“No conception can be understood except through its history …; and of no legal conception in … law is this more true than the notion of Responsibility for Tortious Acts.”[1]
The principle of vicarious liability has had a somewhat “tortured history” within the Australian Courts and other jurisdictions.[2] While largely thought to be a well-settled point of law in Australia, with clearly defined boundaries, there has been somewhat of a resurgence of the consideration of this legal principle in Australian Courts over the last several years.[3]
The latest decision on this principle from the High Court of Australia is the highly anticipated decision in Bird v DP (a pseudonym).[4] For the first time, the Court was asked to consider whether a defendant may be held vicariously liable for the actions of a tortfeasor where there is no employment relationship, such that vicarious liability would extend to those relationships that are “akin to employment”.
The issues on appeal before the High Court concerned:
- whether the Diocese was vicariously liable for the assistant priest’s conduct with the necessary two-fold inquiry to be answered positively; and
- whether the Diocese breached a non-delegable duty owed to DP – a new contention raised at the appeal.
Although this case is familiar to many, it is worth a quick recap. In 1971, Father Brian Coffey was an assistant parish priest at St Patrick’s Catholic Church in Port Fairy, within the Roman Catholic Diocese of Ballart.[5] Coffey was a regular visitor to DP’s family home in his pastoral role and would counsel and mediate issues between DP’s parents.[6] He would also spend unsupervised time with DP.[7] DP alleged that in 1971 at age 5 years, he was sexually abused by Coffey on two separate occasions: in March or April 1971 and on 26 December 1971.[8]
In 2020, DP commenced proceedings claiming damages for psychological injury caused by the sexual abuse as perpetrated by Coffey.[9] DP alleged the Diocese was both vicariously liable for the actions of Coffey, and liable in negligence by reason of the Diocese’s failure to exercise reasonable care in its authority, supervision and control of the conduct of Coffey. DP submitted that vicarious liability should be determined with reference to the factors as identified in Hollis v Vabu Pty Ltd.[10]
In the decision at first instance, Forrest J discussed in great detail the relationship between Coffey and the Diocese,[11] and ultimately found that the Diocese was vicariously liable for Coffey’s conduct that were ‘directed to the totality of the relationship’.[12] This was by reason of, inter alia, the close nature of the relationship between the Bishop, the Diocese and the Catholic Community in Port Fairy, the Diocese’s general control over Coffey’s role and duties, Coffey’s pastoral role in the community, and the relationship between DP, his family, Coffey and the Diocese being one of intimacy and imported trust.[13] As to the second question directed at vicarious liability, His Honour found that Coffey’s role provided both the opportunity and occasion for the wrongful act because his role as a Parish priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis DP that enabled Coffey to take advantage of DP when alone.[14]
DP was unsuccessful in his claim that the Diocese was negligent for Coffey’s abuse,[15] and this point was never appealed by DP.
The Court of Appeal unanimously upheld the primary judge’s findings and conclusions.[16]
However, the High Court entirely disagreed with the findings of the courts below in reaffirming the principles relating to vicarious liability. Relevantly and as was to be explained, the Court held that:[17]
‘in the absence of an employment relationship, it was not open to hold the Diocese vicariously liable for the two assaults committed by Coffey against DP. Any other analysis that uses language that infers fault or risk – such as control – is inapposite in a claim of vicarious liability. … pointing to fault seeks to appeal to basic principles or ideas that inform so much of the law of tort but have no role to play in vicarious liability. Vicarious liability is concerned with attribution of liability, not fault.’
As the Court set out, ‘the expression “vicarious liability” has been used to describe different types of liability in different areas of the law,’ and it is necessary to identify when vicarious liability applies, before considering, whether an employment relationship is a necessary precursor.’[18] The Court proceeded to discuss the consideration of agency, non-delegable duty, and vicarious liability in respect of its application to the expression.[19]
While DP had pleaded that Coffey was the agent of the Diocese, there was no finding that he (Coffey) was a “true agent”, and therefore, the unlawful acts done by Coffey were not done with the Diocese’s, ‘express, implied or apparent authorisation.’[20] This issue was not revisited by the Court.
