UPDATE ON ABUSE LITIGATION IN AUSTRALIA
Paul Davis – Director
Introduction
- 1 Following the end of the Royal Commission into Institutional Responses to Child Sexual Abuse in 2017, litigation of abuse claims in Australia has continued to evolve, with frequent changes over the recent years generating uncertainty for both claimants and defendants. These ongoing shifts have contributed to significant challenges for all parties involved and, at times, have acted as a barrier to achieving meaningful access to justice. This paper covers some of the recent developments and the practical implications that they have had for claimants and defendants.
Major caselaw
Bird v DP (A Pseudonym) [2024] HCA 41
- 2 The case of Bird v DP was one of the significant decisions that marks a significant pendulum swing away from claimants’ interests in recent years.[1]
Background
- 3 The plaintiff, DP, advanced two claims:[2] Firstly, it was argued that the Diocese was vicariously liable for the assaults committed by assaults committed by a priest.[3] Secondly, it was claimed that the Diocese was directly liable in negligence, asserting that the then Bishop failed to exercise reasonable care in his authority, supervision, and control over the priest’s conduct.[4] The trial judge accepted both claims and concluded that the Diocese was vicariously liable for the assaults on DP.[5]
- 4 The Diocese appealed to the Victorian Court of Appeal (VSCA). The grounds of appeal included an argument that the trial judge erred in finding vicarious liability, given that the priest was not an employee of the Diocese.[6] The Diocese also contended that, even if a relationship of vicarious liability existed, the trial judge was wrong to conclude that the relationship was sufficient to impose such liability.[7] The VSCA rejected these arguments, prompting the Diocese to appeal to the High Court of Australia.
High Court Appeal
- 5 Before the High Court, the issues considered included:
- 6 The High Court ultimately agreed that the relationship between the priest and the Diocese resembled an employment relationship.[10] However, the Court declined to extend the law of vicarious liability to such relationships, reasoning that doing so would create uncertainty and indeterminacy in the law.[11] The Court stated that any extension of vicarious liability to relationships ‘akin to employment’ was a matter for the legislature, not the courts.[12]
- 7 The significance of this decision lies in its implications for historical abuse claims involving institutions that operate outside the traditional employment sphere, such as faith-based organisations. Plaintiffs will face greater difficulty in establishing liability unless a strict employment relationship can be shown and will otherwise need to prove specific acts or omissions by the institution that amount to negligence.
Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72
Background
- 8 While the proceedings in Bird v DP were ongoing, another case was also before the courts. In 2024, proceedings occurred against the Diocese of Maitland-Newcastle, alleging negligence, breach of a non-delegable duty, and vicarious liability.[13] The initial proceedings commenced prior to the High Court’s decision in Bird v DP.
- 9 The primary judge in the Supreme Court of NSW found that the Diocese had breached its duty of care and held it vicariously liable for the assaults.[14] However, her Honour did not make a decision on whether a non-delegable duty existed as she had determined there was vicarious liability. The Diocese subsequently appealed this decision to the New South Wales Court of Appeal (NSWCA).
The Appeal
- 10 The NSWCA accepted that the finding of vicarious liability could no longer stand considering the High Court’s decision in Bird v DP.[15] As a result, AA sought to uphold the judgment on the alternative basis of a breach of a non-delegable duty.[16]
- 11 The NSWCA allowed the appeal, finding that there was a material error in the primary judge’s reasoning regarding whether the assaults occurred.[17]
- 12 The NSWCA also held that it was unnecessary to determine whether the assaults had occurred, as it was unanimously agreed that the Trustees owed neither a duty of care nor a non-delegable duty.[18] The basis for this included:
- The existence of a duty is “unique and highly fact sensitive” requires a precise understanding of the defendant and its position, powers, control and state of knowledge, including as to the foreseeability of relevant risks. [19] There will need to be reliance on historical evidence in historical abuse matters. [20]
- To establish a duty of care, AA needed to prove that the harm involved in the abuse was foreseeable.[21] There was no indication on the evidence that, in 1969, a reasonable person in the Bishop’s position would have acted on the assumption that every priest posed a risk of being a child abuser.[22]
- Despite disclosures of abuse being made to a parish priest, his knowledge cannot be automatically imputed onto the Diocese.[23]
- Despite the removal of statutory limitation periods, the Court will still assess the content of and breach of a duty at the time of the alleged breaches, not on today’s standard.[24]
- There is no non-delegable duty to ensure that a delegate does not commit an intentional criminal act, a principle established in the case of Lepore.[25]
- 13 The decision in AA further consolidates the trend of judicial outcomes as limiting institutional liability for historical abuse, reinforcing the requirement for plaintiffs to prove fault, foreseeability, and direct knowledge or negligence on the part of the institution. The pendulum, at least for now, has swung decisively in favour of defendants, making successful claims more challenging absent clear evidence of institutional fault at the relevant time, which often no longer exists due to the passage of time .
Ongoing High Court Appeal
- 14 This decision is currently being appealed in the High Court. AA’s appeal is focused on whether the Diocese owed a non-delegable duty or any duty of care at all, including appealing against the doctrine in established in Lepore, where the majority held that the non-delegable aspect of a duty of care does not extend responsibility in negligence to the duty-ower for intentional criminal wrongdoing by a third party where there is no fault on the part of the duty-ower itself. AA is arguing that this principle has since been eroded by subsequent decisions.
- 15 The hearings for the appeal have already occurred and the outcome is expected before the end of this year.
Legislative clarifications and updates
Felons (Civil Proceedings) Act 1981 (NSW)
- 16 Section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) states that a person in custody having been convicted of a serious indictable offence is only able to commence civil proceedings in court with leave.[26]
- 17 Given the trend of plaintiffs commencing claims of historical child abuse whilst incarcerated, consideration of this legislation is often required.
