Australia, Jan. 17 -- New South Wales Land and Environment Court issued text of the following judgement Dec. 18:

1. In September 2024 I gave judgment for AA, who had been granted expedition, there then being no issue about his terminal illness: AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWSC 1183. That illness persuaded me that judgment should not be delayed until the High Court's judgment in Bird v DP (a pseudonym) [2024] HCA 41 was delivered. AA's damages were later quantified to be $636,480.

2. The High Court's judgment was delivered in November 2024. The Diocese has since filed an appeal in which AA has filed a notice of contention. It is listed for hearing in February 2025.

3. There is no issue that Bird has resulting impact on my judgment, given that the High Court upheld the appeal, taking a different view to that taken by the Victorian Court of Appeal about vicarious liability, which I had followed. AA's notice of contention relies on grounds which did not arise to be considered in Bird, which he contends provides another basis for the challenged judgment.

4. There is also an issue between the parties about the Diocese's prospects of success on other aspects of its appeal. It challenging factual findings about child sexual abuse which I found had occurred over 50 years ago, the evidentiary contest having rested on the evidence of AA and Mr Perry who had been present in a presbytery on occasions when I concluded that AA had been sexually assaulted by a priest, while he was a young boy.

5. The Diocese now seeks a stay of the orders I made in favour of AA, which he opposes. He proposes a partial stay, finally consenting to the stay on the basis that he be paid $18,000 of the judgment sum.

6. There is no issue that AA is a terminally ill disability pensioner with minimal assets, who will be unlikely to repay any sum paid to him, in the event that the Diocese's appeal is entirely successful. The Diocese contends that there being no medical evidence led about his current circumstances, AA's case that he is at risk of dying before the appeal is heard and determined cannot be accepted. That is disputed.

7. The Diocese relies on the affidavit evidence of Ms Tisbury, who explained the searches which have been conducted, which have established that AA does not have assets which would enable him to repay the judgment sum without difficulty or delay, if its appeal succeeds.

8. The affidavit of his solicitor, Ms McLellan, discloses that AA has a litigation funder. But that he has no capacity to repay any part of the judgment sum if the appeal succeeds in its entirety must be accepted. The Diocese relies on this to oppose the order AA proposes. The applicable principles

9. There is no issue that the appeal raises serious issues to be determined. Still a stay may be granted on terms. But the Diocese relies on Woolworths Limited v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72 at [68], to oppose the orders AA proposes. There the Court's usual practice "of staying judgments pending appeal where there is a risk that the plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed", was discussed.

10. That practice was not doubted and AA's difficult financial circumstances are not in issue. Despite this AA argued that the Court still had a discretion to refuse the stay the Diocese sought, which it would exercise in all of the circumstances, which had to be considered, given the requirement that a proper basis for a stay which is fair to both parties must be demonstrated by an applicant: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193d6e952168db10422bde1a)

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