For the first time in the hearing of the matter on appeal, DP advanced the contention that he was owed by the Diocese a non-delegable duty,[21] the second area of law where vicarious liability has been used. The Court restated that “non-delegable” or “personal” duty, is ‘… of a special or “more stringent” kind’,[22] and is a duty to ‘ensure that reasonable care is taken’[23] [emphasis in the original] with liability for breach of this duty being direct, not vicarious.[24] The Court dismissed consideration of this issue as it was confined to deciding the issues that DP had invited the earlier courts to decide. [25] A non-delegable duty was never pleaded or addressed in the evidence before the courts – the only two issues at trial were vicarious liability and negligence.[26] The issue of negligence failed and that finding was never appealed by DP.[27]
The plurality then turned its discussion to the third area of law – vicarious liability. As previously set out, ‘vicarious liability in its true or proper sense [is] liability based on the attribution of the liability of another…’ not the ‘attribution of the acts, of a wrongdoer to a defendant.’[28]
Vicarious liability in the common law of Australia has always adhered to the rule that a relationship of employment is a necessary precursor,[29] that this is an “essential requirement” for secondary liability,[30] and there was no vicarious liability for the acts of those not in a relationship of employment, that is, acts of third parties outside of that context.[31] Further, where liability is attributed to the employer it ‘must be committed in the course or scope of the employment.’[32] As the Court noted this is the two-fold inquiry of vicarious liability: whether the alleged tortfeasor was an employee of the defendant, and then separately, whether the act or omission of the alleged employee took place in the course or scope of that employment.[33] To date, the Court has not accepted that vicarious liability applies beyond any strict employment relationship and Court determined that there was ‘no solid foundation’ to expand the doctrine or for the ‘bounds to be redrawn’ now,[34] especially where it has repeatedly refused to extend those boundaries to include independent contractors.[35]
While the Court reviewed how the law of vicarious liability is on the move within overseas jurisdictions, including England where it has extended the principle to those relationships that are “akin to employment,” the Court said it was important to understand those movements emerged from ‘a radically different set of starting principles’ for vicarious liability which were not law in Australia.[36] There have since been efforts by the UK Supreme Court to retreat from this expanded position.[37]
Ultimately, the Court declined to expand the scope of vicarious liability, largely on policy grounds and to so now would ‘produce uncertainty and indeterminacy in at least two ways’.[38] The first, being the “akin to employment” test. The Court considered any extension of vicarious liability in this way ‘is squarely in the hands of the legislatures’ and that there are ‘deep roots’ of the employment relationship being a threshold requirement for a finding of vicarious liability’ which extends to other Australian courts, the legislatures and insurers.[39]
The second area to produce uncertainty and indeterminacy arises the risk of ‘further complicating the already fraught distinction between employees and independent contractors.[40] The Court restated the relevant question is ‘whether the tortfeasor is carrying on business on his own account or whether [the tortfeasor] is in a relationship akin to employment with the defendant’,[41] and to now consider indicia of a subset of cases that are “akin to employment” would ‘generate difficulty distinguishing employees from independent contractors more broadly.’[42]
The Court then turned its discussion to address cases of child sexual abuse and institutional liability, and where legislation has sought to address such issues as those before the Court, particularly following the 2015 Redress and Civil Litigation Report of the Commonwealth Royal Commission into Institutional Response to Child Sexual Abuse.[43] As observed by the Court, there is inconsistency amongst the various legislation, and some amendments to civil liability apply prospectively.[44] In Victoria, where DP’s claim originated, the introduction of the Legal Identity Act remedied the issue around bringing proceedings against unincorporated organisations and dealt with the issue of legal personality. However, as the Diocese submitted and was accepted by the Court, this was not an alteration of the substantive law of vicarious liability and an employment relationship is still required.[45] The Court held that this was not an area ‘of the law where the intersection between the common law and statute permits the Court to analogise from statute to adapt or expand the principle of vicarious liability beyond relationships of employment.[46]
As it was found that vicarious liability did not apply, the issue to the Diocese’s liability of Coffey’s conduct was not reached.
Ultimately, the plurality allowed the appeal, with the orders made by the Supreme Court of Victoria set aside and an order made to dismiss the proceeding with costs.[47]
Justice Gleeson reached the same conclusion as the majority allowing the appeal and dismissing the proceedings but determined the issues differently. His Honour disagreed that there was not a basis for the further development of vicarious liability and the expansion to those cases which are “akin to employment” are modest in operation.[48] His Honour sets out his analysis that would allow such expansion against the seven features identified in Hollis that were also evident (bar one) in the Diocese’s appointment of Coffey as an assistant parish priest. Gleeson J concluded that the relationship which existed between Coffey and the Diocese was ‘fairly described as “akin to employment”’ given the characteristics of that relationship and Coffey was not an independent contractor.[49]
However, His Honour proceeded to find that the courts below had erred in finding that Coffey’s role place him in a position of trust and authority vis-à-vis DP and his family and that Coffey’s abuse of DP occurred in the court of his relationship with the Diocese. His Honour determined that while Coffey’s role, in providing pastoral care, placed him in a position of trust, this was insufficient to conclude the sexual assaults occurred in the course of his role as there was nothing in the factual findings of the courts below that gave Coffey authority or power to insist on being alone with DP.[50] His Honour concluded that while ‘Coffey’s role gave him the opportunity to harm DP … it was not the occasion for that harm’ as explained in Prince Alfred College.[51] Gleeson J held that while the relationship between the Diocese and Coffey attracted vicarious liability, DP failed in his claim as Coffey’s torts were not committed in the course of that relationship.[52]
Briefly, while Jagot J wrote a separate judgement from the majority he ultimately reached the same conclusion. His Honour’s determined that the conclusion of the courts below involved an extension, rather than application of the common law principle of vicarious liability but that the extension should not be adopted and become part of the common law in Australia.[53] Jagot J includes his own analysis of the law of vicarious liability, including where both he uncertainties and certainties of the rule lies and when exceptions to the general rule should be made, and whether the courts below applied or extended the principle and why the principles of vicarious liability should not be extended. His Honour agreed the Diocese’s appeal must succeed, and the orders proposed by the plurality be made.[54]
The High Court’s decision is clear and resolute – vicarious liability at common law does not extend to those relationships that are “akin to employment”. While this arguably creates more difficulties in pursuing what are complex and distressing claims for institutional child sexual abuse, arguably creating a more torturous process for those victims seeking redress, to remedy this situation will require further review and amendments by the legislatures. As the Court noted (and which has not been discussed in great detail in this summary) the legislation as it relates to these issues is inconsistent amongst the States and Territories. The continued developments in this area of law, and how this decision will be applied in other similar cases, will remain of great interest to practitioners and their clients.
[1] John H. Wigmore, ‘Responsibility for Tortious Acts: Its History’ (Part II. Harm Done by Servants and Other Agents: 1300-1850) (1894) 7(7), Harvard Law Review 315.
[2] Bird v DP (a pseudonym) [2024] HCA 41 at [48] (‘Bird v DP’) citing Prince Alfred College Inc v ADC (2016) 258 CLR 134 (‘PAC’); Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 at 56-57 (‘Darling Island Stevedoring’); Scott v Davis (2000) 204 CLR 333 at 242 [277] (‘Scott v Davis’); Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 37 [35] (‘Hollis’); New South Wales v Lepore (2003) 212 CLR 511 at 580 [196] (‘Lepore’); Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 166-167 [11] (‘Sweeney’); CCIG Investments Pty Ltd v Schokman (2023) 97 ALJR 551 at 561-562 [48]-[53] (‘Schokman’). Case authorities for the international jurisdictions have been omitted but can be found at footnote 69.
