Bird on the wing

Child abuse and the Catholic Church ... High Court veers clear of a "skeletal fracture" of the common law ... "Control" and independent contractors ... Vicarious liability ... Ignoring common law developments elsewhere ... Australia's exceptionalism ... Ass and the law ... Procrustes revisits Bishop Bird and DP 

Bishop Bird: working the ribbons at St Pats Ballarat

The recent High Court travesty, Bird v DP, is both too awful and too emblematic to let pass on a single strafe. 

Winners: the Catholic Church as a financial institution (its pastoral status has just taken another mortal blow); and Bret Walker SC, who may have pulled off the greatest illusion of an illustrious career.  

Losers: Bishop Bird (an onlooker would assume that Bird was behind the abuse: he wasn't. Bishop Mulkearns was); and DP, now in his 50s, having been sexually assaulted as a five year old by the priest Coffey, has lived to see Coffey never imprisoned, despite convictions for child abuse, and is left with no recompense as the High has clamped shut the Church's deep pocket.

It needs to be noted that Bishop Bird is doing the best he could with a bad hand, having directed the estate of the late and derelict Bishop Mulkearns to go to assist abuse survivors (and I doubt he had any control over the decision by those in charge of Church finances to appeal the decision of the Victorian CA in favour of DP).  

The Ballarat Courier reported: 

"Bishop Paul Bird has become the first bishop in Australia to publicly join a global movement showing support for clergy child sex abuse victims. 

Bishop Bird made the profound public statement after tying bright coloured ribbons to the Loud Fence outside St Patrick's Cathedral, Ballarat ..."

Mulkearns, former Bishop of Ballarat - moved paedophile prists from parist to parish 

But enough bouquets, time for brickbats. How did the High Court come to its conclusion as to the Catholic Church's freedom from suit in vicarious liability?  

The answer lies in one word, and its extraordinarily skilful deployment by Walker SC: "control". 

On the one hand, he denounced "control" as a "will o' the wisp" when used as a discrimen to determine "employment" from "independent contracting", while with the other hand he massaged the Bench with emollient about the only control that the Bishop or Diocese had over Coffey was under Canon Law, and that Canon Law had no effect in our common legal system at all. Ergo, no control recognised by the common law was involved. 

The end point in this elaboration was that the priest Coffey was "more remote from the ... control that an independent contractor displays", and as Sweeney (2006) 226 CLR 161 illustrates, liability does not pass vicariously for the torts of such contractors. 

It was then just a hop, skip and a jump to some finger wagging (this occurred twice, by way of reinforcement) about the English and other courts extending concepts of vicarious liability to relationships that were "akin to employment" - that would lead to a "skeletal fracture" in the common law. 

Walker, having admonished Beech-Jones J for the use of the antique "servant", then informed their Highnesses of their limited role in the scheme of things: 

"It ... is outside the current authority in this Court ... [to be] changing the law in an area where we know parliaments and those who advise parliaments are active."  

One can only imagine what Mason CJ would have had to say by way of acerbic response to this purported corralling of the judicial function.

But such is Walker SC's dominance that he got away with it. 

Edelman J meekly asked if upholding the Vic CA's determination of vicarious liability falling on the Diocese would require the reopening and overruling of Hollis, Scott v Davis, and Sweeney? 

Edelman: meek question

"Yes" came back the battle-cry, followed by a dazzling burst of legal-babble distinguishing "real" employment from "real" independent contracting. 

No one pointed out that an examination of the "control" exercised by the Diocese and acceptance of liability resulting from that control, allowing for liability to fall on other than a defined "employment" basis, was the perfectly respectable extension of common law theory that the British, Canadian and Irish Supreme Courts had opted for.  

Such moderate extension did not remotely require the overruling of the previous cases distinguishing employment from independent contracting.

Hand-in-hand Walker SC walked their Highnesses ever further down the garden path. Vicarious liability was attracted by "the kind of control which may indicate employment; the existence of a right of control, a right to exert direction". 

The CA had spotted that the capacity for general "control" rather than taxonomic classification as "employment" was the issue, as illustrated by the "independent discretion" cases going back to Enever: Bird v DP (2023) 69 VR 408 at [117]. 

