Matthew Blundell
04.10.23
In a recent post, we wrote in anticipation of the High Court handing down its judgment in GLJ v Trustees of the Diocese of Lismore. The High Court has announced a ceremonial sitting to mark the retirement of the Honourable Susan Mary Kiefel AC as Chief Justice of Australia. This means that we can expect GLJ to be handed down during the High Court’s next sitting dates between 9 October 2023 and 19 October 2023; in a matter of weeks.
Of equal significance, the High Court in its List of Business for Sittings has published that on 20 October 2023 it will hear the application for special leave to appeal in Bird v DP (a pseudonym) [2022] VSCA 66.
DP v Bird
In DP v Bird, the Diocese ultimately admitted it owed a duty of care to the plaintiff, who was a catholic parishioner in the Catholic Diocese of Ballarat. The content of that duty of care owed to DP was in relation to the conduct of priests appointed to the Port Fairy parish in their dealings with parishioners and their families [283]. The court held that the risk of harm, that Coffey in the course of his pastoral duties might assault a parishioner’s child [288] was not foreseeable at the time of the abuse because: (a) there was no evidence that could establish actual knowledge in the Bishop or Diocese of Coffey’s prior offending; and (b) Coffey’s prior abuse of children which was not communicated to the Bishop and his awareness of other paedophilic clergy within the Diocese was not capable of amounting to constructive knowledge of the risk posed by Coffey which could be imputed to the Diocese or the Bishop [299], [305] – [307]. Accordingly, the plaintiff’s claim failed at the breach stage of the analysis [308].
However, the Diocese was found to be vicariously liable for the acts of criminal abuse perpetrated by Coffey [282]. On appeal, it was unanimously upheld that the role of an assistant catholic priest was also such a role and that visits to the plaintiff’s family home, where the abuse occurred, was an integral part of that role VSCA [157], [164].
What to Expect?
As we know, GLJ is likely to disrupt the current state of play of abuse law in Australia. With that in the background of the determination of a special leave application in Bird v DP certainly the latter half of 2023 is a busy time for abuse law practitioners.