[3] See e.g., PAC; Schokman; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165.
[4] [2024] HCA 41 (‘Bird v DP’).
[5] Bird v DP at [2].
[6] Bird v DP at[19].
[7] Bird v DP at [19].
[8] Bird v DP at [20].
[9] DP (a pseudonym) v Bird [2021] VSC 850
[10] (2001) 207 CLR 21; DP (a pseudonym) v Bird [2021] VSC 850 at [121].
[11] Forrest J’s lengthy discussion is set out at from [116] to [282]. He explores the case authority both in Australian and overseas on the issue. From paragraphs [224] to [277] he considers and discusses the relevant factors in answering the two questions on vicarious liability: whether the Diocese was vicariously liable for Coffey’s conduct and whether the Diocese had placed Coffey in a position of power and intimacy vis-à-vis DP.
[12] Bird v DP at [8].
[13] Bird v DP at [21].
[14] DP (a pseudonym) v Bird [2021] VSC 850 at [280]-[281]; Bird v DP at [22].
[15] DP (a pseudonym) v Bird [2021] VSC 850 at [278]-[279].
[16] Bird v DP (A Pseudonym) (2023) 69 VR 408; 2023 323 UR 174; [2023] VSCA 66.
[17] Bird v DP at [29].
[18] Bird v DP at [30].
[19] Bird v DP from [31].
[20] Bird v DP at [35].
[21] Bird v DP at [40].
[22] Bird v DP at [36] citing Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550, quoting Kondis v State Transport Authority (1984) 154 CLR 672 at 686 (‘Kondis’); Lepore (2003) 212 CLR 511 at 530 [25], 551-552 [101], 598 [254]; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 at 27 [6].
[23] Bird v DP at [36] citing Kondis (1984) 154 CLR 672 at 686; The Commonwealth v Introvigne (1982) 150 CLR 258 at 270-271(‘Introvigne’); Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550; Lepore (2003) 212 CLR 511 at 551-552 [101], 598 [254].
[24] Bird v DP at [36] citing Introvigne at 271, 275, 279; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 329-330; Schokman (2023) 97 ALJR 551 at 567-568 [70]-[73]; 410 ALR 479 at 497-499; Lepore (2003) 212 CLR 511 at 562, [136].
[25] Bird v DP at [43].
[26] Bird v DP at [40].
[27] Bird v DP at [40].
[28] Bird v DP at [44] citing Schokman and also referring to Darling Island Stevedoring (1957) 97 CLR 36 at 57.
[29] Bird v DP at [45].
[30] Bird v DP at [46] citing Schokman.
[31] Bird v DP at [46].
[32] Bird v DP at [46] citing Schokman.
[33] Bird v DP at [47] citing Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 380; PAC; Schokman and referring to Colonial Mutual Life (1931) 46 CLR 41 at 49.
[34] Bird v DP at [48].
[35] Bird v DP at [49].
[36] Bird v DP at [55].
[37] Bird v DP at [250] per Jagot J.
[38] Bird v DP at [65].
[39] Bird v DP at [63].
[40] Bird v DP at [66].
[41] Bird v DP at [66].
[42] Bird v DP at [66].
[43] The Report did include recommendations relating to issues of vicarious liability and non-delegable duty with reform to be taken by the State and Territory governments, including to make institutions liable for institutional child sexual abuse by persons associated with the institution, unless the institution proves it took all reasonable steps to prevent the abuse.
[44] Bird v DP at [68].
[45] Bird v DP at [69].
[46] Bird v DP at [71].
[47] The appellant had agreed to pay DP’s costs of and incidental to the special leave application and the appeal, see [71].
[48] Bird v DP at [85]-[86].
[49] Bird v DP at [176].
[50] Bird v DP at [182].
[51] Bird v DP at [182].
[52] Bird v DP at [183].
[53] Bird v DP at [184]-[185], per Jagot J.
[54] Bird v DP at [186], [257].
A review of the recent decisions in H v AC [2024] NSWSC 40 and H v OL [2024] NSWSC 271
I recently posted on LinkedIn a summary of a Court decision which had applied the ‘ancient and rich history’[1] of the Court’s parens patriae jurisdiction. My intent for the post was to explain why this extraordinary jurisdiction of the Court, which has one criterion: what is in the best interests of the child, is evoked, and why Orders are made when those Orders may be against the wishes or the beliefs of the patient or the family. The post was off the back of an ABC news article my Mum had sent me[2]. She was curious to understand why a court would make an Order allowing the hospital to administer treatment to a severely disabled teenage girl after a diagnosis of a new medical condition, when that was against her parents’ wishes. The ABC article was referring to the decision in H v OL [2024] NSWSC 271 (‘H v OL’).
It is always difficult, for all involved, when the Court is asked to exercise its parens patriae jurisdiction. A minor, who may or may not be ‘Gillick competent’, has placed in the hands of a neutral and independent third party, a Judge, a potentially life altering decision.
Before the decision in H v OL, in early 2024, the New South Wales Supreme Court also heard and decided H v AC [2024] NSWSC 40 (‘H v AC’). Coincidently, in both matters two female teenagers had been diagnosed with cancer, who each had good prospects for recovery if the recommended treatment were completed, but in circumstances where both teenagers would most certainly die if that treatment were not administered. A Court Order was sought in H v AC as the patient had declined to continue her treatment on account of her religious belief that her cancer had been cured by way of a miracle; and in H v OL the parents of a severely disabled teenager did not wish for her to undergo the treatment.
Both matters were challenging legal decisions for different reasons.
