Matthew Blundell

25.10.23

Yesterday, the Legal and Constitutional Affairs Legislation Committee in Senate Estimates with the AG Department raised the fact that the High Court granted special leave to appeal in Bird v DP (a pseudonym) [2023] VSCA 66 (3 April 2023).

Senator SHOEBRIDGE: “In the last week, the High Court granted special leave in the case of DP and Bird. It’s understood the court tends to revisit its potential findings on vicarious liability—in particular, reviewing the Victorian Court of Appeal’s clear findings of the duty of care and vicarious liability held by school authorities, churches and not-for-profit groups. It’s been indicated that most states intend to intervene in that case.

Ms Jones: Has there been or will there be a brief to the Attorney about intervention in that case, given its impact?

Senator SHOEBRIDGE: If it shuts the door for civil litigation and recovery under tortious claims, that will almost certainly drive further applicants into the Redress Scheme, won’t it, ipso facto.

Ms Jones : I don’t disagree that that’s a potential outcome.

Senator SHOEBRIDGE: Should we expect at least the Attorney will be advised in relation to that and options given for intervention?

Ms Jones : We obviously advise the Attorney on a range of issues, particularly matters before the High Court.

Senator SHOEBRIDGE: I’m asking particularly about DP and Bird, given its likely impact on the Commonwealth Redress Scheme insofar as Commonwealth institutions may also be impacted.

Ms Jones : I think that is something where we will engage with other relevant departments, do the appropriate assessment and then consider what advice we provide to the Attorney.

Senator SHOEBRIDGE: Is the department aware that the decision in GLJ on permanent stays is due to be handed down on 6 November?

Mr Collett : Yes, we are aware.

Senator SHOEBRIDGE: Again, that was a case where the Attorney chose not to intervene. Is that right?

Mr Collett : That’s correct.

Senator SHOEBRIDGE: Is the department aware that the decision in GLJ on permanent stays is due to be handed down on 6 November?

Mr Collett : Yes, we are aware.

The full transcript is available here.