CM v Trustees of the Roman Catholic Church for the Diocese of Armidale; EM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWSC 1000 (on Caselaw).
Cavanagh J
Orders were made in this matter that the proceedings were permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW).
The alleged abuse was a single incident said to have occurred in 1976. The alleged perpetrator died in July 2020, some 6 months before notice of a claim was given.
The claim included pleadings of direct liability (negligence) and vicarious liability for the acts of the alleged perpetrator and for the acts of another person who knew or ought to have known of the alleged perpetrator’s conduct. She had also died.
The court accepted that the defendant had carried out all reasonable enquiries. “Whilst it is not up to the plaintiff to identify what further information might be available, the Court is not involved in a process of speculation. The plaintiff’s submission that the defendant has not carried out all reasonable enquiries is not supported by the evidence.” ([106]).
The court concluded ([122]-[123]):
In all these circumstances, I do not consider that any of the matters raised by the plaintiffs are fatal to the defendant’s application for a stay or are such that I should find that the defendant might be responsible for the significant prejudice which arises due to its inability to meaningfully participate in any hearing by adducing evidence on a number of issues.
I am satisfied that the defendant is unable to have a fair trial. These are exceptional circumstances. The defendant is required to meet more than an allegation about the conduct of the perpetrator of the abuse. Because the plaintiff pleads vicariously liability on two bases, the defendant is required to meet allegations about the knowledge and conduct of a number of other persons who might include Sister Rita, Bishop Kennedy and Dr Macpherson. The defendant is unable to meaningfully participate in the trial, not just in respect of the primary allegation, but in respect of all of the causes of action pleaded by the plaintiff.
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