H v AC
As His Honour Meek J set out at the introduction of H v AC[3]:
“Events bearing upon the inestimable sanctity of life and its intersection with faith beliefs tend to give rise to some of the most palpable forensic debates and challenging legal decisions.”
AC was 16 years old when in July 2023 hip pain quickly led to a diagnosis of Ewing sarcoma – a ‘highly malignant and aggressive cancer[4]’ in the bone[5]. AC underwent medical treatment namely a “schema” being the start of a cycle of five specific chemotherapy drugs at a hospital in Sydney, away from her home. The treatment ordinarily requires 17 cycles of treatment – six in the induction phase and 11 in a consolidation phase[6] delivered in ‘blocks’. The intent was for AC to also undergo radiotherapy. AC’s treatment started in early August 2023, and she completed four of the first six treatment cycles, with the fifth cycle scheduled to have commenced in mid-September 2023[7]. She had not commenced the radiotherapy. On 25 September 2023, AC underwent an MRI of the pelvis for which the cancer was not readily detectible on the scans[8] in that there had been a ‘spectacular decrease’ in the size of the tumour in her pelvis and the lung nodules were no longer visible[9].
AC and her parents were devout Christians and AC was of the belief ‘that God had been active in her plight and that her cancer [had] been cured by way of a miracle’[10]. She declined any further treatment on or about 4 October 2023[11].
Her treating Doctor’s opinion was that the cancer was not cured, and AC still required treatment[12]. His evidence before the Court was that had he had ‘not encountered any circumstances where Ewing sarcoma has been cured after only four cycles of chemotherapy and without either surgery or radiotherapy as well’[13]. He maintained that there were persisting microscopic amounts of cancer not readily detectable on an MRI or PET scan that would be the source of tumour growth, and he informed AC there was a ‘100% likelihood of the tumour progressing over the next several months to 1 to 2 years’ for which that tumour regrowth was likely to be treatment resistant and ‘without further treatment, the cancer would relapse, her disease would be incurable, and she would die’[14]. As the Court noted, this was an educated guess on the Doctor’s part[15].
At the Hearing, AC maintained her position, as she had communicated to her doctors, that she did not wish to have the recommended treatment. She believed she had been cured of cancer given the “miracle” that had occurred[16]. At the beginning of his decision, his Honour sets out an interesting analysis of the noun “miracle” and its contextual meaning from the ordinary dictionary definition to the use of the word in religious texts along with the consideration of prayer[17]. This discussion was relevant given AC’s stout belief and the ‘evidence that AC believes that if the cancer returned it would represent God’s will, and her belief of death is that she would be returned to Jesus and have an ‘eternal life in heaven’[18].
On the back of AC’s religious beliefs, the first issue involved whether AC had the capacity to make the decision to cease her treatment. That is, was she ‘Gillick competent’. It was the plaintiff’s concern that AC ‘may not have capacity to refuse consent to the recommended treatment on the basis that she does not have a sufficient understanding [of the medical evidence] to give a valid consent’ given the expert opinion was, inter alia, the cancer had not been cured and will inevitably return.[19]’ His Honour considered the case authorities as to Gillick competence following submissions made by Counsel for AC on those authorities and the criteria which is applied in determining that issue. Meek J referred to Re A (2022) 11 QR 1 which had casted doubt whether Re Imogen (No 6) [2020] FamCA 761 correctly stated the law on the issue of Gillick competent[20]. Boddice J (as he then was) set out in Re A,the first issue to be properly considered is whether the child is Gillick competent because if so, ‘then subject to some obiter dicta … that really should be the end of the matter’[21], though His Honour did make the declaration sought in Re A.
As the decision in H v AC proceeds to discuss, it may not always be such a simple decision even where a child is Gillick competent but does not want to continue with lifesaving treatment. In determining the capacity issue, Meek J considered AC’s evidence as to her belief and understanding of the risks in ceasing treatment early against the evidence attesting to her personal character including, inter alia, that she is ‘a mature and intelligent young person’ who was completing a compressed year 11 and 12 HSC programme[22]. Experts who had assessed AC on the capacity issue, gave evidence that AC had ‘sufficient understanding and intelligence to process the medical information’ she had been provided with[23], though his Honour accepted that the medical evidence was ‘clearly to the effect that the cancer subsists in AC’s body.[24]’ In consideration of all the material and submissions before him, Meek J ultimately accepted that AC ‘has the ability to make decisions,’ including whether to continue or refuse the treatment[25]. However, in this case, that was not the end of the matter.
His Honour then went onto consider whether the treatment should be ordered with Counsel for AC acknowledging that a ‘finding that AC has capacity would not necessarily be determinative of the question whether treatment is in her best interests.[26]’ AC’s Counsel submitted a number of considerations as to why it was not in AC’s best interests to have the treatment imposed upon her against her will (and that of her parents)[27] and stating that AC has ‘not ignored the medical evidence’ but believes she is free from cancer and therefore does not require the treatment[28].
In careful and deep consideration of all material, submissions and case authority, Meek J held that while he had found AC to be Gillick competent, and the need for the Court to act cautiously when exercising its parens patriae jurisdiction, it was his view that he should authorise and direct the recommended treatment be administered to AC[29]. Amongst Meek J’s numerous considerations, was that the ‘sanctity of life is an important consideration to be not merely accorded respect but appropriately weighed, as is the medical evidence, AC’s religious beliefs, AC’s autonomy of decision-making, and her right to bodily integrity.[30]’
Accordingly, the Court Order included a declaration that the responsible medical practitioners, nursing and other staff at the Hospital may lawfully carry out on AC medical treatment, including local therapy to the pelvis: surgery and/or radiotherapy, whole lung radiation, continuation of chemotherapy and associated supportive care measures.
H v OL
In contrast, to that if H v AC, Gillick competence was not an issue for the Court to resolve in H v OL.
