is no suggestion that he had any
personal involvement or even that he served in the Sydney Diocese of the
Roman Catholic Church at any relevant time. With regard to Cardinal
Pell, the Statement of Claim alleges:
“1. The First Defendant is the person
for the time being occupying the office of Archbishop of Sydney for the
Roman Catholic church (the Church), being a juridical person having
perpetual succession established under the Code of Canon Law of the
Church to govern the Archdiocese of Sydney (the 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.
6 In relation to the Second Defendant, the
Trustees of the Roman Catholic Church for the Archdiocese of Sydney,
(the Trustees) the Statement of Claim pleads:
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.
7 As I have indicated the alleged
perpetrator of sexual abuse upon the Plaintiff, Father Duggan, is
deceased. For practical reasons he having, so it was said, taken a vow
of poverty, the Plaintiff does not seek to continue the action against
his estate. In the result, nothing probably turns on the fact that he
was a member of a Benedictine order of monks located at Port Augustus,
Inverness, Scotland, seconded to the Sydney Archdiocese during the
relevant period.
8 In 1974, Cardinal James Freeman was the
Roman Catholic Archbishop of Sydney and evidence establishes that he
personally approved of Father Duggan working in the Sydney Diocese “ad
experimentum” for a year. This initial period was extended and Father
Duggan was incardinated into the Sydney Archdiocese in December 1990.
9 Cardinal Freeman, according to the
evidence, was also personally involved in the appointment of Father
Duggan during 1974 to the parish of Bass Hill where the alleged sexual
abuse occurred and where, as it seems, Father Duggan remained until 1979
when Cardinal Freeman appointed him to the parish of Gymea. Cardinal
Freeman was succeeded by Cardinal Clancy in 1983.
10 In so far as it pleads causes of action
in tort, the Statement of Claim alleges that the Defendants are
vicariously liable for the illegal conduct of Father Duggan and are also
directly liable for what occurred as resulting from breaches of their
duty of care towards the Plaintiff whilst in the service of the church
as an altar boy.
EVIDENCE OF THE PLAINTIFF:
11 Dr A S Morrison SC, who appeared with Mr
R Royle for the Plaintiff, read his affidavits sworn respectively 10
November 2004 and 4 February 2005, the latter being in reply to
affidavits filed on behalf of the Defendant.
12 In his affidavit of10 November 2004 the Plaintiff deposed to his abuse by Father Duggan in these terms:
“During the period from approximately
1973 to 1978, when I was aged 12 to 17 years old, I served as an altar
boy at the Christ the King Parish of the Catholic Church, at Bass hill,
New South Wales. The parish is part of the Sydney Archdiocese.
Father Aidan Duggan came to the parish
in late 1975. At that time, I was a senior altar boy, with
responsibilities for rosters and training of the younger altar boys.
Soon after his arrival in the Parish,
Father Duggan took a special interest in me. He often invited me back
to the presbytery where we would sit in his room, Father Duggan would
tell me stories of his time in Scotland and offered to teach me Latin.
We would share coffee and biscuits. Sometimes we had a meal together in
the presbytery dining room, served by the housekeeper.
During most of his time at the parish,
Father Duggan had two rooms in the presbytery, comprising a sitting
room/study and a bedroom, separated by a bathroom.
Initially, all of our meetings were in
the sitting room. Father Duggan would close the door when I was in
there. One day, he began touching me on the legs and arms, and he
hugged me closely, I cannot remember precisely when this began, but it
was within a few months after he first came to the parish.
One evening, Father Duggan invited me
to visit him to commence Latin lessons. When I arrived, he hugged me
closely, and I experienced an erection. Father Duggan began kissing me
and touched my genitals through my clothes. He then put his hand inside
my tracksuit pants and began rubbing my penis. He then closed the
blinds in that room and locked the door. He then lay down with me in
that room on either a sofa or daybed and undressed both me and himself.
He masturbated me and put my hand on his penis and made me masturbate
him. During this time he was kissing me. When I ejaculated, he mopped
up my semen with a tissue. After we had both ejaculated, he took me
into the bathroom to clean up.
After this first time, the sexual
contact continued on a regular and frequent basis. I attended daily
mass at that time, and so saw Father Duggan on a daily basis.
There were different forms of sexual
contact as time went on. This included oral sex and penetration by
Father Duggan of my anus. Many times, Father Duggan ejaculated in my
anus. After the first time, the sexual contact was always in Father
Duggan’s bedroom.
On more that one occasion, the Parish
Priest knocked on Father Duggan’s door asking to see him while we were
partially undressed and engaged in sexual interaction. The Parish
Priest was initially Father John Farrer. Later, there was another
Parish Priest. When the parish Priest knocked on the door, we quickly
dressed and Father Duggan answered the door.
On many occasions, Father Duggan gave
me Scotch whisky to drink. It was either, “The Black Douglas” or
Grants” brand. He gave it to me in a small glass with some ice. I
liked it, and it made me feel light-headed and more relaxed about him
touching me. One evening, I became very intoxicated drinking “Grants”
scotch and felt nauseous and dizzy. I vomited, and Father Duggan later
drove me home to my parents’ house. He said to my parents “John is not
feeling well“.
The sexual abuse also occurred at a
cottage attached to a convent of the Sisters of St Josephs church in
Lawson NSW, and at a holiday home at Umina NSW rented by Father Duggan,
which he had taken me to.
Father Duggan gave me a book entitled
“Special Friendships’ which he asked me to read. The book dealt with
homosexual relationships between boys at a French boarding school. I
remember him saying to me something to the effect of, “it is ok and
normal to feel the way we do. But some people don’t understand. I
understand you”.
On many occasions, Father Duggan said to me words to the effect of; “I love you. You are special to me”.
In the period between 1979 and 1987,
Father Duggan continued to initiate and pursue a sexual relationship
with me, although I then saw him less frequently. This conduct was
unwelcome by me at all times during this period, but I found it
difficult to stop him from touching me. I had considered that Father
Duggan had been kind and generous to me, and I did not want to hurt his
feelings by rejecting his advances. The only way I felt I could control
the situation was to minimise the times I saw him.
The sexual contact occurred inside the
presbytery building of St Catherine Laboures parish in Gymea, the
presbytery building at St Mary’s Cathedral Sydney and the presbytery
building at St Joseph’s parish at Camperdown. To the best of my
recollection, each time I saw Father Duggan, he initiated sexual contact
with me.
I did not tell anyone about the
occurrence of the sexual interactions with Father Duggan until some 9 or
10 years after they had stopped, because I was ashamed of having had
sexual relations with a man. I thought I was homosexual, and that
people would not understand or appreciate at the time that there was any
inherent wrongfulness in Father Duggan’s conduct, and I believed that
he genuinely loved and cared for me and that if I loved him, I had to
submit to his sexual advances.
I am not aware of anyone else being
present at, or having witnessed, the sexual assaults as they occurred in
private. However, on the occasion of most of the assaults at Bass Hill
parish and at St Mary’s Cathedral, there were other priests in the
presbytery at the time of the assaults.”
13 After leaving school, the Plaintiff
studied nursing and qualified as a nurse. For several years he worked
as a nurse educator, but while still working in that capacity in 1985
commenced a law course, graduating in 1992 with first class honours.
14 He took employment with Baker &
McKenzie, solicitors, where in 1999 he became a salaried partner,
practising principally in building and engineering matters
15 The Plaintiff married in 1983 but there
were severe conflicts in the marriage and there was a separation in 1992
followed by divorce.
16 The Plaintiff married his present wife,
Nicola in July 2000. But that marriage too has experienced difficulties
deposed to by the Plaintiff as follows:
“Despite undertaking pre-marriage
counselling, we experienced relationship difficulties within the first
few months of marriage, characterised by severe conflicts and periods of
anxiety, depression and self-abusive behaviour on my part. I also
experienced significant and severe anger. The feelings I was
experiencing at that time were a surprise and shock to me, and I did not
understand why I was felling that way.
By December 2000, I had commenced
counselling with Ms Fleur Bishop. This continued on a regular basis
until early 2002 when Ms Bishop was overseas. During that time, I
attended Mr John Murray for counselling. Mr Murray was formerly a
priest. Nicola and I also attended Ms Anna Lee (a psychiatrist)
together at around that time.
In approximately August 2001, I became
aware of the incidence of the sexual abuse by Father Aidan Duggan while I
was a teenager as a matter which may have been affecting my sexual
relationship with my wife Nicola. I did not discuss this matter with
Nicola at that time, but did write to Ms Bishop (who was at that time
overseas), indicating that it was a matter I wished to explore with her
upon her return from overseas.
In approximately September 2001, during
the course of the counselling sessions with Mr John Murray, an
awareness of the significance and profound nature of the effects of the
earlier sexual abuse emerged. I disclosed the details of the abuse to
Nicola during September 2001. Nicola was the first person to whom I had
spoken regarding any details of the sexual abuse. I later discussed
the details with Ms Bishop, with other therapists and with other
persons.
After initial disclosure, I experienced
a severe decline in my feeling of emotional wellness and found it
difficult to cope with the demands of day to day working and family
life. I was alternatively crying or feeling strong anger most of the
time.”
17 In June 2002, the Plaintiff made a
“Formal Statement of Complaint” to the Catholic Church regarding Father
Duggan in accordance with its “Towards Healing” protocol. This
ultimately led to the appointment of a Mr Michael Eccelston as an
assessor and to various meetings involving the Plaintiff. At one point
he was told that before any financial reparation could be made, he would
be required to sign a deed of release in the draft form provided to
him. He claims that it is not without significance that the releasees
named in the draft were the Defendants.
18 As a result of receiving the draft
release, the Plaintiff consulted solicitors who advised that he had a
significant potential claim for damages. These proceedings were
commenced shortly afterwards.
19 Although his career at Baker & McKenzie seemed promising at first, it commenced to deteriorate as he related:
“However, towards the end of 2001,
coinciding with the disclosure of the sexual abuse and my beginning to
deal with the effects of the abuse, I began to receive notice of
complaints from members of my staff and colleagues about my leadership
skills and my methods of communication and feedback.
As a result of these complaints, at the
feedback session in relation to my annual review in 2002, which was
conducted in March 2003, I was informed that unless there was
significant improvement in these areas, my position as a salaried
partner would need to be reviewed.
