DC v McDonnell

[2017] NSWSC 1403

Supreme Court

New South Wales

Medium Neutral Citation:	DC v McDonnell [2017] NSWSC 1403
Hearing dates:	13 October 2017
Date of orders:	13 October 2017
Decision date:	13 October 2017
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1)   Notice of Motion of the plaintiff filed 9 October 2017 is dismissed. (2)   Order the plaintiff to pay the defendant's costs of the Motion.
Catchwords:	CIVIL PROCEDURE – motion to amend Statement of Claim – historic allegation of sexual abuse – where key witnesses deceased – where no explanation for lateness of amendment – interests of justice
Legislation Cited:	Not Applicable
Cases Cited:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 The Queen v Edwards [2009] HCA 20; (2009) 83 ALJR 717
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	DC (P) Kevin Sylvester McDonnell (D)
Representation:	Counsel: J Masur (P) L Gyles SC (D)   Solicitors: Porters Lawyers (P) Makinson d’Apice (D)
File Number(s):	2014/300918
Publication restriction:	Not Applicable

EX TEMPORE Judgment

1. Application has been made to amend the Further Amended Statement of Claim in these proceedings by the addition of the words "including a previous complaint of sexual abuse of a student at the school by Evans" in paragraph 14A of the Further Amended Statement of Claim, and by the addition of paragraphs 14B through to, and including, 14I. As well, relating to those amendments, are particulars of breach of duty pleaded in subparagraphs 15(s) and (t).

2. The proceedings were commenced in 2014 by Statement of Claim filed on 14 October 2014. The cause of action pleaded arose from an allegation that during 1985, while the plaintiff was a student at Edmund Rice College in Wollongong (“the school”), he was sexually assaulted by Brother Michael Evans, who was either a teacher or else the principal at the school.

3. The plaintiff claims that the Christian Brothers Order and various members of its Province Council and past Provincials were liable directly to him for breach of a non-delegable duty and were also vicariously liable to him for the acts of Brother Evans.

4. As I understand the likely issues in the proceedings, the principal issues will be whether, having regard to the conduct of Brother Evans, the defendants ought be held to be vicariously liable for the consequences of that conduct or, alternatively, whether the defendants, by reason of such positions as they held at the relevant time, owed a non-delegable duty to the plaintiff with respect to his personal safety.

5. In December 2016, without opposition, the plaintiff was granted leave to file a Further Amended Statement of Claim. That pleading introduced for the first time, paragraph 14A which read as follows:

“By 1985, the first, third, fourth, fifth and sixth defendants and Needham by themselves, their servants and/or agents were aware or ought to have been aware of the risk to children under their care of childhood sexual abuse by teachers and/or clergy at the Christian Brothers schools.”

6. The pleadings of breach of duty against the defendants included allegations which derive from the pleading in paragraph 14A, to which I have just referred. For example, it is alleged as part of the breach of duty, that the defendants failed to institute and maintain a system of mandatory reporting of child abuse, and that the defendants failed to institute and maintain a programme to educate children of the school in relation to their right to be free from sexual abuse and to report any sexual abuse to an appropriate designated person or persons.

7. The amendments which are sought wish to particularise a discrete incident of alleged sexual abuse by Brother Evans of a student who attended the same school as the plaintiff at the time the plaintiff attended the school. Although the abuse was said to have occurred away from the physical environment of the school, the allegation is that it occurred in the context of a teacher/pupil relationship.

8. It is alleged that, first, Brother Evans sexually assaulted the victim; secondly, that about a month later the victim reported the assault to the Bishop of the diocese of Wollongong, Bishop Murray; thirdly, that Bishop Murray informed the then Provincial of the Christian Brothers of his ‘serious concerns’ about Brother Evans; and finally that, having been so informed, the Provincial did not take any action to remove Brother Evans from his position at the school.

9. The source of this specific pleading is evidence given to the Wood Royal Commission in April 1996 by Bishop Murray. The evidence before me does not suggest that either the first defendant, who became the Province leader of the relevant Christian Brothers Province on 11 April 1984, or his predecessor, Brother Francis Garvan, were asked to give any statement to the Wood Royal Commission about this incident and their knowledge, if any, of it. Nor were they present either themselves or via their legal representatives when the evidence was given at the Wood Royal Commission.

