Supreme Court New South Wales

• Medium Neutral Citation: PAO v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; BJH v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; SBM v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; IDF v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors; PMA v Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ors [2011] NSWSC 1216
• Hearing dates: 22 August 2011
• Decision date: 19 October 2011
• Before: Hoeben J

Decision

The appeal is allowed.

The orders of Harrison AsJ of 4 May 2011 are set aside.

In lieu thereof, the proceedings against the Applicant/Second Defendant in each matter is dismissed pursuant to Rule 13.4 Uniform Civil Procedure Rules 2005.

• Catchwords: APPEAL - nature of appeal from Associate Justice to a single Judge - not a retrial - discretion exercised on wrong basis; PRACTICE AND PROCEDURE - applications by a defendant to strike out parts of statement of claim pursuant to UCPR 13.4(1) and 14.28(1) - whether Plaintiffs had arguable claim against Defendant - no evidence to establish Plaintiffs' case against Defendant - such evidence unlikely to be available in the future - whether principle in Wickstead and Ors v Browne (1992) 30 NSWLR 1 applicable
• Legislation Cited: Roman Catholic Church Trust Property Act 1936 (NSW); Supreme Court Act 1970; Civil Procedure Act 2005
• Cases Cited: PAO v Grealy [2011] NSWSC 355; Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565; Wickstead and Ors v Browne (1992) 30 NSWLR 1; Hartigan v International Krishna Consciousness [1999] NSWSC 139; Deputy Commissioner of Taxation v Sakovits [2010] NSWSC 1322; Kady v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [1997] NSWCA 170; Connor v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2006] NSWCCPD 124; Warren v Coombes (1979) 142 CLR 531; Do Carmo v Ford Excavations Pty Limited (1981) 1 NSWLR 409; General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125
• Texts Cited: ---
• Category: Principal judgment
• Parties: PAO (Plaintiff) (2010/13389)
• Representation: Mr AJ Bartley; Ms L Whalan (Plaintiffs); Mr RG McHugh SC; Ms S Callan (Second Defendant); Porters Lawyers (Plaintiffs); Corrs Chambers Westgarth (Second Defendant)
• File Number(s): 2010/13389; 2010/13435; 2010/13571; 2010/364831; 2010/365147
• Publication restriction: ---

Judgment

1 HOEBEN J :

Nature of Proceedings

2 The Appellant/Second Defendant, the Trustees of the Roman Catholic Church for the Archdiocese of Sydney ("Archdiocese Trustees"), is a legal person which was established as a body corporate by the Roman Catholic Church Trust Property Act 1936 (NSW) ("the Trust Property Act").

3 The Archdiocese Trustees is named as the Second Defendant in five relevantly identical claims which allege that in 1974 each of the Plaintiffs was sexually assaulted by Mr Thomas Grealy (also known as Brother Augustine), the First Defendant ("Grealy"), while they were students at the Patrician Brothers Primary School, Granville ("the Granville School") as a result of which, each suffered psychiatric injury for which they seek general and exemplary damages from each of the named Defendants. Apart from Grealy and the Archdiocese Trustees, the other Defendants comprise members of the Patrician Brothers' religious order who held positions in the order in 1974 and the order itself ("the Patrician Brothers").

4 The Plaintiffs allege that the Archdiocese Trustees is liable on the basis that the Archdiocese Trustees "operated, managed and controlled the Granville School" ; was responsible for the supervision of those who taught at the Granville School, including Grealy; was vicariously liable; owned and breached a non-delegable duty of care to the Plaintiffs to exercise reasonable care for their safety; and/or that the Archdiocese Trustees failed to discharge their fiduciary obligations to each Plaintiff.

5 The Archdiocese Trustees move on Notices of Motion filed on 31 May 2011 by which it appeals the decision of Harrison AsJ on 4 May 2011 in PAO v Grealy [2011] NSWSC 355 ("the Judgment") in which her Honour refused applications by the Archdiocese Trustees to strike out or summarily dismiss each of the five proceedings.

6 The four bases for the appeal by the Archdiocese Trustees from the Judgment are:

(a) her Honour erred by failing to apply the decision of the Court of Appeal in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565 ("Ellis"), particularly in light of unchallenged and uncontradicted evidence that the Archdiocese Trustees played no role in the administration or management of schools (including the Granville School);

(b) her Honour erred in failing to distinguish at law the legal entity which is the Archdiocese Trustees from the unincorporated association which is the Archdiocese of Sydney;

(c) her Honour erred in misconstruing, and then in placing unwarranted reliance on a piece of correspondence, which asserted that the "Archdiocese of Sydney" managed the Granville School - her Honour read this as suggesting liability on the part of the body corporate which is the Archdiocese Trustees; and

(d) her Honour erred in applying Wickstead and Ors v Browne (1992) 30 NSWLR 1 ("Wickstead") which the Archdiocese Trustees submit has no application to the present case.

Background

7 The applications before her Honour comprised five Notices of Motion by the Archdiocese Trustees. In each Motion, the Archdiocese Trustees sought an order striking out the proceedings against it pursuant to Rule 13.4(1) and/or Rule 14.28(1) of the Uniform Civil Procedure Rules 2005 ("UCPR").

8 Rule 13.4(1) UCPR provides that the Court may dismiss proceedings generally or in relation to any claim for relief in three circumstances - if the proceedings are frivolous or vexatious, if no reasonable cause of action is disclosed or if the proceedings are an abuse of the process of the Court.

9 Rule 14.28(1) UCPR provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, has a tendency to cause prejudice, embarrassment or delay in the proceedings or is otherwise an abuse of the process of the Court.

10 The Court may receive evidence on the hearing of such an application. The evidence before her Honour comprised an affidavit of Mia Donald affirmed 18 February 2011 relied on by the Plaintiffs. The Archdiocese Trustees relied on the affidavits of Paul Richard McCann sworn 18 November 2010 and Kevin Brian Canavan sworn 10 August 2010. Brother Canavan was cross-examined.

11 Ms Donald was a solicitor employed by the solicitors on the record for the Plaintiffs. She had the day-to-day management of the claim. Her affidavit was formal and annexed a substantial quantity of correspondence.

12 Before her Honour, the Plaintiffs relied upon three specific letters which were annexed to that affidavit. A letter dated 10 December 2008, signed by a Mr Marchant from the Catholic Education Diocese of Parramatta, and addressed to the Plaintiffs' solicitors, was as follows:

"I respond with respect to your letter ... regarding Patrician Brothers High School known now as Delany College.

...

2. The school was church owned and part of the system of Catholic Schools of the Archdiocese of Sydney. Parramatta Diocese was established in 1987.

3. I am unable to provide a definitive answer, however believe that the Patrician Brothers managed the school on behalf of the Archdiocese of Sydney and under the administration of the Catholic Education Office Sydney.

...

I apologise I am unable to provide clear responses to all items in your letter and recommend that you contact Brother Kelvin Canavan at the Catholic Education Office, Archdiocese of Sydney."