In approximately May 2003, Baker &
McKenzie engaged an external consultant, Ms Reyna Matthes of the
“Stephenson Partnership” to conduct a “360 degree” survey of my
performance and to provide a report and coaching to deal with the
identified issues.
I worked with Reyna Matthes over a
period of some 4-6 months during 2003/4, during which time she took
feedback from all levels of my peers, colleagues and professional and
support staff.
The feedback from the “Stephenson
Partnership Executive Survey report (the Stephenson Report) was quite
severe. Amongst other things it included the following statements made
by people reporting to me:
“John’s interpersonal skills are the
worst I have ever come across in a person… I do not believe he
understands the impact his behaviour has on others …John displays no
‘emotional intelligence’ … John is deceitful, malicious, controlling,
manipulative, prosecutorial and focused on causing humiliation on his
dealings with people he considers are ‘below him in the pecking order’
and over whom he consider he has control … persons who are obliged to
work with John on a more irregular basis all experience extreme
frustration, loss of confidence, loss of motivation, and are often
reduced to tears or have suffered incidents of being physically ill.
Person who are obliged to work with John on a more regular basis show
signs of extreme stress which is manifested in depression, withdrawal
from the group, sleeplessness, general decline in health, weight loss,
deterioration in the care they take with their personal appearance,
inability to look people in the eye due to feelings of humiliation and
even verbalising thoughts of suicide … His conduct seems to be
controlled and deliberate…” (extract from Stephenson Report section
entitled “Observations-Emotional Intelligence – Report”)
Over the period when the survey was
being conducted and after I received the feedback, I experienced
considerable stress and increasing difficulty in continuing to work. At
this time, I commenced seeing Dr Geoffrey Streimer (a psychiatrist and
psycho-therapist) in a professional capacity. The stress that I was
experiencing impacted upon my physical well-being and between December
2003 and May 2004, I was able to work only part time. I attended the
office between 1 and 3 days per week and suffered from depression and
lethargy which made it impossible for me to return to full time work.”
20 Subsequently, effective 31 May 2004, the
Plaintiff was required to resign from Baker & McKenzie. He
attributes his loss of career opportunities to Father Duggan’s sexual
abuse.
21 The Plaintiff claims that he continues
to suffer from depression and associated physical symptoms and has been
unable to resume work within the legal profession. He also attributes
this to the misconduct of Father Duggan.
22 The affidavit of 4 February 2005, inter
alia, referred to the efforts by the Plaintiff, in the period following
his first complaint about Father Duggan’s misconduct in June 2002, to
persuade various authorities in the church to interview him. Despite
these efforts, it was not until June 2003 that he was informed that a
report had been obtained from a psychiatrist to the effect that Father
Duggan was not capable of participating in an interview.
23 The Plaintiff’s affidavit of 4 February 2005 concluded with the following paragraphs:
“Since becoming aware that the first
and second defendants maintain that they dispute the fact of the abuse, I
have not had an opportunity to consider what other witnesses may be
available to provide additional circumstantial and corroborative
evidence as to the relationship between Fr Duggan and myself. However,
as I spent considerable time in the company of Fr Duggan, it is likely
that other parishioners of Bass Hill Parish could provide relevant
evidence. This would include particularly the other altar servers and
acolytes at the relevant time.
I recall discussing with Michael
Eccelston, (the assessor appointed by the first and second defendant) on
2 July 2003, the availability of such people to give information
relevant to my claim, and how they may be identified and contacted. As
far as I am aware, Mr Eccelston did not contact or interview any such
persons.
Annexed hereto and marked “K” is a true
copy of a bundle of email correspondence from former students of Fort
Augustus Abbey where Fr Duggan was placed prior to his return to
Australia. Contact details for Fort Augustus old boys are publicly
available via the internet.”
24 In cross-examination by Mr S Rushton SC
who appeared with Mr M McHugh for the Defendants, the Plaintiff said
that as at June 2003 he was concerned about self harming behaviour,
anxiety, the state of his marriage and low self esteem which, since
September 2001, in the course of therapy by Mr John Murray, he had
related to the conduct of Father Duggan.
25 The Plaintiff also told Mr Rushton that
in December 2003 he was diagnosed by Dr Streimer as suffering from
depression. Although Dr Streimer diagnosed that he had been suffering
from this for some time, the Plaintiff said that he had not been aware
of it.
26 Cross-examined further as to his
awareness of the nature of the conduct of Father Duggan and of his
rights flowing from such conduct, there was this exchange:
“Q. Did you ever have an awareness before filing your statement of claim that you had been sexually assaulted by this priest?
A. Yes I did.
Q. When do you say you first had an awareness?
A. In 1996 or 1997.
Q. And being a well qualified lawyer, you
would have recognised would you not that the sexual assault of a minor
would give rise to or could give rise to a substantial claim for
damages?
A. Could give rise to, yes, yes. Yes, so far.
Q. It must follow must it not that at least
in 1996 you had an appreciation that you had a potentially significant
claim against Father Duggan?
A. No I am sorry I don't, I don't agree with that.
Q. And why don't you agree with that Mr Ellis?
A. Because at that time I didn't appreciate
that there had been any damage, anything that would sound in
significant damages, so I was aware of the sexual conduct as being
abusive. I didn't appreciate that that - that I would have a claim
arising out of that at that time, at all.
Q. And you didn't appreciate at that time that you had suffered damage?
A. No I didn't.
Q. I beg your pardon?
A. No I did not.
Q. But at that time is the position in
beginning of 1996 and 1997, is the position this, that you appreciated
that you had been sexually assaulted but as far as you could ascertain,
or as far as you turned your mind to the problem at that point in time,
it had had no adverse impact upon you?
A. I wouldn't say no adverse impact.
Q. Well if it had any adverse impact I want
to give you the opportunity to tell us what in your own words was the
adverse impact that you recognised you had at that point?
A. I think when I appreciated it as abuse, I
appreciated that that had had an adverse impact, in the sense that you
know that was quite an upsetting realisation. A very upsetting
realisation, and that's certainly adverse.
Q. Well did it make you sad?
A. Yes it did.
Q. Did it make you angry?
A. No.
Q. Did you feel betrayed?
A. No, not at that time.
Q. Did you feel as though your trust had been abused?
A. Yes.
Q. See I want to suggest to you Mr Ellis
that at the very latest, at the very very latest, in early August 2001,
you well understood the impact that this sexual abuse had upon you and
your state of well-being?
A. You wish me to respond to that?
Q. Yes?
A. No I don't think that that's a correct statement.”
27 Later in the cross-examination, Mr
Rushton put to the Plaintiff that by 5 August 2001 he had conveyed to
his therapist, Ms Fleur Bishop, his belief that the sexual abuse
suffered at the hands of Father Duggan had had a major impact on his
life. He replied:
“A. I think that's overstating the
case. I disclosed to Fleur that the abuse had occurred and I had seen
that as relevant to sexual issues that I was having with my wife at that
time.
Q. It is the case then, is it not, it must
be the case that when you said to his Honour yesterday and today that
you made no connection between the abuse and the problems you were
suffering until September 2001, that evidence was false, was it not?
A. No, I can't accept that.
Q. How do we reconcile them? If indeed
you told Miss Bishop that there was a connection you believed between
the sexual abuse you had suffered and some of the problems you were
experiencing at that time in August 2001, how does that reconcile with
your evidence that you made no connection between the abuse and any of
the problems you were suffering until September 2001 when you saw Mr
Murray?
A. The matter that I identified to Fleur was a very specific matter.
Q. I don't think that's an answer to my
question, because yesterday and today you said you made no connection,
didn't you, until September?
A. I answered your questions, Mr Rushton,
as to particular issues that I had been suffering and when I made a
connection of those issues to the sexual abuse, and some of those
connections were made in September when I worked with John Murray, some
of those connections were made at a later time in later therapy.
Q. Don't worry about the later time, what
about in August? Are you now saying you made a connection between some
of the problems you were suffering and the sexual abuse which you say
you suffered?
A. I made it - in early August I made a
connection between issues that had arisen in my sexual relationship with
my wife and the sexual abuse, that there was a possible connection that
I wanted to explore with Fleur.
Q. Well, it must follow from that, don't
you agree, that what you told us a little earlier just can't be true,
that you made no such connection?
A. No. All the answers I gave you yesterday were true.
Q. I want to remind you of what you said
at page 68 of the transcript yesterday. At line 7 I was referring to
Miss Bishop, and I said, "She went overseas for a period of time, did
she not, in September/October 2001; is that right?" And you answered,
"From approximately June to September of that year." And I asked you
this question: "And are you saying that you did not make any of these
connections between Father Duggan's conduct and the severe problems you
were suffering until she returned?" And you said, "No. In fact it was
while she was away." And I said, "Okay, and was that in the context of
your counselling with Mr Murray? And you said, "That's correct." "Q.
It was during that counselling with Mr Murray which I think took place
in late August, early September 2001 that you say you first made this
connection? A. That's correct."
A. Yes.
Q. And then at line 49: "Q. But you did
not really make any connection between the problems you were
experiencing then and Father Duggan until you engaged in therapy with
the replacement therapist, Mr Murray? A. That's correct."
A. Yes.
Q. Do you want to change that evidence at all?
A. No, not at all.
Q. Because it was a fact, I suggest to
you, Mr Ellis, that by 5 August 2001 at the very latest you were well
aware or believed that there was a connection between Father Duggan's
conduct and the severe emotional problems that you were suffering at
that time?
A. No, I didn't have that awareness at that time at all. I know when it came it came very dramatically, I recall.”
28 Later in the cross-examination, the
Plaintiff conceded to Mr Rushton that by August 5 2001 he had made a
connection between Father Duggan’s conduct and one, at least, of the
symptoms he was experiencing, namely, as I understand his evidence,
sexual problems with his wife which he described as “my ability to have a
healthy sexual relationship
29 In my assessment, the Plaintiff was an
honest witness who did his best to assist the court. In general terms, I
accept his evidence as reliable. That acceptance must, I think, be
tempered by taking into account, as a matter of common sense the
difficulties which the Plaintiff faced as an honest witness testifying
in 2005 as to his state of mind and emotional feelings upon complex and
sensitive subjects at various periods and even on particular dates in
the lengthy period between 1974 and the end of 2003.
