Colbert (a pseudonym) v Trustees of the Christian Brothers
[2024] VSC 309
•13 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2020 03448
BETWEEN:
| DOMENIC COLBERT (A PSEUDONYM) | Plaintiff |
| -and- | |
| TRUSTEES OF THE CHRISTIAN BROTHERS | Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 May 2024 |
DATE OF JUDGMENT: | 13 June 2024 |
CASE MAY BE CITED AS: | Colbert (a pseudonym) v Trustees of the Christian Brothers |
MEDIUM NEUTRAL CITATION: | [2024] VSC 309 |
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INSTITUTIONAL LIABILITY – Plaintiff claims in respect of alleged physical and sexual abuse at St Paul’s Technical College, Ballarat, in the period 1952 to 1955 – Alleged perpetrators and many others now deceased – No complaint by the plaintiff prior to the death of either alleged perpetrator or until many years later – ‘Impoverishment’ of potential evidence – Defendant’s application seeking a permanent stay of the proceeding as an abuse of process – Defendant’s onus – Whether circumstances ‘exceptional’ – Whether defendant unable to obtain evidence or respond to the plaintiff’s claims – Whether a trial of the plaintiff’s claims will be unfair or will involve such unfairness and oppression as to constitute an abuse of process – Limitation of Actions Act 1958 (Vic), ss 27O, 27P and 27R – GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, Weiden v YZ (a pseudonym) [2023] VSCA 294 and CM v Trustees of the Roman Catholic Church for the Diocese of Armadale [2023] NSWCA 313 applied – The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762, Grant v Bird [2021] VSC 380 and DJW v State of Queensland [2023] QSC 138 considered – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | CJ Blanden KC with J Gordon | Arnold Thomas & Becker |
| For the Defendant | JT Rush RFD KC with C Morshead | Carroll & O’Dea Lawyers |
HIS HONOUR:
A. Introduction
By amended statement of claim dated 18 December 2023,[1] the plaintiff claims to have been physically and sexually abused by Br North and Br Archer respectively in ‘approximately 1952 until 1955’ while he was a student at St Paul’s Technical College, Ballarat (the ‘College’).
[1]The plaintiff commenced the proceeding by writ and ‘stetment (sic: statement) of claim’ filed on 31 August 2020.
Br North and Br Archer are both long deceased, and the plaintiff is now 83 years of age.
In that context, the plaintiff alleges that sexual abuse occurred in the ‘administration office’ on ‘countless occasions’ and on ‘a weekly basis over 2 years’. One occasion is said to have occurred during or after a parade for the Queen in 1954 when the plaintiff was instructed by Br North to return to the ‘main office at the school’ where he was fondled and strapped. The plaintiff alleges that he was physically abused for trivial or no reason and that he was ‘belted with a leather strap until his hands bled’.
The plaintiff claims to have suffered complex post-traumatic stress disorder for which the defendant is said to be vicariously liable or liable in negligence.[2]
[2]At the commencement of the hearing on 22 May 2024, the plaintiff was granted leave to file and serve a further amended statement of claim which merely added the claim that the defendant owed the plaintiff a non-delegable duty of care. The present argument is unaffected by that additional element of the claim.
The proceeding was commenced by writ and statement of claim filed on 31 August 2020.
The defendant filed a defence to the plaintiff’s statement of claim. The defence includes various positive averments that –
(a) there were certain identified ‘Provincial[s]’ of the relevant ‘Congregation[s] of Christian Brothers’;
(b) Br Cooke was responsible for the ‘control and management of the school’ as Principal during the period 1952 to 1955, ‘subject to the authority of the then Provincial of the relevant Province of the Congregation of Christian Brothers’;
(c) during 1952 to 1955, the then Provincial of the relevant Province of the Congregation of Christian Brothers ‘operated’ the College;
(d) Br Archer and Br North were each members of the Congregation of Christian Brothers;
(e) Br Archer was appointed to the Ballarat community from 1950 to 1960 and taught at the College as part of his service to the community;
(f) Br North was appointed to the Ballarat community from 1951 to 1956 and taught at the College as part of his service to the community;
(g) as at 1952, the then Provincial of the Australian Province of the Congregation of Christian Brothers had over a number of years received reports from time-to-time relating to allegations of sexual abuse directed against Brothers who were members of the Congregation of Christian Brothers at various Christian Brothers institutions, predominantly in Western Australia;
(h) the plaintiff appeared on the College register in 1955; and
(i) the Congregation of Christian Brothers owed to the plaintiff a duty to exercise reasonable care to avoid exposing him to a reasonably foreseeable risk of injury during the period that he was a pupil of the College.
On 5 February 2021, Keith JR made an extensive timetable of directions. Among other things, the proceeding was fixed for trial to commence on 3 May 2022 before a judge sitting alone.
On 18 March 2022, Baker JR ordered that the trial date be vacated and the proceeding was re-fixed for trial to commence in February 2023.
On 25 November 2022, the defendant filed a summons seeking that the proceeding be permanently stayed pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and/or the inherent jurisdiction of the Court. At about the same time, the plaintiff filed and served a summons in respect to the defendant’s discovery.
In that setting, the hearing dates for the respective summonses, as well as the ultimate trial date, each came to be serially vacated and re-fixed.
The summons in respect of the defendant’s discovery was determined by Baker JR on 3 April 2024. Shortly thereafter, Baker JR made orders that, among other things –
(a) the (then) trial date of 7 May 2024 be vacated;
(b) the defendant file and serve a supplementary affidavit of documents; and
(c) the permanent stay application be listed for hearing not before 17 May 2024.
It will be evident that many of the delays in the proceeding are to be explained by the interposition of timetables for submissions as well as the significant skirmish concerning the defendant’s discovery.
In that general context, the defendant has filed and served –
(a) three affidavits of documents; and
(b) two sets of sworn answers to two sets of interrogatories of the plaintiff for the examination of the defendant.
To some extent, the defendant’s answers to interrogatories are said expressly to be founded in a review of the available documents. In that connection –
(a) various interrogatories are said not to be able to be answered from ‘knowledge and belief’;
(b) an interrogatory directed to the roles of Br Archer and Br North at the College is, in substance, answered with reference to available ‘School Reports’;
(c) similarly, an interrogatory directed to whether teachers at the College had any training in respect of ‘appropriate discipline techniques’ is, in substance, answered with reference to the ‘Constitution of the General Chapter 1947’ which concerns ‘when corporeal punishment could be utilised by the Brothers, and the acceptable manner of corporeal punishment’.
That said, some answers are said to be founded in the deponent’s ‘understanding’ and, in some instances, ‘belief’.
For example, in answer to an interrogatory concerning whether, in substance, reports or allegations had been received by the Provincial in respect of ‘Christian Brothers’ as well as Br Archer and Br North, the deponent took a covering objection behind which he deposed that –
… to the best of my understanding no allegations had been made against Brother North or Brother Archer prior to 1952 or at all during the period.
Similarly, as to whether the Provincial or Christian Brothers implemented any policies to minimise the risk of sexual abuse of children, the deponent swore as follows –
I am unable to answer this interrogatory from my own knowledge and belief. However, to the best of my understanding, I believe there was no specific child protection policy in place prior to or during the period as I understand the institution of such policies was not commonplace at the time to which the interrogatory refers. I believe however, that there was a supervisory framework which had been established through governing documents. All relevant documentation has been discovered in these proceedings and includes.
(a)A constitution and articles that set out the expectations of Christian Brothers and their dealings with students;
(b)Annual visitations and reviews of Christian Brothers’ conducted in their respective communities which also included consultation with all members of the relevant Christian Brothers community for the purposes of receiving complaints, conducting and reporting on investigations (if one was carried out) in order to inform the Provincial of the suitability of placements of various Christian Brothers within the province;
In addition, I believe that Christian Brothers in the school were expected to report any suspected misconduct to the Headmaster of the school or alternatively the Superior of the community who would then take appropriate steps to deal with the report including investigating the allegations made.
To the best of my understanding, if the Headmaster or Superior was informed of any allegations of physical or sexual abuse they would be expected to provide a report to the Provincial and/or Provincial Council who would conduct any relevant investigations and notify the relevant members of the community of the appropriate response to the allegations. Any outcomes of investigations conducted by the Provincial or Provincial Council would be recorded in the minutes of the Council meeting.
Likewise, interrogatories directed to mechanisms of complaint and whether the defendant received any allegations of sexual or physical abuse by Br Archer and Br North are also identified as being answered by reference to the deponent’s ‘understanding’. In that connection, it is deposed that no other complaints or civil claim had been received in relation to Br North, but that –
One other complaint has been received in respect of Brother Archer. In or around October 2007 a formal complaint was made relating to allegations of sexual abuse between 1966 and 1967 while the complainant was at St Mary’s Technical School.
It transpires that the complainant was Gregory Vaughan, who complained to ‘Towards Healing’. On 14 September 2023, Mr Vaughan affirmed an affidavit in the present proceeding; however, he has subsequently passed away.
In that context –
(a) the defendant’s application seeking a permanent stay of proceedings came to be heard by me on 22 May 2024; and
(b) in the course of the hearing it was confirmed that there is no presently listed trial date.
B. The evidence and submissions
In connection with the present application, the defendant tendered four affidavits sworn by its solicitor, together with exhibits.[3]
[3]Exhibits D1, D2, D3 and D4.
For his part, the plaintiff tendered –
(a) three affidavits affirmed by his solicitor, together with exhibits;[4]
[4]Exhibits P1, P2 and P3.