13 A letter dated 24 June 2009 from the solicitors for the Patrician Brothers to the solicitors for the Plaintiffs was as follows:

"... We have been instructed to represent the Patrician Brothers. The Patrician Brothers have made enquiries concerning the questions you have raised, noting that these questions relate to 1974, 35 years ago. The information provided is accurate to the best of our client's knowledge and belief.

On that basis, the answers we are able to provide to your enquiries are as follows:

...

3. Our client understands that, in 1974, the school was owned, conducted and administered by the Archdiocese of Sydney. The Patrician Brothers had assigned certain Brothers to work at the school. The Principal had the day-to-day management of the school.

...

7. As it is understood that the land and building comprising the school belonged to the Archdiocese of Sydney, your enquiry concerning the identity and whereabouts of the insurer of the 'school' in 1974 should perhaps be better addressed to the Archdiocese of Sydney."

14 A letter dated 11 November 2010 from the solicitors for the Patrician Brothers advised the Plaintiffs' solicitors as follows:

"... We refer to your letters dated 28 October 2010 and 9 November 2010 in which you invite our client to make general admissions that they operated and had the management and control of the school. Our client is unable to make those admissions because their understanding is that in 1974 the school was owned conducted and administered by the Archdiocese of Sydney; and they the Patrician Brothers assigned certain Brothers to work at the school and that the Principal at the time, Brother Celestine Mulholl, had the day-to-day management of the school. ..."

15 The evidence of Brother Canavan in his affidavit and under cross-examination was that the Catholic Education Office ("CEO") was set up in 1939. At that time, its central responsibility was supervising religious instruction. In 1964, the Archbishop of Sydney, Cardinal Gilroy, announced that there would be a reorganisation of the way Catholic schools were funded with a centralised system to share the financial capital burden across the Archdiocese. This reorganisation gradually developed into what is now referred to as the Catholic school system in New South Wales.

16 In 1965 the Catholic Building and Finance Commission ("CBFC") was established to work in conjunction with the CEO. The CBFC became the central body within the Archdiocese of Sydney responsible for the financial management of funds collected by the schools by way of fees, donations and the like.

17 Brother Canavan was first appointed to a primary school teaching position in 1960 at the Marist Brothers School at Parramatta. He was appointed by the Provincial of the Marist Brothers at the time. Between 1963 and 1968, he taught at various Marist Brothers' schools in the Archdiocese. In 1968, he was appointed to work at the CEO as inspector of schools and supervisor of Marist Primary Schools. Brother Canavan's primary duties in his role as inspector of schools involved co-ordinating the activities of various CEO inspectors and school supervisors. He undertook this role on a full-time basis for seven years.

18 As inspector of schools at the CEO, his primary duties involved supporting principals and providing professional development to staff. At the time, there were about 15-20 other Supervisors from different religious orders administering Catholic schools in Sydney. In 1975, Brother Canavan was appointed Director of Primary Education at the CEO. His role as Director principally involved recruiting lay staff and working on the professional development of teachers in the Catholic schools in the Archdiocese of Sydney.

19 In 1982, he was appointed Deputy Director of Schools at the CEO which involved the day-to-day management of the school system and communications across the system. In January 1987, he was appointed to the position of Executive Director of Schools with the CEO. His responsibilities in this role included building relationships between the CEO and the individual Catholic schools whilst at the same time tightening financial accountability. He remained in this position until January 2009.

20 Apart from his personal experience in the CEO, Brother Canavan had studied the history of the Catholic education system in New South Wales and had based his doctoral thesis upon it. He had also read other histories of the system - in particular the work of Brother Luttrell which was based on a close examination of the available documentation (affidavit, paragraphs 18 and 19).

21 Brother Canavan's evidence was that many of the Catholic schools in Sydney were situate on land owned by the Archdiocese Trustees and the Archbishop would ask or invite a religious order to run a secondary school. Whilst some Catholic secondary schools in Sydney were situate on land owned by a religious order, often the construction of the school was paid for by the Archdiocese Trustees.

22 Teachers and principals at Catholic primary and second schools who were members of a religious order were appointed to their position by the Provincial of the religious order. The Provincial also determined whether the appointment of such a teacher or principal should cease.

23 Upon a religious order being invited to run a particular school, there was, and continued to be, little and usually no direct communication between the Archbishop and the school. Any such communication would occur through the CEO, the Provincial of the religious order which ran the school and the principal. Brother Canavan's evidence was based on his knowledge and understanding of the administration of Catholic schools from 1939. With respect to primary and secondary schools which were situate on land owned by the Archdiocese Trustees, he said that the Archdiocese Trustees played no part in the administration of the schools and there was no direct communication between the Archdiocese Trustees and the principal of the school or the Provincial of the religious order which administered the school.

24 Brother Canavan said that in relation to the CEO, if there was a concern about the conduct of one of the brothers, the principal of the school could have directed it to the Provincial of the religious order or could have escalated the complaint to the Director of Schools at the CEO who answered to the Archbishop of Sydney.

25 Brother Canavan said that some parishes or individual religious orders expressed concern at the loss of autonomy following the centralisation process brought about by the CEO after 1965. He said that in 1965 there was still a high level of involvement by the Patrician Brothers Provincial in the running of schools where Patrician Brothers were present.

26 Although her Honour did not expressly say so, it is implicit in the judgment that she accepted Brother Canavan as an accurate and truthful witness.

27 Mr McCann is the solicitor for the Archdiocese Trustees and his affidavit annexed correspondence passing between his firm and the solicitors acting for the Plaintiffs and for the Patrician Brothers.

28 In the proceedings before me, both the Archdiocese Trustees and the Plaintiffs sought to adduce additional evidence. The Archdiocese Trustees sought to rely upon two affidavits of John Joseph Usher sworn 3 June 2011 and 26 July 2011 and on a further affidavit of Mr McCann sworn 28 July 2011. The Plaintiffs sought to rely upon a public liability policy of insurance issued by Catholic Church Insurances Limited for the period 1 August 1974 to 1 August 1975. The insured were "Trustees of the Catholic Roman Church for the Archdiocese of Sydney, Archbishops, Bishops and Priests of the Roman Catholic Archdiocese" . This became Exhibit "A" in the proceedings.

29 I allowed the parties to rely upon this additional evidence. I concluded that the relevant legislation was s.75A(7) of the Supreme Court Act 1970 in that the hearing before her Honour being summary dismissal proceedings did not involve a "hearing on the merits" . In that regard, I relied upon Wickstead , Hartigan v International Krishna Consciousness [1999] NSWSC 139 (Bryson J) and Deputy Commissioner of Taxation v Sakovits [2010] NSWSC 1322 (Davies J).

30 The affidavit of Mr McCann sworn 28 July 2011 set out why the information contained in the affidavits of Monsignor Usher had not been placed before her Honour. Mr McCann said that it was only at the conclusion of the proceedings before her Honour that the application of Wickstead became significant. Monsignor Usher's affidavits were directed towards overcoming the issues raised in Wickstead .

31 Mr McCann's affidavit sworn 28 July 2011, related to documents discovered by the Patrician Brothers. Their verified list of discovery was not filed until 8 July 2011 in each proceeding and was not served on the Archdiocese Trustees until 27 July 2011. Accordingly, that material was not available at the time when this application by the Archdiocese Trustees came before her Honour.