EVIDENCE OF S R SMITH
30 The hearing of the motion commenced on
25 July 2005. On the fourth day of the hearing I gave Dr Morrison leave
to read the affidavit of Stephen Robert Smith sworn 27 July 2005. The
affidavit, as it seemed to me dealt in a significant way with the issue
of prejudice suffered by the Defendants and on that basis I permitted Dr
Morrison to rely upon it. On Mr Rushton’s application I granted an
adjournment in order that the Defendants could investigate the matters
raised by Mr Smith, and, in the result the substantial hearing of the
motion did not recommence until 10 October.
31 Dr Morrison then read a further affidavit of Mr Smith sworn 9 August 2005. He was not required for cross-examination.
32 The substance of Mr Smith’s testimony
was that he met Father Duggan in January 1980 at a time when he was
about to commence year 10 at the Christian Brothers High School, St
Mary’s Cathedral. He was an altar server and served at both weekday and
Sunday masses.
33 Over the course of 1980 and into 1981,
according to his testimony, Mr Smith was sexually assaulted by Father
Duggan on numerous occasions. In mid to late 1983, Mr Smith said that
he handed to a Father McGloin, who he believed was the Dean of the
Cathedral, a Statutory Declaration detailing sexual assaults upon him by
Father Duggan. Thereafter, according to Mr Smith’s affidavit sworn 9
August 2005:
“Within approximately one week, Father
McGloin contacted me. I agreed to meet with him. The meeting took place
on a weekend in the evening. Father McGloin was smoking a pipe. He
said words to the effect of: “I have read your stat dec. Can you speak
to me about it?
We then had a detailed conversation
during which I said thing about what I had experienced with Father
Duggan. I said to Father McGloin words to the effect of: ”I think that
Dom Aidan should be removed. He should return to his Abbey in Scotland
where he belongs”.
Father McGloin said words to the effect of: ”Perhaps it is an issue best dealt with by the two of you.”
One evening during the following week, I
had a further meeting with Father McGloin. This was the meeting
referred to in paragraph 7 of my first affidavit, in which Father Duggan
was then brought into the room and Father McGloin then left the room.
The meeting with Father Duggan was so humiliating for me that I did not
want to make any further complaint for fear that it would lead to a
similar experience. During and after that meeting, I felt devastated
and I felt that my complaint had not been taken seriously.”
Psychiatric and Psychological evidence:
34 The Plaintiff relied on testimony from
Ms Fleur Bishop, psychologist; Mr John Murray, counsellor and
psychotherapist; and Dr Jeffrey Streimer, psychiatrist and
psychotherapist. In an affidavit sworn 7 June 2005, Ms Bishop after
detailing her quite extensive qualifications deposed:
“John Andrew Ellis first came to me for
therapy in December 2000, as a result of a sudden onset of severe
emotional and psychological distress from an unknown source.
The presenting symptoms included:
severe conflict within his marriage of approximately six months;
anxiety; angry and violent outbursts; and significant self-harming
behaviours which had resulted in physical injuries including facial
lacerations and bruising.
Quite early in the therapy, I concluded
that Mr Ellis was suffering with symptoms consistent with Post
Traumatic Stress Disorder, and I discussed this opinion with Mr Ellis.
While this was consistent with all of his symptoms, at that time, no
particular trauma had been identified.
My therapy at that time was focussed on the symptoms Mr Ellis was suffering, particularly the self-abusive behaviours.
In June 2001, I went overseas for
approximately 3 months. Before my departure, I had given Mr Ellis the
names of several therapists he could consult during my absence. I also
gave him an e-mail address at which I could be contacted.
On 5 August 2001, Mr Ellis sent me an
email. In that email he disclosed to me for the first time that he had
been sexually abused as a teenager. A true copy of Mr Ellis’ email is
annexed and marked “B”.
35 In the email referred to in Ms Bishop’s
affidavit, the Plaintiff made only a fleeting reference to “being
sexually abused as a teenager” in the context of recounting sexual
difficulties with his wife. He provided no detail.
36 Ms Bishop concluded her affidavit by
recording that in October 2003 she furnished a report to Mr Eccelston
and that in May 2004 the Plaintiff recommenced therapy with her. At
that time he told her that his employment had been terminated as a
result of deterioration in his work performance and relationships.
37 In her report to Mr Eccelston, Ms Bishop provided the following history and opinion:
“I was seeing Mr Ellis for counselling
several times a month between December 2000 and “April 2002. During
that time he disclosed that from approximately age 14 years (1975) he
had been sexually abused by Fr Duggan, who at that time was the
assistant priest at Christ the King Parish at Bass Hill. The sexual
abuse took place over a number of years in his rooms at the presbytery
and also at other locations for example, while on holidays.
It is my understanding that the abuse
continued on a regular basis until Mr Ellis turned 17, when he left the
parish. The sexual abuse then resumed on an intermittent basis when Fr
Duggan was located at different parishes, including the St Mary’s
Cathedral presbyter, St Josephs at Camperdown and the presbytery at
Gymea.
Disclosure of the Sexual Abuse
It was many months into therapy that Mr
Ellis disclosed his history of child sexual abuse. He expressed great
shame and confusion about his feelings towards the priest, as he felt
someone he had thought was his friend had betrayed him.
Impact of the Sexual Assaults
The following information was gathered
from self-reports by Mr Ellis and from conversations with his wife, Mrs
Nicola Ellis. Mr Ellis has been affected by the sexual abuse in the
following ways:
· He has difficulty trusting others and forming friendships and relationships;
· Communication difficulties;
· Rage filled angry outbursts particularly towards himself, his wife and children;
· Sometimes violent interactions with his wife, the violence being exchanges by both parties;
· Significant
self-harming behaviours, eg, hitting his head and face with his hands
or objects such as a book. Self-harming behaviour would occur when Mr
Ellis was dealing with elevated levels of distress.
· Anxiety;
· Social phobia and withdrawal;
· Occasional agoraphobia;
· Self-loathing;
· Low self-esteem
· Poor appetite;
· Sleep difficulties;
· Fear of crowded places;
· Symptoms consistent with depression;
· Questions of sexual identity.
Mr Ellis is still experiencing difficulties in his second marriage which has been in a state of separation since 2001.
It is my opinion that many of the
feelings and behaviours reported by Mr Ellis are consistent with adult
survival of child sexual assault. It is my hope that Mr Ellis is able
to resolve his inner conflict and heal from the damage resulting from
being sexually abused by Fr Duggan.”
38 Mr Murray, a psychotherapist with
extensive experience said that the Plaintiff came to him for six
counselling sessions in August and September 2001 while Ms Bishop was
away. In the course of a report to Mr Eccelston, Mr Murray said:
“In my 4th session with John, something
turned-up that was a complete surprise. After being able to talk quite
freely about himself and what had happened to him up until then, he was
unable to talk about something that the very thought of brought about
the most significant physical change in John. He was able to speak of
the fact of sexual abuse by a priest when he was a teenager, but unable
to talk about or speak the priest’s name.
When I asked him to tell me what
happened, he started to stutter and choke. He said it felt as if there
was a restriction or barrier in his neck, “keeping down everything down
below”. He said, “It is not safe to talk about that. It is too
painful”. I don’t want to go there”. Then he burst out with the words,
“That bastard – why am I protecting Him”.
Even with two further sessions of
counselling, I do not remember John going ahead and talking specifically
about what happened. However, he used symbols and images to express
what he was feeling and seemed to have a significant break-through. He
continued to express his rage and pain, and testify to the barrier he
felt between himself and what happened.
I have no further written notes on the
last two sessions, nor can I remember any specific details of how the
abuse was carried out. This fact supports my recollection that John was
not ready to fully explore his memories of the incident, through fear, I
concentrated mainly on the impact his emotional state was having on his
relationship with Nicola.”
39 In the final paragraph of his affidavit, sworn 10 June 2005, paragraph 7, Mr Murray said:
“In my opinion, it was around 5
September 2001 that Mr Ellis would have first been in a position to
appreciate the link between the sexual abuse he had suffered and the
symptoms he had been experiencing, particularly in the 12 months before
that date.”
40 Mr Murray gave short oral evidence
before being cross-examined by Mr Rushton. He told Dr Morrison that in
the six sessions he had with the Plaintiff, difficulties in his career
or at work did not arise.
41 Questioned by Mr Rushton on the opinion expressed in paragraph 7 of his affidavit, there was this exchange:
“Q. Now you don't set out in your affidavit the basis upon which you formed that opinion, do you?
A. That is not stated there.
Q. Yes. Would you mind telling us then as best you can, how you have come to that opinion?
A. I came to that opinion because it was in
this fourth session that I had with Mr Ellis, after following three
sessions of considerable emotional upset and turmoil over his
destructive behaviour towards himself and his immediate family and that
his whole focus of attention in those first three sessions was on these
behavioural difficulties and their very bad effect on those he loved.
In the fourth session on 5 September, I
asked John about the sexual abuse that he had mentioned in passing
without any real charge or emotional agenda, and as I worked with him in
this fourth session, he, at the question, “what happened”, he displayed
extraordinary physical signs of - he started to stutter, he choked, he
couldn't speak about it, and when I asked him what was stopping him, he
said "there's like a barrier there holding - an invisible barrier in my
mind holding it down and I don't want to go there, it is too painful",
and I deduced from that that at last he was getting in touch at a
feeling level, and a realistic awareness level, of the source of his
destructive behaviour towards himself and others and his attitude of the
course to himself and others.
Q. And it must follow from what you've just
said can I suggest, that implicit in the opinion you express in
paragraph 7 of your affidavit, is the assumption he hadn't made the
disclosure that he made to you in the fourth session to his
psychotherapist who he was seeing before he saw you?
A. I have no knowledge of what - that's correct. I had no knowledge of what he said to his other psychotherapist.
Q. To come back to my question, implicit in
your opinion in paragraph 7 is an unstated assumption is it not, that
he had not made disclosure of this matter to his psychotherapist who was
treating him before he saw you?
A. Certainly, if he had disclosed it as a
fact then that may have been the case but the emotional charge and his
inability to actually speak about it was a clear indication to me that
my assumption is correct, that he just was becoming aware of its
significance for the first time.