There was much lather from Bird's counsel about the independence of priests from episcopal control under Canon Law. The factual reality was set out in the Royal Commission into Institutional Responses into Child Sex Abuse: Case Study 28; Catholic Church Authorities in Ballarat.

Under the heading Catastrophic institutional failure of the Diocese appears the following, dealing with the period in which Bishop Mulkearns was in charge.

"When allegations or complaints about a priest's behaviour became known, the offending priest was often removed from the parish where the allegations had arisen and moved to a new location – including interstate, to other dioceses and overseas – where the allegations were unknown. Untrue or misleading reasons for the priest's departure were given to the old parish, and no warning was given to the new parish. Restrictions or conditions were not imposed on the priest in his new parish nor was there effective supervision of his conduct. Often, more allegations against the priest emerged in the new parish" (emphasis added).

And we're meant to believe the Bishop had less control than he would over an independent contractor. When was the last time an independent contractor was told to move interstate or overseas?  

Walker: trail of breadcrumbs 

The clue lay in the table of tendency evidence in the reasons of Jack Forrest J (DP v Bird [2021] VSC 850 at [92]) where we see (and this is just those who came forward with their stories) assaults committed by Coffey in 1963 at Ballarat, and then Terang; in 1966, 1967 and 1968 at Pt Fairy; 1968 Yambuk and Pt Fairy, 1973 and 1975 at Ouyen. 

Walker SC, the product of an Anglican parsonage, wove obscurities between the actual working of a Catholic Diocese and the theoretical Canon Law model: 

"There is a deep inappropriateness about visiting upon the Diocese – which I stress is not a cabal of priests - ... a vicarious liability on the basis that there is a hierarchy that works for them, that are the servants of the people." 

Gosh, poor old congregation, they shouldn't be made to pony up for the actions of this priest, they're just ordinary people. 

Yet, the Royal Commission established beyond any doubt that the Ballarat Diocese was a "cabal of priests" (see e.g. "What the College of Consultors knew", Royal Commission, Case Study 28, pp.295 ff revealing what the clergy of Ballarat, then Father Pell to the fore, knew of the depredations committed by priests, and movements to conceal such activity). And more fool the High Court for ambling along on the trail of Bret's breadcrumbs.  

Talk about life imitates art: see the opener to Anthony Burgess Earthly Powers: 

"I was in bed with my catamite when Ali announced that the archbishop had come to see me."  

Against this tapestry of managerial depravity, we see the extent of Walker SC's cunning, sufficient to persuade the entire Court, six on the law and one (Gleeson J) on the facts, to retreat to the ancient exemption from employer liability: inability to control the actual performance, as in the work of a surgeon, or a police officer. 

The hospital cases from the 1950s sank the first category, and the common law world has finally dealt with the police exemption either through judicial intervention or legislative change.  But, 2024 hardly seems the moment to be retreating to exempt classes when the work of the Royal Commission cried out for a bold general judicial response that advanced the law in a principled manner, without remotely fracturing the skeleton.

Which takes us to the efficacy of the common law as a social construct. Brilliant advocacy causes our ultimate appellate court to steer seriously off course. The results are both personal and community wide. The victim/survivor, DP, is left financially bereft at the end of years of litigation, there being no question as to the damage inflicted on him. 

The Church gets respite from litigation at a moment when community expects recompense to be made. Unless a very bold advocate is prepared to take an appeal up on perhaps subtly different facts (based in a trial where "control" was firmly established), Australian common law is now fixed in this "exceptionalist" mode - we're somehow special and don't have to go along with common approaches taken in comparable jurisdictions.  

Last word from Mr Bumble 

Which leaves us with Walker SC's repeated mantra: this is a matter for parliaments. We can only hope that the Standing Committee of Attorneys General will deal with this issue very swiftly. Too bad for DP who would be entitled to think with Mr Bumble: "if the law supposes that, the law is a ass."  

 Bishop Paul Bernard Bird v DP (a pseudonym) 

 See: Between a Rock Chopper and a Hard Place