The Catholic church has successfully used the death of a known paedophile priest to permanently halt a civil claim by two Indigenous survivors, one of whom is dying of cancer.
The New South Wales supreme court ruled on Wednesday that the church could no longer receive a fair trial due to the death of assistant priest David Joseph Perrett, which, along with the deaths of other key witnesses, caused the church serious prejudice in attempting to mount a defence.
The church won the case despite allegations it had more than three decades to investigate Perrett’s past, but did nothing.
The church had been aware since 1995 Perrett abused children, after he pleaded guilty to offences against three boys in north-west NSW.
Perrett later confessed to a senior church official that he was a paedophile; by the time of his death in 2020, Perrett was awaiting criminal trial on more than 100 charges relating to almost 40 young children in areas spanning Armidale, Walcha, Guyra and the broader New England region from the 1960s to the mid-1990s.
The two plaintiffs alleged they were abused by Perrett on a camping trip to Georges Creek in 1976 while they lived on an Aboriginal mission in Armidale.
Their allegations prompted criminal charges in 2017, three years’ prior to Perrett’s death.
According to the survivors’ lawyers, this should have made it clear to the Armidale diocese that it would face future civil action for Perrett’s alleged crimes. They say the diocese should have taken steps to investigate the allegations against Perrett to prepare itself to defend future cases, including speaking to a list of 20 named church officials, lawyers, and police officers.
But the NSW supreme court rejected the argument on Wednesday, denying that the prejudice the church now faced was due to its own failure to investigate.
It described a suggestion that it should have begun investigating Perrett more broadly in 1995, when he was convicted of crimes against three other children, as “entirely speculative and highly unlikely”.
The court also rejected a suggestion that the church should have sought to obtain information from Perrett after 2017, when police charged him with abusing the two plaintiffs.
“The difficulty with that proposition is that Father Perrett was no longer part of the diocese or acting as a priest at the time,” the court ruled. “He had been charged with serious criminal offences and retained his own solicitors. The idea that Father Perrett would have spoken to the defendant in preparation for potential civil claims, when none had been foreshadowed and when he was in the midst of criminal proceedings, is difficult to accept.”
When he was charged in 2017, Perrett denied the allegations of the two boys, saying he had no or limited memory of any of his accusers.
A document outlining Perrett’s response to the allegations was available to the church to help it defend itself from civil action.
But the court found there were questions about whether that document would be admissible.
“The existence of a document held by a solicitor who represented Father Perrett on criminal charges never brought to trial may provide some basis for putting propositions to the plaintiff, but it does not overcome the prejudice which arises from the absence of Father Perrett on all the three causes of action pleaded by the plaintiff,” the court ruled.
The court ruled that the defendant was “unable to have a fair trial” and that exceptional circumstances existed warranting the permanent stay.
The church is using the deaths of perpetrators to stay cases more broadly. The broader use of such tactics was revealed in an investigation by Guardian Australia earlier this year, which prompted widespread criticism.
The child abuse royal commission said that institutions should retain the power to seek permanent stays. But it also found that delays are common – survivors take 22 years on average to come forward – and recommended removing any time barrier to survivors bringing claims to he courts.