Q. Would your opinion change Mr Murray if
you were to learn for example, that Mr Ellis had spoken publicly about
at least the fact that he had been sexually abused by a priest to a
group of people as part of a presentation?
A. He could indeed have spoken of the fact
of being sexually abused because to have just a conceptual informational
statement about it, is of course very very different from actually
accessing one's traumatic hidden feelings associated with that event.
Q. But surely if he went on during that
presentation to describe the impact that had had on his life, your
opinion would change?
A. I could only answer that if I was there
to hear him and to evaluate the emotional content that would be conveyed
in his description.”
42 Dr Streimer provided a letter to the Plaintiff’s solicitors dated 30 May 2005 which, omitting formal parts said:
Your correspondence indicates that
there is a question as to whether Mr Ellis was aware of the extent of
the injury he has suffered prior to August 2001 or whether the awareness
of the severity and impact on him arose later on or after August/late
September 2003.
There are several sources of information covered within my clinical file notes that are relevant in this regard.
Firstly, at my initial assessment of Mr
Ellis on 9 September 2003 he presented with panic feelings and issues
around two recent losses, his father’s death three weeks before and his
marital separation three months beforehand. My interview notes list the
history of the present illness (HPI) which included information that he
had seen Fleur Bishop (social worker/therapist) from December 2000 for
eighteen months, that it did not work with Fleur but that nine months
thereafter he became conscious of having been sexually abused as a
teenager.
He “faced it” with the assistance of
John Murray an ex-priest/therapist. My notes indicate him reporting his
“Life torn apart during the recall. Occurred as a result, not in
therapy”. This indicates the impact of initial awareness began in 2002.
Further, during that same interview he stated he “recalled (the abuse)
after she was gone!” (that is after Fleur was gone) meaning that
recollections surfaced after the therapy with Fleur Bishop ended.
My notes indicate that work with
Jacqueline Segal a counsellor and in associated encounter courses he
undertook in 2002 allowed angry, frightening feeling to erupt which were
related to earlier abuse by the priest and violence from his father.
Subsequently, during a session on 24
November 2003, Mr Ellis reported that three years earlier and also five
to six years earlier he had suffered from unexplained physical symptoms
that had taken him to a naturopath for treatment. These symptoms
included fatigue, irritable bowel syndrome, pain and headaches.
In talking about the low energy levels
(fatigue) and physical symptoms he now relates these to sexual abuse, he
reported that “because (I was) becoming aware of the sexual abuse I
felt torn apart in that moment”. He was indicating that the abuse was
manifesting itself directly physically but was not then named or known
consciously and only with talk and resultant awareness could the
symptoms be understood and begin to move from physical sensations into
consciousness. In that session he said that he had initially bee “torn
apart in the centre of the body”. “Feeling and healing (occurred) to be
able to talk about it” and he had only been able to “name(d) it for a
couple of years”.
The case notes therefore indicate that
Mr Ellis was unaware of the extent of injury he had suffered as a
consequence of the abuse until after 2001 and he probably only became
initially aware in 2002.
Further the full extent of the severity
and impact of the injury suffered in terms of his psychological,
social, occupational and interpersonal functioning may not even have
been fully perceived by Mr Ellis when he consulted me in 2003.”
The Report of Dr Jonathan Phillips:
43 The Plaintiff’s solicitors arranged for
him to have a series of consultations with the well-known Consultant
Psychologist, Dr Jonathan Phillips. The consultations commenced on 24
August 2005. I admitted into evidence, over the objections of counsel
for the Defendants, Dr Phillips’ report of 15 September 2005. In it he
expressed this opinion:
“This is an unusual case. As a general
rule sexualised contact, particularly if the male perpetrator is a
paedophile, will be directed at a child (or children) during primary
school years. The situation in which Father Duggan involved Mr Ellis in
a sexualised relationship began when the plaintiff was 14 years old and
continued (at least intermittently) until the plaintiff was at least in
his twenties.
It is important to recognise that on
the balance of probabilities Mr Ellis had been an intelligent, sensitive
and impressionable adolescent at/about the time when Father Duggan
began to make sexual contact with him. The plaintiff was an altar boy
in the local parish and Father Duggan was perceived as a rather exotic
priest. There was a substantial difference in power between the
parties, this setting the scene for the damaging actions of the priest.
Also of importance is the careful
planning undertaken by Father Duggan, initially to establish after
school contact with Mr Ellis and in the progressive steps to achieve
substantive sexual contact including anal penetration. It is salient,
additionally, to note that Father Duggan arranged for the plaintiff to
take short holidays with him ostensibly with agreement by the
plaintiff’s mother.
Mr Ellis described himself as both
becoming sexually aroused in the course of sexual contact perpetrated by
Father Duggan and having joined the priest in partially consensual
sexual activities. Both require explanation. Specifically:
· The
early adolescent years are a period where sexual arousal occurs with
comparatively little stimulation. It is often the case that a person in
those years will be come aroused by a variety of sexual stimuli, either
of a heterosexual or homosexual type. That Mr Ellis recalls becoming
sexually aroused during contact with the priest should not be taken as
evidence that he is homosexual by disposition.
· The
issue of consensual activities or in the plaintiff’s words “partial
consensual” activities is complex, given the power differential between
the plaintiff and the priest. It may have proved difficult in that
situation for the plaintiff to do other than acquiesce. In my opinion
the liaison between the two parties could not realistically be deemed as
having been consensual or partially consensual.
It is generally agreed within my
profession that inappropriate early sexualised contact involving a child
or adolescent by a powerful older figure is always damaging to the
psycho/sexual/social development of a younger person. Psychological
damage can be immediate or delayed, and psychological damage can be
obvious or rather more subtle. Psychological damage can take numerous
forms, a matter I highlighted in my earlier report (7 October 2004).
The more obvious sequelae of sexualised contact perpetrated by a male
figure include various depression spectrum problems and various anxiety
disorders including post traumatic stress disorder. These disorders can
appear at the time of sexualised contact, or later. I stand by my
earlier report in which I noted that the less obvious problem of chronic
demoralisation is arguably of greater importance. Chronic
demoralisation can take many forms including reduced self-esteem,
uncertainty in various domains of life and a failure to perform the
necessary tasks of adulthood including marital/family relationships,
work relationships and performance in general.
Mr Ellis is an intelligent and capable
person. In normal circumstances the plaintiff should have had few
difficulties functioning satisfactorily in all area of his life, given
that apart from the sexualised contact perpetrated by Father Duggan he
had enjoyed a reasonable environment during his formative years.
The sexualised relationship perpetrated
by Father Duggan has altered Mr Ellis’ psycho/social/sexual development
in a number of ways. The following matters are of particular
importance:
· The
plaintiff experienced confusion regarding his sexual orientation,
particularly during his later adolescent and early adult years. He
attempted to move in homosexual circles, albeit with some difficulty,
and he came to the conclusion that his orientation was heterosexual.
Almost certainly the plaintiff’s sense of sexual orientation had been
disturbed by the actions of the priest.
· He
had experienced and continues to experience difficulties maintaining
close and intimate relationships. It becomes obvious from the
plaintiff’s history and material discussed by others that he has failed
to commit to his second marriage in the expected manner. In particular
he tends to question his part in the relationship and tends to push his
wife away from him. Almost certainly his capacity to accept closeness
or intimacy had been eroded by the actions of the pries.
· He
took time to settle into a career, firstly finding that he was
uncomfortable in the seminary, secondly moving away from a nursing
career and thirdly establishing a satisfactory and continuing career in
the law. It is of particular interest that the plaintiff failed to
relate in a satisfactory manner with others in his law firm, this
leading to the management committee asking him to resign. It is
probable that in the absence of the sexualised relationship perpetrated
by Father Duggan, he would have been able to achieve far better
relationships in the various important areas of his life.
All of the above are reasonable
indicators that Mr Ellis suffers a serious handicap across the important
domains of his life. Broadly, these matters are consistent with what
is described as a chronic demoralisation. A vicious cycle has been
established where the plaintiff has little faith in his capabilities and
where he fails in a number of major life areas, with this experience
causing further loss of faith in himself and further demoralisation.
Mr Ellis identified, in his
consultation with me, a number of ongoing problems and I note both Dr
Streimer and Ms Bishop came to a similar conclusion.
Suffice to say that Mr Ellis identified
himself as suffering substantive fatigue (including both physical and
psychological components), intermittent depressed mood (often with
substantive loss of motivation) ongoing interpersonal difficulties
(particularly in the relationship with his wife, and his inability to
make and hold friendships), a tendency to withdraw from others and a
flight into fantasy (particularly a past compulsive desire to seek out
pornography). Taking these matters together it can reasonably be stated
that the plaintiff has a chronic depression spectrum disorder probably
taking the form of an adjustment disorder with depressed mood DSM4
TR309.0, or alternatively a dysthymic disorder DSMIVTR 300.4. It is my
firm opinion that the causal pathway to the plaintiff’s depression
spectrum problems began with a sexualised contact perpetrated by Father
Duggan.
Considerable diagnostic weight must be
given to Dr Streimer’s report, given that my colleague had met with Mr
Ellis on at least eight occasions. My colleague found the plaintiff to
have symptoms of both a generalised anxiety disorder and a depression
spectrum disorder, and additionally to have avoidant personality traits
and a tendency to somatize. In a broad sense Dr Streimer and I both
noted the plaintiff to have chronic symptoms, but my colleague placed
greater emphasis on the plaintiff’s anxiety symptoms.
Similarly the report prepared by Ms
Bishop should be given considerable diagnostic weight, particularly as
she has had more therapeutic contact with Mr Ellis than any other
person. Ms Bishop opined that the plaintiff’s ongoing problems include
difficulties with trust, self directed rage and self harming behaviour,
anxiety, socially phobic behaviour and withdrawal, and occasional
agoraphobia, self loathing, low self esteems, sleeping difficulties,
depressive symptoms and problems with sexual identity. Ms Bishop has
given a useful and wide-ranging appraisal of the plaintiff’s state of
chronic demoralisation.
Taking all material available to me
currently, I state firmly that Mr Ellis is significantly handicapped as a
consequence of psychological damage caused during the years when he was
involved in a sexualised relationship perpetrated by Father Duggan.