32 I consider that the explanation by Mr McCann for why the additional evidence was not before her Honour is a reasonable and satisfactory one. Moreover, given the nature of this application, it is important to have as much material as is reasonable before the Court so that a proper decision can be reached as to whether the Plaintiffs have an arguable case against the Archdiocese Trustees. Accordingly, I have dealt with this matter on the basis not only of the evidence which was before her Honour, but on the additional evidence which was before me.

33 Monsignor Usher was ordained a priest in 1972 and after a number of positions, was appointed Chancellor of the Archdiocese of Sydney on 25 May 2005. In relation to the Archdiocese Trustees, Monsignor Usher said:

"The Trustees of the Roman Catholic Church for the Archdiocese of Sydney is a statutory body corporate established by the Roman Catholic Church Trust Property Act 1936 (NSW) (Act) to hold title to land located within the geographical bounds of the Archdiocese of Sydney for the benefit of the Archdiocese of Sydney. Pursuant to section 3 of the Act, the Archdiocese Trustees so incorporated are the Archbishop and the Diocesan Consultors for the Archdiocese of Sydney."

34 Monsignor Usher has been a Diocesan Consultor since 25 May 2005 and is the executive officer and secretary to the Archdiocese Trustees. The Diocesan Consultors and the Archbishop make up the membership of the Archdiocese Trustees.

35 Except where otherwise indicated, the following is the evidence which Monsignor Usher gave in his affidavits. He was not cross-examined.

36 The Chancellor of the Archdiocese of Sydney has canonical responsibility for the archives maintained by the Chancery of the Archdiocese ("Archdiocesan Archives"). The records of the Archdiocese Trustees from the period 1963 to 1980 ("the relevant period") are held in the Archdiocesan Archives. The records of the successive Archbishops of the Archdiocese of Sydney are also held in the Archdiocesan Archives.

37 Since at least 1963, the record of the proceedings of the Archdiocese Trustees has been contained in a minute book. A copy of the minute books for the years 1963 to 1974 and from 1975 to 1980 was available for examination. The Archdiocese Trustees' minute book comprises the only record of the decisions of the Archdiocese Trustees for the relevant period.

38 In 1974, the Archdiocese Trustees owned the land at Grimwood Street, Granville where the Granville School and Patrician Brothers High School Granville were located. The land at Grimwood Street, Granville is presently owned by the Trustees of the Roman Catholic Church for the Diocese of Parramatta. The Archdiocese Trustees no longer hold the title deeds for this property.

39 Monsignor Usher reviewed the Archdiocese Trustees' minute book for the relevant period and was not able to identify any notation which recorded or referred to a decision of the Archdiocese Trustees relating to the operation, management or control of the Granville School or any other school located within the geographical bounds of the Archdiocese of Sydney. The contents of the minute book were an annexure to his first affidavit.

40 If interrogatories were to be directed to the Archdiocese Trustees, Monsignor Usher would be the person who would swear the affidavit to verify the answers to such interrogatories. He has no personal knowledge upon which he could answer any interrogatory concerning the operation, management or control of the Granville School or the appointment and supervision of those who taught at the Granville School and whether the CEO and the CBFC operated as agents of the Archdiocese Trustees for the purpose of any aspect of the operation, management or control of the Granville School.

41 Monsignor Usher identified the Diocesan Consultors for 1974. Of the 10 persons identified, six are now deceased and four are retired. Of the four who are retired, three say that the Archdiocese Trustees did not have anything to do with the Granville School or with any other school in the Archdiocese of Sydney and that the role of consultors was to sign documents and attend Archdiocese Trustees' meetings. The fourth of the living retired consultors (Cardinal Clancy) is in such frail health that he was not consulted by Monsignor Usher on this issue.

42 Monsignor Usher arranged for the Diocese Archivist, Ms Robertson, to conduct a search of the Archdiocesan Archives with a view to identifying relevant documents of the Archdiocese Trustees created prior to 1980. She was only able to locate three such documents in the Archdiocesan Archives. These comprised letters dated 24, 27 and 28 August 1942.

43 These letters were correspondence between the Archbishop of Sydney and the Vatican's Apostolic delegate relating to the granting of permission for the Patrician Brothers to teach at the Granville School.

44 The material annexed to the affidavit of Mr McCann sworn 28 July 2011 was relevant in a negative sense in that none of the documents discovered by the Patrician Brothers provided any evidence that the Archdiocese Trustees "operated managed and controlled the Granville School or had any direct connection to it other than the fact that it owned the land on which the school was built" .

45 Both before her Honour and before me, the Archdiocese Trustees relied upon the Court of Appeal decision in Ellis . In order to understand the use which was sought to be made of Ellis it is necessary to say something about the facts of that case.

46 In Ellis , the plaintiff brought proceedings for damages alleging that he was repeatedly sexually assaulted by an assistant priest of the Archdiocese of Sydney between 1974 and 1979. The plaintiff sued, amongst others, the Archdiocese Trustees. The question of whether the plaintiff's claim was doomed to fail arose in that case in the course of an application to extend the limitation period.

47 The Court of Appeal (Mason P, Ipp and McColl JJA agreeing) held that an unincorporated association such as the Archdiocese of Sydney cannot be sued in its own name at common law as it does not exist as a juridical entity. However, persons or groups within the body can be held liable in tort or contract as principals provided they assumed some active or managerial role in which they exercised clear control at the relevant time. Such liability was personal, and not representative in nature: [47], [49] and [51].

48 The plaintiff in Ellis alleged that the Archdiocese Trustees was directly liable in damages. He claimed that the Archdiocese Trustees was negligent in things the body corporate did or failed to do when the assistant priest was appointed and during his ministry at Bass Hill. Mason P observed at [96]-[98] that, even assuming in the light of the Trust Property Act and the evidence, the church properties at Bass Hill were vested in the Archdiocese Trustees and that the funds used to provide the priest's living expenses were under the legal control of the Archdiocese Trustees, nevertheless the plaintiff's allegations were doomed to fail. This was because of the limited, property-focused role of the Archdiocese Trustees under the Trust Property Act and the evidence showing that it was the former Archbishop of Sydney, in consultation with the Archdiocesan Council, and not the Archdiocese Trustees, who appointed and supervised the assistant priest.

49 The Court undertook a detailed analysis of the Trust Property Act and the evidence, noting at [141] that there was "simply no evidence" that the Archdiocese Trustees was involved in such pastoral activities at the time of the alleged torts which might render the body corporate liable to the plaintiff. Mason P held, [149], that the fact that the Archdiocese Trustees held property for and on behalf of "the Church" could not be inverted to the proposition that the Archdiocese Trustees could be rendered subject to all legal claims associated with church activities. For these reasons, Mason P concluded that the proceedings against the Archdiocese Trustees were doomed to fail and should be dismissed.