(b) an affidavit affirmed by the plaintiff, together with an exhibit;[5]
[5]Exhibit P4.
(c) the affidavit affirmed by Mr Vaughan, together with an exhibit;[6]
(d) an affidavit affirmed by Ken Clarke, a student of the College between 1952 and 1954, together with an exhibit;[7] and
(e) an affidavit affirmed by Patrick Harris, a student of the College between 1951 and 1953, together with an exhibit.[8]
[6]Exhibit P6.
[7]Exhibit P5.
[8]Exhibit P7.
The affidavits of the respective solicitors exhibit, among other things, various documents discovered by the defendant. Among other things, the solicitor for the defendant deposes to the searches and other steps undertaken with a view to locating relevant documents and witnesses.
In addition, the first affidavit of the defendant’s solicitor exhibits, among other things –
(a) the report of a medico-legal examination of the plaintiff by Dr Justin Lewis, consultant psychiatrist, dated 11 July 2020;
(b) a report of Dr Adel Farag from the primary care clinic attended by the plaintiff, dated 18 March 2021;
(c) the report of a medico-legal examination of the plaintiff by Associate Professor Peter Doherty, consultant psychiatrist, dated 25 October 2021; and
(d) the supplementary psychiatric report of Dr Justin Lewis, dated 18 March 2022.
In that context –
(a) the defendant and plaintiff have each filed and served comprehensive written submissions in connection with the present application; and
(b) the defendant has filed and served written reply submissions.
The submissions of the parties came to be focused in the course of the oral submissions of respective counsel.
Senior counsel for the defendant opened by emphasising that –
(a) the alleged abuse occurred ‘70 years ago’;
(b) Br North died in 1960 and Br Archer died in 1997;
(c) there is no history of prior complaint in respect of Br North;
(d) there is one prior complaint in respect of Br Archer (by Mr Vaughan), but that was made in 2008 and did not relate to Br Archer’s period of service at the College;
(e) in that context –
… we contend in the overall circumstances of this matter that there are indeed exceptional circumstances, and that this is not a case where it could be said, as is said in the plaintiff’s submissions, that the decision in GLJ [GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore[9] (‘GLJ’)] has somehow dramatically changed the law, because there are exceptional circumstances and the circumstances here are so clearly distinguishable, we say, from GLJ.[10]
[9](2023) 97 ALJR 857 (‘GLJ’).
[10]Transcript (‘T’) 2.
Senior counsel thereafter examined aspects of the reasoning of the majority of the High Court in GLJ, as well as the circumstances of the present case. In that connection, he submitted that –
(a) the present case involves ‘much more than the mere passing of time’;[11]
[11]T4.
(b) a short passage quoted by the majority in GLJ from the reasoning of McHugh J in Brisbane South Regional Health Authority v Taylor[12] gives ‘some clarity and light to what the Court is talking about in relation to the effluxion of time’;[13]
[12](1996) 186 CLR 541, 551.
[13]T5.
(c) in that regard, if ‘there can’t be a real understanding of the facts’, or ‘there is a practical impossibility of giving the defendants any real opportunity of participating in the hearing’, that creates exceptional circumstances;[14]
[14]Ibid.
(d) there is a ‘great’ distinction between the circumstances in GLJ and those in the present case; in that, in the present instance, the defendant is ‘utterly in the dark’ and it ‘isn’t [so much] an impoverishment of evidence … [but] … in reality … the elimination of evidence’;[15]
[15]T6-10.
(e) in that regard, ‘all potential witnesses’ have died and there are limitations on the availability of documentary evidence such that ‘oral evidence in this case is going to be of great importance’;[16]
[16]T10.
(f) in that connection, the defendant does not ‘know anything’ about the Queen’s visit to Ballarat, or the circumstances pertaining to the ‘office’ at the College, and is unable to get instructions; consequently, the defendant is unable to ‘even cross examine them about the circumstances and the place of the abuse’;[17]
[17]T10-12.
(g) Associate Professor Doherty has expressed the opinion that the plaintiff is affected by ‘cognitive decline’ and there is ‘material contradiction’ in aspects of the histories given by the plaintiff as well as his account of events;[18]
[18]T13-18. See also T23-24.
(h) the complaint by Mr Vaughan concerns ‘a different institution’, the documentary evidence concerning Br North’s application for dispensation is ‘limited’ and the affidavits of Mr Clarke and Mr Harris ‘fundamentally’ concern being ‘strapped’;[19]
[19]T18-20.
(i) more broadly, the defendant has undertaken reasonable searches and should not have to undertake every investigation ‘no matter how remote the possibility that it will bear fruit’;[20]
[20]T21. Cf Grant v Bird [2021] VSC 380, [58] (‘Grant’).
(j) in other similar cases, a stay has been granted;[21] and
[21]T18. In that connection, senior counsel referred to Grant (n 20), Smith v The Council of Trinity Grammar School [2022] NSWCA 93 and MXS2 v Georges River Grammar School [2023] NSWSC 529.
(k) in light of all of the above –
… there is a real inability which is an exceptional circumstance in this particular case to obtain evidence that is fundamental to meeting the allegations, not only what Archer or North would have said, but fundamental to a proper understanding of the circumstances of the abuse: where, how and opportunity. They are very material factors which, because time has taken away all evidence capable of going to those points, we cannot meet.
So, as I said, Your Honour, we are in the dark, and that is not a confected statement. We respectfully submit there cannot be a fair trial. … .[22]
[22]T22-23.
By contrast, senior counsel for the plaintiff described the defendant’s application as amounting to no more than –
… a discourse as to what are indeed the common and expected effects of the continuation of time in the absence of a time limit.[23]
[23]T26.
In that regard, senior counsel for the plaintiff referred to ‘the inevitable fading of memories and loss of evidence, be it from death, illness, infirmity or the loss or destruction of documents’.[24]
[24]T30.
In that connection, senior counsel noted that the reasoning of the majority in GLJ has subsequently been considered and applied by the Victorian Court of Appeal in Weiden v YZ(A Pseudonym)[25] (‘Weiden’) and the New South Wales Court of Appeal in CM v Trustees of the Roman Catholic Church for the Diocese of Armidale[26] (‘CM’).
[25][2023] VSCA 294 (‘Weiden’).
[26][2023] NSWCA 313 (‘CM’).
C. Applicable legislation and authorities
Division 5 of Part IIA of the Limitation of Actions Act 1958 (Vic) (‘Limitations Act’) is entitled ‘Actions for personal injury resulting from child abuse’.
The presently relevant parts of Division 5 were inserted by the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic).
For present purposes, it is sufficient to note that Division 5 broadly applies to actions for personal injury arising out of the physical or sexual abuse of minors.[27]
[27]Limitation of Actions Act 1958 (Vic ) (‘Limitations Act’) s 27O.
Sections 27P and 27R provide relevantly as follows –
27P No limitation period for certain actions
(1)An action to which this Division applies that is not an action that arises under Part III of the Wrongs Act 1958 may be brought at any time after the date on which the act or omission alleged to have resulted in the death or personal injury has occurred.
…
…
27R Interaction with other powers of court
Nothing in this Division limits—
(a)in the case of the Supreme Court, the court’s inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or
(b)…
(c)any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.
Example
This Division does not limit a court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.
Equivalent provisions have been enacted in other States and Territories, including
s 6A of the Limitation Act 1969 (NSW).
Section 6A was considered by the High Court in GLJ. As earlier noted, both parties referred to passages in GLJ for the purposes of their respective arguments.
In GLJ, the appellant brought a civil proceeding in respect of alleged sexual assault by Fr Anderson in 1968 when she was 14 years of age. Fr Anderson died in 1996.
A primary judge had dismissed the respondent’s application for a permanent stay. However, the New South Wales Court of Appeal had allowed an appeal and permanently stayed the proceeding.
The opening paragraphs of the reasoning of the majority (Kiefel CJ, Gageler (as his Honour then was) and Jagot JJ) include the following summary –
3As will be explained, the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute.
4In the present case, the abolition of the limitation period that would have applied to and precluded the appellant's proceedings before the enactment of the Limitation Amendment (Child Abuse) Act 2016 (NSW) has created a new legal context within which the alleged abuse of process must be evaluated. In this new legal context, the Diocese’s contention that any trial of the proceedings would be necessarily unfair must be rejected. As the Diocese acknowledged that its case for a permanent stay for abuse of process was based only on necessary unfairness of a trial and not undue oppression or unfairness otherwise, no permanent stay is justified. The proceedings must go to trial.
In that context, the majority noted the adversarial nature of the Australian legal system and stated –
… the adversarial system generally requires that a plaintiff be able to identify the claim made and the material facts on which the claim is based, and that a defendant be able to consider and respond to the claim in some meaningful way. If these requirements cannot be satisfied in some way or another then the adversarial system of justice, a principal means by which the rule of law in Australia is maintained, is unable to function. … Understood in this context, the doctrine of abuse of process, at least insofar as it is concerned with ensuring that a fair trial can be held and the trial will not involve undue unfairness or oppression to a party, protects the integrity of the adversarial system of justice and the maintenance of the rule of law.[28]
[28]GLJ (n 9) [20].