The plaintiff has problems in three overlapping domains. He has chronic
symptoms across the domains of anxiety and depression of intensity
sufficient to interfere with the smooth conduct of his life and
sufficient to reduce significantly the quality of his life. He has
avoidant features within his personality, this adding to his impaired
communication with others. He lives in a state of chronic
demoralisation, this auguring poorly for his future.
Mr Ellis has already undertaken a
considerable amount of therapy, both as an individual and in group
settings. The plaintiff’s gains have been modest and he is failing in
the most important areas of his life. Whilst I am pessimistic regarding
the plaintiff’s future, I believe he should continue in regular
(fortnightly) therapy with Ms Bishop indefinitely. Emphasis should be
placed on practical matters rather than exploration of his past.
Therapy will need to include psycho education, esteem building and
training in interpersonal skills. At best the plaintiff will make
further slow progress.
There is one additional matter, which
should be addressed. Mr Ellis advised that his eldest brother committed
suicide in 1989. The plaintiff was 19 years old at the time. His
brother had already moved out of the family home when the plaintiff was
born. They did not share a close relationship as a consequence of this.
I do not believe, in the circumstances, that the plaintiff has been
affected adversely by the death of his brother.
Finally, it is more likely than not, if
Mr Ellis had not become involved in a sexualised relationship
perpetrated by Father Duggan, he would have undergone an essentially
normal process of psycho/social/sexual development during his adolescent
and early adult years and would have proved himself successful in the
important domains of life including holding a satisfactory marriage and
maintaining normal friendships and ensuring a normal professional life.”
The Evidence of Mr Ralph Pliner:
44 Mr Ralph Pliner, a solicitor, was until
31 December 2004 a senior partner at Baker & McKenzie. He swore an
affidavit dated 22 July 2005 in which he deposed:
“I have known the Plaintiff since about 1995.
Since about 1998/1999 I was directly
involved with the Plaintiff in assisting me with the discharge of work
with clients of Baker & McKenzie for which I was generally
responsible.
The Plaintiff’s legal work was
consistently of high standard and quality, and his ability to satisfy
client demands and retain clients was well established.
I recall in late 2001/early 2002 the
Plaintiff had an undiagnosed stomach ailment, and he was off work for
some time. Furthermore, at this time, or shortly thereafter, his
natural reticence became more pronounced, and this started to affect his
ability to communicate and properly manage his relationships with
clients. The issue was not raised directly with the Plaintiff until an
internal review meeting in March 2003.
On 6 March 2003 I attended a
professional review meeting with the Plaintiff, Tim Garood
(International Partner) and Vicki Kelley (General Manager). At this
meeting it was reported to the Plaintiff his management skills had
deteriorated to such an extent that associates felt threatened,
depressed and harassed. To the best of my knowledge and belief, this
was the first time feedback of this nature was reported to the
Plaintiff.”
45 Thereafter the affidavit, after identifying some 22 internal evaluations of and reports concerning the Plaintiff, concluded:
“It became apparent, at least from 2003
onwards, that the Plaintiff’s relationships with clients, peers and
subordinate staff members was deteriorating significantly.”
46 Annexed to Mr Pliner’s affidavit were
discussion notes dated 30 April 2004, obviously prepared in anticipation
of a meeting with the Plaintiff, the notes read:
“1. No bonus last year due to performance issues.
2. No salary review this year pending how you dealt with the performance issues.
3. We brought Stephenson Partnership in
to give you the best chance at dealing with these performance issues
back in May/June last year.
4. We have told you that these
performance issues relating to your management of relationships with
lawyers and support staff were in our eyes extremely serious back 12
months ago and that you had to resolve the issues in the following 12
months, which have now passed.
5. Despite all work of Stephenson
Partnership lack of progress in eyes of Evaluation Committee and in eyes
of Management Committee.
6. Accordingly, we have formed the view
that we must part ways. We want to make this process as stress free as
possible. We propose that you resign and work up until say 31 May or
earlier if you prefer and we will pay you until 30/9.
(If we cant’ reach agreement we will call a Partner’s Meeting and obtain the 75% requisite vote.)
47 Cross-examined by Mr Rushton, Mr Pliner
conceded that from as early as 1999 there were concerns in the firm
about the Plaintiff’s communication skills. However, he said that by
about 2000/2001 there had been some improvement
The Plaintiff seeks legal advice and commences proceedings:
48 The Plaintiff’s solicitor, Mr D J A
Begg, in an affidavit sworn 22 July 2005, deposed to the fact that he
was first consulted on or about 10 July 2004. The affidavit proceeded:
“Prior to that time, I am informed and
verily believe, that Mr Ellis had been attempting to resolve this matter
with the Catholic Church via a process known as “Towards Healing”.
When it became apparent that a resolution pursuant to this process was
not possible, I was instructed to consider, and, if necessary, institute
proceedings against the Catholic Church.
At the time I was first instructed, Mr
Ellis provided me with a copy of a Deed of Release which had been
provided by the Catholic Church to him during the “Towards Healing”.
This Deed of Release annexed hereto and marked with the letter “A”,
indicates that a release was sought from Mr Ellis by both His Eminence
Cardinal George Pell and the Trustees of the Roman Catholic Archdiocese
of Sydney.
On 28 July 2004, an initial demand was
sent by DBA to the Very Reverend Monsignor Brian Rayner of the Catholic
Archdiocese of Sydney. Annexed hereto and marked with the letter “B” is
a copy of this letter. On page 3 of this letter it is noted that a
Common Law damages claim would be brought both against His Eminence
Cardinal Pell and the Trustees of the Archdiocese.
No response having been received to this correspondence, proceedings were filed in this honourable court on 30 August 2004.
The Mental Health of Father Duggan;
49 The issue of the mental health of Father
Duggan in the period leading up to his death was an issue in the case,
at least as to prejudice suffered by the Defendants. As earlier
appears, the Plaintiff was concerned that for about 12 months after his
formal complaint, little or nothing was done to confront Father Duggan
with his allegations.
50 Dr Morrison read an affidavit by the
Plaintiff’s mother to the effect that she saw Father Duggan in 2003,
that he recognised her and was able to engage in some lucid
conversation. She, at that time, was unaware of the Plaintiff’s
allegations of sexual abuse.
51 Father Duggan was born on 24 January
1920. It appears that he had a cerebral stroke about 1994 and I have
the benefit of the report, part of exhibit 5, of neurologist, Dr Dudley
O’Sullivan, dated 25 June 1999. The report included these paragraphs:
“Father was in reasonably good health
apart from hypertension I gather, up until 5 years ago when he had an
acute event. He could not recall much of what happened. He collapsed
and was taken to Concord Hospital, where he was found to have a left
hemisphere infarct. His main difficulty was with speech and very little
right sided weakness. His speech improved, but it has always been
somewhat slow ever since. He feels the situation has steadily got
worse, although it was difficult to precisely determine the severity of
the deterioration. It is obvious he has impaired cognitive function and
he could not tell me much about what has been happening to him for the
last few years. It appears his balance and walking has deteriorated and
he has had some falls”.
52 I am satisfied that by June 2002 it was
not reasonably possible for Father Duggan to give adequate instructions
to solicitors in response to the Plaintiff’s allegations nor to provide
useful information to the Defendants. To that extent the Defendants
would be prejudiced if the case were allowed to proceed but whether that
prejudice is a decisive matter is a subject to which I will need to
return.
The Correct Defendants have been sued?
53 Although the Plaintiff has plainly
pleaded a good cause of action against Father Duggan in tort and there
is evidence to support that action, it seems to me that I must consider
whether there is evidence of a cause of action against the Defendants as
the Plaintiff does not wish to proceed against Father Duggan’s estate.
The matter arises by virtue of the express provisions of s58 (2) (b) of
the Act and the well established principle that the Court will not
grant relief of the kind sought here, if to do so would be futile
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.
56 In my opinion, there is no basis upon
which the cause of action can be maintained against Archbishop Pell, as
he is described in the Amended Statement of Claim. In respect of him I
would refuse the Plaintiff relief and dismiss the motion with costs.
The Claim against the Trustees:
57 A considerable body of evidence was tendered in relation to the claim against the Trustees who were incorporated under the Roman Catholic Church Trust Property Act 1936
(the Trustee Act). For each Roman Catholic Diocese in NSW, a corporate
body was established. In the case of Sydney it is called “The Trustees
of the Roman Catholic Church for the Archdiocese of Sydney”. The
trustees so incorporated are the Archbishop and the Diocesan
Consultants.
58 The Preamble to the Trustee Act originally provided:
“Whereas lands held on trust for or for
the use or benefit or for purposes of the roman Catholic Church in NSW
are vested in many different bodies of trustees, and owing to deaths and
other causes, the necessity for the appointment of new trustees
frequently arises: AND WHEREAS it is expedient that bodies corporate be
created for the purpose of holding, managing and dealing with lands so
held, that provision be made of the vesting in bodies corporate to be
created by this Act of lands so held, that conveyancing transactions in
respect of lands so held be facilitated and rendered less expensive.”
59 Section 4(1) of the Trustee Act
conferred upon each body corporate established by the statute perpetual
succession the right to acquire, hold and dispose of property and the
capacity to sue and be sued etc.
60 The statute then proceeded to vest all
church property within each diocese in the body corporate for that
diocese. Section 9 relevantly provided:
“Every body corporate created by this Act shall have power from time to time:
(a) To purchase, take on lease, or acquire by gift, devise, bequest, exchange or otherwise any real or personal property,
(b) in relation to any Church trust property at any time vested in it:
(i) to sell it, and to exchange it for
other land, and to transfer or convey Church trust property so sold or
exchanged to the purchaser or person taking in exchange, freed and
discharged from all trusts affecting the same in the hands of the body
corporate, and
(ii) to demise or let it for such term
at such rent and with or without taking premium, fine or foregift and
subject to such provisions as to the body corporate shall appear
desirable, and
(iii) to accept surrender of leases,
upon such terms and subject to such conditions as to the body corporate
shall appear desirable, and
(iv) to raise money on the security of it on such terms and conditions as to the body corporate shall appear desirable, and
(v) to declare trusts of it or of any
estate or interest init created by the body corporate for any Order or
Community of the Church or for any association of members of the Church
or for the use or benefit of or for any purpose of any such Order,
Community or association, and either to retain the property in relation
to which trusts are so declared, or to vest it, or any estate or
interest so created, in other trustees upon the trusts so declared, and
(c) For any purpose mentioned in this section to execute all such instruments as to the body corporate shall appear proper.”
