Miller v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle

1. [1]

   HER HONOUR: By notice of motion filed 7 August 2017, the defendant now seeks that paragraph 21 and paragraph 24(a) and (b) that refer to paragraph 21 of the proposed further amended statement of claim (“PFASC”) be struck out.

2. [2]

   The plaintiff is James Mathew Miller. The defendant is the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle. The defendant relied upon the affidavit of Alexander Kohn dated 8 December 2017.

The relevant Uniform Civil Procedure Rules (“UCPR”)

1. [3]

   The defendant relied upon Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 14.14 and 14.28. The plaintiff submitted that the PFASC should not be struck out as it does not offend either UCPR 14.14 or 14.28.

2. [4]

   UCPR 14.14 reads:

3. [5]

   And UCPR 14.28(1) and (2) read that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court. The court may receive evidence on the hearing of an application for an order under subrule (1).

Pleading generally

1. [6]

   In McGuirk v The University of New South Wales [2009] NSWSC 1424 (“McGuirk”) at [21] to [35], Johnson J set out the function of pleadings. I will only reproduce [30] to [35] of McGuirk as they are relevant here.

2. [7]

   Overall, the function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendants. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that is, a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA, En Liquidation v Akhil Holdings Limited [1990] HCA 11; 169 CLR 279 at 286-287 and 302-303.

Overview of the pleading in the PFASC

1. [8]

   In 1978 and 1979, the plaintiff was enrolled as a student at St Pius X College Adamstown NSW (“the school”) in years 10 and 11. From 1973 Father Thomas Brennan was employed or appointed as a principal and priest at the school. The plaintiff alleges that in 1978, while a student at the school, he was sexually abused on at least five occasions by the principal on school premises during school hours. (“the abuse”). As a result of the abuse, it appears that the plaintiff alleges that he suffered a recognised psychiatric injury. (PFASC [14]). The plaintiff seeks damages, including compensatory, aggravated, exemplary and punitive damages, damages for misleading or deceptive conduct, plus interest and costs (PASC [17]) to [19].

The relevant law

1. [9]

   The liability of a school authority for injury suffered by a pupil is discussed in The Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258 (“Introvigne”). In Introvigne the High Court stated (at 269 and 271):

2. [10]

   In Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 (“Dederer”) the High Court (per Gummow J) set out the settled legal principles in relation to negligence. They are as follows (at [18]):

3. [11]

   The provisions of the Civil Liability Act 2002 (NSW) are also relevant, in particular ss 5B and 5C.

4. [12]

   Senior counsel for the defendant referred to S1 v The Trustees of Marist Brothers [2016] NSWSC 970 (“Marist Brothers”), a strike out application relating to sexual abuse of a student at school run by the Trustees of the Marist Brothers. In paragraphs 24 and 36 I stated:

The disputed paragraphs of the PFASC

1. [13]

   This is the first time that an allegation of sexual abuse had been made against Father Brennan when he was the principal of the school. There had been prior complaints of sexual abuse in relation to Father Denham who taught at the school.

2. [14]

   I shall now deal with the paragraphs of the PFASC that are in dispute.

3. [15]

   Paragraph 21 of the PFASC pleads:

4. [16]

   The pleading in the PFASC continues at paragraphs 22, 23, 24(a) and (b) as follows:

5. [17]

   Paragraph 24(a) and (b) also refers to paragraph 21. It pleads:

6. [18]

   Hence, if paragraph 21 is struck out, once again it follows that paragraphs 24(a) and (b) should also be struck out.

7. [19]

   There has been correspondence between the parties (Ex A). The objections to paragraph 21 fall into three main categories. They are, the first sentence of 21; sub paragraphs (a) to (d); and, sub paragraphs (e) to (g). The gravamen of the defendant’s complaint in relation to paragraph 21 is that the alleged knowledge of the defendant, the Maitland-Newcastle diocese, goes beyond the knowledge of prior sexual abuse that occurred at the school. The defendant objects to the words “of matters relevant to” in the first sentence of paragraph 21. If the pleading is permitted to include Fathers McAlinden and Fletcher then the first sentence of paragraph 21 should be allowed as they fall into the category “of matters relevant to”.

8. [20]

   The defendant does not complain about the pleading of the alleged knowledge of the sexual abuse by Father Denham who taught at the school. While his name is pleaded in paragraph 21(c) the pseudonyms of those five students who he sexually abused are not. Those pseudonyms need to be specified as the defendant needs to be aware of the identity of the students who it is alleged that Father Denham abused in order to meet the case brought against them. Hence, paragraph 21(c) needs to be amended.

9. [21]

   The defendant’s solicitor deposed firstly, that the report of Ms Cunneen SC (portions extracted later in this judgment) runs to approximately 700 pages and there is no mention at all of the school or students at the school; secondly, the Commission dealt with the activities of two priests Father McAlinden and Father Fletcher and as to what knowledge the diocese had; in other words, what the various bishops from time to time knew of their activities; thirdly, a vast number of documents were looked at and witnesses were called; and finally, there were questions about whether or not there had been communications between the police and the diocese, which gave rise to that inquiry.

10. [22]

    The defendant submitted that there is simply no evidence that Fathers McAlinden and Fletcher had anything to do with the school. As the Maitland-Newcastle diocese is very large the defendant says that it would experience difficulty if general allegations of abuse by any priests of the diocese were pleaded, because in these circumstances the plaintiff’s application for discovery would have to include all documents relating to abuse by any employees of the diocese involving priests and employees (T620-37). In this regard, the defendant referred to s 56 of the Civil Procedure Act 2005 (NSW). Hence, the defendant objects to the references to Father Denis McAlinden and Father James Fletcher on the basis that they were priests in other areas of the Maitland-Newcastle diocese and did not have anything to do with the school.