50 As I explained to counsel in the course of argument, I am bound by the decision in Ellis to the extent that it states principle and to the extent that it interprets the Trust Property Act. I am not bound by the findings of fact in Ellis . Each case depends upon its facts. What her Honour had to decide, and what I have to decide, is based on the evidence before the Court in this case and not on the evidence which was before the Court in Ellis .

51 That having been said, in order to understand the position of the Archdiocese Trustees within the Archdiocese of Sydney, it is necessary to understand the Trust Property Act. Ellis provides valuable guidance as to the effect and meaning of that Act.

52 At [97]-[114]. Mason P said:

"[97] However, the pleaded allegations are not based on the ownership or occupation of property or the funding of the priest by the Trustees. Rather, they allege liability stemming from the Trustees' alleged care, control and management of the parish, their engagement or appointment of Father Duggan and their assumption of responsibility towards the plaintiff arising from the general supervision of the Archdiocese that the Trustees are said to have exercised.

[98] The Trustees submit, in short, that these allegations are doomed to fail in light of a correct understanding of the limited, property-focussed role of the Trustees under the 1936 Act [Roman Catholic Church Property Trust Property Act] and the evidence showing that it was the former Archbishop, in consultation with the Archdiocesan Council, and not the Trustees, who appointed and supervised Father Duggan. I agree.

[99] The Trustees submit that the situation is particularly clear in light of terms of the Act throughout the 1970s when the pleaded acts of negligence by people within 'the Church' (including Father Duggan) occurred. The Trustees rely on the decision of this Court in the Archbishop of Perth [v AA [1995] 18 ACSR 333] case.

[100] The long title describes the [Roman Catholic Church] Trust Property Act as:

An Act to make certain provisions relating to property held upon any trust for or for the use, benefit or purposes of the Roman Catholic Church in New South Wales; to repeal the Roman Catholic Diocese of Lismore Church Lands Act, 1908, and the Saint Patrick's College (Manly) Act, 1914; and for purposes connected herewith.

[101] The Preamble to the [Roman Catholic Church] Trust Property Act at the relevant time provided:

WHEREAS lands held on trust for or for the use or benefit or for purposes of the Roman Catholic Church in New South Wales are vested in many different bodies of trustees, and owing to deaths and other causes, the necessity for the appointment of new trustees frequently arises: AND WHEREAS it is expedient that bodies corporate be created for the purpose of holding, managing and dealing with lands so held, that provision be made of the vesting in bodies corporate to be created by this Act of lands so held, that conveyancing transactions in respect of lands so held be facilitated and rendered less expensive.

...

[103] The [Roman Catholic Church] Trust Property Act established a body corporate for each Roman Catholic diocese in New South Wales. In the case of Sydney it is called 'The Trustees of the Roman Catholic Church for the Archdiocese of Sydney', ie the name of the second defendant.

[104] The Trustees so incorporated are the Archbishop and the 'Diocesan Consultors' for the Archdiocese (s 3). The Consultors are the members for the time being of the Cathedral Chapter (s 2).

[105] Section 4(1) of the [Roman Catholic Church] Trust Property Act conferred upon each body corporate established by the statute perpetual succession, the right to acquire, hold and dispose of property, the capacity to sue and be sued in its corporate name, and of doing and suffering all such acts and things as bodies corporate may by law do or suffer.

[106] The diocesan Bishop and two other members of each body corporate constitute a quorum for the purpose of any meeting (s 6).

[107] The Act then proceeded to vest all Church trust property within each diocese in the body corporate for that diocese (s 8).

[108] Section 9 relevantly provided:

Every body corporate created by this Act shall have power from time to time -

(a) to purchase, take on lease, or acquire by gift, devise, bequest, exchange or otherwise any real or personal property; and

(b) in relation to any Church trust property at any time vested in it -

(i) to sell it, and to exchange it for other land, and to transfer or convey Church trust property so sold or exchanged to the purchaser or person taking in exchange, freed and discharged from all trusts affecting the same in the hands of the body corporate, and

(ii) to demise or let it for such term at such rent and with or without taking premium, fine or foregift and subject to such provisions as to the body corporate shall appear desirable, and

(iii) to accept surrender of leases, upon such terms and subject to such conditions as to the body corporate shall appear desirable, and

(iv) to raise money on the security of it on such terms and conditions as to the body corporate shall appear desirable, and

(v) to declare trusts of it or of any estate or interest in it created by the body corporate for any Order or Community of the Church or for any association of members of the Church or for the use or benefit of or for any purpose of any such Order, Community or association, and either to retain the property in relation to which trusts are so declared, or to vest it, or any estate or interest so created, in other trustees upon the trusts so declared; and

(c) For any purpose mentioned in this section to execute all such instruments as to the body corporate shall appear proper.

[109] The conduct sued upon occurred while the Act was in this form.

...

[111] Mr R G McHugh SC, who with Mr [PW] Flynn represented the Church defendants, submitted that the preamble and terms of the [Roman Catholic Church] Trust Property Act relate to property. 'Church trust property' as defined in s 2 is vested in the relevant corporation. That corporation is armed with wide powers extending to real and personal property, but they are powers referable to the holding, management and disposal of property. General statements, such as the conferral of power to do and suffer all such acts and things as bodies corporate may by law do or suffer (s 4), and (after 1986) the power to act as if a natural person (s 9), are all directed at this role, and this alone. The appointment, management and removal of priests in the Catholic Church are not functions that the law confers upon bodies corporate or natural persons.

[112] I accept these submissions. If the Act had intended to regulate the ecclesiastical, liturgical or pastoral activities of the Archbishop it would have said so. Likewise if it had intended to address the relationship between the bishop of a diocese and his clergy, or between clergy and laity.

[113] The long title and preamble explained the limited statutory purpose. So too did the second reading speeches referred to above. Neither assist the plaintiff in the present submission. The Court is directed by s 33 of the Interpretation Act 1987 to prefer a construction that promotes the purpose or object underlying an enactment.

[114] There is nothing to indicate why 'the Church' would have sought statutory authority to address the relationship between the Church hierarchy and priests. It is inconceivable that an Australian Parliament in the twentieth century would have legislated on such matters without invitation. Even the Anglican Church was firmly disestablished in Australia by the mid nineteenth century ( Wylde v Attorney-General for New South Wales (ex rel Ashelford ) (1948) 78 CLR 224 at 284-7). Dr Austin's evidence about the role of a diocesan bishop in the Catholic Church contradicts the notion that episcopal authority in non-property matters would have in some way devolved from the bishop to the body corporate given that the bishop did not in law control the body corporate."

53 By reference to the Property Trust Act, Mason P concluded [118]-[121]:

"[118] In their various functions, the Trustees are themselves agents of the wider Church. But nothing in the Act makes them the universal embodiment of the Church within the Archdiocese. The commonplace stipulation that the body corporate is capable of being sued in its corporate is not a provision that renders the Trustee some universal nominal defendant responsive in law to any and every claim for legal redress that a person might wish to bring against a Catholic in the Archdiocese.

...