61 In 1986, the statute was amended in a
number of respects, which had the effect of greatly expanding the powers
of the trustees. The Plaintiff contends that the amendments did little
more than recognise what had, in fact, been occurring, in that, so it
was submitted the trustees had already engaged in activities well beyond
the limited function apparently contemplated by the 1936 Act.
62 In support of his contentions regarding
the pre-1986 activities of the Trustees, Dr Morrison referred to the
Minister’s second reading speech in the Legislative Assembly on 20
November 1986 to business records and documents suggesting that the
Trustees may have carried on some activities pre 1986, at least of an
educational nature, and minutes of meetings of Diocesan Consultors
which, so it was submitted, indicated that the Trustees were involved
for many years prior to 1986 in a range of activities within the Church,
beyond mere property holding.
63 The actual amendments effected by the
1986 Act particularly relevant to this case were, first the addition of
words to the preamble “and also that other activities which are, or may
be, for the benefit of the Roman Catholic Church may be conducted by
(the Trustees)”.
64 There was also an amendment to s4 which added subsection(3) as follows:
“(3) The objects of a body corporate created by this Act include:
(a) the operation and conduct of educational, welfare and health institutions, organisations or other bodies, and
(b) the performance of all such acts,
matters and things of any nature (which may include, without limiting
the scope of this paragraph, borrowing money) as, in its opinion, are or
may be for its benefit or for the benefit of the Church.”
65 Dr Morrison also relied on the report of
an expert in Ecclesiastical Law, so far as it relates to the Roman
Catholic Church, Dr Rodger Austin, exhibit N. He said, relevantly to
the issues in this case:
“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.
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 S1, 1519]
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 S1, 215 S1’. In the 1983
Code of Canon Law the term used is juridic person. [CIC (1983) canon 113 S2]
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.
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].”
66 In Canada, the question of the liability
of a corporate trustee having similar, but by no means identical,
responsibilities to those conferred by the Trustee Act on the Trustees
at the relevant time arose in John Doe v Bennett (2004) 236 DLR (4th)
577. The judgment of the Court (McLaughlin CJ and Jacobucci, Major,
Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ) was delivered
by the Chief Justice who commenced his judgment in these terms:
1. Over a period of almost two decades,
Father Kevin Bennett, a Roman Catholic priest in Newfoundland in the
Diocese of St George’s, sexually assaulted boys in his parishes. Two
successive bishops failed to take steps to stop the abuse. Ultimately,
in 1979, a victim revealed the abuse to the Archbishop of the
neighbouring diocese, St John’s, who was also Metropolitan of the
broader ecclesiastical province. He referred the complaint to Bennett’s
Bishop but again nothing was done. The unnamed plaintiffs, 36 in
number, suffered greatly as a consequence of the abuse. Now adults,
they remain deeply wounded.
2. The plaintiff-respondents sued for
the wrongs that had been done to them. They sued Father Bennett; the
Roman Catholic Episcopal Corporation of St George’s (St George’s); the
bishop of St George’s at the time the lawsuit was commenced, Raymond
Lahey, the archbishop of St John’s at the time of the abuse, Alphonsus
Penney, the archbishop of St John’s at the time the lawsuit was
commenced, James MacDonald; the Roman Catholic Episcopal Corporation of
St John’s (St John’s) and the Roman Catholic Church. Father Bennett’s
liability is not at issue before this Court. The main issue is the
liability of St George’s.
3. The trial judge found Bennett
directly liable; St George’s and Bishop Lahey vicariously liable, and
Archbishop Penney liable in negligence. He dismissed the claims against
Archbishop MacDonald, St John’s and the Roman Catholic Church (2000),
190 Nfd. & P.E.I.R.277).
4. The Court of Appeal set aside the
findings of personal liability against Archbishop Penney and Bishop
Lahey and upheld the dismissal of the action against Archbishop
MacDonald, St John’s and the Roman Catholic Church. The majority found
St George’s directly but not vicariously liable (2002) NFCA 47 (CanL11)
(2002), 218 D.L. R. (4th) 276, 2002 NFCA 47)
5. St George’s appealed the finding of
direct negligence to this Court, and argued in addition that the Roman
Catholic Church was liable. The plaintiff-respondents replied that St
George’s is not only directly, but also vicariously liable for Bennett’s
wrongs. The plaintiff- respondents also filed a cross-appeal asserting
the liability of Lahey, MacDonald, Penney, St. John’s and the Roman
Catholic Church. However, they also asserted that the cross-appeal was
conditional on the success of St. George’s appeal from liability and
need not be considered in the event St. George’s appeal was dismissed.
6. The main issue on the appeal is
whether St George’s is liable to the plaintiff-respondents and if so, on
what basis. St George’s contends it is neither directly nor
vicariously liable; the plaintiff-respondents assert they are liable on
both grounds. St George’s also argues that the Roman Catholic Church is
liable.
7. All of the abuse took place in the
diocese of St George’s. A Roman Catholic diocese is a territorial
enterprise, composed of a number of parishes and administered by a
bishop or archbishop. Dioceses are constituted by the Pope, who also
appoints the bishop or archbishop. A number of dioceses may form an
ecclesiastical province. It is common for legislation to incorporate
bishops and archbishops as Episcopal corporations. I conclude that the
Episcopal corporation is the secular arm of the bishop or archbishop for
all purposes. The office of bishop/archbishop, the enterprise of the
diocese and the Episcopal corporation are legally synonymous.
8. The argument for direct liability of St George’s is as follows:
(1) The bishops of St George’s in
charge of Bennett (Bishop O’Reilly and McGrath successively) knew or
ought to have known that Bennett was abusing the plaintiff-respondents
and negligently did nothing to stop the assaults from continuing;
(2) The bishops (successively)
constituted the corporation sole of St. George’s under the relevant
legislation and acted on its behalf.
(3) Therefore St George’s is directly liable for these acts and omissions.
9. St George’s concedes the first
proposition (the negligence of Bishops O’Reilly and McGrath) and does
not seriously dispute the second. Its only argument is that St George’s
is not liable for the Bishops’ negligence, because the corporation
sole’s activities and powers are confined to holding property and do not
extend to the placement, direction and discipline of priests.
10. The narrow issue is therefore
whether the corporation sole’s activities and liability are confined to
matters pertaining to its property. The courts below rejected this
proposition. So would I. I base this conclusion on the legislation
creating the corporation sole and on its function or purpose.
11. The purpose for which
ecclesiastical corporations sole like St George’s are created is to
serve as a point of legal interface between the Roman Catholic Church
and the community at the diocesan level. The Church is at one and the
same time a spiritual presence in the community and a secular actor in
the community. The task of the corporation sole is to provide a bridge
between the two spheres for the diocese. On a secular level, the Church
interacts with members of the diocesan community in a host of ways. It
carries on a variety of religious, educational and social activities.
It makes contracts with employees. It transports parishioners. It
sponsors charitable events. It purchases and sells good and property.
To do these things, it requires a legal personality. That personality
is the corporation sole. To restrict the purpose of the corporation
sole to the acquisition, holding and administration of property is to
capture only a portion of the purpose it is intended to serve and to
artificially truncate its functions.
12. The role of the corporation sole as
a legal interface between the Church and the community is set forth in
the legislation creating it, An Act to Incorporate the Roman Catholic
Bishop of St George’s, S.N. 1913,c 12. The Act, quite simply,
incorporates the office of bishop, in all its aspects. It does not
confine itself to the holding of property belonging to the diocese.
13. Section 1 of the Act states that
“the Roman Catholic Bishops from time to time of the Diocese of St
George’s. shall be a body corporate … for the purpose of holding lands
and property, personal or otherwise”. However, the language of other
sections makes it clear the Corporation’s powers are not confined to
property. Section 3 provides:
The corporation shall have perpetual
succession and a corporate seal, with power to alter the same, and by
the name of the Roman Catholic Episcopal Corporation of St George’s
shall be capable in law of suing and being sued, pleading and being
impleaded in all Courts and places whatsoever, and shall have power to
take and to hold lands, and all other property whatsoever for
ecclesiastical, charitable and educational purposes and uses of the
Roman Catholic Church, and to lease, sell convey and dispose of the
same.
This section permits the Corporation to be sued on all matters, not just those relating to property.
14. Section 5 states the Corporation’s
property is held “for charitable, ecclesiastical and educational uses
of the Roman Catholic Church”, indicating legislative intent that the
corporation sole should carry on and be responsible for the wide panoply
of Church activities in the diocese. Similarly, s7 gives the
Corporation the power “to borrow money for the purpose of the said
Diocese” without restricting that purpose.
15. In sum, the bishop is a corporation
capable of suing and being sued “in all Courts” with respect to all
matters, and has the power to hold property and borrow money for all
diocesan purposes. The corporation can fairly be described as the
temporal or secular arm of the bishop. The argument that only the
bishop’s acts relating to property are acts of the corporation must be
rejected. All temporal or secular actions of the bishop are those of
the corporation. This includes the direction, control and discipline of
priests, which are the responsibility of the bishop. If the bishop is
negligent in the discharge of these duties, the corporation is directly
liable. Furthermore, this liability remains with the corporation sole,
as a continuing legal entity, even when the bishop initially responsible
moves from the diocese or retires from his position.
16. I would confirm the conclusion
below that the Roman Catholic Episcopal Corporation of St George’s is
directly liable for the wrongs to the plaintiff-respondents resulting
from its bishops’ failure to properly direct and discipline Father
Bennett.”
67 The Chief Justice went on to find that
“St George’s” was vicariously liable for the torts of Father Bennett but
that conclusion, in my opinion, would not be open to this court, in
light of the decision of the High Court in Lepore v State of NSW (2003)
77ALJR 558. There could, I think, be no suggestion that Father Duggan
was wrongfully performing part of his ecclesiastical duties when he
sexually assaulted the Plaintiff. The Supreme Court of Canada applied
tests different to those established by the Hight Court in Lepore.
However Lepore alone would not prevent the Trustees being directly and
vicariously liable for a failure to institute and implement proper
systems and controls.