- 18 The recent case of PMD5 v State of New South Wales [2025] NSWSC 706 clarified the extent of this provision, holding that the Felons Act only applies to people convicted of serious indictable offences in NSW, are in custody in NSW, and are seeking to commence proceedings in a NSW court.[27]
- 19 The clarification provided by PMD5 has increased the potential for claims of abuse to be made from individuals who are incarcerated for serious indictable offences outside the state of NSW.
Civil Procedure Act 2005 (NSW) s 67
- 20 In a number of litigation matters defendant organisations have sought a stay of proceedings on the grounds of there being a lack of evidence.
- 21 In the case of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore, the High Court considered the principles relevant to granting a permanent stay of proceedings.[28] The Court found that granting a permanent stay requires assessing whether conducting a trial would result in unfairness, or whether it would be so unjustifiably oppressive that it amounts to an abuse of process.[29]
- 22 The majority held that any claimed abuse of process must be considered in the context of the NSW government’s introduction of section 6A of the Limitation Act 1969 (NSW), which states there is no limitation period for child abuse actions.[30] The jurisdiction to grant a permanent stay must be understood as a measure of last resort.[31] The decision the court must reach in order to grant a permanent stay is that allowing a trial to go ahead and a verdict to be reached would fundamentally conflict with the administration of justice.[32]
- 23 Time passing and the quality of evidence decreasing does not, in and of itself, act as a basis for a permanent stay to be granted. [33] Arguments such as the alleged perpetrator of abuse being deceased will not necessarily lead to a permanent stay being granted, especially in circumstances similar to this case, where the Diocese was aware of previous complaints about the relevant priest.[34]
- 24 This case affirmed the understanding that in historical abuse matters, it can often be expected that evidence may be incomplete and eroded. However, the case affirms that this does not entitle the defendant to a stay of proceedings.
- 25 The practical implications of this decision have maintained the ability for survivors of abuse to commence proceedings in respect of historical abuse claims in spite of the associated evidentiary difficulties.
Claim Farming Practices Prohibition Act 2025 (NSW)
- 26 Introduced in early 2025, this legislation established offences regarding solicitation of people for the purpose of them making a personal injury claim. It also made it illegal in NSW to receive payment for the referral of a claim, following the lead of Queensland and South Australia.
- 27 The aim of this legislation is to protect vulnerable people from being pressured to lodge civil claims, and to minimise claim farming practices within the state. This responds to concerns raised about organisations that posed as survivor advocacy organisations pressuring victim-survivors to make claims.
- 28 The ban on claim farming does not prevent survivors of abuse from bringing a claim for compensation by contacting a lawyer directly. It also does not prevent someone from giving advice or assistance to another person to encourage them or to assist them in making a claim.
- 29 This legislation is an introductory measure to curtailing claim farming practices within the state. The provisions can be seen to benefit both claimants and defendants, where it discourages non-genuine claims from being made, and supports claimants from being exploited by less than ethical business tactics.
Further practical implications
- 30 Given the complexity and evolving nature of these legal issues, further developments in the law are likely. This can be frustrating for both claimants and defendants, as the lengthy appeals process often results in significant delays to justice. For instance, the original decision in Bird v DP was handed down in December 2021, while the High Court judgment was delivered nearly three years later. When accounting for time spent in lower courts, resolution of a single claim can take upwards of four years, leading to astronomical costs for all parties involved. Despite proposed reforms, litigants must proceed under the current legal framework. Parties cannot adjust timelines or litigation strategies based on anticipated legislative changes.[35] The ongoing uncertainty and frequent changes in the law may also encourage parties to settle disputes before litigation begins, in order to avoid prolonged proceedings and unpredictable outcomes.
Conclusion
- 31 Recent developments in Australian litigation have created a more challenging environment for survivors of abuse seeking to hold institutions liable, particularly following the High Court decisions in Bird v DP, and the NSWCA decision in AA. These cases have reinforced the need for plaintiffs to prove negligence based on limited and eroded evidence, making it more difficult for claims to succeed. However, legislative clarifications in the courts have improved access to justice for some claimants, showing how the pendulum continues to swing between supporting defendants and claimants.
- 32 Ultimately, the landscape of litigation in Australia remains ever changing and uncertain, encouraging claims to settle in order to avoid protracted litigation and unpredictable outcomes.
[1] Bird v DP (A Pseudonym) [2024] HCA 41 (‘Bird v DP’).
[2] Bird v DP (A Pseudonym) [2023] VSCA 66, [2].
[3] Ibid.
[4] Ibid.
[5] Ibid [3].
[6] Ibid [4]
[7] Ibid.
[8] Bird v DP [4].
[9] Ibid.
[10] Ibid [64].
[11] Ibid [65].
[12] Ibid [67].
[13] Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 [18] (‘AA’).
[14] Ibid.
[15] Ibid [19].
[16] Ibid.
[17] Ibid [152]; [252].
[18] Ibid [14]; [16].
[19] Ibid [7]-[8].
[20] Ibid.
[21] Ibid [8].
[22] Ibid [218].
[23] Ibid [75]; [229]; [231]; [233].
[24] Ibid [237].
[25] Ibid [17], [156] – [168]; 253.
[26] Felons (Civil Proceedings) Act 1981 (NSW) (‘Felons Act’).
[27] PMD5 v State of New South Wales [2025] NSWSC 706 [31] (‘PMD5’).
[28] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32.
[29] Ibid [15].
[30] Ibid [4].
[31] Ibid [18].
[32] Ibid [3].
[33] Ibid [52].
[34] Ibid [75]; [182]; [183].
[35] Mendez v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2025] NSWSC 912.