In RWQ v The Catholic Archdiocese of Melbourne & Ors [2022] VSC 483 - where Cardinal Pell is the Second Defendant - McDonald J has considered the plaintiff’s claim for nervous shock against the first defendant arising from alleged sexual assault of plaintiff’s child by second defendant (the plaintiff being a parent rather than a primary victim of child abuse) and whether the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) applies to the claim.
The Court states
[1] The present proceeding concerns the application of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (‘the Act’) to the first defendant, the Catholic Archdiocese of Melbourne. The plaintiff claims damages against the first defendant for nervous shock which he alleges is founded on or arises from the sexual abuse of his son by the second defendant. The first defendant contends that the application of the Act is confined to claims by plaintiffs who have been subjected to child abuse (‘primary victim’). It contends that the Act has no application to the plaintiff’s claim because he does not allege that he was subjected to child abuse. The plaintiff claims to have suffered psychiatric injury upon learning of his son having been subjected to child abuse and subsequent death caused by the child abuse (‘secondary victim’).
[2] I have concluded that the application of the Act to non-government organisations is not confined to claims founded on or arising from child abuse of the plaintiff. The plain meaning of the words ‘founded on or arising from child abuse’ in s 4(2) of the Act includes a claim for nervous shock brought by a parent of a child alleged to have been sexually abused. The contextual considerations relied upon by the first defendant do not warrant the application of the Act to non-government organisations being confined to claims brought by a plaintiff who is an alleged primary victim of child abuse. [
3] On the proper construction of s 4(2) of the Act, the Act does apply to the plaintiff’s claim against the first defendant. On the proper construction of s 7 of the Act, a proper defendant nominated by the first defendant would incur any liability arising from the plaintiff’s claim against the first defendant.
Background
[4] By a further amended statement of claim filed 4 February 2022 the plaintiff alleges: That his son (AAA) and a friend (BBB) were abused by the second defendant sometime between July and December 1996; That as a result of the abuse AAA commenced using illicit drugs at the age of 14 and used drugs consistently until his death; AAA died on 8 April 2014 from a heroin overdose caused by the psychological impact of the abuse; RWQ was informed of the abuse of AAA by a member of the SANO Task Force on 1 July 2015; As a result of learning about the abuse of his son RWQ has suffered nervous shock for which he makes a claim at common law and pursuant to Part XI of the Wrongs Act 1958 (Vic); The first defendant owed RWQ a duty to take care not to cause RWQ pure mental harm; The first defendant breached the duty to RWQ which was a cause of RWQ’s injury. [
5] RWQ alleges that by reason of the second defendant’s position as Archbishop, the first defendant is directly liable for the abuse of AAA and the injury to RWQ. In the alternative, RWQ alleges that the first defendant is vicariously liable for the abuse of AAA by reason of the abuse occurring in the course of the second defendant’s role as Archbishop. ...
[12] There is no material distinction between the words ‘founded on’ and the words ‘brought in respect of’. The words ‘founded on’ are words of wide import. A claim ‘arising from’ child abuse requires a less proximate causal relationship between the claim and the child abuse than is required for a claim founded on child abuse. The use of ‘or’ in the phrase ‘founded on or arising from’ manifests a legislative intention to extend the application of the Act beyond claims against NGOs founded on child abuse. Absent the phrase ‘arising from’ it is strongly arguable that a claim by a plaintiff for damages for nervous shock consequent upon the plaintiff being told that their child had been sexually abused, would be a claim founded on child abuse. However, the use of the phrase ‘arising from’ puts the matter beyond doubt. A claim by a plaintiff for damages for nervous shock consequent upon the plaintiff being told that their child had been sexually abused is plainly a claim arising from child abuse.
[13] If as contended by the first defendant the application of the Act to NGOs is confined to claims brought by primary victims of child abuse, the words ‘or arising from’ in s 4(2)(a) would be inutile. All words of a statute must be given meaning unless there is a good reason to the contrary. ..
[18] A claim against an NGO by a primary victim of child abuse will always be a claim founded on child abuse. If the application of the Act is limited in the way the first defendant contends, there would have been no occasion for the Parliament to have extended the application of the Act to NGOs by the inclusion in s 4(2)(a) of the words ‘or arising from’.
[19] The extracts from the second reading speech relied upon by the first defendant lend support to its contention that the references in the speech to ‘survivors’ is a reference to primary victims of institutional child abuse. However, the following extracts from the speech suggest that the references to ‘survivors’, are not confined to primary victims of institutional child abuse: The Ellis case highlighted the problem survivors can face in seeking justice. In that case, the claimant sought to sue the Catholic Archdiocese of Sydney and the trustees of the Roman Catholic Church, for abuse perpetrated by a Catholic assistant priest in the 1970s. The NSW Court of Appeal held that the Archdiocese could not be liable, as it was unincorporated and could not be sued. The court also held that the trustees could not be sued. The fact that the trustees held and managed property for and on behalf of the Catholic Church did not make them liable for legal claims associated with church activities. The court was unable to identify a proper defendant and the case was dismissed.
The current common-law position in Australia, based on the Ellis case, is that an unincorporated association that conducts its affairs by way of trusts cannot be held organisationally accountable in civil litigation for institutional child abuse.
This problem appears to be unique to Australia. For example, in the United States, most churches are either incorporated entities, or are structured as a 'corporation sole' which can be sued in abuse claims. In England, case law has overcome the issues raised in Ellis. Therefore, institutional child abuse plaintiffs in Victoria, and Australia, are uniquely disadvantaged.
The Betrayal of Trust inquiry heard from a number of survivors that unincorporated associations have used all defences available to them, including the Ellis defence, to defeat claims. For example, Mrs Chrissie and Mr Anthony Foster explained that the Catholic Church’s lawyers had strenuously defended litigation brought by them, despite having earlier accepted that the abuse had occurred. Betrayal of Trust found that the strictly legalistic approach adopted by the church failed to address the issue of genuine accountability. ...