[120] The amended statement of claim pleads that the Trustees had the care, control and management of the Bass Hill parish. But, as indicated already, there is no allegation against the Trustees as owners or occupiers of the Church buildings or presbytery. Senior counsel for the plaintiff made it clear that the Trustee's provision of accommodation for Father Duggan at the Bass Hill presbytery was not enough to give rise to liability. The propositions that the Act conferred on the Trustees general care and oversight over parish affairs are, in my view, untenable on the true construction of the Act. The evidence shows the Trustees as having no role in the appointment and oversight of priests apart perhaps from some oversight of the moneys collected from parishioners and other sources that supported the priest's living expenses.

[121] Similarly, the allegations in the alternative that the Trustees 'engaged' or 'appointed' Father Duggan are entirely unsupported by the particulars provided in relation to the relevant paragraphs of the pleading. The idea that the Act involved the Trustees in such activities in the 1970s involves, in my view, an untenable reading of it."

54 The final matter to be taken into account by way of background are the findings both as to fact and law by her Honour on which she based her decision:

"[50] Based on the evidence of Brother Canavan it is clear that the CEO and the CBFC played a considerable role in the operation of the Patrician Brothers School in Granville. Neither of these bodies are legal entities and there was only limited evidence brought which explored the relationship between these unincorporated organisations and the Archdiocese of Sydney. The relationship between the unincorporated organisations and the Archdiocese will need to be determined as fact at trial. It is possible that further discovery will establish evidence either linking or distinguishing these organisational bodies.

Conclusion

[51] The letters produced by the legal representatives of the Patrician Brothers raises the possibility that the Archdiocese Trustees were themselves involved in the activities of the school beyond mere land holding. Brother Canavan gave evidence that would indicate that the CEO and the CBFC, both unincorporated entities, were responsible for some of the School's operations, it may be that these entities were operating as agents of the Archdiocese Trustees.

[52] Wickstead v Browne (1992), referred to earlier in my judgment, sets out persuasive reasons upon which this application should be rejected. Where the facts are within the defendant's knowledge, the plaintiff's action should not be dismissed where further evidence may be obtained as a result of discovery or interrogatories. Similarly, where multiple defendants are involved, it is possible that evidence will be adduced by one defendant that implicates another. Further evidence may be given at trial by the Patrician Brothers that implicates the Trustees of the Roman Catholic Church for the Archdiocese of Sydney in the management and operation of the Patrician Brothers Primary School at Granville."

Submissions

55 The Archdiocese Trustees submitted that her Honour erred in not holding that the proceedings against it were doomed to fail. The Archdiocese Trustees relied upon the uncontradicted evidence of Brother Canavan and the documents to which he referred as establishing that in the years surrounding and including 1974, it played no role in the administration or management of schools. It submitted that Brother Canavan was uniquely qualified through his personal experience, position and studies to give evidence on that issue.

56 The Archdiocese Trustees submitted that Brother Canavan's evidence was consistent with the minutes of the meetings of the Archdiocese Trustees which recorded its work throughout the relevant period and beyond, ie 1963 to 1980. It submitted that the minutes revealed that consistent with its legislative foundation, the Archdiocese Trustees was focused on property matters such as the acquisition and development of property, proceedings to recover possession and the ratification of legal documents relating to the purchase, sale and leasing of property. The Court was invited to give considerable weight to the fact that these meetings produced an official minute of what had occurred.

57 The Archdiocese Trustees submitted that this evidence was fully consistent with the evidence of Monsignor Usher in his affidavits of June and July 2011. He identified the Diocesan Consultors comprising the Archdiocese Trustees in 1974, four of whom were still alive. Having made enquiries of three of those four, he recorded their recollection in each case as being that the Archdiocese Trustees had nothing to do with the Granville School nor with any school in the Archdiocese of Sydney. Each of those three former Diocesan Consultors recalled the role of the Archdiocese Trustees as involving property-related matters.

58 The Archdiocese Trustees relied upon the investigation which Monsignor Usher had authorised of the Archdiocesan Archives. Only three documents had been produced which were relevant to the Granville School. It submitted that the terms of those documents, and the absence of any other documents falling within any of the broad searches which were conducted, constituted further evidence that, as at 1974, the Archdiocese Trustees did not have any role relating to, and exercised no control over, the Granville School.

59 In relation to the three letters relied upon by the Plaintiffs, and referred to by her Honour (see [12]-[14] hereof), the Archdiocese Trustees submitted that reference to "the Archdiocese of Sydney" did not advance the Plaintiffs' case. If the letters were expressed with precision, this was no more than a reference to an unincorporated association which was wholly distinct from the Archdiocese Trustees.

60 The Archdiocese Trustees submitted that the Archdiocese of Sydney, being a particular church, was an unincorporated association for spiritual purposes for "the people of God entrusted to a Bishop" and consisted of laity and clergy who were all natural persons from time to time ( Ellis at [40]). The Archdiocese Trustees submitted that as a body corporate it could not be a member of the unincorporated spiritual association which was the church. Moreover, the Patrician Brothers' own discovery (McCann affidavit, 28 July 2011) showed that they held no documentary evidence which suggested that the Archdiocese Trustees had a role in relation to the Granville School.

61 If the letters were expressed without precision, the Archdiocese Trustees submitted that they were prima facie unreliable. It followed that there was no basis, either in the letters or externally, for a conclusion that a reference to the "Archdiocese of Sydney" was a reference to it as distinct from being a reference to the Archbishop, the CEO or the CBFC.

62 The Archdiocese Trustees submitted that not only was there nothing in the Trust Property Act to support the Plaintiffs' allegations that it conducted and administered the Granville School, the terms of the Act were to the contrary. The powers conferred on the Archdiocese Trustees under the Act were referable to the holding, management and disposal of land and personal property. The Archdiocese Trustees submitted that if the Trust Property Act had intended that it regulate the ecclesiastical, liturgical or pastoral activities of the Archbishop of Sydney it would have said so.

63 The Archdiocese Trustees accepted that the doctrine of ultra vires would not relieve it of liability for tortious acts which it actually committed even if those acts were beyond its statutory powers. It submitted that there was simply no evidence that it was involved in matters of management, operation or control of the Granville School or any other Catholic school in the Archdiocese of Sydney nor in the supervision of members of religious orders teaching at those schools. The only evidence before the Court was to the contrary. The Archdiocese Trustees submitted that the Plaintiffs were given ample opportunity in these proceedings to bring forward evidence to contradict the evidence proffered by it, but had failed to do so.

64 The Archdiocese Trustees submitted that the observations made by her Honour at [50] of the judgment were irrelevant. It submitted that, so far as the claims against it were concerned, any relationship amongst the CEO, the CBFC and the Archdiocese of Sydney was not to the point. It submitted that whether or not evidence might come forward at trial linking or distinguishing those organisational bodies could not bear upon the question of the liability of the distinct statutory body corporate which was the Archdiocese Trustees.

65 The Archdiocese Trustees submitted that in paragraph [51], her Honour erred in failing to distinguish at law between the legal person which it was and the unincorporated association which was the Archdiocese of Sydney. It submitted that this distinction and its significance were central points in Ellis ([36], [42]-[43], [49], [94]-[98] and [118]).

