CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313 Hearing dates: 4 December 2023 Decision date: 15 December 2023 Before: Leeming JA at [1]; Payne JA at [116]; Harrison CJ at CL at [117] Decision: 1. Grant leave to appeal, confined to grounds 1 and 1A of the draft notice of appeal, in respect of the permanent stay applicable to the claim that the respondent is vicariously liable for the tortious conduct of Father Perrett. 2. Direct the appellants to file and serve a notice of appeal in accordance with that grant of leave within 7 days of today, and otherwise dispense with the requirements of service. 3. Subject to order 5 below, direct the appellants to file and serve any supplementary report of Father Dillon, and any further submissions in support of an order discharging the stay having regard to Father Dillon's supplementary report, on or before 22 December 2023. 4. Subject to order 5 below, direct the respondent to file and serve supplementary submissions having regard to Father Dillon's supplementary report, on or before 16 January 2024, and direct the appellants to file and serve any submissions in reply on or before 23 January 2024. 5. In the event that the appellants wish to have their appeal determined without regard to the supplementary report of Father Dillon, they should notify the Associate to Leeming JA and the respondent by 22 December 2023. 6. Direct the appellants to file and serve an updated estimate of CM's prognosis on or before 22 December 2023. 7. To the extent necessary, order that the permanent stay ordered on 23 August 2023 does not preclude any application on behalf of CM to preserve his testimony. 8. Liberty to apply to Leeming JA in the event that either side wishes to vary the dates in order 4 above. Catchwords: CIVIL PROCEDURE – permanent stay of proceedings – claim of vicarious liability for damages for child abuse – child abuse alleged to have occurred in 1976 at holiday camp – most relevant witnesses deceased – primary judge ordered permanent stay prior to decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 – whether GLJ changed applicable principles – whether fair trial possible of primary allegation of child abuse – where appellants intended to adduce further expert evidence concerning holiday camps – leave granted and timetable for further evidence and submissions ordered Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1) Civil Liability Act 2002 (NSW), Pt 1B, Div 4 Civil Procedure Act 2005 (NSW), s 67 Limitation Act 1969 (NSW), s 6A Limitation Amendment (Child Abuse) Act 2016 (NSW) Roman Catholic Church Trust Property Act 1936 (NSW), s 4(2)(b) Cases Cited: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 Bird v DP (2023) 69 VR 408; [2023] VSCA 66 Blatch v Archer (1774) 1 Cowp 64 CCIG Investments Pty Ltd v Schokman [2023] HCA 21; 410 ALR 479 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 Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75 Connellan v Murphy [2017] VSCA 116 Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34 Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: J Beal et al, New Commentary on the Code of Canon Law (Paulist Press, New York, 2000) Category: Principal judgment Parties: CM (First Applicant) EM (Second Applicant) Trustees of the Roman Catholic Church for the Diocese of Armidale (Respondent) Representation: Counsel: S H Hartford-Davis and B Smith (Applicants) L Gyles SC and D Stretton (Respondent)