68 The Defendants submitted that the
Trustees could not be a proper defendant for a number of reasons. In
the first place reliance was placed upon observations by Powell JA in Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney
(1999) NSWCA 75. However, the particular matter at issue here was not
argued in Nobrega which, in any event, concerned the liability of a
school. Moreover, unlike the case here, the Trustees were sued in a
representative capacity, a factor which seems to have been the point of
His Honour’s remarks.
69 It was also submitted that the question
of the liability of the Second Defendant is resolved against the
Plaintiff by the decision of the Court of Appeal in Archbishop of Perth v
A.H & J.C (1995) 18 HCSR 333, a case to which I have already made
reference in a different context. That case concerned Western
Australian legislation in relation to the Roman Catholic Church. It
also concerned claims of sexual abuse against members of the Christian
Brothers and claims of breaches of duty by the hierarchy of the Church
committed many years previously.
70 The relevant legislation created a
statutory corporation known as The Roman Catholic Archbishop of Perth.
Cole JA, with whom Meagher JA agreed, held that on its proper
construction the legislation was directed only to the holding
acquisition, disposition, and management of property. His Honour
observed that there was nothing in the act creating the corporation
which purported to render it liable for actions in tort arising from the
conduct of person being Catholic Clergy unrelated to property.
71 Despite the Defendants submissions, I am
not persuaded that I am bound to regard the decision of the Court of
Appeal in Archbishop of Perth as binding authority for the proposition
that the Trustees cannot be liable in this case. The Western Australian
Act differs in its terms and does not contain the wide powers conferred
upon the Trustees by the 1986 amendments. Those amendments, as I have
indicated, largely reflected, according to the Plaintiff’s contention,
the actual state of affairs.
72 There is authority for the proposition
that the doctrine of ultra vires does not relieve a company of tortious
liability (Campbell v Paddington Corp (1911) 1KB 869. In Trustees of the Roman Catholic Church for the Diocese of Sydney & Anor v Hogan
(2001) 53 NSWLR 343, the Trustees were sued, without apparent complaint
for tort, in the form of assaults committed upon a school pupil in
1984.
73 I am not required to decide the matter
finally. Although the evidence relied upon by the Plaintiff in the form
of minutes of meetings, records regarding pre 1986 activities beyond
mere land holding etc. are, in my opinion, somewhat equivocal, when such
evidence is coupled with the evidence of Dr Austin, and the evidence of
the submission of a draft release naming the Trustees, there is, I
think an arguable case that 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
Section 58 of the Act:
74 The section is in the following terms:
“58 Ordinary action
(1) This section applies to a cause of action founded on negligence nuisance or breach of duty, for damages for personal injury, not being a cause of action which has survived on the death of a person for the benefit of the person s estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944 , and not being a cause of action which arises under section 3 of the Compensation to Relatives Act of 1897 .
(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:
(a) any of the material facts of a decisive character relating to the cause of action
was not within the means of knowledge of the applicant until a date
after the commencement of the year preceding the expiration of the
limitation period for the cause of action, and
(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,
the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action
brought by the applicant in that court, and for the purposes of
paragraph (b) of subsection (1) of section 26, the limitation period is
extended accordingly.
(3) This section applies to a cause of action whether or not a limitation period for the cause of action has expired:
(a) before the commencement of this Act, or
(b) before an application is made under this section in respect of the cause of action.
75 The section, in effect, requires the
Plaintiff to establish that a material fact of a decisive character
relating to the cause of action was not within his means of knowledge
until after 14 March 1984, and that this action was commenced within one
year after that material fact was within his means of knowledge.
76 Section 57B of the Act provides:
“57B Interpretation
(1) For the purposes of this Subdivision:
(a) (repealed) …….
(b) the material facts relating to a cause of action include the following:
(i) the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded,
(ii) the identity of the person against whom the cause of action lies,
(iii) the fact that the negligence nuisance or breach of duty causes personal injury,
(iv) the nature and extent of the personal injury so caused, and
(v) the extent to which the personal injury is caused by the negligence nuisance or breach of duty,
(c) material facts relating to a cause of action are of a decisive character if, but only if, a reasonable person, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing:
(i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action, and
(ii) that the person whose means of
knowledge is in question ought, in the person’s own interests, and
taking the person’s circumstances into account, to bring an action on the cause of action,
(d) "appropriate advice", in relation to
facts, means the advice of competent persons, qualified in their
respective fields to advise on the medical legal and other aspects of
the facts, as the case may require,
(e) a fact is not within the means of knowledge of a person at a particular time if, but only if:
(i) the person does not, at that time, know the fact, and
(ii) in so far as the fact is capable of
being ascertained by the person, the person has, before that time, taken
all reasonable steps to ascertain the fact, and
(f) "limitation period" means a limitation period fixed by an enactment repealed or omitted by this Act or fixed by or under this Act. “
77 I am of the opinion that, at all
relevant times, the Plaintiff knew of the acts of Father Duggan on which
his cause of action is founded and that they caused some personal
injury. He was also aware of the identity of Father Duggan and had the
means of identifying the Second Defendant, established by public Act of
Parliament. I reject the submission that he was incapable of
identifying the Second Defendant until he received the draft release
naming it as a releasee.
78 The situation in relation to
subparagraph (iv) of Section 57 B (1) is not nearly as apparent. Its
meaning was explained by Kirby P in Ditchburn v Selstram Ltd (1989) 17 NSWLR 697 at 702 in terms which, in my view, have relevance to the present case:
“Knowledge of the “nature and extent” of injury:
In considering what are the “material
facts relating to a cause of action” it is important to remember that
Parliament has taken the trouble to provide an inclusive definition. By
s57 (1) (b) there is listed a series of “material facts”, amongst which
is “(iv) the nature and extent of the personal injury so caused.” These
words cannot be wished away. They are particularly relevant where the
“personal injury” relied upon is a disease or any other “impairment of
the physical or mental condition of a person” which is of gradual onset.
That such kinds of injury are within the statute is made plain by the
definition of personal injury” in s 57 (1) (a).
It has been suggested that the mere
fact of the knowledge that an injury has occurred causing symptoms is
enough to put the potential plaintiff on notice of the relevant
“material facts relating to the cause of action”. Upon this view, the
fact that an injured person suffers and knows the fact that he suffers a
headache would be sufficient to propel that person to seek medical
advice and to track down the precise diagnosis. Upon that approach, in
the present case, the claimant had symptoms in his chest, was asked
about asbestos employment and received a letter from he Board which
referred to exposure to asbestos. He therefore had knowledge, or the
means of knowledge, of sufficient facts to warrant and require him to
commence proceedings.
In support of this approach, the
opponent relied upon passages, in the judgment of McHugh JA in Brunton v
D O’Bryan & Co Pty Ltd (Court of Appeal, 4 August 1988,
unreported). These remarks appear to have been approved by Meagher JA
in Dousi v Colgate Palmolive Pty Ltd (No 2)
However, it was agreed properly in my
view, that this approach is not part of the binding rule of either
Brunton or of Dousi. In Brunton it was not followed by Clarke JA (the
other member of the majority). In Dousi it was not part of the basis
upon which Hope JA reached his conclusion. At least in a case such as
the present, it is my opinion that the approach is inapplicable. This
is because the statute, in terms, envisages its application to diseases
which may be of gradual onset. And by s 57(1)(b)(iv) it addresses
attention to that feature of the “material facts” which concerns “the
nature and extent of the personal injury so caused.”
79 The issue raised by s57 B (1)(b)(iv) of
the Act involves questions of degree and judgment to be approached, in
my opinion, in accordance with the observations of Kirby P expressed
above.
80 I find that the symptoms which, on the
evidence, had their genesis in the sexual assaults of Father Duggan
progressively worsened, particularly when the Plaintiff was obliged to
face other stressors in his life. Minds might, I think, legitimately
differ as to when it might reasonably be said that the Plaintiff was or
should have been aware of the nature and extent of the personal injury
inflicted upon him by Father Duggan. The Defendants submitted that the
Plaintiff was or should have been sufficiently aware years earlier, at
least by the occasion when he acknowledged at a meeting, that he had
been sexually assaulted in his youth. Despite the Defendants’
submissions, in my view the Plaintiff should be accepted that it was not
until September 2001, in his consultation with Mr Murray, that he had
the means of knowledge of the nature and extent of the personal injury
caused by the alleged sexual assaults of Father Duggan. The question
remains as to when, in accordance with s57 B (1) (c), the material fact
of the nature and extent of his injury became a decisive fact. Again,
minds might differ, but in my opinion a reasonable man, having taken
appropriate advice, might hesitate in regarding the facts at that stage
as justifying the bringing of an action. However, he would hesitate no
longer, in my view, once he realized, during 2004, that there was a
connection between Father Duggan’s assault and the grave economic
consequences then facing the Plaintiff.
81 I would hold that the Plaintiff’s case falls within the requirements of s58 of the Act.
Section 60 G of the Act:
82 Sections 60F and 60G are in the following terms:
“60F Purpose of this Subdivision
The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff
was unaware of the fact, nature, extent or cause of the injury, disease
or impairment at the relevant time. This procedure is available for
causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date.”
60G Ordinary action (including surviving action)
(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 .
(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action
to which this section applies, the court, after hearing such of the
persons likely to be affected by the application as it sees fit, may, if
it decides that it is just and reasonable to do so, order that the
limitation period for the cause of action be extended for such period as it determines. “
83 Notwithstanding the terms of subsection
(1) of s60G, it applies to causes of action accruing before 1 September
1990 by virtue of Schedule 5. Further Transitional Provisions (Dedousis v Water Board of NSW 125 ALR 193).
84 Section 60G must be read with s60 I which provides:
“60I Matters to be considered by court
(1) A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant s act or omission,
at the expiration of the relevant
limitation period or at a time before that expiration when proceedings
might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i) - (iii).
(2) Subsections (2), (3) and (4) of section
60E apply, with any necessary adaptations, in relation to applications
for orders under this Subdivision. “
85 In light of my findings above, I am of
the opinion that this application was made within 3 years after the
Plaintiff became aware or ought to have become aware of the nature or
extent of the personal injury (which by definition in section 11
includes disease and impairment of his mental condition) which he
alleges arises from the assaults perpetrated upon him by Father Duggan.
In my opinion, the Plaintiff did not become aware until September 2001
of the nature and extent of his injury nor, in my opinion, ought he have
become so aware at any earlier time.