11. [23]

    The plaintiff submitted that the actions of Father McAlinden and Father Fletcher are relevant because they are alleged to have committed sexual abuse in their parishes at the same time as the plaintiff’s abuse occurred at the school. Between 1976 and 1978, the diocese was headed by Bishop Clarke. The plaintiff’s case goes further and alleges that Bishop Clarke had knowledge that these two priests sexually abused young people during the same years as the plaintiff was sexually abused at the school and he failed to take any action against those priests, nor did Bishop Clarke introduce any safe systems to protect young persons from sexual abuse in the parishes of those priests and at the school. (T6.2.8).

12. [24]

    On 17 May 1976, Monsignor Cotter wrote to Bishop Clarke about certain “de sexto” incidents associated with Father McAlinden in the Forster-Tuncurry parish (“the Cother-Clarke letter”). This letter is pleaded as knowledge of the defendant in paragraph 21(c) of the PFASC.

The report

1. [25]

   Volume 1 of the report entitled “Special Commission of Inquiry into matters relating to the police investigation of certain child sexual abuse allegations in the Catholic Diocese of Maitland-Newcastle”, dated 30 May 2014 (Ex 1) authored by Margaret Cunneen SC refers to the actions of Father McAlinden and Father Fletcher. At 1.13 to 1.17 she reports:

2. [26]

   Further, under the heading “Term of reference 2”, Ms Cunneen reports:

3. [27]

   The pleading in this current PFASC is narrower than the pleading contained in the statement of claim set out in Marist Brothers. The pleading in this current PFASC is confined to sexual abuse that occurred within the Newcastle-Maitland diocese namely from 1976 to April 1978 during the period of time that the plaintiff alleges he was sexually abused at the school. During this time it is alleged that Bishop Clarke had knowledge Father McAlinden and Father Fletcher had been sexually abusing children in their parishes and he had failed to take any action.

4. [28]

   In paragraph 24(a) it is alleged that the defendant breached its duty of care from 1976 to April 1978 because there was no proper system at the school for identifying and preventing abuse of the kind perpetrated by Father Brennan upon the plaintiff. Further, there was no proper system at the school in response to the knowledge referred to in paragraph 21.

5. [29]

   In other words, the first part of the plaintiff’s case is founded upon there being no proper system at the school at the relevant time. While it is alleged that the Bishop at the time had knowledge of two priests sexually assaulting children of their parishes, the system that should have been employed in relation to the priests’ parishes would differ in some respects from the system that allegedly should have been in place at the school. As in Marist Brothers, I accept that the trustees and teachers or staff and students who were aware of the sexual abuse in the school, during the period between 1976 to April 1978 inform the scope of the duty of care. In this PFASC, the reference seems to be confined to one teacher, Father Denham at the school. This need to be clarified.

6. [30]

   It is at least arguable that in the light of the knowledge allegedly possessed by Bishop Clarke, that he should have put proper systems in place to ensure the safety of children from sexual assault regardless of whether it occurred by the two identified offending parish priests that had been identified to him and Father Fletcher who was teaching at the school. As the alleged knowledge currently pleaded is limited to the same period of time and involves two other priests in the diocese aside from Father Denham at the school, in my view discovery would not be an onerous process as it concerned three identified priests for a relatively short period of time from 1976 to 1978. What was or was not done in response to the relevant knowledge possessed by Bishop Clarke is also outlined in the report. Whether or not this pleading will be ultimately successful at trial is not a matter for me to canvas. Paragraphs 21(a) and (d) should be repleaded in the manner outlined above. The words “at least” should be removed so that the pleading is specific.

7. [31]

   As previously stated, the defendant also objects to paragraphs 21(e) to (g). In paragraph 21 the plaintiff pleads that by failing to prevent that abuse in those periods “the defendant created an environment where the defendant’s staff behaved in a predatory manner against students to commit abuse against students.”

8. [32]

   The defendant submitted that they have requested particulars as to the identity of staff the plaintiff is talking about, what students and what conduct the plaintiff is relying upon and these requests have gone unanswered. According to the defendant, if the plaintiff is alleging that because no action was taken in relation to Father Brennan and there was no proper system in place and there was knowledge of the sexual abuse by Father Denham that also resulted in no action being taken against him, there was a risk that further sexual abuse of students would occur.

9. [33]

   The defendant also submitted that sub paragraphs (e) and (f) do not plead material facts and the plaintiff should plead that the school had knowledge of certain matters. According to the defendant it should be done properly and he should not make unspecified allegations about the staff being predators without identifying who they are.

10. [34]

    So far as paragraphs 21(e) to (g) are concerned, the plaintiff articulated, his pleading more specifically his claim in an answer to particulars dated 8 December 2017 where he says:

11. [35]

    The answer to particulars is better than the pleading but still makes unspecified allegations. Paragraphs 21(e) to (g) should be repleaded.

12. [36]

    The result is that paragraph 21, 24(a) and (b) of the PFASC should be repleaded. The onus is on the plaintiff to replead these paragraphs. It is not for this Court to attempt to draft them. The plaintiff is to forward a new PFASC to the defendant within 14 days. The defendant is to notify the plaintiff of its consent or the reasons for its objections within 14 days. The notices of motion filed 7 August 2017 are stood over to Friday 16 March 2018 before Harrison AsJ at 10.00 am.

13. [37]

    Costs are reserved.

    1. (1)

       The plaintiff is to forward a new proposed further amended statement of claim to the defendant by 16 February 2018.

    2. (2)

       The defendant is to notify plaintiff of its consent or the reasons for its objections by 2 March 2018.

    3. (3)

       The notices of motion filed 7 August 2017 are stood over to Friday 16 March 2018 before Harrison AsJ at 10.00 am.

    4. (4)

       Costs are reserved.