Analysis
[23] The task of the Court is to construe the language of the statute. If the meaning of the words in s 4(2) of the Act has a wider application than may have been contemplated by the draftsperson, the Court must give effect to that wider meaning. ... Even if, as contended by the first defendant, the references to ‘survivor’ in the second reading speech is confined to primary victims of institutional child abuse, the plain meaning of the words in s 4(2) gives the Act wider application than claims against an NGO brought by a primary victim of child abuse. There is no reference in s 4(2) to ‘survivor’, ‘primary victim’ or ‘secondary victim’. There is nothing in the text of s 4(2) which limits its operation to a claim founded on or arising from child abuse of the plaintiff.
[30] The first defendant contends that the word ‘plaintiff’ in s 4(2)(a) should be read as ‘child abuse plaintiff’ and that so read the Act only applies to a claim founded on or arising from child abuse of the plaintiff. The words ‘child abuse plaintiff’ do not appear in s 4(2). The only reference to the words ‘child abuse plaintiff’ in the Act is in s 1 which provides that the main purpose of the Act is to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities. A purpose provision is a statement of legislative intent which may properly inform the construction of a statute. However a purpose provision expressed in general terms may serve little function as an aid to the construction of a more specific substantive provision.
[31] Properly construed, ‘child abuse plaintiffs’ in s 1 means plaintiffs who commence or wish to commence a claim against an NGO founded on or arising from child abuse. If I am wrong and the words ‘child abuse plaintiffs’ in s 1 means a plaintiff who is a victim of child abuse, it does not follow that the application of the Act is limited to claims by plaintiffs who are the victims of child abuse. First, s 4(2) uses the word ‘plaintiff’ rather than ‘child abuse plaintiff’. Second, s 1 provides that the main purpose of the Act is to make provision for child abuse plaintiffs. If ‘child abuse plaintiffs’ means victims of child abuse, a construction of s 4(2) whereby the Act also applies to claims by secondary victims is not inconsistent with a main purpose of providing for primary victims of child abuse to sue non-government organisations.
[32] In addition to relying upon extrinsic materials the first defendant submits that other provisions of the Act support a finding that the application of the Act is limited to claims founded on or arising from child abuse of the plaintiff. The first defendant draws attention to the words ‘capable of being sued and found liable for child abuse in respect of the claim’ in ss 7(4)–(5) and ss 8(8)–(9). The first defendant submits that the phrase ‘found liable for child abuse in respect of the claim’, means that the claim against the NGO which the plaintiff brings must be a claim alleging liability for child abuse of the plaintiff as defined. It must be a claim which, if it is successful, results in a finding of liability on the part of the proper defendant, to the plaintiff, for child abuse.
[33] The words ‘capable of being sued and found liable for child abuse in respect of the claim’ which appear in ss 7(4) and (5) must be read in the context of ss 7(1) and (2). Section 7(1) provides that an NGO to which the Act applies, in relation to any claim founded on or arising from child abuse, with the consent of the nominee, may nominate an entity that is capable of being sued: (a) to act as a proper defendant to the claim on behalf of the NGO; and (b) to incur any liability arising from the claim on behalf of the NGO. ...
[36] The words ‘founded on or arising from child abuse’ are used repeatedly throughout the Act: ss 4(1), 4(2), 4(3), 7(1), 7(4), 8(8), 12(1) and 13. The repeated use of these words points strongly to the conclusion that the application of the Act to NGOs is not confined to claims by primary victims of child abuse. To conclude otherwise renders the words ‘arising from child abuse’ otiose.
[37] ... The mischief which the Act was intended to remedy is not limited to the capacity of an NGO such as the first defendant to rely upon the Ellis defence in respect of a claim brought by a primary victim of institutional child abuse. The text of the Act, particularly the repeated use of the words ‘a claim founded on or arising from child abuse’ points to the relevant mischief being the capacity of an NGO to rely on the Ellis defence in respect of a claim founded on or arising from child abuse, irrespective of whether the claim is brought by a primary or secondary victim. The text of a statute is important as it contains the words being construed. The text of s 4(2) is the clearest indicator of the mischief which the Act is intended to remedy.
[38] The plain meaning of the words in s 4(2) is that the Act applies to an NGO if a plaintiff commences a claim against an NGO founded on or arising from child abuse. This includes a claim for nervous shock by a plaintiff whose claim is founded on or arises from child abuse of the plaintiff’s child. The contextual matters relied upon by the first defendant do not warrant a departure from the plain meaning of s 4(2). To construe ‘plaintiff’ in s 4(2)(a) as being limited to a plaintiff who is a primary victim of institutional child abuse forecloses the inquiry which the text of s 4(2) demands, namely whether the plaintiff’s claim against an NGO is founded on or arises from child abuse.
[39] The question of whether, on the proper construction of s 4(2), the Act applies to the plaintiff’s claims against the first defendant, is to be answered in the affirmative. The consequence of this affirmative answer is that the claims made by the plaintiff against the first defendant are claims to which the Act applies. A further consequence is that the question whether, on the proper construction of s 7 a proper defendant nominated by the first defendant would incur any liability arising from the plaintiff’s claims against the first defendant, should also be answered in the affirmative. The first defendant is an NGO to which the Act applies. The plaintiff’s claim against the first defendant is a claim founded on or arising from child abuse. As such, the first defendant may nominate a proper defendant pursuant to s 7(1) of the Act to incur any liability arising from the claim on behalf of the first defendant. A proper defendant nominated by the defendant under s 7(1) will incur any liability arising from the plaintiff’s claim against the first defendant.