10. However, I'm prepared to infer that as the evidence of Bishop Murray was not given confidentially to the Wood Royal Commission, there was, or else would have been, a good deal of publicity about the evidence generally, including the activities of Brother Evans before the Wood Royal Commission.

11. It is not clear on the evidence what, if any, enquiries were made at that time by the Christian Brothers with respect to those allegations. However, what is clear is that none of the Provincials were asked to provide a statement to the Wood Royal Commission, or to undertake any other factual investigations to assist the Commission.

12. The present proceedings commenced in 2014. At that time, Brother Garvan was alive. He has since died, on 4 March 2016. Accordingly, to the extent he was the relevant Province leader referred to by Bishop Murray, such evidence as he may be able to give is now entirely unavailable to the defendants.

13. The first defendant, who was the other Province leader who may have been able to give evidence, denies having any conversation of the kind which Bishop Murray gave evidence about. Bishop Murray himself is dead, having died before the commencement of proceedings on 21 April 2013, and I am informed from the Bar table, and without objection, that Brother Evans committed suicide some time in the early 1990s.

Submissions and Discernment

14. The defendants object to the amendment essentially on the basis that it is a late amendment, given that the proceedings are fixed for hearing in early 2018, and on the basis that no adequate explanation of the kind required for the lateness of the amendment has been provided. In addition, the defendants submit that they are unable to have a fair trial because they are prejudiced by the absence of their ability to speak with, and take statements about the allegation from, either Bishop Murray or Brother Garvan.

15. I should also add into the above context that the litigation before me is being conducted by two firms of solicitors who are experienced in litigation of this kind, one for the plaintiff and one for the defendant,. There is no suggestion that either of them are not adequately resourced to undertake all proper inquiries with respect to the claims that are mounted and the defence of the claims which are brought.

16. A further objection is taken specifically to paragraphs 14F and 14G of the proposed amendment which seek to impute such knowledge as Bishop Murray had to the Christian Brothers order. I can immediately turn to that amendment. In my view, there is simply no basis advanced upon which such an allegation can be made. It is not to be doubted that Bishop Murray's position as Bishop of the Diocese of Wollongong meant that he was the senior Catholic clergy member in that area, and under Canon Law retained particular responsibilities for all activities of all Catholic bodies in his diocese. On the other hand, as is plain, he was not a member of the Christian Brothers order and he was not part of, nor did he attend in his capacity as Bishop or in any other capacity, the meetings of the Province Council of the Christian Brothers.

17. The Diocese of Wollongong and the Province of the Christian Brothers were separate and distinct organisations. Whilst they interacted with each other and perhaps did so regularly on matters of mutual relevance and importance, there is simply no basis available in the pleading as alleged or in the evidence which supports the application for an amendment, to enable the Court to impute knowledge of one person in one organisation as being knowledge of another person in another organisation, or that organisation itself.

18. The pleading on its face does not disclose any reason for such implication and the evidence in support of the application does not support it. I would not be prepared to permit the pleadings in paragraphs 14F and 14G to be made.

19. However, the balance of the pleadings relating to the complaint about Brother Evans' previous sexual abuse are in a different category. It is clear that the evidence described by these amendments is relevant. That is to say, there is a pleading in paragraph 14A in its unamended state, which asserted that the defendants had actual knowledge of the risk to children under their care of sexual abuse by teachers or clergy at Christian Brothers schools.

20. Such a pleading encompasses not just general awareness, but any awareness gathered from any source. A specific complaint or a report of a specific complaint would be one available source by which the plaintiff could attempt to prove the allegation in paragraph 14A.

21. That, of course, would be a matter for an evidentiary ruling at any time during the hearing of the proceedings. I am not being asked to make such evidentiary ruling, and I do not consider at this time whether or not such evidence would be admissible in the form in which it may be tendered at the time of a hearing.

22. I am being asked to permit a late pleading amendment. Such explanation as is given by the plaintiff for the amendment coming in late is, to say the least, delphic. It seems that by early 2016, in respect of proceedings which had been commenced in October 2014, the plaintiff's solicitors had received copies of some pages of the Wood Royal Commission report and they had been placed in the file. However, nothing further seems to have been done to examine and investigate what those paragraphs revealed until 2017.

