By Raini-Eve Webber, Lawyer

On 8 February 2024, the High Court of Australia denied the Catholic Archdiocese of Melbourne (‘Archdiocese’) special leave to appeal the Victorian Court of Appeal’s decision in The Catholic Archdiocese of Melbourne v RWQ [2023] VSCA 197, citing insufficient prospects of success.

Background

At first instance, Justice McDonald of the Supreme Court of Victoria ruled that s 4(2) of the Act applied to RWQ’s claim and that a proper defendant nominated under s 7 could be liable for his psychological injuries. Justice McDonald held that the phrase “founded on or arising from child abuse” in s 4(2) of the Act was sufficiently broad so as to secondary victims. He concluded that excluding such claims would render the term “arising from” superfluous and would contradict the Act’s intended purpose.

Primary Decision

At first instance, Justice McDonald of the Supreme Court of Victoria(1) ruled that s 4(2) of the Act applied to RWQ’s claim and that a proper defendant nominated under s 7 could be liable for his psychological injuries. Justice McDonald held that the phrase “founded on or arising from child abuse” in s 4(2) of the Act was sufficiently broad so as to secondary victims. He concluded that excluding such claims would render the term “arising from” superfluous and would contradict the Act’s intended purpose.

Court Appeal Decision

The Victorian Court of Appeal upheld the primary judgment, affirming that the Act “unequivocally” applies to secondary victim claims. The Court highlighted that the absence of an explicit limitation to primary victims indicates no intent to restrict the Act’s application. Additionally, they noted that Justice McDonald’s interpretation aligns with the Act’s purpose, countering the unfairness of what has historically been known as the Ellis(2) defence.

Implications

The High Court’s refusal to grant special leave solidifies the Victorian Court of Appeal’s stance, potentially sparking an influx of secondary victim claims in Victoria. This landmark decision not only expands liability for institutions and insurers but prompts a reassessment of their liability policies. Moving forward, parties and their legal representatives should carefully consider how to document settlement discussions, particularly regarding indemnities for related secondary victim claims.

(1) RWQ v The Catholic Archdiocese of Melbourne & Ors [2022] VSC 483
(2) Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis & Anor [2007] NSWCA 117