Magann v The Trustees of the Roman Catholic Church of the Diocese of Parramatta

1. [1]

   HER HONOUR: There are two notices of motion before the Court.

2. [2]

   By notice of motion filed 5 April 2018, the defendant seeks an order firstly, that the Court separately determine and dismiss the proceedings on the ground that any liability of the defendant to the plaintiff (which is denied) was extinguished by operation of a Deed of Release between the plaintiff and defendant dated 16 October 2007 based on the same cause of action; or secondly, an order that the terms of the Deed of Release between the plaintiff and the defendant dated 16 October 2007 be specifically performed by the plaintiff.

3. [3]

   By notice of motion filed 5 June 2018, the plaintiff seeks an order that summary judgment be entered for the plaintiff against the defendant pursuant to 13.1 of the Uniform Procedure Rules 2005 (NSW) (“UCPR”).

4. [4]

   The plaintiff is Darren Peter Magann. The defendant is the Trustees of the Roman Catholic Church of the Diocese of Parramatta. The parties relied upon the plaintiff’s chronology binder (Ex 1) and their chronologies that are similar.

Background

1. [5]

   From June 1971 to June 1989, the plaintiff was a youth.

2. [6]

   Between 1983 and 1991, the plaintiff alleges that he was sexually abused by Michael McGloyn, a Roman Catholic Priest.

3. [7]

   Between 1987 and 1989, the plaintiff alleges that he was sexually abused by Henk Eijkman, a Roman Catholic Priest.

4. [8]

   On 5 July 2002, the plaintiff lodged a Towards Healing complaint with Professional Standards Office (this was placed on hold pending criminal and civil proceedings).

5. [9]

   The plaintiff has developed and suffers from diagnosed psychiatric conditions. I have referred to a number of them in this judgment.

6. [10]

   On 30 September 2002, the plaintiff attended a consultation with clinical psychologist Peter Allen, who concluded in his report:

7. [11]

   On 7 October 2002, the plaintiff consulted a psychologist, Judith Carroll, who concluded:

8. [12]

   On 17 October 2002, the plaintiff attended a medico legal appointment arranged by the defendant with Dr Boettcher, a consultant psychiatrist. Dr Boettcher stated:

9. [13]

   On 6 November 2002, the plaintiff attended a conference with Mr Weller, Bill D’Aprice (a solicitor) and Bishop David Walker at Thornleigh.

10. [14]

    On 19 May 2003, the plaintiff filed a statement of claim in the District Court of NSW.

11. [15]

    On 7 August 2003, the plaintiff consulted Dr Robertson, a consultant forensic and general psychiatrist. Dr Robertson opined:

12. [16]

    On 26 October 2003, the plaintiff made a statement to the Police.

13. [17]

    On 12 November 2004, Sorby DCJ handed down his decision granting the plaintiff an extension of time under the Limitation Act 1969 (NSW).

14. [18]

    On 4 November 2005, the Court of Appeal overturned the decision of Sorby DCJ and dismissed plaintiff’s amended notice of motion to extend the limitation period with costs.

15. [19]

    On 10 July 2006, the plaintiff attended a consultation with Dr Zolfaghari, a clinical psychologist, for his victims compensation claim. Dr Zolfaghari opined:

16. [20]

    On 14 August 2007, Robyn Bailey prepared an assessment report under Towards Healing protocol (“the Bailey report”). There is a factual dispute to whether the plaintiff has received the Bailey report prior to the settlement conference.

17. [21]

    On 11 September 2007, a discussion took place between Mr Salmon and Mr Davis. The Diocese was prepared to pay the plaintiff $70,000 to $100,000, which it considered reasonable given the seriousness of the case. (Aff, Salmon 12 September 2018, Annexure B).

18. [22]

    On 15 October 2007, there was a telephone conversation between Mr Wall and the plaintiff. The plaintiff told Mr Wall that he had spoken to his lawyer and barrister about the settlement conference.

19. [23]

    On 17 March 2016, the Limitation Act was amended providing for no limitation period for child abuse actions.

20. [24]

    On 2 May 2017, the plaintiff attended a conference with Mr Weller and Paul Davis at Parramatta. The conference was aborted due to the plaintiff’s emotional and aggressive behaviour.

21. [25]

    On 10 May 2017, the plaintiff consulted his general practitioner for a Centrelink medical certificate. His GP listed the plaintiff’s symptoms as “Anger, frustration, depression and anxiety.”

