In the recent decision of Mendez v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2025] NSWSC 912, the New South Wales Supreme Court refused a plaintiff's application to vacate a hearing date, or alternatively, discontinue proceedings with deferred costs.
The refusal revolved around the impact of anticipated legislative reforms on vicarious liability claims following a significant High Court ruling, an area of particular relevance in institutional abuse cases.
Background
On 24 July 2023, Raymond Mendez (plaintiff) initiated proceedings against the Trustees of the Roman Catholic Church at Paramatta (Trustees), alleging that, while he was a student Holy Spirit Primary School in St Clair in the 1980s, he was physically and sexually abused by a Catholic Priest, Father Brian Rooney. The plaintiff claimed the Trustees were liable in negligence and vicariously liable for Father Rooney as an agent or employee of the Trustees.
In their Defence, the Trustees did not admit that the abuse occurred, that they were negligent, or that Father Rooney was their employee or agent. They denied vicarious liability for the alleged abuse.
The plaintiff commenced the proceedings on 24 July 2023, after an application for special leave had been filed in Bird v DP (a pseudonym). The plaintiff anticipated that the High Court in it eventual decision in Bird would develop the law of vicarious liability as to include "akin to employment" relationships, as is the case in other jurisdictions.
On 13 November 2024, the High Court handed down its decision in Bird1. This decision limited the application of vicarious liability to true employment relationships only. The plaintiff conceded that, following the decision in Bird, proving that Father Rooney was an employee (and not merely an agent) was now necessary, and without a contract of employment, such a finding was unlikely.
The plaintiff therefore filed a Notice of Motion, seeking orders to vacate a listed hearing date and adjourn the proceedings (Motion). The plaintiff also sought, in the alternative, leave to discontinue the proceedings with the parties' costs of the proceedings to be costs in the cause of any future proceedings commenced by the plaintiff.
Legal principles applied
The plaintiff's position was predicated on potential future legislative reform. Counsel for the plaintiff submitted there was significant political will and ongoing efforts in New South Wales, Victoria, and Western Australia to introduce legislative amendments to address the impact of the Bird decision on vicarious liability, potentially with retrospective effect.
Reference was made to the Civil Liability Amendment (Organisational Child Abuse Liability) Bill 2025 in NSW (2025 NSW Bill) and a similar bill in Victoria, and statements from Attorneys-General and the Standing Council of Attorneys-General indicating continued consideration of those proposed reforms. It was further submitted that a premature resolution under the current law could lead to substantial injustice and preclude the plaintiff from potential success if the law later changed.
The plaintiff also argued that his incarceration until April 2026 made it very difficult for his lawyers to obtain full and timely instructions if the hearing proceeded as scheduled. As an alternative, the plaintiff proposed discontinuing the proceedings with costs to be determined in any new proceedings, citing his impecunious state and arguing no prejudice to the Trustees.
The Trustees opposed the Motion, relying on the long-standing principle that Courts determine cases based on existing law. They submitted five key reasons as to why the Motion should fail:
- the plaintiff had already pleaded Father Rooney was an employee or agent and could still pursue that aspect of the claim, even though it might incur expert evidence costs;
- any future legislative changes were entirely speculative in nature and timing, noting that the Royal Commission into Institutional Responses to Child Sexual Abuse had not recommended retrospective changes to vicarious liability, and the 2025 NSW Bill had failed;
- the plaintiff's claim also included other bases, such as agency and breach of non-delegable duty of care, which were ready to proceed and not impacted by the decision in Bird;
- despite the absence of a limitation period, delay would cause prejudice through the "natural decay of memories and other evidence" and continued strain on witnesses; and
- litigation is a stressful process, and further delay would exacerbate the strain on the trustees and their witnesses. As to the alternative relief of discontinuance, the usual rule is that a discontinuing plaintiff pays the Trustees with irrecoverable costs, especially given the plaintiff's alleged impecunious financial situation.
Decision
Justice Coleman considered section 56 of the Civil Procedure Act 2005 (NSW), among other legislation, and reviewed authorities such as Meggitt Overseas Ltd and Others v Grdovic (1998) 43 NSWLR 527 and Taylor v Trustees of Christian Brothers [2025] VSC 25.
His Honour dismissed the Motion, finding no good reason to depart from the established principle that cases must be determined according to the law as it currently stands. His Honour emphasised the rejection in Meggitt of adjourning a trial based on the prospect of legislative amendment. While acknowledging some political will for reform, his Honour also found the timing and nature of any future legislative changes, particularly retrospectivity, to be uncertain and a matter of conjecture.
Justice Coleman noted that the plaintiff "took a punt" by commencing proceedings when the law of vicarious liability was thought to be developing in a way that Bird ultimately precluded. His Honour otherwise refused the order for discontinuance with deferred costs, stating that the Trustees should not bear their own costs on the speculative chance of future legislative reform and new proceedings, particularly as the plaintiff's poor financial position meant they would likely incur irrecoverable costs.
The plaintiff's incarceration was not deemed a compelling reason to vacate the hearing, as Courts routinely manage proceedings with incarcerated parties, and arrangements could be made for the plaintiff to attend court and confer with his lawyers. Justice Coleman accepted the Trustees' argument that delay would cause prejudice due to the natural decay of memories and the ongoing strain on witnesses.
Implications
This decision confirms that Courts will not delay hearings based on the speculative prospect of future legislative changes. Litigants who commence proceedings based on anticipated developments in the law bear the risk if those developments do not materialise or are explicitly rejected by higher courts.
A plaintiff discontinuing proceedings typically incurs the defendant's costs, and arguments for deferring these costs, especially due to impecuniosity or speculative future proceedings, are unlikely to succeed without compelling reasons. While acknowledging the difficulties faced by plaintiffs in historical abuse cases, the decision shows that the general principles of civil procedure and the duty of the court to apply existing law are paramount, even in such sensitive matters.
Footnote
1 Bird v DP (a pseudonym) (2024) 419 ALR 552; HCA 41
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