Their Honours thereafter stated that –
Neither necessary unfairness nor such unfairness or oppression as to constitute an abuse of process justifying a permanent stay of proceedings depends on a mere risk that a trial might be unfair. The party seeking the permanent stay bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus has rightly been described as a heavy one, and the power rightly said to be exercisable only in an exceptional case. This is because it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided. Lest the concept of “exceptional circumstances” be reduced to the formulaic, the power to grant a permanent stay, as Gaudron J explained in Jago v District Court (NSW),[29] is “a power to refuse to exercise jurisdiction” which operates “in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised”, it being “a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is ‘amenable to the jurisdiction’ of the courts”. This context underlies the requirement of exceptionality to enliven the power to grant a permanent stay.[30]
[29](1989) 168 CLR 23, [76].
[30]GLJ (n 9) [21] (citations omitted).
In light of the above, their Honours identified the ‘real issue’ as ‘the congruence or otherwise of the holding of a trial and rendering of a verdict’ and stated that ‘considerations personal to the parties’ are relevant only to the extent that they expose such congruence or incongruence. It follows that if a fair trial can be held, and not be so unfairly and unjustifiably oppressive as to constitute an abuse of process, the court will have a ‘duty’ to hear and determine the case.[31]
[31]Ibid [22]-[23].
Their Honours thereafter referred to authority in the course of explaining the ‘new world’ created by the enactment of s 6A. In that regard, their Honours explained that –
The fundamental change wrought by s 6A of the Limitation Act is that, in the case of an action for damages for death or personal injury resulting from child abuse, it can no longer be maintained that the passing of time alone enlivens the inherent power or any statutory power of a court to prevent an abuse of its process. In the face of s 6A, the mere passing of time, in and of itself, is no longer a potential aspect of the interests of justice relevant to the exercise of the power to permanently stay proceedings for damages for death or personal injury resulting from child abuse.[32]
[32]GLJ (n 9) [41].
Their Honours thereafter referred to the recognised distinction between the ‘effect of delay on the trial process’ and the ‘mere fact of the effluxion of time’[33] and stated –
… it also must follow from this recognition that the effect of the passing of time on the trial falls to be evaluated in this radically new context in which Parliament has chosen to abolish any period of limitation for the commencement of the action. Specifically, the effect of the passing of time in such a case is to be evaluated on the basis that it will be neither uncommon nor unexpected for the circumstances that the limitation period sought to avoid to be encountered. If, by exercise of the inherent, implied, or statutory jurisdiction of courts to prevent an abuse of process, a plaintiff claiming damages for death or personal injury resulting from child abuse were able to be confronted in each case with the common and expected effects of the effluxion of time, and those common and expected effects sufficed to constitute the “exceptional circumstances” justifying a court refusing to exercise jurisdiction, the operation of s 6A, and its capacity to fulfil its legislative purpose, would be rendered inutile.[34]
[33]Emphasis in original.
[34]GLJ (n 9) [43] (citations omitted).
In that context, their Honours described Parliament as having created ‘the relevant frame-work of contemporary values’ in respect of which there is likely to be a long delay in the bringing of child abuse claims and said that courts must now evaluate contentions of abuse of process accordingly.[35]
[35]Ibid [47]. See also [48]-[49].
In particular, their Honours explained that –
… the inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity, or the loss or destruction of documents), in the context established by s 6A, are properly to be understood as routine and unexceptional sequelae of the harm caused by the alleged act the subject of the claim.[36]
[36]Ibid [50].
Their Honours explained further that a court could not now accept that such a case was ‘at the extremes’, or that the defendant is ‘practically unable to participate in a hearing on an informed basis’, merely because decades have passed. Nor, in such a case, can any ‘inevitable impoverishment of the evidence’ occasioned by the passing of time be characterised as amounting to ‘exceptional circumstances’ sufficient to justify a permanent stay.[37]
[37]GLJ (n 9) [51]-[52] (citations omitted).
Their Honours thereafter referred to various features of the trial process that will bear upon whether a fair trial can be obtained, including that –
(a) trials are constantly held in which, for a variety of reasons, not all relevant evidence is before the court;
(b) the plaintiff must prove his or her case;
(c) the court must take account of the gravity of the matters alleged;
(d) all evidence must be weighed according to the power of one side to have produced it and the other side to have contradicted it;
(e) ordinary human experience exposes that memory is fallible and that the degree of fallibility increases with the passage of time;[38] and
(f) a court is not bound to accept uncontradicted evidence.[39]
[38]Cf Longman v The Queen (1989) 168 CLR 79.
[39]GLJ (n 9) [53]-[61].
In that regard, their Honours referred to features of claims of child abuse arising from institutional settings that are likely to be different to those arising from a private or domestic setting.[40]
[40]Ibid [64]-[65].
Having essayed a framework of principle, their Honours moved to consider the circumstances presented in the particular case; in which the Diocese relied upon claimed forensic disadvantage arising from the death of Fr Anderson in 1996. In that regard, their Honours noted –
(a) the various records (and therefore knowledge of the Diocese) concerning Fr Anderson, including in relation to complaints made about him; and
(b) that the Diocese had years before the death of Fr Anderson in which it could have made ‘whatever inquiries it wished’.[41]
[41]GLJ (n 9) [67]-[70].
In that context, among other things, their Honours observed that –
(a) even if GLJ’s evidence at trial could be characterised as uncontradicted, on the whole of the evidence the trial judge might not be bound to accept it;
(b) whilst certain tendency evidence was foreshadowed, the Diocese would have a ‘meaningful opportunity’ to engage with the question whether any such tendency had a significant probative value to the facts in issue;
(c) in that regard, the tendency evidence may or may not be admitted, and might also be subject to discretionary exclusion;
(d) Fr Anderson was not a defendant in the proceeding, which means that the Diocese had lost only the opportunity to make forensic decisions about whether to call him as a witness or settle the case;
(e) the documentary and other evidence was such that it could not be presumed that the Diocese would necessarily have called Fr Anderson as a witness;
(f) it could be inferred from the documentary evidence that Fr Anderson would have denied any wrongdoing;
(g) if the Diocese had wished to inform itself about the extent of Fr Anderson’s alleged crimes at any time before his death, it had ‘ample opportunity’ to do so; and
(h) the death of Fr Anderson did not prevent the Diocese from subsequently finding to its satisfaction that monetary compensation should be paid in respect of complaints concerning him.[42]
[42]GLJ (n 9) [71]-[81].
In those circumstances, as I have noted, their Honours concluded that the Court of Appeal had been wrong to conclude that there could not be a fair trial.
Shortly thereafter, GLJ was considered by the Victorian Court of Appeal in Weiden.
In that instance, the applicant had sought a permanent stay by reference to –
(a) a lapse of more than 45 years since the alleged assaults;
(b) alleged vagueness and inconsistencies in allegations made by the respondent;
(c) a loss of medical records; and
(d) the loss of opportunities to explore the circumstances surrounding the alleged abuse.
That application had been refused by an associate justice and, on appeal, by a judge in the Trial Division.
In the Court of Appeal, Beach, Macaulay and Lyons JJA observed that ss 27O, 27P and 27R of the Limitations Act are ‘relevantly identical to those … the subject of analysis by the High Court in GLJ’.[43]
[43]Weiden (n 25) [66].
In that connection, their Honours stated the following summary propositions –
•the party seeking a permanent stay bears the onus of establishing more than a mere risk that a trial may be unfair – that party must establish that the trial will be unfair or will involve such unfairness or oppression as to be an abuse of process;
•it can no longer be maintained that the passing of time alone enlivens the inherent power or any statutory power of a court to prevent an abuse of its process;
•the effect of the passing of time is to be evaluated on the basis that it will be neither uncommon nor unexpected for the circumstances that the limitation period sought to avoid to be encountered;
•the common and expected effects of the effluxion of time are not sufficient to constitute the ‘exceptional circumstances’ which would justify a court granting a stay and refusing to exercise its jurisdiction; and
•any inevitable impoverishment of the evidence which the passing of time occasions cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay.[44]
[44]Weiden (n 25) [66] (citations omitted).
In the present instance, no party took issue with any of the above.
The Court of Appeal did not consider the matters relied upon by the applicant to mean that a trial would be ‘unfair’ or ‘involve such unfairness or oppression … as to constitute an abuse of process’.[45]
[45]Ibid [67]-[75].
The reasoning of the majority in GLJ has also since been considered by the New South Wales Court of Appeal in CM.
In CM, sexual abuse was alleged to have been committed by Fr Perrett in 1976. No relevant civil claim had been brought against Fr Perrett prior to his death in July 2020. However, in 2017 Fr Perrett had been interviewed about the allegations and, in February 2020, he had made an affidavit in which he had said that he had ‘little or no memory of the complainants’.[46]
[46]CM (n 26) [21].
Fr Perrett had earlier pleaded guilty to charges of indecent assault in respect of different complainants and events. At least some of those events had been investigated by ‘the Church’.
A judge granted a permanent stay of the civil proceedings relating to the claimed events in 1976.[47]
[47]The stay had been ordered prior to the decision of the High Court in GLJ (n 9).
The applicants sought leave to appeal and, as noted by Leeming JA (with whom Payne JA and Harrison CJ at CL agreed), the case was sought to be advanced in some ‘new ways’.[48]
[48]CM (n 26) [42].
In any event, there was a threshold issue concerning whether ‘GLJ changed the applicable principles’.[49] In substance, the applicants submitted that the reasoning of the majority in GLJ had effected ‘a significant change’; by contrast, the respondent contended that ‘nothing had changed’.[50]
[49]Ibid [44].
[50]Ibid [46] and [52].