66 The Archdiocese Trustees submitted that her Honour erred in the second sentence of [51] when speculating that evidence might emerge that the CEO and/or the CBFC were operating as its agents. It submitted that this was not pleaded by the Plaintiffs and that there was no evidence before her Honour which even raised the possibility of such an agency relationship. It submitted that such speculation did not constitute a proper basis for refusing the application.

67 The Archdiocese Trustees acknowledged the Wickstead principle, but sought to distinguish the facts of this matter from it. It articulated the Wickstead principle as: "one of several defendants ordinarily cannot obtain summary dismissal on the basis of evidentiary deficiencies in the plaintiff's case against the moving defendant" . It submitted that Wickstead did not say that a defendant could never obtain summary dismissal if there was more than one defendant, only that such a defendant could not obtain summary dismissal on the basis of "evidentiary deficiencies in the plaintiff's case" . It submitted that the analogy which the Court relied on was with the situation where "at the close of the plaintiff's case at the trial there was no evidence against this respondent" ( Wickstead [11]F-[11]G).

68 The Archdiocese Trustees submitted that UCPR 13.4 authorised the Defendant and the Court to go beyond a consideration of mere evidentiary gaps in the Plaintiffs' case and to adduce and consider evidence which establishes the hopelessness of the Plaintiffs' case. The submission proceeded that, consistent with Wickstead , it was open to the Defendant to establish by its own affirmative evidence, that allegations essential to the Plaintiffs' case could not be made out. The Archdiocese Trustees submitted that this was such a case. Accordingly, it submitted that her Honour had erred in her application of Wickstead .

69 The Archdiocese Trustees submitted that it had adduced a comprehensive body of positive evidence which was not challenged or contradicted in any respect, that it played no role in the management and/or administration of the Granville School. It submitted that the other Defendants being the Patrician Brothers, could not implicate the Archdiocese Trustees at trial. There was nothing in their discovered documents which would have that effect and the vague and ambiguous reference to the "Archdiocese of Sydney" in the letters did not constitute evidence to the contrary. It submitted that the Patrician Brothers had admitted that it was the principal of the Granville School which had the day-to-day management of the school and the principal was a Patrician Brother. It submitted that there was no suggestion that liability on the part of the Archdiocese Trustees formed any part of the Patrician Brothers' case.

70 The Plaintiffs submitted that there was evidence before the Court showing involvement of the Archdiocese Trustees in schools. They referred to Kady v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [1997] NSWCA 170 and Connor v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2006] NSWCCPD 124. Kady involved a claim brought in negligence by a student at Patrician Brothers High School Granville against the school and the defendant in the proceedings was the Archdiocese Trustees as vicariously liable for the school. The Plaintiffs submitted that although the claim was unsuccessful, this was not because the Archdiocese Trustees were not the proper defendant. Connor involved a claim by a teacher for workers compensation in which the Archdiocese Trustees was the "respondent employer" having been substituted for the CEO, which had been wrongly sued.

71 The Plaintiffs referred to paragraphs 21 and 23 of the affidavit of Brother Canavan as indicating that in 1965 and 1969, the Patrician Brothers had handed over the Granville School to the Archdiocese Catholic education system. They submitted that this evidence must relate to the control and running of the schools since the Archdiocese Trustees already owned the land on which the schools were located.

72 The Plaintiffs adopted the observations by her Honour in [50] and submitted that it was strongly arguable that the Archdiocese Trustees exercised control over the CEO and CBFC. They submitted that a body corporate can only act through its servants and agents and, in this case, it was arguable that when the CEO, the CBFC and the Archbishop acted, they did so on behalf of the Archdiocese Trustees. In support of that proposition, they relied upon the minutes of the Archdiocese Trustees in 1971 which showed that it delegated to the Archbishop "all and every power authority duty and function conferred upon the said corporate body under the provisions of the said Act" .

73 The Plaintiffs submitted that there were two other documents which showed that the Archdiocese Trustees was involved in the conduct of schools within the Archdiocese. The first of those was the public liability policy of insurance Exhibit "A" (see [28] hereof]. The Plaintiffs relied upon a paragraph in that policy headed "Schools Watercraft Endorsement" which provided:

"It is hereby noted and allowed that Exception (a)(iii) does not apply to the ownership, possession or use of watercraft directly in connection with Schools or Colleges conducted by the Insured."

The places specified to which the policy applied were "various situations throughout New South Wales and Norfolk Island" . The Plaintiffs submitted that this was consistent with the Archdiocese Trustees conducting schools.

74 The second document relied upon by the Plaintiffs was at AB343 and 344-347. Document AB343 was a covering letter from a firm of solicitors to the CBFC dated 9 August 1966. The opening paragraph was in the following terms:

"As requested in your letter of the 1 st instant I have prepared a suggested form draft agreement in conformity with the headings contained in the proposals which you sent to me."

75 Document AB344-347 is a draft agreement in which the Archdiocese Trustees was referred to as one party, the second party not being identified. The draft agreement related to the conduct of schools within the Archdiocese of Sydney. The draft was not confined to matters relating to the land occupied by the schools.

76 The Plaintiffs submitted that at the time when the events relied upon occurred, a substantial amount of public finance was being directed to the Catholic school system in New South Wales. They submitted that governments would have been reluctant to deal with individuals and unincorporated associations and the preference would have been to deal with a legal entity that did have perpetuity such as the Archdiocese Trustees. They submitted that the evidence might unfold to establish that the Archdiocese Trustees fulfilled this function in respect to Catholic schools within the Archdiocese. They submitted that when access was gained to government treasury documents, such a connection might be established.

77 The Plaintiffs submitted that although the analysis in Ellis might be of assistance in identifying the legal status of various administrative bodies within the Archdiocese of Sydney, the factual matters under consideration there were quite different to those in this case. Ellis involved the control of the conduct of religious persons within the Archdiocese such as priests. This was a case concerned with the Catholic school system and the abuse of students attending a school within that system.

78 Finally, the Plaintiffs submitted that her Honour's analysis of Wickstead was correct as was her application of it to the facts of this case. They submitted that there was nothing in the additional evidence adduced by the Archdiocese Trustees which invalidated the conclusion which her Honour arrived at when applying the Wickstead principle to the circumstances of this case.

Consideration

79 The application before the Court is an appeal from the decision of an Associate Justice pursuant to UCPR 49.4. The appeal is by way of rehearing (s.75A(5) of the Supreme Act 1970 ) and the Court has the powers and duties of the Court from which the appeal is brought (s.75A(6)). The applicant carries the onus of showing the decision appealed from ought to be reversed. Subject to the power to receive further evidence, the appeal by way of rehearing is conducted on the transcript of evidence taken in the Court below.

80 Such an appeal is largely governed by the same principles as those applicable to an appeal from a single Judge to the Court of Appeal. Subject to the impact of fresh evidence admitted under UCPR 49.12, the Associate Justice's primary findings of fact are to be followed by the Judge hearing the appeal unless the facts found or inferences drawn attract review under the principles in Warren v Coombes (1979) 142 CLR 531 at 553; Do Carmo v Ford Excavations Pty Limited (1981) 1 NSWLR 409 at 419C-421B.