At the time of the decision, OL was a 14 (nearly 15) year old girl with a number of underlying health conditions[31] such that she was considered to be severely disabled and has a development age of between 18 months and 3 years[32]. By Affidavit evidence, OL’s mother set out the history to her pre-existing morbidities and the practical requirements of caring for OL[33]. OL had been diagnosed with Pre B Acute Lymphoblastic Leukemia[34] which requires a ‘treatment regime [that] is debilitating, intrusive and will extend over two years and three months’ but comes with a 90% survival chance[35]. Without the treatment she would pass in about four weeks[36]. OL’s mother Affidavit set out that OL’s challenging behaviours had worsened since her hospitalisation for treatment and that it would often require three nurses and her parents to forcibly restrain her with a play therapist used for distraction, which was ‘very distressing for OL’[37]. On one occasion that forcible restraint remained in place for two hours to enable a blood transfusion and on another a general anaesthetic was administered to allow the transfusion.[38] It was very likely further general anaesthetics would be administered to provide the treatment with the only other option being the use of physical restraint[39].
It was OL’s mother’s wish that OL did not receive the treatment but that she underwent palliative care and be allowed to die peacefully at home[40]. As was observed in the decision, this was not based on ‘any religious or cultural belief’[41] but ‘derived completely from her love for her daughter and her desire to avoid further suffering to an already medically challenged child’[42].
Part of the medical evidence considered and acknowledged that OL had a shortened life expectancy of approximately 25% on account of her pre-existing morbidities, specifically her developmental and epileptic encephalopathy/epilepsy. OL’s paediatric neurologist also gave evidence and stated her view that the treatment regime would be difficult for OL to tolerate and that she [the doctor] was concerned that OL would not understand the treatment and why it was being administered[43], along with the issue of the difficulty in administering the chemotherapy which could also have the adverse effect of lowering her life expectancy[44].
Another of OL’s treating practitioners, her paediatrician, unequivocally supported OL’s mothers decision that treatment not to be administered and that it would not be in OL’s best interests to attempt the curative chemotherapy[45]. It was his view that ‘OL would not cope with the pain and consequences of intensive chemotherapy or transplantation.[46]’
OL’s doctor acknowledged in evidence that the treatment would be more difficult to administer on account of OL’s pre-existing conditions such that the ‘burden of the treatment to [OL] and her family may be greater’ than what would ordinarily be to another child and their family[47].
His Honour embarked on a short analysis of similar case authority including Re Ryder [2020] NSWSC 895, which differed from that of OL, as that child’s cancer was in remission and did not have other pre-existing medical conditions. His Honour Elkaim AJ, recognised that the treatment would be very difficult particular for OL and her mother, but that did not mean it should not be undertaken[48]. His Honour also considered that OL had been living with her pre-existing conditions her whole life, which formed part of her life and her life ‘is not entirely without joy’ as shown by the photos exhibited to affidavit material. She also attends a special school which she apparently enjoys[49].
His Honour held at [48] that there was ‘little alternative but to make the orders sought’ and while the treatment would be onerous, it will hopefully return her to her pre-leukaemia condition and will allow her to continue the life that she already had. He further held that not making the orders was effectively a death sentence[50]. The Court also ordered that the Hospital is to engage with OL’s parents to ensure they are consulted throughout the treatment.
These two decisions serve to highlight just what a difficult decision the Court is faced under its parens patriae jurisdiction particularly in the context of medical treatment. As set out at the beginning, the only criterion for the Court is what is in the best interests of the child for which the complexity of the issue is increased where a child may be found Gillick competent. Undoubtedly, these are never easy decisions for all involved, least of all the child patient and their parents.
[1] H v AC [2024] NSWSC 40, at [46] (‘AC’).
[2] See Court orders cancer treatment for teenager with severe disabilities in rural New South Wales – ABC News published 21 March 2024.
[3] AC, above n 1, [1].
[4] Ibid [225].
[5] Ibid [2].
[6] Ibid [100].
[7] Ibid [104].
[8] Ibid [105]-[106].
[9] Ibid [109].
[10] Ibid [75].
[11] Ibid [118].
[12] Ibid [106].
[13] Ibid [110].
[14] Ibid [119].
[15] Ibid [120].
[16] Ibid [126].
[17] Ibid [77]-[88].
[18] Ibid [74].
[19] Ibid [170]-[171].
[20] Ibid [173].
[21] Re A (2022) 11 QR 1, at [15].
[22] AC, above n 1,[185]-[186].
[23] Ibid [193].
[24] Ibid [180].
[25] Ibid [197].
[26] Ibid [210].
[27] Ibid [200]-[201].
[28] Ibid [229].
[29] Ibid [231].
[30] Ibid [232].
[31] H v OL [2024] NSWSC 271at [11] (‘H v OL).
[32] Ibid [12(3)].
[33] Ibid [12].
[34] Ibid [11].
[35] Ibid [13].
[36] Ibid [4].
[37] Ibid [12(7)].
[38] Ibid [12(8)].
[39] Ibid [14].
[40] Ibid [15].
[41] Ibid [15].
[42] Ibid [15].
[43] Ibid [31].
[44] Ibid [32].
[45] Ibid [33].
[46] Ibid [33].
[47] Ibid [22].
[48] Ibid [46].
[49] Ibid [44].
[50] Ibid [49].
Author: Om Dhungel with James Button[1]Publisher: NewSouthReviewer: Bianca Stringer
Reading fiction or non-fiction books is much like the different windows on Play School. It gives us a glimpse into a world outside our own personal studio. Whether we look through the round, square, or arched window – we can visit unfamiliar places, meet interesting people, and we are given the opportunity learn.