Leeming JA conducted a detailed examination of the reasons of the majority in GLJ and ultimately concluded that ‘GLJ must be taken to have changed the law’.[51]
[51]Ibid [68].
In that connection, his Honour stated –
… I am unable to read the majority reasons for judgment as the respondent invites me. Those reasons state that the “new world” introduced by s 6A means that some forms of impoverishment of evidence – indeed, the most common forms, namely, the unavailability of witnesses and documents – are not to be regarded as exceptional. To the contrary, they are “neither uncommon nor unexpected”. This is developed in the reasons of the majority by reference to two themes: the evaluation of the effect of delay, and the way in which exceptional circumstances are to be identified.[52]
[52]CM (n 26) [75].
His Honour did not consider the majority reasons to have wholly endorsed and applied the distinction between the mere passage of time and its ‘burdensome effect’. In particular, his Honour stated –
… the [majority] reasoning insists that the common and expected effects of lengthy delay, even if they result in a burdensome effect, are not to be regarded as “exceptional circumstances” because, so it is said, s 6A would thereby not fulfil its legislative purpose.[53]
[53]Ibid [81]. See GLJ (n 9) [43].
In that regard, as his Honour explained, the class of what is ‘exceptional’ must be taken to have been narrowed. Specifically –
… Matters that were once considered “exceptional”, such as a forty or fifty year delay and the concomitant inevitable distortion of human recollection and impoverishment of documents, are not to be regarded as exceptional for the purposes of confining permanent stays of civil claims for child abuse to “exceptional” cases, at least in institutional settings.[54]
[54]CM (n 26) [82].
In that regard, his Honour considered the changes effected by GLJ to be ‘substantive’ and stated –
While at a merely formal level it might be said that the principle remains unchanged, the reality is that on the approach taken by the majority, there are to be trials which must proceed even though prior to the enactment of s 6A they would have been regarded as unfair. This is the “greater tolerance for imperfection” advocated in [a submission of counsel]. Viewing the matter at the level of substance rather than form, the acceptance of that submission by the majority of the High Court produces the result that the principles governing permanent stays have changed.[55]
[55]CM (n 26) [86].
I should add that as a decision of an intermediate appellate court concerning what is akin to uniform national legislation, as well as the common law, CM should probably be followed unless I was of the view that it is plainly wrong (which I am not).[56]
[56]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135] and Hill v Zuda (2022) 275 CLR 24, [25]-[26].
Finally, I have not overlooked the defendant’s reference to selected passages extracted from the transcripts of argument relating to two recent hearings in the High Court.[57] For present purposes, it is sufficient to say that those transcripts, including, in context, the passages presently relied upon, are not clearly contrary to and should not be taken to have displaced the fully reasoned authority of GLJ (as well as Weiden and CM).
[57]Defendant’s submissions in reply on the permanent stay application dated 17 May 2024, [7]; referring to Willmot v The State of Queensland [2024] HCATrans 31 and RC v The Salvation Army [2024] HCATrans 32.
D. Consideration
The defendant must establish that a trial of the proceeding will be unfair and so constitute an abuse of process.
In that regard, as the majority in GLJ observed, it is ‘extreme’ to deny a person the prima facie right to have their case heard and determined. It follows that –
(a) the defendant’s onus is a ‘heavy one’; and
(b) the power is exercisable in only ‘an exceptional case’.[58]
[58]GLJ (n 9) [21].
As earlier noted, the defendant submits that –
(a) GLJ has not ‘somehow dramatically changed’ the law;
(b) the defendant is ‘utterly in the dark’ and unable to meet the plaintiff’s allegations owing to a combination of –
(i) the lapse of time;
(ii) the unavailability of ‘key’ witnesses;
(iii) the unreliability of the plaintiff’s recollections; and
(iv) the loss of ‘key’ documentary evidence;[59]
(c) the present circumstances are distinguishable from those considered in GLJ; and
(d) in light of the above, ‘exceptional circumstances’ are shown and the proceeding should be stayed.
[59]Defendant’s submissions on the permanent stay application dated 3 May 2024, [1]. See also defendant’s submissions in reply on the permanent stay application dated 17 May 2024, [77].
It will be evident that to the extent that the defendant submits that GLJ has not relevantly changed the law, that contention cannot be accepted. In short, as the majority in GLJ emphasised, it is a ‘new world’ and the effect of the passing of time on a trial is to be evaluated in ‘this radically new context’.[60]
[60]GLJ (n 9) [43].
It follows that the cases referred to by senior counsel for the defendant were decided prior to GLJ and cannot be determinative of the present issue.
In that context, as submitted by senior counsel for the plaintiff, all or most of the features presently relied upon by the defendant are of a kind which the majority in GLJ identified as incapable of constituting ‘exceptional circumstances’. In that regard, the majority referred variously to –
(a) ‘the common and expected effect of the effluxion of time’;[61]
(b) ‘the inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity, or the loss or destruction of documents’);[62] and
(c) ‘any inevitable impoverishment of the evidence which the passing of time occasions’.[63]
[61]GLJ (n 9) [43].
[62]Ibid (n 9) [50].
[63]Ibid [52].
It follows that it may be accepted that –
(a) the plaintiff’s memory is faded, affected by ‘material contradiction’ and even affected by ‘cognitive decline’ as opined by Associate Professor Doherty;
(b) many ‘potential witnesses’ identified by the defendant are dead or their whereabouts are unknown; including, Br North and Br Archer, the plaintiff’s parents, the leadership of the Christian Brothers and various persons connected with the College and the Ballarat Community in 1952 to 1955 and the leadership of the Christian Brothers and various persons connected with St Mary’s Technical School and the Geelong Community in 1967 and 1968;[64] and
(c) ‘various categories of relevant contemporaneous documents’ are unavailable; including, the plaintiff’s school reports, details relating to his education and activities at the school, school yearbooks, details of any role that Br Archer and/or Br North may have had in relation to the plaintiff and any documents relating to the College’s participation in the Royal parade in 1954.
[64]Annexure 1 to the defendant’s submissions on the permanent stay application dated 3 May 2024.
However –
(a) all of that is no more than ‘death, illness, infirmity or the loss or destruction of documents’ as a consequence of the passing of decades; and
(b) it follows that none of it can constitute ‘exceptional circumstances’ such that the Court should presently exercise its power to refuse jurisdiction to hear the case.
It may also be accepted that aspects of the present circumstances are different to some of those considered in GLJ. In particular, there are no records of –
(a) any relevant allegations of misconduct against Br North or Br Archer prior to their deaths;
(b) Br North or Br Archer being charged with, or convicted of, any criminal offence; and
(c) Br North and Br Archer having ever responded to any such allegations.[65]
[65]Defendant’s submissions on the permanent stay application dated 3 May 2024, [3], [6] and [10]; and defendant’s submissions in reply on the permanent stay application dated 17 May 2024, [8](b).
In addition, as emphasised by the defendant in argument, the defendant was not notified of any of the plaintiff’s allegations prior to August 2020.
However, it does not follow from any or all of the above that ‘exceptional circumstances’ should now be taken to have been shown. In that regard –
(a) the framework of principle essayed by the majority in GLJ plainly applies;
(b) the majority specifically acknowledged that –
… Parliament accepted the demonstrated fact that such abuse often causes life-long harm of a kind effectively disabling a person from bringing a claim for years or decades. As a result, Parliament ensured that the potential injustice to the person claiming to have suffered from child abuse of not being able to bring their claim, and the concomitant undermining of public confidence in the administration of justice from that circumstance, presumptively trumped the potential prejudice and injustice that might be caused by the passing of time.[66]
[66]GLJ (n 9) [49].
(c) it is by no means certain that any such records would ever have existed – which is, of course, at least arguably a point in favour of the defendant;
(d) put another way, the fact that extensive searches have been undertaken and records of significant content have been located but no records containing any content of the kinds referred to above have been located is at least arguably consistent with no such abuse ever having occurred; and
(e) at most, the absence of any such records constitutes no more than the ‘inevitable impoverishment’ of evidence that ‘cannot attract the quality of exceptionality’ required to justify the extreme remedy of the grant of a permanent stay.[67]
[67]GLJ (n 9) [52].
Further, while the fact that the plaintiff first made a complaint to the defendant in August 2020 might be thought to be of perhaps some weight in the present context; that fact is capable of assuming much greater significance in the context of any oral evidence given by the plaintiff, as well as with respect to whether a court should accept his ‘uncontradicted’ account.
In that regard, elements of the above link to what the majority in GLJ described as being the ‘real issue’; namely, whether holding a trial and rendering a verdict would not now be congruent with the fundamental norms of the adversarial system of justice.[68]
[68]Ibid [22].
In that connection, the majority in GLJ noted that –
(a) the plaintiff must be able to identify the claim;
(b) the defendant ‘must be able to consider and respond to the claim in some meaningful way’; and
(c) there are systemic features and techniques that can or may assist to facilitate the conduct of a trial congruent with the fundamental norms of the adversarial system – including that a court is not bound to accept uncontradicted evidence.[69]
[69]GLJ (n 9) [20] and [53]-[61].
In the present instance, the plaintiff has been able to identify his claim with sufficient specificity. In particular, his pleading identifies –
(a) the names of the alleged perpetrators;
(b) the period involved;
(c) the locations, nature and regularity of the claimed abuse; and
(d) the specific occasion of the Queen’s parade in Ballarat in 1954.