81 Her Honour made no specific findings of fact other than an implicit acceptance of the evidence of Brother Canavan. What her Honour did was to characterise and interpret certain correspondence and to apply the Wickstead principle. These are matters which, as an appeal Court, I am not only able to re-examine for myself, but am obliged to do so.

82 Before dealing with the submissions of the parties, it is useful to set out the principles which the Court has to apply in resolving the dispute which is before it. The leading authority remains General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125 at 128 where Barwick CJ said:

"The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to O 26, r 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.

...

Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Vol CXII-9 where he says (1949) 78 CLR, at p 91: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings ... , in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

83 I have reached the conclusion that there is no evidence before the Court which links the Archdiocese Trustees, either directly or indirectly, to the conduct of the Granville School in 1974. That, of course, does not end the matter. The Court has to consider the likelihood of such evidence emerging in the future and the application of the Wickstead principle.

84 The reliance by the Plaintiffs on the decisions of Kady and Connor is misconceived. Such an approach was specifically disapproved in Ellis at [135]-[136] where Mason P said:

"[135] ... He [the Judge] further observed that in Trustees of the Roman Catholic Church for the Diocese of Sydney & Anor v Hogan (2001) 53 NSWLR 343 the Trustees were sued, without apparent complaint, for tort in the form of assaults committed upon a school pupil in 1984. These considerations are unpersuasive, in my view. The Trustees do not suggest that they are incapable of being sued for damages in tort. And the fact that they did not take a particular point in an earlier case arising out of different activities does not relieve this Court of addressing it when it is squarely raised (see also Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 1) [1999] NSWCA 75 at [10]).

[136] Senior counsel for the plaintiff took this Court to decisions in cases where the Trustees did not dispute that they were properly sued in relation to claims for personal injuries to students at Catholic schools and, in one instance, a claim of wrongful dismissal made by a man employed as the Director of Music at St Mary's Cathedral. Reference to these cases in the Court of Appeal cannot be used as a substitute for evidence in the proceedings, let alone proof of some relevant admission by conduct. In any event, the facts of those cases are different from those pleaded in these proceedings as the basis of liability of the first two defendants."

85 The challenge by the Archdiocese Trustees to paragraph [50] of the judgment is well made. Whether or not further evidence will emerge as to the relationship between the CEO and the CBFC and the Patrician Brothers is irrelevant to this application. Similarly, the relationship between those bodies and the Archdiocese of Sydney is also irrelevant. The relevant question is the relationship between the Archdiocese Trustees and the Granville School. The areas identified by her Honour in that paragraph where she thought further evidence might emerge, do not bear on that fundamental question.

86 The letters to which her Honour referred in paragraph [51] of the judgment, do not suggest even indirectly that the Archdiocese Trustees were themselves involved in the activities of the Granville School beyond mere land holding. If those letters were drafted with precision, the reference to the Archdiocese of Sydney cannot be equated with the Archdiocese Trustees since one was an unincorporated association and the other was an identified and identifiable body corporate. If the letters were not drafted with precision, they are of little assistance. In any event, they are silent as to any involvement on the part of the Archdiocese Trustees. The likely candidate for some other organisation having a role in the conduct of the Granville School is the CEO and, perhaps, the CBFC. Their functions at the time were clearly described by Brother Canavan.

87 As the Archdiocese Trustees submitted, the observation by her Honour in the last sentence of paragraph [51], is not based on any evidence which was before her Honour or me, either directly or by way of inference. The observation is no more than speculation which is not only not based on the evidence, but is contrary to the evidence which was given.

88 I have concluded that, to the extent that her Honour made findings in paragraph [51] of the judgment, those findings were not open to her.

89 The submission by the Plaintiffs to the effect the Patrician Brothers handed over control of the Granville School to the Archdiocese Catholic education system is not an accurate statement of the evidence of Brother Canavan. What Brother Canavan in fact said was:

"21. In about May 1965 the Patrician Brothers agreed to join the Archdiocesan system, and from this point onwards finance at Patrician Brothers Schools of Sydney was administered through the CBFC.

...

23. By letter dated 23 January 1969 the Provincial of the Patrician Brothers agreed to conduct their schools according to the conditions set out in the letter from the CBFC dated 10 January 1969."

90 There is no evidence to support the Plaintiffs' submission that the Archdiocese Trustees exercised control over the CEO and CBFC or that they acted through those bodies or through the Archbishop. The fact that, on two occasions, the Archdiocese Trustees delegated certain powers to the Archbishop was no more than a practical step to enable the Archbishop to sign documents relating to church land.

91 What is significant is the terms of the delegated power. The power was limited to authority conferred upon the Archdiocese Trustees "under the provisions of the said Act" . The powers of the Archdiocese Trustees under the Act before 1986 did not extend to the operation of schools. Moreover, just because under the Trust Property Act, it delegated this limited power to the Archbishop, does not mean that every act of the Archbishop was an act of the Archdiocese Trustees.

92 Apart from there being no evidence that the Archdiocese Trustees exercised control over the CEO and the CBFC, the only evidence was to the contrary. Brother Canavan swore (affidavit, paragraph 35) that the Archdiocese Trustees had played no role in the administration of schools. In the course of his lengthy cross-examination, he did not give any answers suggesting that the CEO or the CBFC were agents or in any other way were controlled by the Archdiocese Trustees. What Brother Canavan did say is that the CEO and the CBFC "answered ultimately to the Archbishop" .

93 The two documents relied upon by the Plaintiffs do not have the effect sought to be given to the them. The public liability insurance policy had as its insured "the Archdiocese Trustees, Archbishops Bishops and Priests" of the Archdiocese. The insurance policy had to cover all the various risks that any of the insured might be exposed to. As paragraph 37 of Brother Canavan's affidavit set out, in the case of some schools within the Archdiocese, it was the parish priest who "had the responsibility for the management of schools" . Thus, it was the priests who needed the cover and not the Archdiocese Trustees. Otherwise, the public liability policy is entirely consistent with the land-holding function that the Archdiocese Trustees had.

94 The draft agreement was exactly that. Brother Canavan dealt with that document in his affidavit as follows:

"100. From 1966 there was an attempt by the CBFC to have the religious orders teaching at Catholic schools in Sydney sign an agreement reflecting a relationship between the order and the CBFC. Two proposed draft agreements were drafted in or about early to mid-1966. ...

101. A further draft agreement settled by a solicitor was circulated in August 1966, a copy of which appears behind tab 14 of Exhibit KC-1. However as I state above the 'system' of Catholic schools suggested in this draft agreement did not exist at the time and it was many years before such a developed system existed."

95 A draft document in this form against that evidentiary background, which was never implemented, cannot directly or indirectly tend to prove that the Archdiocese Trustees played any part in the conduct of schools within the Archdiocese at the relevant time.

96 The Plaintiffs' submission that government funding and financial assistance to the Catholic education system in New South Wales would more likely than not have dealt with the Archdiocese Trustees as an entity with perpetuity is not only speculative, but is contrary to the evidence of Brother Canavan on which he was not challenged.