Om Dhungel’s inspiring and remarkable story (as told to James Button) is one of hope, determination, and immense gratitude. In reading his story, we are taken through one of the windows and are introduced to Om’s boyhood life in Bhutan. A seemingly simple life, one where his parents were farmers and worked in the fields and Om attended a semi-formal school that was run by villagers with the curriculum consisting of learning the Nepali language and some religious studies.
But, from a young age, Om wanted more. He was hungry for the opportunity of education and, one morning, accompanied one of his brothers to the government school. After demonstrating his aptitude to the head teacher, Om began his education in upper kindergarten. Om seemingly understood that an education would provide a better future for him and so he continued his studies through until University and beyond, going on to holding senior positions within the civil service in Bhutan.
Om’s later education and young adulthood were marred by the ethnic cleansing that swept through Bhutan in the 1990’s. While I had a vague recollection that such atrocity had occurred in Bhutan, Om’s firsthand experiences allowed me to properly understand the persecution faced by the Lhotshampa people for years. This would have been an incredibly difficult and confusing time for the Lhotshampa as they truly saw themselves as Bhutanese, were loyal to king and country and had been for hundreds of years.
Over a seventh of the population from Bhutan were expulsed and it was ‘one of the greatest acts of ethnic cleansing, per capita, that the world [had] seen’. This was evidently difficult for Om given he held positions of power within the Bhutanese government and, for a period of time, was largely safe while his family and friends around him lived in fear. Om’s lived experience that he recounts for the reader gives us a glimpse of the life that was experienced by the Bhutanese at the time.
However, through all of this, Om remained determined to create a better life for himself and his family, including his beautiful wife, Saroja and his daughter. That first meant escaping Bhutan and becoming a refugee in Nepal – a dangerous task in itself. He describes in detail what life (and conditions) were like in refugee camps. Not being content with sitting back and accepting his “fate”, a true natural leader, Om, sought to make conditions in the refugee camps as humane and “normal” for others as possible, and to give the refugees a sense of purpose and focus for their time. Many refugees would seek Om’s counsel and it is obvious he was held in high regard.
Om was able, later, to migrate to Australia on a study visa, alone. It was an opportunity he did not squander and, unafraid of hard work, Om worked entry level jobs while he studied. In time and with perseverance, he landed a job with Telstra and was later able to migrate his wife, daughter, and extended family to Australia.
What struck me about Om’s story was his immense gratitude for the new life he was afforded in Australia. Instead of lamenting on all that he had been through, he once again picked himself up and continued to create a better life for himself, his family, and others. Om became especially focused on the refugee community within Australia and his local area.
Having firsthand experiences with the difficulties assimilating to Australia but appreciating the cultural differences of the Bhutanese and Nepalese people, Om was instrumental in working with non-government organisations to help the newly migrated. Om found ways to help others feel like they belonged. He created a sense of community. He created pathways – for those who arrived uneducated and illiterate – to learn and improve their English which in time would assist them to further their work opportunities. In time, he and his wife, along with four other couples, founded the Association of Bhutanese (‘ABA’) in Australia. He was ‘determined to ensure the Bhutanese got a good foundation that was not just material, but cultural, moral, even spiritual.’ As he tells it, in his story, he ‘felt in debt to the newcomers’ and recognised the importance of developing a sense of belonging. Om did not just want his people to survive in Australia, but to thrive, and it is evident that Om achieved that and more.
Written at the start of the COVID-19 pandemic in Australia, Om’s story continues and ends with the ways in which he continued to support his local community – not only the Bhutanese, but those within his local residential estate. He is the epitome of community spirit and being of service to others.
I was uplifted and inspired in reading Om’s story. It reminded me that I have a lot to be grateful for and of the sense of purpose that comes from serving others. A powerful and moving story (and it certainly is when the Australian Prime Minister is willing to write the foreword), it is one of sacrifice and hope. Om gently reminds us that we get one life, that it does us no good to outsource our happiness to others, and that it is up to us to make the most out of life.
I highly recommend Om’s story to all.
[1] James Button has won two Walkley Awards for feature article journalism and two other books of his have been published by MUP. Speechless is a personal memoir which reflects upon his relationship with Button’s father, John Button, a senior minister in the Hawke and Keating governments.
Author: Alan AtkinsonPublisher: NewSouth Publishing, University of New South Wales Press Ltd Reviewer: Bianca Stringer
Australia’s early settlement, beginning with the arrival of the First Fleet in 1788 and the establishment of penal colonies in New South Wales and on Norfolk Island, is well known. However, most people are unaware of those people who chose to leave behind a life in the United Kingdom and make a new home in the uncharted territory of what was to become Australia.
Atkinson, in his 2022 published book, Elizabeth & John, the Macarthurs of Elizabeth Farm, provides the reader with an incredibly rich and detailed history of two early volunteer settlers to Australia – Elizabeth and John. Atkinson has clearly spent an unimaginable number of hours over the 50 years he researched Elizabeth, John, their six children, their extended families and close confidants in order to write so extensively and with such depth about their lives. This was evidently a labour of love and a fascination for Atkinson. The reader is treated to such a detailed level of knowledge and understanding that one could easily think Atkinson knew Elizabeth and John, personally. Possibly, after all his research, Atkinson felt he did.
Elizabeth and John arrived in Australia in 1790 aboard the Neptune, a ship for woman convicts and part of the Second Fleet to New South Wales. This book provides an in-depth insight into their lives as they grew their family and while they established Elizabeth Farm at Parramatta and, later, a farming property at Camden. Eventually, they founded the Camden Park Estate, which is still operational today.
When his initial pursuit of a legal career at the Bar did not bear fruit, John fancied himself to be what would now be described as an “entrepreneur”. Perhaps, more fittingly for frontier Australia, John was the original “ideas man”. On the page, he came across to me as someone who was simply focused on making money and getting rich in the shortest time possible. This had largely proved unsuccessful for him in the United Kingdom. So, when the opportunity presented itself in Australia, this was likely too good to resist. Whether Atkinson intended this or not, John comes across as self-important and grandiose about his own ideas and capabilities.
