In Mendez v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2025] NSWSC 912, the Supreme Court of New South Wales has reaffirmed the principle that courts must determine cases based on the law as it currently stands, even in the face of potential legislative reform.
Background
The plaintiff, Mr Mendez, brought proceedings against the Diocese of Parramatta alleging historical child sexual abuse by Father Rooney. The claim was advanced on two bases:
- Negligence on the part of the Diocese; and
- Vicarious liability, asserting that Father Rooney was either an employee or agent of the Diocese.
However, the plaintiff faced a significant legal hurdle following the High Court’s decision in Bird v The Commonwealth, which held that vicarious liability does not extend to relationships merely “akin to employment.” Mr Mendez acknowledged that, as a priest without a formal contract of employment, it would be difficult to establish that Father Rooney was an employee in the conventional legal sense.
Application to Vacate Hearing
In light of this, the plaintiff sought to vacate the scheduled hearing date (27 October 2025), hoping that legislative reform in New South Wales might alter the legal landscape and potentially reverse or modify the effect of Bird.
However, the Court was not persuaded. Drawing on a long line of authority, including Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527, the Court reiterated that its role is to apply the law as it exists—not as it might become.
Key Judicial Commentary
At [62], the Court stated:
“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… 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 concluded that the plaintiff had not demonstrated a sufficient reason to depart from this principle and dismissed the notice of motion.
Implications
This decision underscores the judiciary’s commitment to legal certainty and procedural fairness. While legislative reform may eventually address perceived gaps in the law—particularly in the context of institutional abuse- courts remain bound to adjudicate based on current legal principles.
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