Taylor v Trustees of the Christian Brothers [2025] VSC 25 Case Update
In the recent matter of Taylor v Trustees of the Christian Brothers [2025] VSC 25, the plaintiff, Mr Christopher Taylor, commenced court proceedings seeking damages against the defendant, the Trustees of the Christian Brothers, for injuries he alleges he suffered whilst a student at a school operated by the defendant.
The plaintiff has made an application to vacate the trial listed for 11 February 2025. The application was opposed by the defendant. The application was based upon three matters:
- A proposed amendment to the statement of claim;
- An application for discovery of unredacted complaint documents; and
- Proposed legislative change following the High Court’s decision in Bird v DP (A Pseudonym) [2024] HCA 41 (Bird).
The plaintiff’s current amended statement of claim pleads liability of the defendant for sexual abuse suffered by the plaintiff as a student of a school operated by the defendant and at a summer camp for catholic students. The plaintiff’s proposed statement of claim wishes to add a breach of a non-delegable duty of care owed by the defendant to the presently pleaded bases for liability directly in negligence and vicarious liability. Although previously opposing the amendments, the defendant indicated that it neither consented to nor opposed such an application if it were made.
The application to vacate rested on the proposed legislative changes in relation to vicarious liability.
The plaintiff’s affidavit in support deposed to a question asked of the Victorian Attorney-General in Parliament on 26 November 2024 as to whether she would actively support legislative reform following the High Court decision in Bird. In response, Ms Symes indicated that ‘the Standing Committee of Attorneys-General [had met] on Friday, where I raised this matter…I have been tasked with leading the work on bringing some material back to that committee; we meet in February [2025]’. Other correspondence and news articles from December 2024 were also referred to and exhibited. The proposed legislative amendments were submitted to establish a particular injustice to the claim of the plaintiff which would also affect others matters in the Institutional Liability List. An adjournment to a date not before 1 July 2025 was sought.
In its consideration, the Court provided as follows:
There is a long line of authority establishing the general principle that the role of the Court is to determine cases according to the existing law. The comments apply whether the contemplated changes derive from a court appellate process or a legislative process. In Meggitt Oversesas Ltd v Grdovic, Mason P found that a trial judge had erred in vacating a trial so that a plaintiff could rely on proposed legislative changes to reform available damages for dust diseases. It was argued that proceeding to trial before the foreshadowed amendments would seriously prejudice the plaintiff. In finding that the trial judged had erred in exercising this discretion, his Honour said:
In my view, the discretion miscarried. The learned judge erred in taking into account the prospect of legislative amendment as a controlling factor in the decision granting the adjournment. The error was compounded by the apparent intent that the hearing date will, as presently advised, be deferred until the amending legislation is passed and the plaintiff becomes thereby entitled to take advantage of it [at 7].
The announcement of a decision to introduce particular legislation, and any retrospective operation of such legislation, may impact pending proceedings. But, as Mason P went on:
Does the announcement qualify in any way the judicial branch’s obligation to uphold the existing – I emphasis the word ”existing” – law? And does it enliven a power to grant a contested adjournment of proceedings fixed for hearing so as to enable one party to gain the benefit of proposed legislation to the detriment of another party? The answer to each question must be a categorical “no” [at 8].
These comments in turn relied on a line of authority based upon the comments of Starke J:
Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future [at 9].
At present there is no Bill before the Victorian Parliament. The Victorian Attorney-General said in the Victorian Parliament on 26 November 2024, legislative amendments are complex and involve considerations of federal laws and retrospectivity, amongst other things. There is a need to consider unintended consequences, and consultation with stakeholders will be required. The effect of proposed legislative change on any individual case is presently speculative [at 10].
The general principle may be displaced in an appropriate case. The plaintiff did submit that an injustice would arise because of how the plaintiff intended to put his case at trial. As articulated, this injustice arose because of how the pleadings dealt with the role of Brother Webster against whom abuse is alleged and who was the school principal at the relevant time. The plaintiff submitted that the potential exclusion of liability for Brother Webster’s acts or omissions as principal warranted an adjournment. Whatever the particular factual circumstances, the change to come from potential legislative change remains a matter of general application to many cases. The plaintiff accepted a significant number of pending cases are likely to be similarly impacted by the decision in Bird. I do not accept that this was a basis upon which I ought adjourn this particular trial [at 12].
Ultimately, on 4 February 2025, the Supreme Court of Victoria ordered at [13] to [15] as follows:
I informed the parties that I would not grant the adjournment application and indicated that I would provide these reasons.
The final directions for the proceeding was also listed and to that end the parties have otherwise agreed timetabling orders relating to the applications to amend the statement of claim and for unredacted discovery. They have also sought a referral for judicial mediation. I have now made those and the standard trial timetabling orders and confirmed the scheduled trial listing.
The defendant sought, and in my view is entitled to, the costs of the adjournment application.
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