Relief should be granted?
86 The Plaintiff having established
conditions precedent to the exercise of jurisdiction under ss58 and 60 G
is not necessarily entitled to the relief he seeks. His entitlement is
no more than to have the court exercise a discretion to grant an
extension of time. S58 confers a discretion, in my opinion, which is
difficult to distinguish from the Queensland statutory provisions
considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. S60 G expressly includes the phrase “just and reasonable” as the relevant criterion.
87 Principally, as it seems to me, the
question is whether there can be a fair trial of the Plaintiff’s action.
In considering this question, of course consideration of the undoubted
prejudice to the Defendants arising from the delay must loom large.
The Death of Father Duggan:
88 The fact that Father Duggan died in
October 2004 and was not, as I have found, able to provide a full
response to the Plaintiff’s claim is potentially an important matter.
However, in my opinion, the uncontested evidence of Mr Steven Smith
deprives that circumstance of much of its force.
89 On the evidence before me the Church and
hence, in my opinion, the Trustees had the opportunity as long ago as
1983 to investigate the alleged sexual misconduct of Father Duggan.
Again, on the evidence before me, it appears to have been somewhat
disinterested in doing so. I can infer that it would have been equally
disinterested in pursuing a complaint made at the time by the present
Plaintiff.
90 Of course there may be good reasons why
the complaint of Mr Smith was not properly investigated and documented.
But such reasons were not advanced before me. No evidence was adduced
from Father McGloin and this absence was not explained. It is rather
chilling to contemplate that he is the same Father McGloin referred to
in the judgment of the Court of Appeal delivered 16 September 2005,
against whom allegations were made similar to those made against Father
Duggan by Mr Smith and the Plaintiff.
91 I infer that Father McGloin’s evidence
would not have assisted the Plaintiff and in the circumstances, I would
not regard the death of Father Duggan as a matter of significance in the
matter before me.
Other Prejudice suffered by the Defendant:
92 Two affidavits were read by Mr Rushton
which established that the defendants will suffer actual prejudice if
the Plaintiff obtains the relief he seeks, namely the affidavits of John
Dalziell sworn 15 December 2004 and John Usher, sworn 19 July 2005.
93 Mr Dalziell, solicitor for the
Defendants, testified as to relevant enquiries made by him. His letter
to the English Benedictine congregation seeking information as to
whether there was any record of relevant complaints against Father
Duggan while he was at Fort Augustus produced a negative response. He
then testified as to a conversation with Father John O’Neill, currently
parish priest in the Diocese of Parramatta as follows:
“I said: Do you remember Father Aidan Duggan?
Father O’ Neill said: Yes, I served as
assistant Parish Priest with him for two weeks in Bass Hill before I
went to the Parish of Baulkam Hills. I remember that Father Farrar was
the Parish Priest then. I think that Father Duggan has passed away.
I said: Do you remember an altar server named John Ellis who was also in Bass Hill around 1974?
Father O’Neill said: I remember the name but otherwise cannot place him, remember we are going back 30 years.
I said: What do you remember about Father Duggan?
Father O’Neill said: I remember him as a
man of intelligence and culture, a gentleman. We got on well for the
short time we were at Bass Hill together.
I said: Do you remember ever seeing Fr. Duggan with John Ellis?
Father O’Neill said: No, I don’t remember that.”
94 Father Usher, a Catholic Priest and
presently (since May 2005) Chancellor for the Sydney Archdiocese,
provided the following material:
“Parish of Christ the King at Bass Hill – 1975 to 1979
For the purposes of swearing this
affidavit, I made enquiries of the Archdiocesan files in order to
ascertain who were the priest/s resident at the Parish of Christ the
King at Bass Hill (Parish) between the years 1975 and 1979.
AS a result of my enquiries, I understand that the following priests held appointments at the Parish:
(a) 1970 – 1978: Father John Carl Farrar; and
(b) 1978 – 1985: Father John Dougherty.
As a result of my enquiries, I also understand that the following assistant priest held appointments at the Parish:
(a) 1974: Father J O’Neill; and
(b) 1974 – 1979: Father A Duggan
The Archdiocese does not appear to hold
any records or documents concerning the Plaintiff’s alleged engagement
as an altar server in the Parish of Bass Hill between 1974 and 1979.
The Archdiocesan record also shows that Father Farrar died on 24
September 1998 aged 76 years.
The Archdiocese of Sydney 1975 - 1986
The following persons are the person
within the Archdiocese with canonical/spiritual authority in relation to
the Third Defendant in respect of the period 1975 to 1986;
(a) His Eminence Sir James Darcy Cardinal Freeman;
(b) His Eminence, Edward Bede Cardinal Clancy;
(c) His Grace, Archbishop James Patrick Carroll;
(d) His Lordship, Bishop Thomas William Muldoon;
(e) His Lordship, Bishop Edward Francis Kelly MSC
(f) His Lordship, Bishop Patrick Laurence Murphy;
(g) His Lordship Bishop Bede Vincent Heather;
(h) His Lordship Bishop John Edward Heaps; and
(i) His Lordship Bishop Geoffrey James Robinson.
I have reviewed the Archdiocesan records in respect of the period 1975 to 1986, and have adduced the following information.
(a) His Eminence Sir James Darcy Cardinal Freeman, the Archbishop between 1971 and 1983, died on 16 March 1991;
(b) His Eminence, Edward Bede Cardinal Clancy; the Archbishop between 1983 and 2001 has now retired;
(cc) His Grace, Archbishop James
Patrick Carroll, was ordained Auxiliary Bishop of Sydney from 1954 and
from 1965 to 1984 Auxiliary Archbishop of Sydney, died on 14 January
1995;
(d) His Lordship, Bishop Thomas William Muldoon, auxiliary Bishop between 1960 and 1982, died on 13 January 1986.
(e) His Lordship, Bishop Edward Francis Kelly MSC, Auxiliary Bishop between 1969 and 1975, died on 2 September 1994;
(f) His Lordship, Bishop Patrick Laurence Murphy, Auxiliary Bishop between 1977 and 1986, has now retired;
(g) His Lordship, Bishop Bede Vincent Heather, Auxiliary Bishop between 1979 and 1986 has now retired;
(h) His Lordship, Bishop John Edward heaps, Auxiliary Bishop between 1981 and 1992, died on 21 June 2004;
(i) His Lordship Bishop Geoffrey James Robinson, Auxiliary Bishop and Vicar General between 1984 and 2004, has now retired.
The Archdiocese holds personal files in
relation to all Catholic priests incardinated in the Archdiocese.
Personal files contain, among other things, documents relating to
appointments, commendations, complaints or allegations in respect of
each Priest.
I have reviewed the Third Defendant’s personal file. From that file, I understand that:
(a) the Third Defendant was born on 24
January 1920, and was therefore aged between 55 and 66 years during the
period of alleged abuse; and
(b) the Third Defendant was ordained on 8 December 1959 by His Eminence Sir Norman Thomas Cardinal Gilroy.
I also understand that in about 1954,
the Third Defendant moved to Fort Augustus Abbey in Scotland (Abbey)
where he spent 20 years teaching and ministering at the Abbey school.
To the best of my knowledge and belief:
(a) the Abbey school closed in 1999 and was canonically suppressed in 2001;
(b) the Abbey ceased to operate in 1998 due to declining numbers of monks;
(c) the Abbot during the time of the
Third Defendant’s attendance at the Abbey was Right Reverend Dom Mark
Dilworth OSB who died on 28 February 1974 at the age of 79; and
(d) another former Abbot of Fort
Augustus Abbey, Abbot Nicholas Holman, who also knew the Third
Defendant, died on 13 August 2001.”
Can there be a Fair Trial?:
The evidence undoubtedly establishes that
the Defendant will suffer prejudice if the action in tort is allowed to
proceed. It would, in any event, be inferred from the passage of such a
lengthy period, but in addition the Defendants have produced positive
evidence to the effect that persons whom one would expect could throw
some light on the Plaintiff’s claims are dead or have no relevant
recollection. Moreover, there have been stresses in the Plaintiff’s
life which may be unconnected to the assaults of Father Duggan and which
may have played some part in his mental condition. This will create
difficulties in any assessment of damages on the issue of liability.
However, this case does not concern, for example, some arcane medical
procedure or complex industrial accident. The Plaintiff was voluntarily
serving his church as an altar boy over a number of years. I infer
that there must be many people alive who could attest to that service
even though it took place 30 years ago. I also infer that there must be
many people alive, including those mentioned by Father Usher, who could
attest to the systems, if any, in place at Bass Hill and elsewhere to
protect persons such as altar boys from the sort of conduct alleged
against Father Duggan. Father Usher indeed does not suggest the
contrary. Mr Steven Smith, who appears to have knowledge of Father
Duggan’s sexual proclivities, is probably just as available to the
Defendants as to the Plaintiff.
95 In my opinion, the evidence sufficiently
establishes that there can be a fair trial of the Plaintiff’s action
albeit not a perfect one. In my opinion, it would be just and
reasonable to grant the Plaintiff the relief he seeks.
The Plaintiff’s claim for breach of Fiduciary Duty:
96 I have already mentioned that in his
Amended Statement of Claim, the Plaintiff pleads, in the alternative, a
count against the Defendants for breach of fiduciary duty. This is an
equitable cause of action to which the Act does not apply except by
analogy.
97 In their Statement of Defence, the
Defendants plead laches acquiescence and delay. Those defences will
have to be dealt with at trial. Dr Morrison submitted that the fact
that the case will need, in any event, to go to trial on the equitable
cause of action, constitutes a reason why the relief now sought under
the Limitation Act should be granted I reject that proposition.
98 The only matter before me is a motion
seeking relief under the Act and that as it seems to me is the only
matter with which I should deal. The claim for equitable relief is
presently irrelevant.
99 I make these orders:
1. I extend until 30 August 2004 the
limitation period for the causes of action pleaded in the Statement of
Claim herein against the Second Defendant, the Trustees of the Roman
Catholic Church for the Archdiocese of Sydney.
2. I dismiss with costs the Notice of Motion seeking orders under the Limitation Act against the First Defendant, Cardinal Pell.
3. Otherwise costs are reserved for further argument on a date arranged with my Associate.
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