While it may be accepted that at least some relevant documentation has been lost owing to the passage of time,[70] the available documentary material nonetheless includes at least –
[70]In that regard, I note that Schedule 2 to the defendant’s further supplementary affidavit of documents dated 8 May 2024 lists various categories of documents of which, it is said, ‘I have had, but no longer have in my possession, custody or power’.
(a) the Constitutions of the Congregation of Christian Brothers;
(b) the Congregation of the Christian Brothers Chapter Book 1947, Australasia Province;
(c) minutes of meeting of the Provincial Council, July 1954;
(d) ‘visitation reports’ relating to the College in the period 1952 to 1956;
(e) correspondence relating to the application by Br North for dispensation;
(f) some photographs, including of the exterior of the College, Br North and Br Archer and rooms or areas apparently inside the College building, including the Principal’s office;
(g) the line from the school register which shows the plaintiff to have been a pupil at the College in 1955;
(h) at least parts of the personnel files of Br Archer and Br North; and
(i) photographs, news articles and other documents relating to the Royal parade in Ballarat in 1954.[71]
[71]Among other things, see Exhibit P1, CB1013 [6], CB1071 and CB1073-1252 and Exhibit D1, CB164 [64] and CB474-482.
None of that corroborates the plaintiff’s allegations of weekly abuse in the ‘administration’ or ‘main’ office, or on the occasion of the Royal parade.
Further, the fact that some of that material includes observations concerning Br Archer and Br North, and might be said not to include any suggestion of relevant or aberrant conduct by either of them involving pupils at the College, is capable of being said to be favourable to the defendant.
However, it may be acknowledged that aspects of the material might be said to cut both ways; particularly, the documentation relating to Br North’s applications for dispensation.[72]
[72]See especially defendant’s submissions in reply on the permanent stay application dated 17 May 2024, [54]-[58].
That is, however, far from uncommon, including in cases issued within an applicable limitation period.
Further, that quality is often not ameliorated by the availability of the authors of such documents, or other witnesses.
In many cases, the real forensic issue is whether it is better to let the documents alone do the talking. In that regard –
(a) it is rarely the case that the content of the anticipated evidence of such a witness is wholly helpful and without risk;
(b) it is often the case that the content of the anticipated evidence of any such witness is or may be partly helpful and partly unhelpful; and
(c) often the safer and more predictable route, forensically, is to avoid calling witnesses that might ‘go bad’ and to seek to rely as much as possible upon the contemporaneous material for the purpose of arguing the substantive issues in dispute.
In the present case, a serious forensic issue of that kind seems to have inevitably been likely to arise if the more outwardly relevant but now deceased or otherwise unavailable ‘witnesses’ listed by the defendant had been available.
In argument, senior counsel for the defendant emphasised the death of Br North and Br Archer as well as the claimed irretrievable absence of evidence relating to the claimed abuse, particularly the College’s participation in the Royal parade in Ballarat in 1954 and the layout and other features of the ‘office’ in which the abuse of the plaintiff is claimed to have occurred.
In that general connection, the more likely ‘witnesses’ under consideration, if they had been available, would have been the Principal, Br Cooke and the other Christian Brothers identified as having been at the College during the relevant period, namely Br Archer, Br North, Br Moloney, Br Whyte, Br Nalty and Br O’Keane.
However, calling any of those persons at trial, even if they had had anything helpful to say on the topics of the claimed abuse, the Royal parade or the ‘office’, would inevitably have carried other risks for the defendant. In particular –
(a) at the very least, any such witness would inevitably have been cross examined about the defendant’s admissions in the present case that –
(v) as at 1952, the then Provincial of the Australian Province of the Congregation of Christian Brothers had over a number of years received reports from time to time relating to allegations of sexual abuse directed against Brothers who were members of the Congregation of Christian Brothers at various Christian Brothers institutions (predominantly in Western Australia); and
(vi) the Congregation of Christian Brothers owed to the plaintiff a duty to exercise reasonable care to avoid exposing him to a reasonably foreseeable risk of injury during the period that he was a pupil at the College;
(b) in that context, any such witness would have been asked about their personal actions with a view to avoiding that risk, as well as those of the other Christian Brothers at the College;
(c) in that connection, there seems to have been an extensive complaints history relating to the conduct of Christian Brothers at the College over a long period[73] – which would be said to raise significant questions about the effectiveness of whatever actions were taken to avoid exposing pupils, including the plaintiff, to a foreseeable risk of injury;
[73]Exhibit P1, CB1009-1673.
(d) further, the plaintiff’s witnesses depose to abuse perpetrated by various Christian Brothers at the College during the period. In particular –
(i) Mr Clarke deposes to physical abuse at the hands of Br North, Br Archer, Br Cook and Br O’Keane and to abuse suffered by other students at the hands of another Christian Brother who had ‘a long chain with keys on it’;[74] and
[74]Exhibit P5, CB1877-1884.
(ii) Mr Harris refers to Br Cooke, Br Archer and Br North and deposes to having been ‘physically abused by all of the Brothers’ and to having been physically and sexually abused by Br Cooke.[75]
(e) whether any of that would come to be received as going to an identified tendency is another question; however, the prospect that some or all of it might come to be received as going to a relevant issue cannot presently be dismissed out of hand and, even if all of it was not received, it is inconceivable that, if they had been available, Br Archer, Br North, Br Cooke and Br O’Keane, and realistically any such Christian Brother from that time at the College who came to give evidence, would not have been asked about allegations of that kind and the efficacy of whatever steps they claimed to have taken to avoid such abuse;
(f) little of that would be likely to have enhanced the defence of the defendant; particularly in circumstances in which it seems that, in 2002, Mr Harris complained about having suffered sexual abuse at the hands of Br Cooke and received a payment of $15,000 as well as an additional counselling session.[76]
[75]Exhibit P7, CB1910-1933.
[76]Exhibit P7, CB1925-1932.
It follows that –
(a) even if Br Archer and Br North strongly denied the claimed abuse, the defendant may well still have been slow to call them to give evidence; and
(b) that reticence is likely to have been significantly greater in the case of other Christian Brothers (if they had been available to be called).
One way of seeking to minimise the very real risks to which I have referred would have been for the defendant to have sought to call witnesses who were further from the day to day activity and arrangements at the College; such as, for example, the members of the relevant ‘leadership’ of the Christian Brothers, or members of the Ballarat community.
However, the further such witnesses were from the activity and arrangements at the College –
(a) realistically, the less likely that any such witness will have been able to give any precise or useful evidence concerning the claimed abuse, the Royal parade or the ‘administration’ or ‘main’ office; and
(b) any such witness would still have been likely to have been cross-examined about many or all of the matters to which I have already referred.
In the circumstances, it may be accepted that the defendant might have determined to take such risks, and to have called such witnesses, if available. However, it seems to me that such a prospect could not realistically be regarded as much beyond a mere chance in the case of Br Archer and Br North and frankly unlikely in the case of any other Christian Brothers or similar witnesses.
In my view, while other outcomes are possible, the most likely outcome would have been that the defendant would have determined to make the most of the documentary material alone.
That approach, of course, happens to be broadly consistent with the emphasis given by the High Court to reasoning ‘on the basis of contemporary materials, objectively established facts and the apparent logic of events’ rather than the ‘appearances of witnesses’.[77]
[77]Fox v Percy (2003) 214 CLR 118, [31].
Further, the greater likelihood that such documentary records would exist ‘in an institutional context’ was a particular consideration referred to by the majority in GLJ as relevant to whether ‘a trial will be necessarily unfair or so unfair or oppressive to the defendant as to constitute an abuse of process’.[78]
[78]GLJ (n 9) [64].
In any event, at least some of the categories of documents to which I have referred seem to have allowed the defendant to prepare its defence dated 8 December 2020.
I say ‘some’ because each of the defendant’s three affidavits of documents post-date its defence. So, for that matter, do its answers to the plaintiff’s two sets of interrogatories, as well as the medico-legal report of Associate Professor Doherty.
At present, the defendant has not filed an amended defence to either the plaintiff’s amended statement of claim or his further amended statement of claim.[79]
[79]As I have noted, leave was granted to the plaintiff to file and serve a further amended statement of claim at the commencement of the hearing of the present application.
In any event, the defendant’s early defence includes the significant positive averments to which I have already referred.
In that regard, while the defendant presently does not admit either the alleged abuse or the plaintiff’s claim to have suffered injury in the nature of complex post-traumatic stress disorder, even at the early point at which that defence was served the defendant was nonetheless able to –
(a) essentially deny that the defendant was vicariously liable for any such abuse; and
(b) specifically deny that any such abuse was caused by any negligence of the leadership and Principal of the College for which the defendant is liable.[80]
[80]Defence dated 8 December 2020, [11] and [14].
Part of the basis for that defensive stance might be thought to have become more apparent when the defendant came to provide sworn answers to the plaintiff’s interrogatories.
In that regard, as I have earlier noted, the deponent has sworn to being unable to answer various interrogatories from his own knowledge and belief. However, I have also noted that a significant number of answers are given on the basis of what is described as being ‘the best of my understanding’. In particular, the deponent swore that –
(a) ‘no allegations had been made against Brother North or Brother Archer prior to 1952 or at all during the period’;[81]
[81]Defendant’s answers to plaintiff’s interrogatories sworn 24 February 2022, [5].
(b) ‘the Christan Brothers did not receive any disclosure, allegation or report of physical or sexual abuse of a student at the School prior to or during the period’;[82]
[82]Defendant’s answers to plaintiff’s interrogatories sworn 9 June 2023, [1].