22. [26]

    On 16 October 2007, a settlement meeting took place at Blacktown Travelodge between the plaintiff, his wife and Paul Davis, facilitated by Shane Wall. After the meeting the plaintiff attended his solicitor’s office with the unsigned proposed deed. It is common ground that the plaintiff’s solicitor did not attend that meeting.

23. [27]

    The Deed of Release contained the usual clauses releasing the defendant from any past, present or future action arising from the subject matter of the claim and entitling the defendant to plead the deed in bar to any claim or proceeding by the plaintiff in respect of the complaint or any related matter. The deed also provided that the plaintiff acknowledged that by accepting the payment of $95,000 and executing the deed, he was not entitled to make any further approach to the defendant for assistance, damages or otherwise. Moreover, the defendant warranted in clause 6 of the deed that he has read and understood its terms and has obtained independent legal advice. The plaintiff signed the deed and it was witnessed by his solicitor, Mr Weller.

24. [28]

    The Deed of Release executed by the plaintiff, witnessed by his solicitor and returned to Bishop Manning with note indicating that the plaintiff wanted to “put this behind us” (Aff, Davis 12 September 2018, Annexure A). On 17 October 2007, the plaintiff was paid the settlement sum of $95,000. (Aff, Davis 12 September 2018, Annexure B).

25. [29]

    Between April 2014 and 6 June 2016, the plaintiff requested the defendant to pay or reimburse him for various expenses including legal fees, vehicle and accommodation costs, and treatment expenses. The defendant paid the additional amounts totalling $103,441.

26. [30]

    On 21 August 2017, the plaintiff filed a statement of claim in this Court.

27. [31]

    On 7 February 2018, the defendant filed its defence.

28. [32]

    On 19 September 2018, a reply was served by plaintiff. The reply pleads as follows:

29. [33]

    Senior counsel for the plaintiff foreshadowed that he will seek to amend the reply to allege that the plaintiff did not have capacity at the time he signed the Deed of Release due to brain damage relying on the opinion of Dr Robertson below.

30. [34]

    On 26 September 2018, a report of psychiatrist Dr Robertson raised the plaintiff’s incapacity in October 2007 for first time. Dr Robertson was asked and answered two specific questions. They are:

31. [35]

    On 28 September 2018, the plaintiff’s solicitor sent a letter to the defendant’s solicitor stating:

Determination of separate question

1. [36]

   UCPR 28.2 and 28.4(1) read:

2. [37]

   There are many authorities on this topic which include Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 (“Tepko”); Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36 at [436]; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [187]; Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671.30; and per Rolfe J in ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037.

3. [38]

   In Tepko, Kirby and Callinan JJ cautioned against the severing of issues by the court. Their Honours stated at [168] to [170]:

4. [39]

   Since this decision was handed down, the Local, District and Supreme Courts in New South Wales have been affected by the Civil Procedure Act 2005 (NSW). Sections 56, 57 and 60 are relevant.

5. [40]

   Sections 56, 57 and 60 of the Civil Procedure Act relevantly provide:

6. [41]

   In Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464, Brereton J suggested (at [6]):

7. [42]

   In addition, senior counsel for the defendant relied upon Valenzuela v Commonwealth Bank of Australia [2017] NSWSC 1243 (“Valenzuela”), a decision of Robb J which involves a similar factual situation to these current proceedings. In Valenzuela, the Bank had filed a notice of motion seeking the following relief:

8. [43]

   Robb J was satisfied that it was an appropriate case for the court to make an order as sought by paragraph 2 of the notice of motion. His Honour’s reasoning was that the question of whether Ms Valenzuela was bound by the Deed of Release and whether it precluded Ms Valenzuela from prosecuting the balance of her claims in her statement of claim were genuine separate questions. If they were determined in the Bank’s favour, it would lead to the dismissal of Ms Valenzuela’s statement of claim, which would save substantial costs and delay as it would be unnecessary for the parties to prepare and litigate the balance of the issues. Such a course was in Ms Valenzuela’s interests because it could well substantially reduce the amount of the legal costs that she might otherwise be at risk of being ordered to pay to the Bank.

9. [44]

   Robb J at [66] to [72] set out the legal principles as follows:

10. [45]

    His Honour concluded at [73] to [75]:

11. [46]

    Robb J made the following orders:

12. [47]

    Robb J answered the questions as follows:

13. [48]

    The defendant submitted that the Court in advance of the final hearing should determine the separate question of the enforceability of a Deed of Release entered into between the parties on 16 October 2007 as the deed, if upheld, will provide a complete defence to the case. It would therefore finally dispose of the whole of the proceedings without the need for a final hearing.