23. According to the evidence of Ms Aitken, the plaintiff's solicitor, during the course of a mediation in September 2017, the plaintiff informed his lawyers that he recalled that allegations of sexual abuse committed by Brother Evans against other students from Edmund Rice College were publicly dealt with during the Wood Royal Commission. It was in response to that information that, in the last month or so, a great deal of activity on the part of the plaintiff’s solicitor has led to the revelation of the transcript of Bishop Murray's evidence at the Wood Royal Commission which is the basis for the pleadings being re‑drafted and the amendment being sought.

24. However, there is simply no explanation as to why, prior to December 2016, the solicitors for the plaintiff did not read, or act upon, the contents of the report of the Wood Royal Commission that dealt specifically with alleged assaults by Brother Evans in the Wollongong area prior to 1985, nor make any enquiries as to whether there was any information on that subject, or to seek to obtain any evidence that Bishop Murray may have given.

25. As the plurality judgment in the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [103] noted, where late amendments are sought, it is generally speaking necessary for the Court to have an explanation as to why it is that allegations that might have been expected to have been raised at the earlier point in time are being raised for the first time at a later point in time. This is particularly so in this case because the plaintiff has been ordered to, and has complied with, Court orders for the service of all evidence upon which he intends to rely at the trial, and has pleaded comprehensively the allegations that he wishes to rely upon in his Statement of Claim.

26. It is, of course, also a relevant matter as to whether the lateness of the amendments will cause particular prejudice to a defendant. As I have earlier indicated, the particular prejudice relied upon is the fact that Brother Garvan died on 4 March 2016, and that the defendant can no longer obtain any account from him as to whether the events described by Bishop Murray in his evidence to the Wood Royal Commission, took place at all, and whether if they did, what action he took with respect to them, if any. The first defendant, as I have earlier recounted, denies receiving any such complaint from Bishop Murray. This is undoubtedly a matter of prejudice which is significant, because had the allegation been made in a timely way in October 2014, then instructions could have been obtained from Brother Garvan about the event.

27. The significance of the timing of the death of Brother Garvan, having regard to when proceedings were commenced and the absence of any explanation from the plaintiff as to the late amendment being sought, and the absence of any explanation as to why the report of the Wood Royal Commission was not examined any earlier than December 2016, combine, so it seems to me, to demonstrate that to the extent that Brother Garvan is not available, there is significant prejudice to the defendant.

28. A remaining question is whether or not a fair trial could be had if the amendments were permitted. That is a matter upon which the Court is simply unable to rule. The Court is certainly not persuaded that there could not be a fair trial; that is because, as is always the case, particularly when dealing with historic allegations of sexual abuse, the case for both parties, either a plaintiff or defendant, will not be perfect. There will always be missing evidence by reason of effluxion of time or the destruction of records or gaps in the memory of individuals. As the High Court has remarked in The Queen v Edwards [2009] HCA 20; 92009) 83 ALJR 717 at [31] in the context of a criminal trial that the fact that evidence is missing does not, of itself, make a trial unfair; a fortiori the position in civil proceedings.

29. However, the issue of whether or not the amendments ought be granted is not determined solely by whether or not there could be a fair trial. After all, one of the relevant matters, which is obvious in this case, is that the parties have been to a mediation. No doubt their respective positions on settlement were explored and stances were taken depending on each party's views of the likelihood of the outcome of the successful claim or successful prosecution of the claim. To allow a late amendment which may significantly affect those views is, of itself, unfair.

30. I need also to remark that, subject to the form of the evidence and its particular relevance to the allegation, the contents of paragraph 14A of the Further Amended Statement of Claim would permit, so it seems to me, evidence to be adduced of a specific event giving rise to actual knowledge of the risk which is there pleaded. However, I do not pause in this judgment to contemplate the form of that evidence and the relevance of it, because that is not a matter upon which I am being asked to rule – it is a matter for the trial Judge.

31. Coming back then to the application for amendment, the Court is confronted with a late amendment, for which there is no adequate explanation. If made, it would cause prejudice to the defendant.

32. In my view, it is not in the interests of justice for the amendment to be permitted, and I reject the application to amend by adding words to paragraph 14A of the proposed Second Further Amended Statement of Claim and paragraphs 14B-14G inclusive.

Orders

33. I make the following orders:

1. Notice of Motion of the plaintiff filed 9 October 2017 is dismissed.

2. Order the plaintiff to pay the defendant's costs of the Motion.

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Decision last updated: 14 November 2017