However, his grandiose ideas were foundational to establishing Australia’s farming industry. John became a grower and exporter – a merino wool pioneer. Later, he established a cattle business, amongst other tried (and failed) ventures. He did in time achieve some wealth, such that I imagine he would have been quite pleased to learn he was later featured on the two dollar Australian banknote. Above all, he was certainly tenacious through to the end.
Further testament to his free-thinking temperament, John was frequently at odds with those in positions of authority and power, including the Governor of the day. He was a key organiser of the ‘Rum Rebellion’ in 1808. There is no doubt that he exercised his right to free speech, though, ultimately, this had consequences for him.
Elizabeth, clearly the matriarch, was an avid reader and conversationalist. She was also a keen botanist and gardener. She embraced the local landscape and First Nations people and proceeded to establish a revered garden and orchard that constituted ‘a fundamental aspect of settlement at Elizabeth Farm’. Personally, I think Elizabeth is far more likeable than John, though she remained devoted to him and their cause even when he spent lengthy periods of time back in England and then holidayed in Europe. Atkinson does a good job of equally dividing the reader’s time and attention between Elizabeth and John so that you really get to understand each of them.
To me, this book reveals not only Elizabeth and John as individuals but also Australia’s very early history. I do not know if this is (or was) taught in schools or if it is left to the individual to seek out this knowledge but, through Atkinson’s work, I gained a new understanding of the early Australian framework for agriculture and industry and the history of New South Wales, more generally. I was also provided with a detailed picture of how rugged the Australian landscape truly was before the forests were felled and cleared to make way for settlement.
I was also pleasantly surprised to learn that Elizabeth and John embraced the First Nations people, wanting to learn from them and appreciating their knowledge of the land. Though, on one view, it is arguable that John exploited them by using them as bodyguards, many did remain loyal to the Macarthurs. John also engaged convict men. He employed those who had served their terms and were free for his farming, though this did lead to mixed results.
John had a keen interest in the law. Through his business endeavours, rebellious acts and, in 1825, through being one of the first appointees to the New South Wales Legislative Council, he influenced the trajectory of Australia’s early development which has now become our history, including legal history. Atkinson, whether intentional or not (but I think fittingly), has subtly included a summary of Elizabeth and John’s relationship which provides a complementary version to the well-known maxim ‘marathon not a sprint’ in describing the longevity of a career in the law:
Garden growth, with its various vicissitudes, its trial and error, its skill and patience, its fast and slow, its long and short term, encapsulates the whole story of Elizabeth and John. A garden is all about keeping to a certain space, asking yourself questions and looking forward.
This passage certainly describes the Macarthurs. It is how I am reminding myself what my career at the Bar will be.
The level of detail in this book and the storytelling that comes through is such that you could be mistaken for believing you are reading a fictional novel that weaves Atkinson’s imagination with historical events. Yet, Atkinson has produced an entirely historical nonfiction book. This he has achieved almost entirely on letters exchanged between husband and wife (and others) and account books that were thoughtfully preserved.
The breadth of Atkinson’s research is clearly apparent. He refers to what I assume is every person that has some connection with the Macarthurs and John, in particular. With many having the same first name and, occasionally, the same surname, it can at times become confusing as to whom Atkinson is referring (or even why) which can distract from the flow of the book. The density of information, traversing from Elizabeth and John’s early adult years right through until their death, can make its reading a little slow and, occasionally, I got lost in following the flow of events.
However, while reading Elizabeth & John,I was reminded (primarily by John) that tenacity and belief in oneself will take you far provided you are not deterred by the detours or roadblocks that may appear along the way. John never gave up pursuing his goals and what he believed in. In doing so, he created quite the legacy that still remains today.
If Australian history piques your interest, then Atkinson’s book is well worth the effort.
Cutting a tiny figure in amongst people towering over him, Benjamin (Ben) Ferencz holds court before some 300+ competitors, coaches, and adjudicators. The room is full of excitement, not because it is the opening night of the 2017 International Criminal Court Moot Competition (‘ICC moot competition’), but because Ben Ferencz is there. He is charming and endearing and evidently kind – willing to meet and pose for photos with students.
I, however, had absolutely no idea who he was. My teammates were a tad horrified given where we were after all. I very quickly learned who Ben was and his association with international criminal law.
Ben was the last surviving prosecutor of the Nuremberg Trials. At the mere age of 25 years, Ben was tasked with the responsibility of investigating and collating the evidence. He later became the Chief Prosecutor on the Einsatzgruppen Trial. I will return to this shortly.
In 2017, Ben and his son travelled from the United States to The Hague, Netherlands to open the ICC moot competition and welcome those who were participating. The fact that the footpath next to the Peace Palace was being named Benjamin Ferenczpad (‘Benjamin Ferencz Path”) in his honour may also have been part of the reason for his trip. Though he had entered his 97th year when attending the ICC moot competition and he needed a little assistance with travelling – his incredibly sharp mind, intelligence, and wit remained untouched. His humour was infectious and upon getting a glance at our team’s coach, a well-known Brisbane Barrister and Academic, he promptly referred to him as Santa Claus – said with a cheeky grin and a laugh. That nickname stuck for the remainder of the competition.
In his plenary speech, Ben’s passion for justice and peace and his intrinsic value of leaving the world in a better place was obvious. He had the full attention of the auditorium. We hung onto his every word. He spoke of his time investigating the atrocities of war and that during the course of collating and in examining the evidence ahead of the Trials, he connected and identified the Nazi hierarchy that needed to be held liable and to account for the mass slaughters they were responsible for. Had he not made that connection the Trials may have been more problematic and one Trial would not have existed. Most of all, he inspired hope and he instilled faith. He reminded us of the responsibility that we, as lawyers (or law students at the time), have to contribute to making the world a better place. And with that the week-long competition commenced.