97 At paragraph 111 and following of his affidavit under the heading "Government Funding" , Brother Canavan said:

"111. In 1973 the Commonwealth government established the interim for the Australian Schools Commission and as a consequence there was a dramatic increase in funds to Catholic schools. Generally, funds were provided by way of an allowance per student. ...

112. The Schools Commission, rather than dealing directly with schools, looked to the CBFC and CEO to co-ordinate distribution of funds and to be accountable for expenditure.

113. These requirements imposed by the government meant that the responsibilities and sphere of influence of the CEO and CBFC increased in relation to the financial management of Catholic systemic schools and each organisation required increased accountability and reporting from those schools as to the way monies were used in the day-to-day administration of the school.

114. The NSW Catholic Education Commission was established by the Catholic Bishops of NSW in November 1974 as a recognised point of contact between government agencies and the Catholic education systems. However the Commission does not play a day-to-day role in the administration of Catholic schools. This administration is a diocesan responsibility."

98 I have concluded that this evidence effectively refutes the proposition that if subpoenas were addressed to a government body, there is a likelihood of documents being produced which would show that the Archdiocese Trustees were involved in the running of schools within the Sydney Archdiocese.

99 For the above reasons, I am satisfied that there is no evidence in the material before me which establishes, either inferentially or directly, that the Archdiocese Trustees had anything to do with conducting the Granville School or schools generally. There is nothing in the material before me which makes the Plaintiffs' case against the Archdiocese Trustees arguable.

100 The next enquiry is whether such evidence is likely to emerge in the future. It is unlikely to emerge from the Patrician Brothers. There is nothing in their discovered documents which has that effect. I have already indicated why the three letters to which her Honour referred to do not have that effect. The very person identified in one of those letters as having the necessary knowledge was Brother Canavan who has given evidence and been cross-examined. His evidence provides no support for the Plaintiffs' claim against the Archdiocese Trustees.

101 Three of the four living persons who were members of the Archdiocese Trustees in 1974 say that there was no connection between it and the conduct of the Granville School and the conduct of schools generally within the Archdiocese. The fourth living member is too ill to provide any assistance. Monsignor Usher is the person who would provide discovery and answer interrogatories in respect of the Archdiocese Trustees and he has no information or documents which would assist in making the Plaintiffs' case against it. The minutes of the Archdiocese Trustees do not assist the Plaintiffs' case. The investigations of the Archdiocese Archivist into the Archdiocesan Archives do not assist the Plaintiffs' case.

102 The evidentiary position before me is that no source of further evidence which would assist the Plaintiffs in making their case against the Archdiocese Trustees has been identified. In a negative sense, the evidentiary position is that the Archdiocese Trustees have closed the door on likely sources of further evidence and the Plaintiffs have not been able to point to any other source of evidence which has not been met by the evidence of the Archdiocese Trustees.

103 On the basis of the evidence before me, I am satisfied that not only is there no evidence, either directly or inferentially, which presently establishes the Plaintiffs' claim against the Archdiocese Trustees, but such evidence is unlikely to be obtained by the Plaintiffs in the future.

104 This leaves the question of the application of the Wickstead principle as the only outstanding issue.

105 The Wickstead principle was set out in the judgment of Handley JA and Cripps JA at 11F-12B as follows:

"By launching such an application a defendant undertakes the burden of establishing that there is no triable issue. On such an application the defendant bears the onus of proof and where the facts are peculiarly within the defendant's knowledge the plaintiff's action should not be dismissed because of gaps in the case if the necessary evidence might be obtained as a result of discovery or interrogatories.

However for another reason, which was first raised by the Court, the respondent as one of a number of defendants cannot be entitled to summary dismissal before trial because of evidentiary deficiencies in the plaintiff's case. If at the close of the plaintiff's case at the trial there was no evidence against this respondent he would not be entitled at that stage to judgment if any of the other defendants intended to go into evidence: see Menzies v Australian Iron & Steel Ltd (1952) 52 SR (NSW) 62; 69 WN (NSW) 68. The effect of this rule is now embodied in Supreme Court Rules Pt 34, r 7(6) and r 8(5). The reason for the rules is clear and was explained in the decision referred to. At the close of the plaintiff's case there may be evidence against some defendants but not against others. The court will not entertain a motion for judgment by some only of the defendants because any gaps in the plaintiff's case against those defendants may be filled when the other defendants go into evidence. In particular one or more of the defendants going into evidence may seek to exculpate themselves by inculpating defendants against whom the plaintiff had no admissible evidence at the close of his case. If the respondent would not be entitled to succeed on a no evidence point at the trial until all the evidence has been called, including that from other defendants, it is clear that there can be no such entitlement on an application by one of several defendants for summary dismissal."

106 The submission by the Archdiocese Trustees is that not only has it identified a deficiency of evidence in the Plaintiffs' case as it presently exists, but it has gone further and has established that evidence to fill those gaps, is unlikely to be forthcoming. It is that next step which the Archdiocese Trustees say takes this matter outside the ambit of the Wickstead principle. I agree. I have concluded that the Wickstead principle does not operate to defeat the application by the Archdiocese Trustees.

107 As indicated at the commencement of my consideration, this is an appeal from an Associate Justice in respect of which limitations apply. Even though it is a rehearing, it is not a hearing de novo.

108 Despite those restrictions, I am prepared to allow the appeal and set aside her Honour's order.

109 I do so because of the errors in her Honour's judgment to which I have referred. To the extent that her Honour based her decision on paragraph [50] of the judgment, she was in error in that she took into account matters which were irrelevant.

110 In relation to paragraph [51] of the judgment, I have concluded that her Honour wrongly characterised the effect of the three letters to which reference has been made and engaged in speculation which was not open to her.

111 Finally, I have concluded that the Wickstead principle does not apply because of the special facts of this case. Further evidence which might assist the Plaintiffs in making their claim against the Archdiocese Trustees is unlikely to be produced as a result of discovery or interrogatories or other enquiries. The Patrician Brothers, being the other Defendants (except for Grealy), are unlikely to produce evidence which would assist the Plaintiffs on this issue.

Conclusion

112 For the above reasons, I am satisfied that the Plaintiffs' cases against the Archdiocese Trustees are hopeless and should not be permitted to go further. I am fortified in that conclusion by reference to s.56(2) of the Civil Procedure Act 2005 . For the Archdiocese Trustees to continue to be parties to these five sets of proceedings, when there is no triable issue so far as they are concerned would be contrary to the overriding purpose of that section.

113 The orders which I make are as follows:

(1) that the appeal be allowed;

(2) I set aside the orders of Harrison AsJ of 4 May 2011;

(3) in lieu thereof, I order that the proceedings against the Applicant/Second Defendant in each matter be dismissed pursuant to Rule 13.4 UCPR.

114 No submissions were made concerning costs. Should the parties wish to make submissions as to costs, they are to make application within seven days of the date hereof. Subject to any costs submissions, my preliminary view is that costs should follow the event.

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Decision last updated: 19 October 2011