The Catholic church has won the right to challenge in the high court a landmark Victorian ruling forcing the church to take on greater liability for the actions of paedophile priests within its ranks.
In the past two years, the Victorian courts have delivered and upheld an unprecedented ruling that the Ballarat diocese was vicariously liable for the abuse of a five-year-old child known as DP at the hands of assistant priest Father Bryan Coffey.
Vicarious liability is typically used to hold employers responsible for the wrongful or negligent actions of their employees during the course of their employment – even where there is no fault on the part of the employer.
The church, however, has long argued that priests like Coffey were not formal employees, allowing it to dodge claims of vicarious liability.
Earlier this year, Victoria’s highest court rejected that argument and ruled the church was vicariously liable for Coffey’s actions because he was a “servant of the diocese” whose role gave him the “power and intimacy” to access and abuse children.
The diocese, the Victorian court of appeal said, was “all-powerful in the management of clergy within a diocese” and that activities of an assistant parish priest were under the “direct control” of the priest, who reported to the bishop.
“In a real and relevant sense, Coffey was the servant of the diocese, notwithstanding that he was not, in a strict legal sense, an employee of it,” the court ruled.
The decision was expected to pave the way for countless survivors to seek greater compensation from the church.
But the diocese on Friday was granted special leave to appeal the lower ruling in the high court.
In a brief hearing, DP’s counsel David Campbell SC argued against allowing the appeal. He said the decisions of the Victorian courts were “manifestly correct”, meaning it was not an appropriate test case for the high court to consider.
“The relationship in question here is an ancient one, which has its origins in canon law, and is classically … a master-servant relationship,” Campbell said.
“Many of the indicia of that relationship are analogous to an employment one, save that there was no contract of employment. It is our submission that because of those circumstances, while there is lurking an important area of law for consideration, that this is not an appropriate vehicle for that to occur.”
The high court allowed the appeal without hearing further from the church’s lawyers on Friday. It will be set down for a one-day hearing at a later date.
DP, represented by Ken Cush and Associates, was abused by Coffey at his parent’s home in Port Fairy during pastoral visits in 1971, the court of appeal said.
It ruled that Coffey was only able to access and abuse DP because of his role in the church, which gave him a position of power and intimacy.
“It is quite clear that the role of Coffey, presenting as a priest to the local parishioners, invested him with a substantial degree of power, authority and respect,” the court ruled.
“As such, that role, in itself, engendered a significant degree of respect and trust in him by his parishioners, was well justified in concluding that the position of power and intimacy, invested in Coffey as an assistant priest of the parish, provided him not only with the opportunity to sexually abuse the respondent, but also the occasion for the commission of those wrongful acts.”
In 2022, the Victorian supreme court described parts of the church’s argument – namely, that it was not responsible because the abuse took place during after-hours “social” visits – as “ruthless” and “an affront to common sense”.