In 2020, Ben left the world with his Parting Words – 9 lessons for a remarkable life. This legacy – his book – gives us a personal glimpse into Ben’s remarkable life.
“His arrival into the US was ‘under false pretences: as a four-month-old baby girl …’”
Ben was born on 11 March 1920 in a historical region of Transylvania and as he says, his journey commenced in one of ‘absolute poverty’.[1] When he was nine months old, to avoid persecution of Hungarian Jews, his family emigrated to the United States of America (‘US’) settling in New York City. He says that his arrival into the US was ‘under false pretences: as a four-month-old baby girl’ as the immigration officer who processed his family’s arrival misheard the Yiddish name Berrel for Bella and upon looking into the cradle decided he was four months old.[2]
Given the circumstances of the day and due to the fact that his family did not speak English, Ben’s education got off to a slow start. He was later admitted to Harvard Law School, applying there only because he was told it was the best [law school].[3]
Towards the end of his years at Harvard, World War II (‘WWII’) broke out and he recalls spending his last two years at law school suffering from ‘the anticipation that I would have to leave at any moment’.[4] He later learned, by pure chance, a man in the conscription office had let Ben finish law school at the request of the Dean.[5] This was to the world’s benefit.
Ultimately, Ben did end up being drafted into the Army. He served with the 115th Triple-A Gun Battalion and he says he ‘survived the war by damn good luck. I was short and therefore had bullets going over my head.’[6] As WWII was coming to an end, Ben was transferred to the newly established war crimes branch under General George Patton. The Lt. Colonel who greeted Ben promptly asked him: ‘Tell me, Corporal, what is a war crime?’. Ben recounts that his ‘time had finally come.’[7]
In his book Ben outlines the very early investigative steps he took to seize evidence of those war crimes and of the ‘scenes of indescribable horror’ he witnessed.[8] I won’t say too much for those that have not yet read Parting Words and now wish to do so. Ben was later tasked with finding and collating the evidence to put on twelve trials at Nuremberg which were to deal with branches of German government and society: the doctors who performed medical experiments, the lawyers who perverted the law by convicting people for political purposes, the industrialists who provided funding to build the camps etc.[9]
“He reminded us of the responsibility that we, as lawyers (or law students at the time), have to contribute to making the world a better place.”
One day Ben was handed critical documents marked ‘top secret’.[10] From this and the evidence he had already collected, Ben convinced his General that another trial must be heard. He was told no other lawyers were available and the budget had been set. Ben suggested he could run that trial himself.[11] In 1947, Ben opened the biggest murder trial in history, the Einsatzgruppen trial having strategically and carefully selected just 22 out of 3,000 mass murderers to appear. He was just 27 years old, and it was his first-ever case.[12]
Chief defendant at the trials, Otto Ohlendorf, executed by hanging on 7 June 1951.
Ben was also the first person to ever utter the word ‘genocide’ in a courtroom. In a 2020 recorded conversation, he said that genocide was the most horrendous of crimes and given the scale of the mass murder that occurred during WWII what happened had to be ‘described in words which were special’.[13] He also said that the ‘biggest mass murder, biggest genocide of all is making war itself, it’s [war] got to become obsolete, it should no longer be an option…’.[14] More recently, Ben was ‘heartbroken’ to learn of the War in Ukraine.[15]
“Ben opened the biggest murder trial in history, the Einsatzgruppen trial having strategically and carefully selected just 22 out of 3,000 mass murderers to appear. He was just 27 years old, and it was his first-ever case.”
Post-Nuremberg Trials, Ben remained a staunch advocate for human rights – advocating for a more humane world. Ben led efforts in recovering unclaimed Jewish property for individual victims and was involved in reparation efforts for survivors of Nazi persecution, which he said was the greatest achievement of his career.[16] He was also instrumental in the creation of a permanent international criminal court and advocating for the US to sign the Rome Statute. He was a firm believer in the long-established rule of law that the ‘law must apply equally to everyone’. When the Rome Statute was ratified by 60 countries in 2002, the US was not one of them.[17]
Despite what he read, saw, and heard during and after WWII, it is incredible to consider how compassionate Ben remained and that he retained his sense of humour. Ben remained a fierce advocate for a better world.
In his book, Ben outlines his 9 overall lessons and then shares his many smaller lessons learned throughout his lifetime. There were many lessons that resonated with me throughout but in particular I wish to share the following three:
- ‘You don’t need to accept something is a truth just because a person in authority tells you it’s so.’
- ‘Everything is impossible until it’s done.’
- ‘Don’t let great men or women daunt you; choose to be inspired instead.’
Ben passed away on 7 April 2023. He is the epitome of leading a remarkable life and the world is a better place for it. It only seems fitting to conclude this tribute with Ben’s own words that he lived by: ‘never give up’ and ‘law not war’.
Vale Benjamin B. Ferencz.
[1] Benjamin Ferencz with Nadia Khomami, Parting Words – 9 lessons for a remarkable life (Sphere, 2020) at 17 (Parting Words).
[2] Above, at 18.
[3] Above, at 47.
[4] Above, at 56.
[5] Above, at 60.
[6] Above, at 117.
[7] Above, at 67.
[8] Above, at 74.
[9] Above, at 84-85.
[10] Above, at 85.
[11] Above, at 87.
[12] Above, at 87.
[13] Conversation with Benjamin Ferencz (Michael Scharf, ICC Moot Court Competition, 2020).
[14] Above.
[15] ‘I am heartbroken’: Last surviving Nuremberg prosecutor on war in Ukraine (CNN, 2022).
[16] Above, n 1, at 119-120.
[17] Above, n 1, 124.