14. [49]

    While it is not expected that the evidence of the abuse itself will be challenged given the outcome of an independent review arranged by the defendant, there are a number of issues which will require consideration by the Court. Senior counsel for the defendant estimates that a trial on its merits would possibly take two to three weeks. The determination of the separate question will take one to two days.

15. [50]

    The plaintiff will be required to give evidence in the case going to his damages claim, including exemplary damages. Other lay witnesses may also be called. In addition, the plaintiff has served reports from two psychologists and one psychiatrist, and the defendant has one report from a psychiatrist. These will need to be considered by the Court. The costs of preparing and running the case will be substantial for both parties.

16. [51]

    The defendant submitted that the plaintiff has not demonstrated any fact or circumstance which might vitiate the enforceability of the deed. In the circumstances, the plaintiff was legally represented before the deed was entered into, spoke to his solicitor and senior counsel a few days prior to the meeting, spoke to his solicitor on the day of the meeting, and had the deed explained to him by his solicitor. There is no warrant to challenge the enforceability of the deed. It is binding and the defendant is entitled to rely on it.

17. [52]

    The fact that further moneys were paid by the defendant to the plaintiff does not affect the enforceability of the deed. The defendant should not be penalised for providing additional help with good grace to someone apparently having difficulties.

18. [53]

    For these reasons, the defendant submitted that the Deed of Release is enforceable and is a complete answer to the plaintiff’s claim. Pursuant to UCPR 28.4, the Court should hear this aspect of the defence to the claim as a separate question and should dismiss the proceedings with judgment granted in favour of the defendant. This would save substantial legal costs for both sides, save judicial time and be consistent with the just, quick and cheap resolution of the dispute between the parties.

19. [54]

    The plaintiff submitted that a Deed of Release, which may otherwise be finally binding upon the parties, will be avoided if one of the parties behaved unconscionably in the relevant sense.

20. [55]

    Bishop Manning intended the plaintiff to be aware of the contents of the assessment before he signed the Deed of Release. The assessment was referred to in the deed. There was no rational basis to refer to the assessment if it was not intended for the plaintiff to see it prior to signing the deed. The Bishop’s letter, which bore the same date as the deed, both provided him with a copy of the deed and referred to the Bishop’s belief that the plaintiff had already been provided with a copy of that deed.

21. [56]

    The plaintiff further submitted that the subsequent payments to the plaintiff of amounts effectively tripling the “final offer” were readily authorised by the person with whom he had been negotiating. These point to a consciousness in the mind of the negotiator that he had actively misled the plaintiff and failed to follow the Bishop’s instructions to show him the assessment before the deed was signed.

22. [57]

    In the absence of an evidence to the contrary, it may be readily inferred that:

    1. (1)

       The arrangement to meet the plaintiff in the absence of his legal advisor was done deliberately to take advantage of his vulnerability and to influence him, without the assistance of any legal advice;

    2. (2)

       The offer of payment by 5:00 pm on the same day he signed the deed was designed to put pressure on him while he was in a vulnerable state; and

    3. (3)

       The negotiators were well aware that they were either acting directly contrary to the Bishop’s understanding of the events and his intentions, or that Bishop Manning changed his position to deny access to the report.

23. [58]

    It was apparent to the defendant from the assessment and findings of the Bailey report that if the matter went to trial, it would likely have been indefensible. Not only would a judgment have resulted in highly negative publicity, but it would also have been for a sum considerably greater than the proposed settlement. Accordingly, the plaintiff submitted that the conduct of the negotiators was relevantly unconscionable because the court would infer that the plaintiff would have not signed the deed had he been made aware of the assessment, its findings and conclusion.

24. [59]

    Finally, the plaintiff submitted that the defendant’s notice of motion has no content if the deed is avoided. If it is not, however, there is nothing identified that remains to be specifically performed.

25. [60]

    The determination of the separate question involves consideration of the plaintiff’s mental capacity on 16 October 2007, as well as what took place at the settlement conference and the signing of the Deed of Release. This is the subject of factual dispute.

26. [61]

    The factors that militate against the determination of a separate question are as follows. If it is unsuccessful, there will be an overlap of some witnesses being required at the determination of the separate question and the trial. Those witnesses include the plaintiff, those present at the meeting, and the plaintiff’s solicitor, Mr Weller. I accept that the witnesses’ credibility will be in issue. Further, as the plaintiff’s medical capacity is in issue, I anticipate there will be a conclave of psychiatrists and Dr Robertson. A trial on all issues will take two possibly three weeks in addition to the determination of a separate question that will have taken one to two days of court time.

