Coffey v Sydney Church of England Grammar School

[2022] NSWSC 1293

Supreme Court

New South Wales

Medium Neutral Citation:

Coffey v Sydney Church of England Grammar School [2022] NSWSC 1293

Hearing dates:

23 September 2022

Date of orders:

23 September 2022

Decision date:

23 September 2022

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Order that the hearing of these proceedings fixed for 17 October 2022 be vacated.

(2)   Reserve all question of costs.

Catchwords:

CIVIL PROCEDURE — Hearings — Adjournment — Where further investigation may lead to discovery of relevant evidence — Where plaintiff unrepresented — Adjournment granted

Legislation Cited:

Not applicable

Cases Cited:

Not applicable

Texts Cited:

Not applicable

Category:

Procedural rulings

Parties:

Andrew Coffey (P)
Sydney Church of England Grammar School (D)

Representation:

Counsel:
Self-Represented (P)
E Holmes (D)

Solicitors:
Dentons (D)

File Number(s):

2021/190223

Publication restriction:

Not applicable

EX TEMPORE JUDGMENT

1. This is an application by Mr Andrew Coffey for an adjournment of the hearing fixed for 17 October 2022 of proceedings which he brings against the institution legally responsible for the Sydney Church of England Grammar School (“the School”).

Background

2. A Statement of Claim was filed on Mr Coffey's behalf on 2 July 2021 by lawyers who were then representing him.

3. That Statement of Claim pleaded that, on an occasion in 1974, whilst he was a student at the defendant's school, the plaintiff was sexually abused and subjected to serious physical abuse by a teacher at the school, Mr Colin Fearon.

4. The pleading sets out the particulars of that abuse which are said to have taken place on one occasion in 1974, before the Easter break, when the plaintiff was taken by Mr Fearon to an office known to students as the Sergeant Major’s office. There he was caned and sexually assaulted.

5. The balance of the Statement of Claim pleads that the defendant owed to the plaintiff a “non-delegable” duty of care to take reasonable care for the safety of the plaintiff whilst he was at the school, and that that duty of care was breached.

6. The Statement of Claim also pleads that because Mr Fearon was a teacher at the School, he “was the agent of the defendant insofar as it had the care, control, operation and management of the school and the abuse occurred in the course of the engagement of Fearon as a teacher at the school” together with other facts, the defendant is vicariously liable to the plaintiff for the abuse perpetrated by Mr Fearon.

7. The defendant's defence (which recognises the obvious fact that in 2021 it is being confronted with allegations about a single event in 1974, about 47 years earlier, admitted that both the plaintiff and Mr Fearon were each student and teacher at the School. In response to the allegation of sexual and serious physical abuse, the defendant pleads that it did not know and therefore did not admit the allegation contained in that paragraph. However, it draws attention to a legislative provision relevant at the time and pleads that the circumstances raised with respect to corporal punishment may well constitute “reasonable chastisement” and therefore not be unlawful.

8. The School admitted that it owed the non-delegable duty but denied some particulars of the context of the pleaded duty. It also denied that reasonable precautions ought to have been taken. Insofar as the pleading of vicarious liability was concerned, the School denies that it is vicariously liable and says in its pleading that if the incidents occurred as pleaded in the Statement of Claim then the teacher was acting outside the scope of his employment in a manner which was not authorised by the School and which was outside the capacity of the School to control.

9. Earlier this year, the solicitors who commenced proceedings on behalf of Mr Coffey ceased to act for him, and he has been acting for himself for some months.

The Trial

10. At a judicial management hearing earlier this year, the Court fixed the final hearing of the trial to commence on 17 October 2022. Various other directions were made, and the Court has, on a number of occasions, had the matter mentioned before it to satisfy itself that appropriate progress was being made towards the hearing.

11. I should record that I was informed on the last occasion that the parties had had the opportunity of entering into some negotiations, at least informally, in circumstances where an unsuccessful mediation had taken place towards the end of 2021 (when Mr Coffey was legally represented) so there was reasonable goodwill, I was told, between the parties and attempts were being made to informally resolve the proceedings.

12. The matter has been listed before me today at the request of Mr Coffey, who seeks an adjournment of the hearing on 17 October 2022. Central to the issues surrounding the adjournment is a question of fact. The School accepts that it is not intending to call a witness who directly confronts the accuracy of the account of the abuse alleged by Mr Coffey, in the sense that the alleged perpetrator is not available to be called (he is deceased) and the School is not proposing to call a person who was a witness to the events to give a version of facts contrary to that given by Mr Coffey.

13. However, the School is intending to put the factual allegations of physical and sexual abuse in issue, insofar as the claim concerns physical abuse, namely that Mr Coffey was caned.

14. It will be the School's case, which it says is established by a contemporary Punishment Register, which records that there was only one occasion in 1974 upon which Mr Coffey was physically chastised by the use of the cane, being 27 May 1974, and then in circumstances where the teacher associated with that caning was a person entirely different from the individual named in the Statement of Claim as perpetrating the physical and sexual abuse.

15. Secondly, the School’s case is that the caning of Mr Coffey occurred at the same time as another school student who was also caned by the same Master, and the recording in the Register so notes. The School obtained, served, and intends to rely upon, a report of a handwriting expert, which as I understand it from what I am told, will confirm that the relevant entries associated with the caning on 27 May 1974 were by a teacher who is not the perpetrator named in the Statement of Claim.

16. The material relating to those matters in issue, including the Punishment Register, was supplied by the School to Mr Coffey in May 2022, and as such the School draws attention to the fact that Mr Coffey has known of these facts for at least four months.

The Request for an Adjournment

17. Mr Coffey submits that given that there is a real issue, as he now comes to understand it, about whether or not the facts of the physical abuse which he pleads are correct and, given that as he now understands it clearly, the School is making a case of the kind that I have outlined, he wishes to have the opportunity of undertaking further investigations to identify his fellow student, and also to locate that person and interview them, and also to locate and interview the teacher who is identified as having inflicted the corporal punishment. To that end, Mr Coffey, of course, does not have resources to employ third party investigators. He has, however, been in contact over the last few weeks with various officers of different parts of the New South Wales police force, providing to those officers this additional information in support of a request, which had been made sometime earlier, to investigate the events which occurred.

18. The earlier police investigation, again as I understand it from what I am told, was undertaken as a result of the complaint by Mr Coffey dealing with the perpetrator alleged in the Statement of Claim went nowhere because, by the time the complaint was made, that perpetrator had died and, as I understand it - but this is not critical - had also earlier been dealt with for other offences at different places and at different times. But nevertheless, the police investigation initially sought by Mr Coffey did not on the basis of what I am told to be the case take the matter very much further, if at all.

19. Mr Coffey also bases his application on what seems to me to be somewhat speculative possibility there is some material available from the Queensland justice system in respect of a third student, known to Mr Coffey as "Buck", in respect of proceedings in Queensland, where there was material tendered that may tend to indicate that that fellow student had also been sexually assaulted by the same perpetrator at or about the relevant time. That student apparently died in 2018. So, to the extent that there is any relevant material, it will be documentary only and can be obtained through the appropriate use of subpoenas or other requests for information. Of itself, I am not convinced that that would be sufficient to warrant an adjournment, firstly, because the outcome is somewhat speculative, and secondly, because between now and 17 October, there is probably sufficient time to use the Court process to obtain as much as possible.

The School’s Opposition

20. The School opposes the application for adjournment, pointing to the time during which Mr Coffey has been in possession of the material, being either March 2022, or, certainly, May 2022, and pointing to the fact, based upon the affidavit of the School's solicitor, Ms Alcarraz, as to the inquiries which have been made by her or which she has caused to be made indicating that prospect of success of Mr Coffey obtaining any information of any value, if he is able to find the individuals and speak with them or the police are able to find them and speak to them, is remote. Putting it differently, the School submits that any further inquiries, whether by Mr Coffey or by the police or anyone else, are unlikely to provide any further information, which will be relevant in the proceeding. The School notes that it is unaware as to extent of the police investigation currently in place, but I do not regard that fact being neither here or there for the purpose of this application.

21. The School points, by way of prejudice to it, to the fact that it will undoubtedly incur additional costs if the proceedings do not go ahead on 17 October 2022.

Discernment

22. The issue about whether or not to grant an adjournment is one in which the Court has to evaluate the reasons proffered for an adjournment of a hearing. It has to take into account whether it is in the interests of justice for the hearing date to be vacated and it has to take into account the effect that either the grant of an adjournment or the refusal of an adjournment would have by way of prejudice on each of the parties. It also has to take into account, on a broader basis, the effect on other litigants in the Court. All of these require a degree of assessment, a degree of balancing and a degree of evaluation. Different judges will often come to different conclusions about whether an order vacating a hearing date should be made. That is because of the nature of the exercise which the Court is asked to perform.

23. I take into account, in this evaluative exercise, the fact that these proceedings have been on foot now for 14 months and that the hearing date was fixed to take place about 15 or 16 months after the proceedings were filed. I draw attention to this, because it cannot be said that these are proceedings which have unduly dragged out. It cannot be said that they've been dealt with so far in any way other than reasonably promptly by the parties and that is, in part, because of the various opportunities of judicial case management which have existed. I also take into account without drawing any conclusion whatsoever as to the disputed issues of fact, that the propounding of a claim such as this by Mr Coffey in circumstances where he is unrepresented, is a matter which itself causes anxiety and provides difficulties for any litigant in person in confronting and dealing with issues. Clearly, such a person in the position of Mr Coffey is less able to be as objective about matters as a third-party lawyer would be, and Mr Coffey has no legal qualifications.

24. In those circumstances, the significance of the period during which Mr Coffey has been in possession of the information when considering his failure to act before now is, it seems to me, of less weight that otherwise might be in circumstances where a party is legally represented. Associated with that proposition is that it often takes a person in Mr Coffey's position some time to recognise the legal or factual significance of issues which are raised. I accept the inference to be drawn from the evidence of Ms Alcarraz, that inquiries as to the whereabouts of the student named in the Caning Register may well not provide any further information.

25. However, it is not unknown in this Court, particularly in this list, that officers of one or other police force in Australia have means of finding individuals which may not be broadly available to a private party, and they are often in a better position to find and identify individuals than a private party.

26. I accept Ms Alcarraz's statement that her last contact in April 2021 and April 2022 with the now-retired teacher associated with the entries in the Punishment Register did not result in her being able to obtain any information whatsoever relevant to this case, in part due to that person's physical disabilities and illness. I also accept that it is unclear whether that person is still alive. However, again, whilst I accept Ms Alcarraz's evidence, I am not convinced that an attempt by a member of a police force to visit that person and ask questions about the facts would inevitably be hopeless.

27. I conclude, therefore, that there is some - perhaps small - prospect that police investigations may bring to light one or other matter of importance and may provide Mr Coffey with access to one or other witness of relevance.

28. I weigh up, therefore, what prejudice to Mr Coffey there would be if I refused this adjournment and recognise that he would be confronted with a case relying on contemporaneous documents from 1974, which suggest that his account of events is incorrect. With the prejudice caused to the School by an adjournment, I balance those matters but, ultimately, I am persuaded that it is in the interest of justice to vacate the hearing date on 17 October 2022 and to allow some further interlocutory time and management before a further date is fixed for the hearing of the matter.

Orders

29. I make the following orders:

1. Order that the hearing of these proceedings fixed for 17 October 2022 be vacated.

2. Reserve all question of costs.

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Decision last updated: 19 October 2022