(c) ‘Christian Brothers in the school were expected to report any suspected misconduct to the Headmaster of the school or alternatively the Superior of the community who would then take appropriate steps to deal with the report including investigating the allegations to be made’;[83]
(d) ‘if the Headmaster or Superior was informed of any allegations of abuse they would be expected to provide a report to the Provincial and/or Provincial Council who would conduct any relevant investigations and notify the relevant members of the community of the appropriate response to the allegations. Any outcomes of investigations conducted by the Provincial or Provincial Council would be recorded in the minutes of the Council meeting. I otherwise refer to the governing documents, which have been discovered in these proceedings’;[84] and
(e) ‘Christian Brothers and lay teachers were not provided specific training or instruction in relation to receiving and recording complaints, responding to complaints, reporting complaints to the Police or investigating complaints, as such was not commonplace at the time. However … Christian Brothers were provided more generalised training in relation to their conduct as teachers at the schools through the governing documents, which have been discovered in these proceedings’.[85]
[83]Ibid [3].
[84]Ibid.
[85]Ibid [7].
In written submissions, the defendant described several of the above answers as follows –
… the answers provided in relation to the systems and policies in place at the School were expressly prefaced with the statement that those answers were unable to be provided from any direct knowledge, and instead were provided on the basis of a belief and/or understanding as to what may have been in place during the Relevant Period.[86]
[86]Defendant’s submissions in reply on the permanent stay application dated 17 May 2024, [11] (emphasis added).
It may be accepted that the defendant’s answers are infused with a degree of no doubt intentional prevarication. That said, they do not include the word ‘may’ highlighted above.
Further, the answers to which I have referred appear to be founded in an ‘understanding’ and ‘belief’ that is arguably at least some distance beyond the content of the underlying documents. In that regard, of course, the defendant’s answers to interrogatories each refer to the deponent having made ‘all due and proper enquiries’.
Even if the only basis for those and like answers is the underlying documents, the answers plainly concern the applicable system and events at the College during the period 1952 to 1955 and do not provide strong support to the submission that the defendant is now ‘utterly in the dark’ and wholly unable to respond to the liability case put against it. To the contrary, the answers seem to support the positive defensive stance signalled by the denials pleaded in the early defence.
Further, extensive inquiries have plainly been made and there is now a significant amount of discovered material. Br Archer and Br North are referred to in some of that material, but none of those references are particularly suggestive of any relevant misconduct by them at the College and, as I have noted, it is sworn that no allegations were made against Br Archer or Br North during the period.
In the circumstances, there would seem to be at least a significant prospect that the defendant will come to deny the plaintiff’s allegations of abuse at the hands of Br Archer and Br North when it files and serves a defence to the plaintiff’s current pleading; much as it earlier denied the plaintiff’s principal liability allegations.
That prospect can only have been enhanced by the medico-legal examination of the plaintiff and subsequent report of Associate Professor Doherty dated 25 October 2021.[87]
[87]Exhibit D1, CB192-202.
The defendant made much of that report in the course of argument in respect of the present application.[88] In that connection –
[88]See, eg, defendant’s submissions on the permanent stay application dated 3 May 2024, [25](a).
(a) under a heading ‘Unusual circumstances’, Associate Professor Doherty recorded as follows –
There were some unusual circumstances. He had his daughter with him. He referred to notes, about events that happened, and what symptoms he might have, as his memory was impaired.[89]
[89]Exhibit D1, CB193.
(b) later, Associate Professor Doherty stated –
He referred to or read his notes when asked about his history and his symptoms, there was significant vagueness and poor memory evident, worsening if he was anxious.[90]
[90]Exhibit D1, CB198.
(c) in answer to the first specific question, Associate Professor Doherty stated, among other things –
My assessment of the plaintiff is made more difficult because of his cognitive impairment, and he presented himself and was vague, used notes as memory aid such and [sic: as] there appeared to be a significant cognitive decline evident.[91]
[91]Exhibit D1, CB199.
In those and other circumstances referred to in his report, Associate Professor Doherty expressed the opinion that there was no or little justification for a diagnosis of complex post-traumatic stress disorder. In particular, he stated –
Simply put, the plaintiff does not have that symptom complex. There is no evidence of problems in self-organisation, and only a few symptoms, of weak intensity, of traumatisation. There is no history of comment about traumatisation features in the general practitioner clinical notes.[92]
[92]Ibid.
Ultimately, he opined relevantly as follows –
The obvious disorder currently present is cognitive decline. The plaintiff is 80 years old, suffers from hypertension and diabetes, both of which are risk factors to cognitive decline.
Otherwise, there is no diagnosable psychiatric condition.
There is no justification for a complex-PTSD diagnosis. The general practitioner did not refer the plaintiff to any clinician when the plaintiff disclosed in June 2020 about the abuse. There has never been any psychiatric or psychological treatment. There is no objective evidence for the presence of any psychiatric disturbance or need for treatment of the adult years.
The use of an antidepressant for years for stress, without being specific as to what that stress was.[93]
[93]Exhibit D1, CB200.
In short, as Associate Professor Doherty later reiterated, there was ‘no diagnosable psychiatric condition relevant to the claimed abuse’.[94]
[94]Exhibit D1, CB201.
In argument, senior counsel for the defendant noted that the report of Associate Professor Doherty was provided to the equivalent medico-legal examiner for the plaintiff, Dr Lewis. In that regard, Dr Lewis took issue with Associate Professor Doherty’s opinion that the plaintiff did not present with symptoms of complex post-traumatic stress disorder. However, as emphasised by senior counsel for the defendant, Dr Lewis said nothing about the ‘findings of … poor memory, cognitive decline and the like’.[95]
[95]T18. Cf Exhibit D1, CB204-211.
In addition, of course, the defendant emphasised features of the histories taken by Associate Professor Doherty and Dr Lewis which were said to be indicative of ‘material contradiction’ in the plaintiff’s accounts of relevant events.[96]
[96]T18.
As I have indicated, that to which I have referred tends to suggest that there is a significant foundation upon which the plaintiff’s account might be meaningfully challenged as out of keeping with the available contemporaneous material and affected by material contradiction as well as cognitive decline.
Further, if Associate Professor Doherty’s opinion that the plaintiff has long had ‘no diagnosable psychiatric condition’ related to his claims comes to be accepted, that together with other features and uncertainties may see the plaintiff’s claim fail entirely.
It is, of course, also the case that in circumstances of the present kind, regard must be had to the features and techniques emphasised by the majority in GLJ. That is, in respect of such a claimant, particularly one affected by contradictory histories, cognitive decline and/or no relevant diagnosable psychiatric disorder, the trier of fact would plainly need to scrutinise his account with the very greatest of care. In that regard, it would be necessary to be mindful that –
(a) in considering whether the plaintiff has proved his case, the court must take account of, among other things, ‘the gravity of the matters alleged’;[97]
[97]Evidence Act 2008 (Vic) (‘Evidence Act’) s 140(2)(c).
(b) all evidence is to be weighed in accordance with the proof which it is the power of one side to have produced and in the power of the other side to have contradicted;
(c) human memory is fallible, and that fallibility increases with the passage of time;
(d) a court is not bound to accept uncontradicted evidence; and
(e) the plaintiff’s evidence must give rise to a reasonable and definite inference and not mere conjecture.
It will be evident that much of the above stands firmly against the submission of the defendant that ‘there is a real inability … to obtain evidence that is fundamental to meeting the [plaintiff’s] allegations’.[98]
[98]T22.
It may be acknowledged, of course, that significant parts of that to which I have referred are collateral to the plaintiff’s claims of abuse rather than in direct contradiction of them. However, in personal injuries litigation, collateral or circumstantial considerations are quite commonly deployed for the purpose of displacing a plaintiff’s substantive claims. Indeed, such considerations can commonly have the ultimate and substantive effect of leading to the failure of a claimant to establish his or her case.[99]
[99]Noting, of course, that it is not at all uncommon for plaintiffs to bring proceedings in respect of claimed accidents that are unwitnessed, or in respect of which any witnesses are unable to be found.
As I have endeavoured to explain, in the present instance that fundamental and quite common feature of personal injury cases seems to remain firmly within the arsenal of the defendant.
Further, I do not accept the implicit submission of the defendant that the potency of matters of the kind to which I have referred is incapable of being enhanced.
In that regard, the defendant submitted that –
(a) ‘we don’t know anything about the Queen’s visit’, particularly –
We don’t know if North was there. We know that school members were there, and there is affidavit material of one of the plaintiff’s witnesses that people could go either in plain clothes or they could go in their uniform, but did children go back to the school?
Who at the school was responsible for the arrangements? We have no possible way of getting evidence that in any way will enliven, as far as the defendant is concerned, the circumstances of the Queen’s visit and the school’s participation. So, that evidence is denied to us. There is no source available to the defendant to go to to get instructions.[100]
[100]T10-11.
(b) ‘[w]e know nothing of the office [at the College]’, particularly –
… one might surmise that it’s an office with other people who worked in it. Was it a shared office? Were there windows to the office? Where was the office located? Who had access to it? For all we know, it might’ve been impossible for abuse to take place in the office.
We cannot get instructions about the office. And the office forms, we say, on the evidence and the way in which this case is put by the plaintiff, a highly material and relevant factor in the circumstances of the case.[101]
(c) in that regard, ‘fundamental to a proper understanding of the circumstances of the abuse: where, how and opportunity … we are in the dark’.[102]
[101]T11-12.
[102]T22.
Nonetheless, documents, including photographs, have been obtained and produced by the solicitor for the plaintiff from which it is plain enough that –
(a) the Queen visited Ballarat in March 1954;
(b) there was a parade in Lydiard and Sturt Streets, Ballarat;
(c) a crowd of ‘more than 150,000’ turned out for the occasion; and
(d) ’20,000 schoolchildren’ had a ‘special stand’.[103]
[103]Exhibit P1, CB1666-1673.
Further, Mr Clarke deposes to attending the College between 1952 and 1954.[104] In respect of the Royal parade, he deposes as follows –
18I recall the Royal Parade. At the time of the parade I think I was on the corner of Sturt Street and Lydiard Street. I wasn’t with the school when it happened by there were school students dressed in school unform there.
19The school gave us a choice to either dress up in school uniform and attend the parade with the school, or go by ourselves not in school uniform. It was optional and I chose not to go with school. From memory, more of the students in the grades below me went with the school.
20I don’t recall exactly what day of the week it was but I know that the students were not required to be at school to do school work.
21I have a photograph of the Royal Parade travelling east on Sturt Street with the Queen’s car turning left into what may be the present-day Lydiard Street North. Ballarat Town Hall is visible in the background.
[104]Exhibit P5.
For his part, the solicitor for the defendant acknowledges that ‘research has confirmed that the Queen did visit Ballarat on Saturday, 6 March 1954’, but says that the day and date ‘contradicts the Plaintiff’s reporting to Dr Lewis that the students were at school on that day’. In that regard, he deposes to instructions that ‘school was not convened on weekends in 1954’.[105]
[105]Exhibit D1, CB164 [64].
Aspects of the above might be said further to reflect features to which I have already referred. In particular –
(a) the plaintiff’s account to Dr Lewis (that ‘the entire school [was] standing along Main Street, Ballarat’ and that ‘students were permitted to leave school and return home early’)[106] may well be capable of enhancing a challenge to the reliability of the plaintiff as a witness of truth; and
(b) it is not said that the instructions received concerning school hours are in a document – indeed, in context, it seems more likely that they must have been obtained from another (but presently unidentified) source.
[106]Exhibit D1, CB184.
In respect of the ‘main office’, Mr Clarke deposes to being able to remember the ‘layout’ of the College building, ‘if asked’.[107]
[107]Exhibit P5, CB1877 [4].
For his part, Mr Harris deposes to being a student at the College from 1951 to 1953 and says that he could describe the classrooms and workshops ‘if required’.[108] He also refers to the ‘office’ of Br Cooke and says that he was physically and sexually abused there.[109]
[108]Exhibit P7, CB1910 [3].
[109]Exhibit P7, CB1911-1922 [9]-[14]. I note that Exhibit P1 contains a photograph of what is said to have been the ‘Principal’s office 1948’, which may well be the said office of Br Cooke: see CB1032-1033.
In that context, relying upon the intervening death and unavailability of the Christian Brothers leadership and community, the major basis upon which the defendant contends that it will not be able to find out anything further about the ‘Queen’s visit’, or the ‘office’,[110] is that, essentially as a matter of suggested authority and principle, the extent of inquiries required of an ‘institutional defendant … does not extend to contacting other children placed at the relevant institution (i.e. the School)’.[111]
[110]T10-11.
[111]Defendant’s submissions in reply on the permanent stay application dated 17 May 2024, [32].
The principal authority referred to by senior counsel for the defendant in the course of argument was Grant v Bird (‘Grant’).[112] In that regard, senior counsel directed attention to the following passage from the reasons of Keogh J –
It is not necessary, in order for a defendant to discharge the heavy burden of establishing that a stay should be granted, that it undertake every investigation pointed to by the plaintiff no matter how remote the possibility it will bear fruit.[113]
[112]Grant (n 20).
[113]Ibid [58] (citations omitted).
In support of that proposition, his Honour cited the decision of the New South Wales Court of Appeal in The Council of Trinity Grammar School v Anderson (‘Anderson’).[114]
[114](2019) 101 NSWLR 762 (‘Anderson’), [489].
In written submissions, the defendant also referred to DJW v State of Queensland (‘DJW’).[115]
[115][2023] QSC 138 (‘DJW’).
For present purposes, it is sufficient to note that –
(a) in Grant, abuse was said to have taken place in a church, not a school, and the suggestion was that the defendant should have made enquiries of a widow and his Honour considered the prospect that any such enquiry might bear fruit to be ‘remote’;[116]
(b) the passage in Anderson seems to have concerned enquiries of a plainly speculative nature in respect of ‘camps’, but the suggested enquiries do not seem to have extended to students;[117] and
(c) in DJW, unwitnessed abuse was said to have taken place among residents in dormitories, not a school, and the suggested general enquiries of ‘other residents who may have been at the dormitories at the relevant times to see what they may have to say’ were not considered to be required.[118]
[116]Grant (n 20) [57]-[58].
[117]Anderson (n 114) [478]-[490].
[118]DJW (n 115) [215].
In that regard, while the principle referred to by Keogh J in Grant may be accepted, none of the cases to which I have referred involved circumstances much like the present, and none of them stand for the purported proposition that, in substance, an institutional defendant should never be expected to make enquiries of students from a school.
Indeed, in DJW, Crowley J might be thought to have contemplated the potential relevance of enquiries of the present general kind when his Honour stated –
Whilst it may be the case that other persons who have been identified by DJW’s lawyers as former residents of the dormitories may be available as potential witnesses who could give evidence of the general circumstances of the dormitories and the supervision, monitoring and management of the dormitories by the State’s employees and agents, there is not in my view a realistic possibility that such further enquiries and investigations would unearth witnesses who may be able to give evidence that would bear directly, or indirectly, upon the occurrence of the alleged incidents of sexual abuse perpetrated against DJW.[119]
[119]Ibid [216] (emphasis added).
In the present instance, of course, the relevant enquiries would concern the school’s arrangements relating to attendance at the Royal parade as well as the arrangement of the ‘main office’ (such as, for example, whether it was shared and had windows).
In that regard, as I have noted, Mr Clarke deposes to at least one aspect of the arrangements relating to the parade and says that he would be able to describe the layout of the College building if asked.
Quite frankly, it is not terribly surprising that Mr Clarke or other such students at the College would remember the College’s arrangements relating to such a significant event; or recall the location and perhaps other features of the ‘main office’.
In the circumstances, I cannot accept that it is only a ‘remote … possibility’ that, if asked, former students of the College would recall either the arrangements put into place in relation to the Royal parade or the location and other features of the ‘office’.
In the lead up to the hearing of the present application it may be that the defendant has at various points sought to adopt the stance that it would not be in a position to obtain such evidence from former students of the College. That said, the stance ultimately adopted in argument seemed to be not so much that it was not possible to obtain such evidence, but that the defendant was not required to do so as a matter of ‘authority’ (which submission has been addressed above, and rejected).
In any event, on the evidence it is apparent that in 1995 the College was amalgamated with two other schools and became known as Damascus College. Since then, ‘Damascus College Ltd [has been] the entity which has operated St Paul’s’.[120]
[120]Exhibit D4, CB564 [13]-[14].
In light of the above, the solicitor for the plaintiff obtained and has produced a range of relatively recent publications produced by Damascus College, including several publications of the school magazine entitled ‘The Road’. From that material, it is evident that –
(a) in 2014, ‘The Road’ published a photograph of the ‘St Pauls 1951 Premiership Team’, together with the names of many of those shown, and otherwise requested that readers email [email protected] if ‘you recognise anyone else’;[121]
[121]Exhibit P1, CB1056.
(b) in 2018, ‘The Road’ published a celebration of the history of St Paul’s Technical College which referred to the establishment of the College in 1948 and, later in the same edition, referred to an ‘all years reunion’ of past students and staff of the College attended by a ‘crowd of over 75’ together with a photograph of some of the attendees;[122]
(c) in 2021, Damascus College opened a new events centre that houses an ‘archives centre’ described as housing a collection of ‘photographs, film, student records, uniforms, memorabilia, event programs, publications and artwork’ and as celebrating ‘the rich history of Damascus College and its foundation colleges Sacred Heart College, St Paul’s Technical College and St Martin’s in the Pines, creating a link between the College as we know it today and its early origins’. Donations of items of interest are invited, and it is said that enquiries can be directed to [email protected];[123] and
(d) in 2022, Lynette Muller, a former student of Sacred Heart College and wife of a former student of the College in 1954, Jim Muller, recalled when ‘the Queen came to Ballarat and we very excitedly formed a Guard of Honour for her down Victoria Street’.[124]
[122]Exhibit P1, CB1052.
[123]Exhibit P1, CB1047.
[124]Exhibit P1, CB1044.
Further, Damascus College has also published ‘140 Years: Damascus College 1881-2021’ which includes several pages concerning the history of the College. Those pages refer to the establishment of the College in 1948 and Br Cooke (who is described as having been ‘[a] much beloved figure in the school’s history’ and a man of ‘intense faith, courage, humour, kindness and industry’).[125] In that connection, photographs are reproduced of -
[125]Exhibit P1, CB1032.
(a) the College opening year group in 1948;
(b) the original College building in 1948;
(c) the Principal’s office in 1948;
(d) ‘Br O’Kearne’ [sic], Br Archer, Br North and Br Cooke in 1954; and
(e) a classroom ‘circa 1950s’.[126]
[126]Exhibit P1, CB1033-1034 and 1037.
I note that ‘140 Years: Damascus College 1881-2021’ acknowledges the ‘many individuals and organisations’ that provided information, including ‘Christian Brothers’ and ‘Alumni of our foundation schools … St Paul’s Technical College’.[127] The publication does not suggest that there was any paucity of information available from the sources to which it refers.
[127]Exhibit P1, CB1030.
For his part, seemingly in connection with the process of discovery in the present proceeding, the solicitor for the defendant has deposed to the fruitless efforts of the defendant to obtain ‘class lists’ for the relevant period as well as any list of attendees at ‘any reunions’.[128] If it is the case that there is no list of former students of the College, or attendees at reunions, one is tempted to wonder how it is that anyone ever came to attend the all years reunion for former students of the College to which I have earlier referred, let alone a ‘crowd of over 75’.
[128]Exhibit D4, CB574-577.
In any event, whatever else might be said about the adequacy of the defendant’s efforts to locate relevant documents, I do not accept that the product of those efforts should be taken to mean that the defendant would not be able to identify and locate any former students of the College in or proximate to the relevant period. There seems to me to be plenty of information in the material to which I have referred that would allow the defendant to pursue and develop that line of inquiry if it was inclined to do so.
As I have earlier indicated, if that were to occur the defendant should be able to obtain information concerning the arrangements pertaining to the Queen’s visit and the location and features of the ‘office’. It follows that I do not accept the submission of the defendant to the effect that it is irretrievably ‘in the dark’ about those and other such matters.
The final aspect of the defendant’s submissions concerned the foreshadowed evidence of Mr Vaughan, Mr Clarke and Mr Harris; which the plaintiff said ‘might’ be relied upon as ‘tendency evidence of North and Archer’s physically abusive conduct and Archer’s sexual abuse of boys’.[129]
[129]Plaintiff’s submissions opposing defendant’s application for a permanent stay dated 10 May 2024, [72].
It is not evident that any tendency notice has yet been served[130] and, in the course of the argument, no party suggested that the issue of ‘significant probative value’ or, for that matter, any discretionary exclusion or limitation upon the use of any such evidence,[131] could or should finally be determined.
[130]Evidence Act s 97(1).
[131]Ibid ss 135 and 136.
As I have earlier indicated, I could not discount the prospect that at least some of the evidence referred to could be relevant to and therefore admissible on a basis other than as going to an identified ‘tendency’.
In any event, the defendant submitted that the ‘proposed evidence lacks significant probative value’ and therefore could not be relied upon as tendency evidence. In particular, in respect of the affidavits of Mr Clarke and Mr Harris, the defendant submitted –
(a)neither Mr Clarke nor Mr Harris allege that they were sexually abused by either Br Archer or Br North;
(b)Mr Clarke’s allegations of “physical abuse” by Br North is [sic] limited to Br North giving students, including Mr Clarke, “three straps on each hand in front of the whole class”;
(c)Mr Clarke’s allegations of “physical abuse” by Br Archer relate to Br Archer sticking pins in the backside of students and using a strap to give students, including Mr Clarke “a whack on the bottom about three or four times”;
(d)Mr Harris’ allegations of “physical abuse” by Br North relate to Br North hitting him “as hard as possible on the hands and on my wrists” with a leather strap; and
(e)Mr Harris’ allegations of “physical abuse” by Br Archer relate to Br Archer “giv[ing] us the strap in the class room”.[132]
[132]Defendant’s submissions in reply on the permanent stay application dated 17 May 2024, [26].
Further, the defendant submitted that –
(a) ‘the alleged conduct fell within the scope of corporal punishment that was within the applicable standards’ of the time and also defensible as ‘lawful correction’;[133] and
(b) reliance upon the evidence of Mr Clarke or Mr Harris ‘gives rises [sic] to the very prejudice for which the permanent stay is presently brought, in that the allegations … were first brought to the defendant’s attention in 2023 and 2024, by which point the defendant was unable to properly investigate’.[134]
[133]Defendant’s submissions in reply on the permanent stay application dated 17 May 2024, [28]. I should note that no evidence was tendered in support of those particular submissions.
[134]Ibid, [29].
As to the affidavit of Mr Vaughan, the defendant submitted –
In brief, the allegations of Mr Vaughan give rise to further prejudice for the defendant in circumstances where they are untested, relate to alleged sexual abuse of a different nature to the present allegations, and a number of relevant witnesses (including Mr Vaughan himself) are deceased.[135]
[135]Ibid, [39].
Of course, the issue of potential ‘tendency’ evidence also arose in GLJ, in respect of which the majority stated –
The tendency evidence may or may not be admitted. It may be subject to discretionary exclusion under s 135 of the Evidence Act. If admitted, it may be proved to be unreliable. … All this is speculation. Being speculation, none of this could support a conclusion that the trial could not be fair because Father Anderson has died.[136]
[136]GLJ (n 9) [74].
It follows that the spectre of an argument concerning potential tendency evidence did not weigh heavily in GLJ.
In my view, it is appropriate to give some weight to the issue in the present context. However, as in GLJ, the whole issue really boils down to no more than a series of points that the defendant may well have in its favour that could see the proposed tendency evidence not admitted or excluded if it comes to be relied upon by the plaintiff.
In short, as in GLJ, the present issue of tendency evidence seems to be another ‘question’ which the defendant would have a ‘meaningful opportunity’ to engage with.[137]
[137]GLJ (n 9) [74].
Overall, the situation seems to be as follows –
(a) GLJ has changed the applicable principles – as the majority stated, it is a ‘new world’;
(b) in that regard, as Leeming JA noted in CM, there will be trials that must now proceed which would once have been regarded as unfair;
(c) in the present instance, all or most of the features relied upon by the defendant amount to no more than the inevitable impoverishment of evidence occasioned by the passage of time – which the majority in GLJ stated cannot amount to ‘exceptional circumstances’;
(d) the ‘real issue’ is whether holding a trial and rendering a verdict would not be congruent with the fundamental norms of the adversarial system;
(e) in that regard, the plaintiff has identified his claim with sufficient specificity;
(f) a significant amount of relevant documentary material remains available;
(g) aspects of that material are able to be deployed in different ways, by both parties;
(h) if the opinions of Associate Professor Doherty are accepted, the plaintiff’s claim may fail;
(i) it is possible that the alleged perpetrators would have been called to give evidence – if they were alive and if they denied the allegations made – but there are many reasons why such a witness might not be called to give evidence;
(j) it is possible, but not likely, that if the other more significant potential witnesses had been available they would not have been called by the defendant to give evidence;
(k) the defendant prepared an early defence and has sworn answers to interrogatories that are indicative of a substantive defensive case;
(l) when the defendant comes to plead to the plaintiff’s further amended statement of claim, it may well also deny the plaintiff’s allegations of abuse and injury in the nature of complex post-traumatic stress disorder;
(m) the plaintiff is vulnerable to challenge as an unreliable witness;
(n) for various reasons, the trier of fact would need to scrutinise the plaintiff’s evidence with the very greatest of care as well as remaining mindful of the various features and techniques applicable to the adversarial system and emphasised by the majority in GLJ;
(o) there is no ‘principle’ that prevents the defendant from making enquiries of former students of the College, particularly concerning the arrangements relating to the Royal parade in Ballarat in 1954 as well as the location and features pertaining to the ‘main office’ at the College;
(p) if the defendant were to make such enquiries, such evidence could likely be obtained;
(q) it follows that the defendant is not irretrievably ‘in the dark’ about those issues, or likely to be unable to meet those allegations should it choose to obtain such evidence; and
(r) with respect to the potential ‘tendency’ evidence of Mr Vaughan, Mr Clarke and Mr Harris, the defendant has a series of points available to it that may ultimately see the proposed evidence not admitted or excluded.
It will be evident that in a contest at trial –
(a) it cannot be accepted that the defendant has no practical possibility of participating in the hearing;
(b) to the contrary, the defendant has a range of meaningful points available to it;
(c) indeed, its points could be enhanced if it were to take further steps to obtain relevant evidence that is likely to be available.
In that regard, albeit that a trial would obviously concern alleged events that took place a long time ago, and consequently many persons referred to in the course of the trial would inevitably be identified as having since died as well as other effects arising from the long passage of time, the positions of the respective parties, and the available and competing evidence and arguments, would still present and fall for determination much like many other personal injury trials in which it would never be suggested that a ‘fair trial’ was not being afforded to both parties.
In that sense, whatever might be said about cases in other contexts, the effect of delay upon the present case does not mean that a trial would be unfair or present as ‘no more than an informal enactment of the process of hearing and determining the plaintiff’s claim’.[138] Indeed, for the reasons which I have sought to explain, there would be meaningful points available to the defendant as well as the prospect of a real contest in which it could not presently be said that either party would necessarily prevail.
[138]Defendant’s submissions on the permanent stay application dated 3 May 2024, [38], quoting Newcastle City Council v Batistatos [2005] NSWCA 20 [80]. Cf Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 [55].
It follows that even if weight is afforded to the defendant’s various claims of ‘prejudice’ and the like arising from the death of potential witnesses, the loss of ‘key’ documents and so on, the answer to the ‘real issue’ identified by the majority in GLJ must, in this case, remain the same.
Consequently, I am not satisfied that the defendant has discharged its onus of establishing that the case is an ‘exceptional’ one in that a trial of the proceeding would not be consistent with the fundamental norms of the adversarial system.
E. Conclusion
The defendant’s application for a permanent stay of the proceeding must be refused.
I will hear the practitioners concerning the appropriate form of orders.
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