27. [62]

    The factors that are in favour of ordering the separate determination are as follows. The question is a discrete one. If successful, it will render a full trial unnecessary. There is a bright line differentiating the issues to be determined at the separate determination from those that will be determined at the trial. If the separate determination of questions is successful, the parties may be able to settle or agree on damages. These proceedings are no longer statute barred. It will take one to two days so far as s 56 of the Civil Procedure Act is concerned. It will incur less costs and court time. It will be resolved at an earlier date as there is a longer waiting time to obtain a trial with an estimate of two weeks.

28. [63]

    The issues for separate determination in these current proceedings are similar to those in Valenzuela. Valenzuela involved a separate determination to set aside a Deed of Release on the basis of duress (as opposed to unconscionability).

29. [64]

    In the exercise of my discretion, the reasons in favour of a separate determination far outweigh the reasons against it. Pursuant to Part 28.2 of the Civil Procedure Act, I order that there should be a separate determination of the following questions:

30. [65]

    Costs of the defendant’s notice of motion filed 5 April 2018 are reserved.

Plaintiff’s notice of motion

1. [66]

   On 5 June 2018, the plaintiff filed a notice of motion seeking summary judgment against the defendant pursuant to UCPR 13.1.

2. [67]

   UCPR 13.1 relates to summary judgment. It reads:

3. [68]

   The plaintiff seeks that judgment be entered in favour of the plaintiff in relation to liability and that there be a hearing for damages to be assessed. The plaintiff submitted that on 14 August 2007, Ms Robyn Bailey wrote an assessment for the defendant in the Bailey report under the Towards Healing Protocol. In that report, she says at [52.5]:

4. [69]

   The plaintiff alleges that if the contents of the Bailey report were adopted by Bishop Manning, this constitutes an admission that the sexual abuse occurred.

5. [70]

   Senior counsel for the plaintiff, in the alternative, sought that the notice of motion be adjourned to a later date.

6. [71]

   On 7 February 2018, the defendant filed its defence. Amongst other things, the defendant denies that it is liable for the causes of action pleaded by the plaintiff. In particular, it denies that it was negligent, vicariously liable or in breach of a fiduciary duty owed to the plaintiff. For the purposes of an application for summary judgment, its defence should be taken at its highest, and all of the list of issues would need to be dealt with before liability could be found.

7. [72]

   In the light of the defence and the issues raised in it, the plaintiff’s application for summary judgment is misconceived. There is no judgment which could properly be given. The plaintiff points to the Bailey report of going to whether the abuse took place. That is not binding on the Court or the defendant. The point is that even if it is accepted that the abuse took place, there are a number of other issues which require determination before liability against the defendant could be established. The liability issue is not simply whether the two priests sexually abused the plaintiff. The proceedings are against the corporate trustee of the Catholic Diocese of Parramatta. They are entitled to raise defence to the claim and have that determined (if the separate question is not determined in their favour).

8. [73]

   There is no utility or power to make any summary judgment order in favour of the plaintiff and the motion should be dismissed with costs. UCPR, 13.1(b) has not been met and could not be in the circumstances here.

9. [74]

   In oral submissions, senior counsel for the defendant submitted that the plaintiff’s solicitor has not filed an affidavit, wherein he provides evidence that it is his belief that the defendant has no defence to the claim. This is required under UCPR, 13.1. It is therefore a complete answer to the plaintiff’s claim for summary judgment.

Conclusion

1. [75]

   While the plaintiff sought an adjournment, no real reasons were proffered. Hence, I decline to grant an adjournment.

2. [76]

   So far as whether the defence is arguable, while the defendant may admit that the sexual abuse occurred prior to the trial, there are other issues to be addressed before liability can be established. These are firstly, did the defendant owe the plaintiff a non delegable duty of care? Secondly, is the defendant vicariously liable for the conduct of McGloyn and Eijkman including whether priests are properly characterised as employees for that purpose? Finally, did the defendant owe a duty of care to the plaintiff in relation to the risk of abuse by McGloyn and Eijkman, including as to whether it knew of any such risk? If so, what was the scope of that duty and what precautions should it have taken? Did the defendant then breach the duty of care, including whether the precautions taken by it were reasonable in the circumstances?

3. [77]

   The plaintiff has not complied with UCPR, 31(1) and this is an impediment to this Court granting summary judgment.

4. [78]

   It is my view that the defendant’s defence is arguable. The defence should not be struck out or dismissed. The plaintiff’s notice of motion filed 5 June 2018 is dismissed.

Costs

1. [79]

   Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis.