In Mendez v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2025] NSWSC 912 (14 August 2025), Coleman J – sitting in the Common Law Division of the Supreme Court of New South Wales – followed the line of authority established in Meggit Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527 (NSWCA) to the effect that the court ought set down and decide cases on the existing law. Specifically, there ought be eschewed, ordinarily, the prospect of retroactive legislative change – even if broadly in prospect, after recommendation by eminent legal bodies – which would yield a different result from that existing law. Coleman J wrote:
Background
[1] By statement of claim filed 24 July 2023, the plaintiff, Raymond Mendez, brings proceedings against the defendant alleging he suffered personal injury as a result of sexual abuse at the hands of a Father Brian Rooney. The abuse allegedly occurred in the 1980s when the plaintiff was a student at the Holy Spirit Primary School, St Clair and surrounding church grounds.
[2] The plaintiff alleges the defendant is liable in negligence but also on the basis that it is vicariously liable for the wrongdoing of Father Rooney as an agent or employee of the Diocese.
[3] In its defence filed 18 December 2023, the defendant, inter alia, did not admit to the abuse, the risk of harm alleged or that the risk of harm was foreseeable and not insignificant. It denied any breach of duty of care and denied causation. It did not admit Father Rooney was its employee or agent. The defendant denied that it was vicariously liable for the criminal acts of Father Rooney, should those acts be established.
[4] On 13 November 2024, the High Court handed down its decision in Bird v DP (pseudonym) (2024) 419 ALR 552; [2024] HCA 41 (“Bird”).
[5] In Bird, the High Court held that the concept of vicarious liability did not apply to circumstances “akin to employment”. The plaintiff accepts that he must therefore prove that Father Rooney was an employee of the defendant. Whilst it is pleaded that Father Rooney was an employee or agent of the defendant (see [23] of the statement of claim), the plaintiff accepts that as a priest, without a contract of employment, a finding of an employment relationship is unlikely (CB 3 at [6]).
[6] The proceedings have been listed for hearing on 27 October 2025 with an estimate of 7 days.
The motion
[7] By notice of motion filed 25 June 2025, the plaintiff now seeks the following orders:
(1) The hearing date of 27 October 2025 be vacated;
(2) The proceedings be adjourned to 5 February 2026 for directions;
(3) Liberty to apply on three days’ notice;
(4) In the alternative to orders 1–3 above, the plaintiff have leave to discontinue the proceedings with an order that the parties’ costs of these proceedings be costs in the cause of any further proceedings commenced by the plaintiff in this Court and otherwise no order as to costs of these proceedings save for existing costs orders already made in the proceedings;
(5) No order as to costs of this notice of motion.
[8] In support of the motion the plaintiff reads the following affidavits:
(1) Tobias Julian Tancred sworn 25 June 2025;
(2) Tobias Julian Tancred sworn 3 July 2025; and
(3) Tobias Julian Tancred sworn 12 August 2025.
[9] The defendant reads the affidavit of Jacqueline Peta Waugh sworn 11 July 2025.
…
The plaintiff’s evidence and submissions
[20] Mr Tancred deposes to the state of proposed legislative amendments, or the stated desire to amend the law, in New South Wales, Victoria and Western Australia to address the consequences of the High Court’s decision in Bird.
[21] In New South Wales, questions were raised in parliament in February 2025 as to the desirability of legislative reform to address the issue of vicarious liability. In March 2025 the Civil Liability Amendment (Organisational Child Abuse Liability) Bill 2025 (“the 2025 Bill”) was introduced as a private member’s bill to the New South Wales Legislative Council. Amongst other things, if enacted, the bill would make ss 6G and 6H of the Civil Liability Act 2002 (NSW) operate retrospectively. Those provisions were introduced by the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW). Those provisions implemented recommendations made in the Redress and Civil Litigation Report issued by the Royal Commission into Institutional Responses to Child Sexual Abuse dealing with vicarious liability. The provisions in the 2018 amendment only operate prospectively.
[22] The 2025 Bill did not pass the New South Wales parliament.
[23] Mr Tancred also referred to the debate in the Victorian parliament about the Wrongs Amendment (Vicarious Liability) Bill 2025. That bill, if passed, would have similarly sought to address from a plaintiff’s perspective, issues arising from Bird. That legislation was also defeated on the floor of parliament.
[24] Mr Tancred wrote to the solicitors for the defendant referring to these legislative proposals. He noted that if the law was changed with the passing of the 2025 Bill, the proposed expert report the plaintiff had intended to serve with respect to the relationship between the defendant and Father Rooney would not be required. He suggested an adjournment of the hearing to await the legislative changes, or their discontinuance as is now sought in the motion. No response was received at the date the affidavit was filed and the motion now before the Court was subsequently filed.
[25] Mr Tancred also refers to the Standing Council of Attorneys-General’s (“SCAG”) proposal to consider the implications of the High Court’s decision in Bird and any consequent legislative reform. He also says he has spoken to two members of parliament who have suggested they will continue to press for legislative amendments as set out in the 2025 Bill.
[26] Mr Tancred annexes a statement from the Attorney-General of Victoria dated 18 June 2025 stating it is her priority to have her department develop options, including the introduction of legislation, to address the issues arising from the High Court decision in Bird.
[27] Mr Tancred also annexes a statement from the Western Australian government published 3 July 2025. In that statement the Western Australian government states that it intends to legislate to address the impact of the High Court decision in Bird and that it would work with SCAG to advocate for consistent national reform in this regard.
[28] In his most recent affidavit, Mr Tancred deposes that the plaintiff is presently incarcerated. He says he has spoken to the plaintiff about the impact of the High Court’s decision in Bird and the plaintiff has confirmed his instructions to seek the vacation of the hearing date.
[29] There was also before me two medical reports relating to the plaintiff, the first by consultant psychiatrist Dr Jeff Bertucen dated 24 October 2022 and the second by forensic psychiatrist Dr Alan D Jager dated 19 March 2024. The relevance of these reports was to indicate that the plaintiff has a long history of psychological problems, drug abuse and criminal offending. It is the plaintiff’s case that the issues he has, and continues to suffer from, stem from the sexual abuse he suffered.
[30] Counsel for the plaintiff submitted that the proceedings were commenced when it was anticipated by reason of the Victorian Court of Appeal decision in Bird v DP (pseudonym) and decisions in other common law countries such as the United Kingdom and Canada, that the law of vicarious liability in Australia was developing. Counsel accepted that the plaintiff “took a punt” (to use my words exchanged with counsel in submissions) that the development would expand the concept of vicarious liability to include relationships that were akin to employment.
[31] The plaintiff submits that the High Court itself in Bird stated that reform of the law with respect to vicarious liability was a matter for the legislatures. It is submitted that the material referred to by Mr Tancred indicates the named legislatures’ intention to soon address those issues by amendment to the relevant legislation. Counsel submitted that it is probable such changes will be made and, if they are, will be retrospective. That is because the 2018 amendments (which address the issue of vicarious liability) are prospective and do not solve the issue raised by Bird for historical abuse matters. It was accepted that it could not be said when those legislative changes may occur. Counsel carefully took me through the second reading speeches in the New South Wales Legislative Council with respect to the 2025 Bill and the material going to the desire of other states and SCAG to implement uniform (or at least nationally consistent) reforms to deal with the issues arising from Bird.
[32] The plaintiff submits that if the amendments are passed, they could significantly affect the resolution of the proceedings. He submits that prematurely resolving the proceedings could lead to a substantial injustice, including for the plaintiff to be shut out from potential success.
[33] The plaintiff submits that the proposals put forward in the motion before the Court mean that the plaintiff’s position is preserved and the proceedings can be heard, or recommenced, in due course. As there is no applicable limitation period, it is submitted that this effectively achieves a just outcome and alleviates the burden of the plaintiff having to run a case where the applicable law could change during or shortly after the resolution.
[34] Counsel for the plaintiff also submitted that the fact of the plaintiff being able to be released to parole in April 2026 is also relevant. If the hearing is to run when the plaintiff is still incarcerated, he submitted that it would be very difficult for counsel and solicitors to get full, proper and timely instructions from the plaintiff.
[35] Counsel for the plaintiff appropriately recognised that the path sought by way of the relief in the motion is against a significant line of authority which establishes a general principle that the role of the Court is to determine cases before it according to the existing law (see for example Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 (“Meggitt”) and the other authorities referred to CB 4 at [11]). Counsel for the plaintiff submits, however, that those cases deal with expressions of general principle which may be displaced in an appropriate case.
[36] Counsel submitted that this is such an appropriate case where the Court can exercise its very broad discretion in case management having regard to the overriding purpose of the Civil Procedure Act 2005 (NSW). It is submitted that that purpose, combined with the abolition of any limitation period, means that issues of delay are of less significance in cases of this kind as opposed to cases of the type referred to in the authorities cited. Additionally, it is submitted that the evidence in this case is, for all intents and purposes, complete such that any prejudice that may be attendant upon the passing of time, fading memories and loss of records is (for the most part) crystallised.
[37] Recognising that the decision of the Supreme Court of Victoria in Taylor v Trustees of Christian Brothers [2025] VSC 25 (“Taylor”) is squarely against the plaintiff’s position, counsel submits that the proposed legislative reform is now more significantly progressed and likely than was the case when that decision was handed down. Indeed, it was submitted that the Court could conclude that it is probable that legislative reform will be introduced which will cure the vicarious liability issue arising from Bird, although it was conceded that the timing and exact nature of any such amendments is not known.
[38] Counsel submitted that the combination of the likely legislative reform and the fact that the plaintiff will not be incarcerated if the trial is vacated together make this case an appropriate one to exercise the discretion to grant the relief sought.
[39] In the alternative, Counsel for the plaintiff submitted it would be appropriate to allow the plaintiff to discontinue the proceedings but order that the question of costs of these proceedings be costs in the cause of any fresh proceedings commenced by the plaintiff. He submitted that the Court could infer that the plaintiff is impecunious having spent multiple periods of time in prison. The plaintiff would be unable to meet any costs order if made now, or later, so there was no prejudice to the defendant if the proceedings were discontinued with the order sought and decided at a later date.
[40] During submissions, when it became apparent that I was concerned with the unfairness to the defendant if order 4 in the motion was made, counsel sought to proffer a different form of that order. That was that the plaintiff have leave to discontinue the proceedings with a drop dead date set (say one year to allow the legislative reforms) by which the plaintiff must commence fresh proceedings. In terms of the costs of these proceedings, the plaintiff could bear those costs, but they would not be enforceable before the drop dead date, or determination of the fresh proceedings. I do not think this assists the plaintiff in light of the submission by his counsel that he is impecunious and could not meet any costs order in any event. If no fresh proceedings were commenced by the date set, or if the plaintiff was unsuccessful in any fresh proceedings, the defendant would potentially be left with two costs orders that could not be satisfied.
The defendant’s evidence and submissions
[41] The affidavit of Ms Waugh sets out the procedural matters that I have referred to above. She also lists the witness statements served by the defendant in answer to the plaintiff’s evidence. After referring to similar legislative proposals to that mentioned in the plaintiff’s affidavits, she noted the fact that the 2025 Bill was negatived on its second reading on 4 June 2025.
[42] Ms Waugh also attaches a communiqué from the SCAG dated 21 February 2025. Amongst other things, with respect to vicarious liability, that communiqué refers to the High Court decision in Bird and the agreement of the attorneys-general to work together to further consider the impacts of that decision and potential reform options.
[43] The defendant opposes the relief sought in the motion.
[44] The defendant refers to the line of authorities stating the general principle referred to in [35] above. It was noted that in Meggitt, the Court of Appeal overturned the primary judge’s decision to vacate a hearing on the basis of foreshadowed legislative amendments. Counsel for the defendant took me through Meggitt and authorities referred to in it. She submitted that this case does not fall out of the ordinary principle that cases should be decided on the law as it exists and not be delayed on the basis of proposed legislative reforms.
[45] Reference was also made to the decision of the Supreme Court of Victoria in Taylor referred to in [37] above. In that case, Forbes J at [7] referred to the line of authorities that states cases must be determined according to the existing law. Whilst her Honour accepted that the general principle may be displaced in an appropriate case, she was not satisfied that it was appropriate to do so in that matter noting that potential legislative change remains a matter of general application in many cases.
[46] The defendant submits that the general principle referred to should not be displaced for five reasons.
[47] Firstly, the plaintiff already pleads that Father Rooney was an employee or agent of the defendant. The plaintiff had indicated he intended to put on expert evidence on this matter. He does not wish to do so now because of the proposed legislative reforms which may mean that the cost of that expert report would be wasted. In other words, the defendant submits that the plaintiff could still pursue all aspects of his claim but does not want to incur the costs associated with doing so.
[48] Secondly, the defendant submits any legislative changes are entirely speculative both in terms of their nature (and therefore whether they will assist the plaintiff) and their timing. In this regard, the defendant made reference to the Royal Commission Report, referred to at [21], which did not recommend retrospective changes to any extension of the principles of vicarious liability. Additionally, the 2025 Bill referred to by the plaintiff did not pass the NSW Legislative Council on its second reading. As noted, neither the nature nor the timing of any legislative changes being discussed at SCAG are known.
[49] Thirdly, the plaintiff pleads his claim against the defendant on other bases, including agency and breach of a non-delegable duty of care. These aspects of the claim are ready to proceed. In terms of the timing of the filing of the statement of claim, counsel submitted that the submission by the plaintiff that the law of vicarious liability was developing and could have been anticipated to include “akin to employment” situations goes nowhere because it also pleads that the defendant is liable on other bases not impacted by the decision in Bird.
[50] Fourthly, the defendant submits that whilst there is no limitation period applicable to the plaintiff’s claim, bearing in mind the overriding purpose of the Civil Procedure Act — the just, chick and cheap resolution of proceedings — the matter should not be delayed. Witness statements have been served, but not tested in cross-examination, and there remains a risk of prejudice from an impoverishment of the evidence by reason of delay.
[51] Fifthly, litigation does pose a strain on litigants and witnesses. Several of the witnesses to be called by the defendant have had significant allegations made against them and any delay would serve to only accentuate the strain on those witnesses.
[52] With respect to the plaintiff’s alternative prayer for relief, namely, that the proceedings be discontinued with no order as to costs until any further proceedings have been resolved, the defendant submits that the usual rule where a plaintiff discontinues proceedings is that the costs of the defendant should be paid: UCPR 42.19 (2). Additionally, the plaintiff does not specify a time in which any further proceedings, the outcome of which would determine the cost of these proceedings today, should be brought. This would mean the defendant bears its own costs unless and until at some unspecified day in the future the plaintiff commences further proceedings. Even if a drop dead date was set, if the plaintiff was impecunious the defendant could not recover any costs.
[53] The defendant submits that the plaintiff has not discharged the burden of establishing any positive ground or good reason for departing from the ordinary course. It submits the plaintiff commenced these proceedings knowing that the common law with respect to vicarious liability was still developing. The defendant submits the notice of motion should be dismissed
Determination
[54] In my opinion, the submissions of the defendant should be accepted. I do not consider that the plaintiff has established a good reason to depart from the long line of authorities which establish that a court is to determine cases according to the existing law.
[55] Reference has been made to the decision of the New South Wales Court of Appeal in Meggitt. In that decision, Mason P found that a trial judge had erred in vacating the trial so that a plaintiff could avail itself of proposed legislative changes which would reform damages available for dust diseases. The relevant parts of that decision, and related authorities were summarised by Forbes J in Taylor where from [7]–[9] her Honour said:
7. There is a long line of authority establishing the general principle that the role of the Court is to determine cases according to the existing law. The comments apply whether the contemplated changes derive from a court appellate process or a legislative process. In Meggitt Oversesas Ltd v Grdovic, Mason P found that a trial judge had erred in vacating a trial so that a plaintiff could rely on proposed legislative changes to reform available damages for dust diseases. It was argued that proceeding to trial before the foreshadowed amendments would seriously prejudice the plaintiff. In finding that the trial judged had erred in exercising this discretion, his Honour said:
In my view, the discretion miscarried. The learned judge erred in taking into account the prospect of legislative amendment as a controlling factor in the decision granting the adjournment. The error was compounded by the apparent intent that the hearing date will, as presently advised, be deferred until the amending legislation is passed and the plaintiff becomes thereby entitled to take advantage of it.
8. The announcement of a decision to introduce particular legislation, and any retrospective operation of such legislation, may impact pending proceedings. But, as Mason P went on:
Does the announcement qualify in any way the judicial branch’s obligation to uphold the existing — I emphasis the word “existing” — law? And does it enliven a power to grant a contested adjournment of proceedings fixed for hearing so as to enable one party to gain the benefit of proposed legislation to the detriment of another party? The answer to each question must be a categorical “no”.
9. These comments in turn relied on a line of authority based upon the comments of Starke J:
Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.
[56] I do not think it necessary to canvass in detail the other decisions to which I was taken and which are referred to in Meggitt (for example Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 WLR 213 [1956] 1 All ER 567 referred to in Meggitt at 532). Each of them recite with approval the general principle referred to. If there are exceptions to the application of that general principle (see for example Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190 (“Wingate Holdings”) referred to in Meggitt at 533–534) those exceptions are distinguishable from this case. In Wingate Holdings, the relevant minister had announced in parliament his intention to introduce a bill to validate the impugned decision at the opening of parliament. The majority held that because there was a clear probability that the legislation would be passed and its curative effect known, and there was no prejudice to the respondent, the relief by way of adjournment ought to be granted.
[57] Whilst there has been some progress with proposed legislative reform dealing with the impact of Bird since the decision in Taylor, not all of it has been positive from the perspective of the plaintiff. As noted, the 2025 Bill was not passed on its second reading in the NSW Legislative Council. The Victorian bill amending the Wrongs Act 1958 (VIC) also failed to pass parliament. It appears from the materials placed before me that there may be political will to make legislative reforms with respect to the effect of Bird and the application of vicarious liability. However, those materials also recognise that such reforms, particularly if retrospective legislation is involved, require widespread consultation to relevant stakeholders and, to be most effective, national consistency. The SCAG has agreed to consider what reforms can be implemented. The timing of any further legislative reforms, either in New South Wales alone or if co-ordinated nationally through SCAG, is uncertain. So too is the nature of any such reforms (in the event they are made). Whether they would operate retrospectively is a matter of conjecture.
[58] Whilst there are other aspects of the plaintiff’s claim as presently pleaded that are ready to proceed and can be run unaffected by the decision in Bird, I do not doubt the legal and evidential difficulties the plaintiff (and all plaintiffs in historical abuse cases) may face. I say nothing about the strength or weakness of the plaintiff’s evidence to establish that the abuse occurred, as I am unaware of it. I accept that the non-delegable duty of care claim as pleaded would most likely fail in so far as it seeks to hold the defendant liable for breach of a non-delegable duty based on an intentional (and criminal) wrong committed by Father Rooney as its delegate (see, for example Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 at [156]–[168] per Leeming JA with whom on this point Bell CJ and Ball JA agreed).
[59] Nevertheless, it was said by those acting for the plaintiff that there would be an amended pleading. None came forth. I infer this is because of the foreshadowing of this motion. Also, directions were sought and made for the plaintiff to serve expert evidence on the relationship between the defendant and Father Rooney in support of the pleaded claim. Mr Tancred says he has done this in other similar cases. I do not know the result of those cases if they have been decided, or whether any such expert reports were deployed in them. No such expert reports were served, it was said because if the legislative reforms were made this would involve wasted costs. It was not said that the reports could not be obtained to provide the opinions sought.
[60] I accept the defendant’s submissions that any delay of an uncertain period as proposed by the plaintiff would cause putative prejudice of the kind identified by the defendant in its written submissions. Despite the service of witness statements and the preparations for hearing that have occurred, there remains a natural decay of memories and other evidence which may support the plaintiff or be exculpatory for the defendant. Witnesses will face further delays in coming to court and giving (and being challenged on) their evidence. Even if, as the plaintiff’s counsel submitted, this prejudice is de minimis, I do not think it is an irrelevant factor.
[61] I do not consider the fact of the plaintiff being incarcerated at the time the matter is listed for hearing alters the position. The Court conducts many proceedings in both the civil and criminal jurisdictions where a party is incarcerated. In this case, appropriate orders would be made to have the plaintiff in court each day. Whilst perhaps not as convenient as if he was not incarcerated, his lawyers could confer with him before and after court. Instructions could be taken whilst he is in court.
[62] In the application of the overriding purpose of the just, quick and cheap resolution of proceedings, absent some appropriate and compelling reason, in my opinion this Court ought not tailor the timetabling of matters, or the hearing of matters once prepared, on the basis that the law may be changed by the passing of legislation at an uncertain time and in an uncertain way. This is so even if it may be thought that the proposed change in the law would result in a reform or removal of an anachronistic and arcane legal principle that in some cases may result in an injustice to one party. Parties coming to this Court either as plaintiffs or defendants are entitled to expect that the proceedings will be commenced, prepared and prosecuted according to the law as it stands. The Court will then determine the dispute between them based on the pleaded issues in dispute, making findings on the relevant and admissible evidence presented and applying the existing law.
[63] This ordinary approach can be departed from in appropriate cases in the exercise of the Court’s discretion in the management of the business before it. However, without seeking to limit the exercise of that discretion which depends on the facts of each case, in my opinion for the proper exercise of that discretion there must be more than speculation as to the timing and nature of any proposed changes to the law.
[64] It was acknowledged by counsel for the plaintiff that he took a risk and commenced the proceedings at a time when it was thought that the law with respect to vicarious liability was developing to include relationships that were “akin to employment”. In other words, it must have been accepted that at the time the statement of claim was filed that the pleading with respect to vicarious liability would face (perhaps insurmountable) difficulties unless that development occurred. The High Court has unequivocally rejected the development in the law the plaintiff hoped for. His pleading, with the other asserted bases of liability mentioned, can still be prosecuted — or not. That is a matter he will need to take advice on and decide based on the law as it exists.
[65] I do not consider the plaintiff has established that this case is an appropriate one to depart from the usual rule that the proceedings are to be determined according to the law as it presently stands.
[66] The orders seeking the vacation of the hearing date must be refused.
[67] I also do not consider it would be appropriate to make the order sought by the plaintiff allowing him to discontinue the proceedings but delay the resolution of the question of costs as is proposed. As the plaintiff notes, there is no limitation period with respect to his claim and if he chooses to discontinue the proceedings (with the usual attendant costs consequences) he can commence fresh proceedings in the future. I do not see any reason why the defendant should have to bear its own costs in the circumstances of the plaintiff choosing to discontinue the proceedings on the chance that there would be, at an uncertain time, positive legislative reform and which may result in the plaintiff bringing fresh proceedings at a later date.
[68] In any event, if as counsel for the plaintiff submitted, the plaintiff is impecunious, I see no reason to make the discontinuance orders sought which may have the effect of meaning the defendant incurs additional costs that cannot be recovered.
[69] The plaintiff’s claim for relief in the motion is refused. It will be a matter for the plaintiff to take advice from his lawyers as to what, if any, next steps he wishes to take in these proceedings.
[70] I see no reason why costs should not follow the event.
ORDERS
[71] The orders I make are:
(1) The plaintiff’s notice of motion is dismissed; and
(2) The plaintiff is to pay the defendant’s costs of the notice of motion
(emphasis added)
